ANG LADLAD LGBT PARTY represented herein by its Chair, DANTON REMOTO,

petitioner, vs. COMMISSION ON ELECTIONS, respondent.

DECISION
DEL CASTILLO, J p:
. . . [F]reedom to differ is not limited to things that do not matter much. That would be a
mere shadow of freedom. The test of its substance is the right to differ as to things that
touch the heart of the existing order. ETHIDa
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette 1
One unavoidable consequence of everyone having the freedom to choose is that others
may make different choices — choices we would not make for ourselves, choices we
may disapprove of, even choices that may shock or offend or anger us. However, choices
are not to be legally prohibited merely because they are different, and the right to
disagree and debate about important questions of public policy is a core value protected
by our Bill of Rights. Indeed, our democracy is built on genuine recognition of, and
respect for, diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about the definitions
and demands of morality. In many cases, where moral convictions are concerned,
harmony among those theoretically opposed is an insurmountable goal. Yet herein lies
the paradox — philosophical justifications about what is moral are indispensable and yet
at the same time powerless to create agreement. This Court recognizes, however, that
practical solutions are preferable to ideological stalemates; accommodation is better than
intransigence; reason more worthy than rhetoric. This will allow persons of diverse
viewpoints to live together, if not harmoniously, then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application
for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang
Ladlad) against the Resolutions of the Commission on Elections (COMELEC) dated
November 11, 2009 2 (the First Assailed Resolution) and December 16, 2009 3 (the
Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed
Resolutions). The case has its roots in the COMELEC's refusal to accredit Ang Ladlad as
a party-list organization under Republic Act (RA) No. 7941, otherwise known as the
Party-List System Act. 4 CDAHaE
Ang Ladlad is an organization composed of men and women who identify themselves as
lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003,
Ang Ladlad first applied for registration with the COMELEC in 2006. The application for
accreditation was denied on the ground that the organization had no substantial
membership base. On August 17, 2009, Ang Ladlad again filed a Petition 5 for
registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized
and under-represented sector that is particularly disadvantaged because of their sexual
orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and
violence; that because of negative societal attitudes, LGBTs are constrained to hide their
sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated
by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections. 6
Ang Ladlad laid out its national membership base consisting of individual members and
organizational supporters, and outlined its platform of governance. 7
On November 11, 2009, after admitting the petitioner's evidence, the COMELEC
(Second Division) dismissed the Petition on moral grounds, stating that:
. . . This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian,
Gay, Bisexual and Transgender (LGBT) Community, thus:
. . . a marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity. SECATH
and proceeded to define sexual orientation as that which:
. . . refers to a person's capacity for profound emotional, affectional and sexual attraction
to, and intimate and sexual relations with, individuals of a different gender, of the same
gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner tolerates
immorality which offends religious beliefs. In Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their women did change
the natural use into that which is against nature: And likewise also the men, leaving the
natural use of the woman, burned in their lust one toward another; men with men working
that which is unseemly, and receiving in themselves that recompense of their error which
was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a people
transgressing beyond bounds." (7.81) "And we rained down on them a shower (of
brimstone): Then see what was the end of those who indulged in sin and crime!" (7:84)
"He said: "O my Lord! Help Thou me against people who do mischief" (29:30).
As correctly pointed out by the Law Department in its Comment dated October 2, 2008:
CcADHI
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition's
par. 6F: 'Consensual partnerships or relationships by gays and lesbians who are already of
age'. It is further indicated in par. 24 of the Petition which waves for the record: 'In 2007,
Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000
(Genesis 19 is the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or
accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code
are deemed part of the requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as
'Any act, omission, establishment, business, condition of property, or anything else which
. . . (3) shocks, defies; or disregards decency or morality . . .
It also collides with Article 1306 of the Civil Code: 'The contracting parties may establish
such stipulations, clauses, terms and conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, public order or public policy. Art.
1409 of the Civil Code provides that 'Contracts whose cause, object or purpose is
contrary to law, morals, good customs, public order or public policy' are inexistent and
void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as
amended, penalizes 'Immoral doctrines, obscene publications and exhibitions and
indecent shows' as follows: TAaIDH
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent
shows. — The penalty of prision mayor or a fine ranging from six thousand to twelve
thousand pesos, or both such imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to public
morals;
2. (a) The authors of obscene literature, published with their knowledge in any form;
the editors publishing such literature; and the owners/operators of the establishment
selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent
or immoral plays, scenes, acts or shows, it being understood that the obscene literature or
indecent or immoral plays, scenes, acts or shows, whether live or in film, which are
prescribed by virtue hereof, shall include those which: (1) glorify criminals or condone
crimes; (2) serve no other purpose but to satisfy the market for violence, lust or
pornography; (3) offend any race or religion; (4) tend to abet traffic in and use of
prohibited drugs; and (5) are contrary to law, public order, morals, good customs,
established policies, lawful orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or
literature which are offensive to morals. THADEI
Petitioner should likewise be denied accreditation not only for advocating immoral
doctrines but likewise for not being truthful when it said that it "or any of its
nominees/party-list representatives have not violated or failed to comply with laws, rules,
or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be exposing our youth to
an environment that does not conform to the teachings of our faith. Lehman Strauss, a
famous bible teacher and writer in the U.S.A. said in one article that "older practicing
homosexuals are a threat to the youth." As an agency of the government, ours too is the
State's avowed duty under Section 13, Article II of the Constitution to protect our youth
from moral and spiritual degradation. 8
When Ang Ladlad sought reconsideration, 9 three commissioners voted to overturn the
First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento,
and Armando Velasco), while three commissioners voted to deny Ang Ladlad's Motion
for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias
R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in
his Separate Opinion, upheld the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list system. Even
assuming that it has properly proven its under-representation and marginalization, it
cannot be said that Ladlad's expressed sexual orientations per se would benefit the nation
as a whole. HcSaTI
Section 2 of the party-list law unequivocally states that the purpose of the party-list
system of electing congressional representatives is to enable Filipino citizens belonging
to marginalized and under-represented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the formulation and
enactment of appropriate legislation that will benefit the nation as a whole, to become
members of the House of Representatives.
If entry into the party-list system would depend only on the ability of an organization to
represent its constituencies, then all representative organizations would have found
themselves into the party-list race. But that is not the intention of the framers of the law.
The party-list system is not a tool to advocate tolerance and acceptance of misunderstood
persons or groups of persons. Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also the nation's — only that
their interests have not been brought to the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to justify that having mixed
sexual orientations and transgender identities is beneficial to the nation, its application for
accreditation under the party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine jurisprudence,
courts do not recognize lesbians, gays, homosexuals, and bisexuals (LGBT) as a "special
class" of individuals. . . . Significantly, it has also been held that homosexuality is not a
constitutionally protected fundamental right, and that "nothing in the U.S. Constitution
discloses a comparable intent to protect or promote the social or legal equality of
homosexual relations," as in the case of race or religion or belief. EcHTCD
xxx xxx xxx
Thus, even if society's understanding, tolerance, and acceptance of LGBT's is elevated,
there can be no denying that Ladlad constituencies are still males and females, and they
will remain either male or female protected by the same Bill of Rights that applies to all
citizens alike.
xxx xxx xxx
IV. Public Morals
. . . There is no question about not imposing on Ladlad Christian or Muslim religious
practices. Neither is there any attempt to any particular religious group's moral rules on
Ladlad. Rather, what are being adopted as moral parameters and precepts are generally
accepted public morals. They are possibly religious-based, but as a society, the
Philippines cannot ignore its more than 500 years of Muslim and Christian upbringing,
such that some moral precepts espoused by said religions have sipped [sic] into society
and these are not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of the land.
Article 201 of the Revised Penal Code imposes the penalty of prision mayor upon
"Those who shall publicly expound or proclaim doctrines openly contrary to public
morals." It penalizes "immoral doctrines, obscene publications and exhibition and
indecent shows." "Ang Ladlad" apparently falls under these legal provisions. This is clear
from its Petition's paragraph 6F: "Consensual partnerships or relationships by gays and
lesbians who are already of age. It is further indicated in par. 24 of the Petition which
waves for the record: 'In 2007, Men Having Sex with Men or MSMs in the Philippines
were estimated as 670,000. Moreover, Article 694 of the Civil Code defines "nuisance"
as any act, omission . . . or anything else . . . which shocks, defies or disregards decency
or morality . . . ." These are all unlawful. 10 HAICET
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the
Assailed Resolutions and direct the COMELEC to grant Ang Ladlad's application for
accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory
injunction against the COMELEC, which had previously announced that it would begin
printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its
Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010. 11
Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting
that it be given until January 16, 2010 to Comment. 12 Somewhat surprisingly, the OSG
later filed a Comment in support of petitioner's application. 13 Thus, in order to give
COMELEC the opportunity to fully ventilate its position, we required it to file its own
comment. 14 The COMELEC, through its Law Department, filed its Comment on
February 2, 2010. 15
In the meantime, due to the urgency of the petition, we issued a temporary restraining
order on January 12, 2010, effective immediately and continuing until further orders from
this Court, directing the COMELEC to cease and desist from implementing the Assailed
Resolutions. 16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to
Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.
17 The CHR opined that the denial of Ang Ladlad's petition on moral grounds violated
the standards and principles of the Constitution, the Universal Declaration of Human
Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR).
On January 19, 2010, we granted the CHR's motion to intervene. DcaECT
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene 18 which
motion was granted on February 2, 2010. 19
The Parties' Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by
using religious dogma, violated the constitutional guarantees against the establishment of
religion. Petitioner also claimed that the Assailed Resolutions contravened its
constitutional rights to privacy, freedom of speech and assembly, and equal protection of
laws, as well as constituted violations of the Philippines' international obligations against
discrimination based on sexual orientation.
The OSG concurred with Ang Ladlad's petition and argued that the COMELEC erred in
denying petitioner's application for registration since there was no basis for COMELEC's
allegations of immorality. It also opined that LGBTs have their own special interests and
concerns which should have been recognized by the COMELEC as a separate
classification. However, insofar as the purported violations of petitioner's freedom of
speech, expression, and assembly were concerned, the OSG maintained that there had
been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a concrete and
genuine national political agenda to benefit the nation and that the petition was validly
dismissed on moral grounds. It also argued for the first time that the LGBT sector is not
among the sectors enumerated by the Constitution and RA 7941, and that petitioner made
untruthful statements in its petition when it alleged its national existence contrary to
actual verification reports by COMELEC's field personnel. SCHIac
Our Ruling
We grant the petition.
Compliance with the Requirements of
the Constitution and Republic Act No.
7941
The COMELEC denied Ang Ladlad's application for registration on the ground that the
LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated
with or related to any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the
proposition that only those sectors specifically enumerated in the law or related to said
sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and professionals) may be
registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-
OFW Labor Party v. Commission on Elections, 20 "the enumeration of marginalized and
under-represented sectors is not exclusive". The crucial element is not whether a sector is
specifically enumerated, but whether a particular organization complies with the
requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its petition when
it alleged that it had nationwide existence through its members and affiliate
organizations. The COMELEC claims that upon verification by its field personnel, it was
shown that "save for a few isolated places in the country, petitioner does not exist in
almost all provinces in the country." 21 EaISTD
This argument that "petitioner made untruthful statements in its petition when it alleged
its national existence" is a new one; previously, the COMELEC claimed that petitioner
was "not being truthful when it said that it or any of its nominees/party-list
representatives have not violated or failed to comply with laws, rules, or regulations
relating to the elections." Nowhere was this ground for denial of petitioner's accreditation
mentioned or even alluded to in the Assailed Resolutions. This, in itself, is quite curious,
considering that the reports of petitioner's alleged non-existence were already available to
the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is
irregular procedure; at worst, a belated afterthought, a change in respondent's theory, and
a serious violation of petitioner's right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang
Ladlad's initial petition shows that it never claimed to exist in each province of the
Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was
estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members
around the country, and 4,044 members in its electronic discussion group. 22 Ang Ladlad
also represented itself to be "a national LGBT umbrella organization with affiliates
around the Philippines composed of the following LGBT networks:"
• Abra Gay Association
• Aklan Butterfly Brigade (ABB)-Aklan
• Albay Gay Association DaCTcA
• Arts Center of Cabanatuan City-Nueva Ecija
• Boys Legion-Metro Manila
• Cagayan de Oro People Like Us (CDO PLUS)
• Can't Live in the Closet, Inc. (CLIC)-Metro Manila
• Cebu Pride-Cebu City
• Circle of Friends
• Dipolog Gay Association-Zamboanga del Norte
• Gay, Bisexual, & Transgender Youth Association (GABAY)
• Gay and Lesbian Activists Network for Gender Equality (GALANG)-Metro
Manila
• Gay Men's Support Group (GMSG)-Metro Manila
• Gay United for Peace and Solidarity (GUPS)-Lanao del Norte
• Iloilo City Gay Association-Iloilo City
• Kabulig Writer's Group-Camarines Sur
• Lesbian Advocates Philippines, Inc. (LEAP)
• LUMINA-Baguio City
• Marikina Gay Association-Metro Manila
• Metropolitan Community Church (MCC)-Metro Manila
• Naga City Gay Association-Naga City
• ONE BACARDI AaITCS
• Order of St. Aelred (OSAe)-Metro Manila
• PUP LAKAN
• RADAR PRIDEWEAR
• Rainbow Rights Project (R-Rights), Inc.-Metro Manila
• San Jose del Monte Gay Association-Bulacan
• Sining Kayumanggi Royal Family-Rizal
• Society of Transexual Women of the Philippines (STRAP)-Metro Manila
• Soul Jive-Antipolo, Rizal
• The Link-Davao City
• Tayabas Gay Association-Quezon
• Women's Bisexual Network-Metro Manila
• Zamboanga Gay Association-Zamboanga City 23
Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD
LGBT, it is no surprise that they found that petitioner had no presence in any of these
regions. In fact, if COMELEC's findings are to be believed, petitioner does not even exist
in Quezon City, which is registered as Ang Ladlad's principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from
COMELEC's moral objection and the belated allegation of non-existence, nowhere in the
records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as
a party-list organization under any of the requisites under RA 7941 or the guidelines in
Ang Bagong Bayani. The difference, COMELEC claims, lies in Ang Ladlad's morality,
or lack thereof.
Religion as the Basis for Refusal to
Accept Ang Ladlad's Petition for
Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made respecting
an establishment of religion, or prohibiting the free exercise thereof." At bottom, what
our non-establishment clause calls for is "government neutrality in religious matters." 24
Clearly, "governmental reliance on religious justification is inconsistent with this policy
of neutrality." 25 We thus find that it was grave violation of the non-establishment clause
for the COMELEC to utilize the Bible and the Koran to justify the exclusion of Ang
Ladlad. TaDCEc
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should
depend, instead, on whether the COMELEC is able to advance some justification for its
rulings beyond mere conformity to religious doctrine. Otherwise stated, government must
act for secular purposes and in ways that have primarily secular effects. As we held in
Estrada v. Escritor: 26
. . . The morality referred to in the law is public and necessarily secular, not religious as
the dissent of Mr. Justice Carpio holds. "Religious teachings as expressed in public
debate may influence the civil public order but public moral disputes may be resolved
only on grounds articulable in secular terms." Otherwise, if government relies upon
religious beliefs in formulating public policies and morals, the resulting policies and
morals would require conformity to what some might regard as religious programs or
agenda. The non-believers would therefore be compelled to conform to a standard of
conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it
would tacitly approve or endorse that belief and thereby also tacitly disapprove contrary
religious or non-religious views that would not support the policy. As a result,
government will not provide full religious freedom for all its citizens, or even make it
appear that those whose beliefs are disapproved are second-class citizens.
In other words, government action, including its proscription of immorality as expressed
in criminal law like concubinage, must have a secular purpose. That is, the government
proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon
which depend the existence and progress of human society" and not because the conduct
is proscribed by the beliefs of one religion or the other. Although admittedly, moral
judgments based on religion might have a compelling influence on those engaged in
public deliberations over what actions would be considered a moral disapprobation
punishable by law. After all, they might also be adherents of a religion and thus have
religious opinions and moral codes with a compelling influence on them; the human mind
endeavors to regulate the temporal and spiritual institutions of society in a uniform
manner, harmonizing earth with heaven. Succinctly put, a law could be religious or
Kantian or Aquinian or utilitarian in its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass scrutiny of the religion clauses. . . .
Recognizing the religious nature of the Filipinos and the elevating influence of religion in
society, however, the Philippine constitution's religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that government must pursue its
secular goals and interests but at the same time strive to uphold religious liberty to the
greatest extent possible within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state interests. 27
Public Morals as a Ground to Deny
Ang Ladlad's Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality and
homosexual conduct may be religion-based, it has long been transplanted into generally
accepted public morals. The COMELEC argues: aIcCTA
Petitioner's accreditation was denied not necessarily because their group consists of
LGBTs but because of the danger it poses to the people especially the youth. Once it is
recognized by the government, a sector which believes that there is nothing wrong in
having sexual relations with individuals of the same gender is a bad example. It will bring
down the standard of morals we cherish in our civilized society. Any society without a set
of moral precepts is in danger of losing its own existence. 28
We are not blind to the fact that, through the years, homosexual conduct, and perhaps
homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult
to imagine the reasons behind this censure — religious beliefs, convictions about the
preservation of marriage, family, and procreation, even dislike or distrust of homosexuals
themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has
not seen fit to criminalize homosexual conduct. Evidently, therefore, these "generally
accepted public morals" have not been convincingly transplanted into the realm of law.
29
The Assailed Resolutions have not identified any specific overt immoral act performed
by Ang Ladlad. Even the OSG agrees that "there should have been a finding by the
COMELEC that the group's members have committed or are committing immoral acts."
30 The OSG argues:
. . . A person may be sexually attracted to a person of the same gender, of a different
gender, or more than one gender, but mere attraction does not translate to immoral acts.
There is a great divide between thought and action. Reduction ad absurdum. If immoral
thoughts could be penalized, COMELEC would have its hands full of disqualification
cases against both the "straights" and the gays." Certainly this is not the intendment of the
law. 31 ITSaHC
Respondent has failed to explain what societal ills are sought to be prevented, or why
special protection is required for the youth. Neither has the COMELEC condescended to
justify its position that petitioner's admission into the party-list system would be so
harmful as to irreparably damage the moral fabric of society. We, of course, do not
suggest that the state is wholly without authority to regulate matters concerning morality,
sexuality, and sexual relations, and we recognize that the government will and should
continue to restrict behavior considered detrimental to society. Nonetheless, we cannot
countenance advocates who, undoubtedly with the loftiest of intentions, situate morality
on one end of an argument or another, without bothering to go through the rigors of legal
reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly
then, the bare invocation of morality will not remove an issue from our scrutiny.
We also find the COMELEC's reference to purported violations of our penal and civil
laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a
nuisance as "any act, omission, establishment, condition of property, or anything else
which shocks, defies, or disregards decency or morality," the remedies for which are a
prosecution under the Revised Penal Code or any local ordinance, a civil action, or
abatement without judicial proceedings. 32 A violation of Article 201 of the Revised
Penal Code, on the other hand, requires proof beyond reasonable doubt to support a
criminal conviction. It hardly needs to be emphasized that mere allegation of violation of
laws is not proof, and a mere blanket invocation of public morals cannot replace the
institution of civil or criminal proceedings and a judicial determination of liability or
culpability. SDIaCT
As such, we hold that moral disapproval, without more, is not a sufficient governmental
interest to justify exclusion of homosexuals from participation in the party-list system.
The denial of Ang Ladlad's registration on purely moral grounds amounts more to a
statement of dislike and disapproval of homosexuals, rather than a tool to further any
substantial public interest. Respondent's blanket justifications give rise to the inevitable
conclusion that the COMELEC targets homosexuals themselves as a class, not because of
any particular morally reprehensible act. It is this selective targeting that implicates our
equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which provides "nor
shall any person be denied equal protection of the laws," courts have never interpreted the
provision as an absolute prohibition on classification. "Equality," said Aristotle, "consists
in the same treatment of similar persons." 33 The equal protection clause guarantees that
no person or class of persons shall be deprived of the same protection of laws which is
enjoyed by other persons or other classes in the same place and in like circumstances. 34
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor
targets a suspect class, we will uphold the classification as long as it bears a rational
relationship to some legitimate government end. 35 In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas, 36 we declared that "[i]n our jurisdiction,
the standard of analysis of equal protection challenges . . . have followed the 'rational
basis' test, coupled with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach
of the Constitution." 37
The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason
to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate
has expressed no such belief. No law exists to criminalize homosexual behavior or
expressions or parties about homosexual behavior. Indeed, even if we were to assume
that public opinion is as the COMELEC describes it, the asserted state interest here —
that is, moral disapproval of an unpopular minority — is not a legitimate state interest
that is sufficient to satisfy rational basis review under the equal protection clause. The
COMELEC's differentiation, and its unsubstantiated claim that Ang Ladlad cannot
contribute to the formulation of legislation that would benefit the nation, furthers no
legitimate state interest other than disapproval of or dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and transgender
have the same interest in participating in the party-list system on the same basis as other
political parties similarly situated. State intrusion in this case is equally burdensome.
Hence, laws of general application should apply with equal force to LGBTs, and they
deserve to participate in the party-list system on the same basis as other marginalized and
under-represented sectors. CHaDIT
It bears stressing that our finding that COMELEC's act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any other
law distinguishing between heterosexuals and homosexuals under different circumstances
would similarly fail. We disagree with the OSG's position that homosexuals are a class in
themselves for the purposes of the equal protection clause. 38 We are not prepared to
single out homosexuals as a separate class meriting special or differentiated treatment.
We have not received sufficient evidence to this effect, and it is simply unnecessary to
make such a ruling today. Petitioner itself has merely demanded that it be recognized
under the same basis as all other groups similarly situated, and that the COMELEC made
"an unwarranted and impermissible classification not justified by the circumstances of the
case."
Freedom of Expression and
Association
Under our system of laws, every group has the right to promote its agenda and attempt to
persuade society of the validity of its position through normal democratic means. 39 It is
in the public square that deeply held convictions and differing opinions should be
distilled and deliberated upon. As we held in Estrada v. Escritor: 40
In a democracy, this common agreement on political and moral ideas is distilled in the
public square. Where citizens are free, every opinion, every prejudice, every aspiration,
and every moral discernment has access to the public square where people deliberate the
order of their life together. Citizens are the bearers of opinion, including opinion shaped
by, or espousing religious belief, and these citizens have equal access to the public
square. In this representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public deliberation. Through a
constitutionally designed process, the people deliberate and decide. Majority rule is a
necessary principle in this democratic governance. Thus, when public deliberation on
moral judgments is finally crystallized into law, the laws will largely reflect the beliefs
and preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in
the very act of adopting and accepting a constitution and the limits it specifies —
including protection of religious freedom "not only for a minority, however small — not
only for a majority, however large — but for each of us" — the majority imposes upon
itself a self-denying ordinance. It promises not to do what it otherwise could do: to ride
roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a democratic
society, and this freedom applies not only to those that are favorably received but also to
those that offend, shock, or disturb. Any restriction imposed in this sphere must be
proportionate to the legitimate aim pursued. Absent any compelling state interest, it is not
for the COMELEC or this Court to impose its views on the populace. Otherwise stated,
the COMELEC is certainly not free to interfere with speech for no better reason than
promoting an approved message or discouraging a disfavored one. aAcDSC
This position gains even more force if one considers that homosexual conduct is not
illegal in this country. It follows that both expressions concerning one's homosexuality
and the activity of forming a political association that supports LGBT individuals are
protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming
public perception that homosexual conduct violates public morality does not justify
criminalizing same-sex conduct. 41 European and United Nations judicial decisions have
ruled in favor of gay rights claimants on both privacy and equality grounds, citing general
privacy and equal protection provisions in foreign and international texts. 42 To the
extent that there is much to learn from other jurisdictions that have reflected on the issues
we face here, such jurisprudence is certainly illuminating. These foreign authorities,
while not formally binding on Philippine courts, may nevertheless have persuasive
influence on the Court's analysis.
In the area of freedom of expression, for instance, United States courts have ruled that
existing free speech doctrines protect gay and lesbian rights to expressive conduct. In
order to justify the prohibition of a particular expression of opinion, public institutions
must show that their actions were caused by "something more than a mere desire to avoid
the discomfort and unpleasantness that always accompany an unpopular viewpoint." 43
With respect to freedom of association for the advancement of ideas and beliefs, in
Europe, with its vibrant human rights tradition, the European Court of Human Rights
(ECHR) has repeatedly stated that a political party may campaign for a change in the law
or the constitutional structures of a state if it uses legal and democratic means and the
changes it proposes are consistent with democratic principles. The ECHR has emphasized
that political ideas that challenge the existing order and whose realization is advocated by
peaceful means must be afforded a proper opportunity of expression through the exercise
of the right of association, even if such ideas may seem shocking or unacceptable to the
authorities or the majority of the population. 44 A political group should not be hindered
solely because it seeks to publicly debate controversial political issues in order to find
solutions capable of satisfying everyone concerned. 45 Only if a political party incites
violence or puts forward policies that are incompatible with democracy does it fall
outside the protection of the freedom of association guarantee. 46
We do not doubt that a number of our citizens may believe that homosexual conduct is
distasteful, offensive, or even defiant. They are entitled to hold and express that view. On
the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor
that relationships between individuals of the same sex are morally equivalent to
heterosexual relationships. They, too, are entitled to hold and express that view.
However, as far as this Court is concerned, our democracy precludes using the religious
or moral views of one part of the community to exclude from consideration the values of
other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights
litigants. It well may be that this Decision will only serve to highlight the discrepancy
between the rigid constitutional analysis of this Court and the more complex moral
sentiments of Filipinos. We do not suggest that public opinion, even at its most liberal,
reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt
nor expect to affect individual perceptions of homosexuality through this Decision.
cIETHa
The OSG argues that since there has been neither prior restraint nor subsequent
punishment imposed on Ang Ladlad, and its members have not been deprived of their
right to voluntarily associate, then there has been no restriction on their freedom of
expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any assembly denied.
[COMELEC] simply exercised its authority to review and verify the qualifications of
petitioner as a sectoral party applying to participate in the party-list system. This lawful
exercise of duty cannot be said to be a transgression of Section 4, Article III of the
Constitution.
xxx xxx xxx
A denial of the petition for registration . . . does not deprive the members of the petitioner
to freely take part in the conduct of elections. Their right to vote will not be hampered by
said denial. In fact, the right to vote is a constitutionally-guaranteed right which cannot be
limited.
As to its right to be elected in a genuine periodic election, petitioner contends that the
denial of Ang Ladlad's petition has the clear and immediate effect of limiting, if not
outrightly nullifying the capacity of its members to fully and equally participate in public
life through engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right but a privilege
subject to limitations imposed by law. . . . 47
The OSG fails to recall that petitioner has, in fact, established its qualifications to
participate in the party-list system, and — as advanced by the OSG itself — the moral
objection offered by the COMELEC was not a limitation imposed by law. To the extent,
therefore, that the petitioner has been precluded, because of COMELEC's action, from
publicly expressing its views as a political party and participating on an equal basis in the
political process with other equally-qualified party-list candidates, we find that there has,
indeed, been a transgression of petitioner's fundamental rights.
Non-Discrimination and International
Law
In an age that has seen international law evolve geometrically in scope and promise,
international human rights law, in particular, has grown dynamically in its attempt to
bring about a more just and humane world order. For individuals and groups struggling
with inadequate structural and governmental support, international human rights norms
are particularly significant, and should be effectively enforced in domestic legal systems
so that such norms may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to protect and
promote human rights. In particular, we explicitly recognize the principle of non-
discrimination as it relates to the right to electoral participation, enunciated in the UDHR
and the ICCPR. SIaHDA
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any discrimination to the
equal protection of the law. In this respect, the law shall prohibit any discrimination and
guarantee to all persons equal and effective protection against discrimination on any
ground such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws of general
application relating to elections be applied equally to all persons, regardless of sexual
orientation. Although sexual orientation is not specifically enumerated as a status or ratio
for discrimination in Article 26 of the ICCPR, the ICCPR Human Rights Committee has
opined that the reference to "sex" in Article 26 should be construed to include "sexual
orientation." 48 Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under various
international agreements. 49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country, directly or
through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions
mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal
and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of
the will of the electors; ECcTaH
(c) To have access, on general terms of equality, to public service in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral
participation is elaborated by the Human Rights Committee in its General Comment No.
25 (Participation in Public Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every citizen to
take part in the conduct of public affairs, the right to vote and to be elected and the right
to have access to public service. Whatever form of constitution or government is in force,
the Covenant requires States to adopt such legislative and other measures as may be
necessary to ensure that citizens have an effective opportunity to enjoy the rights it
protects. Article 25 lies at the core of democratic government based on the consent of the
people and in conformity with the principles of the Covenant.
xxx xxx xxx
15. The effective implementation of the right and the opportunity to stand for elective
office ensures that persons entitled to vote have a free choice of candidates. Any
restrictions on the right to stand for election, such as minimum age, must be justifiable on
objective and reasonable criteria. Persons who are otherwise eligible to stand for election
should not be excluded by unreasonable or discriminatory requirements such as
education, residence or descent, or by reason of political affiliation. No person should
suffer discrimination or disadvantage of any kind because of that person's candidacy.
States parties should indicate and explain the legislative provisions which exclude any
group or category of persons from elective office. 50
We stress, however, that although this Court stands willing to assume the responsibility
of giving effect to the Philippines' international law obligations, the blanket invocation of
international law is not the panacea for all social ills. We refer now to the petitioner's
invocation of the Yogyakarta Principles (the Application of International Human Rights
Law in Relation to Sexual Orientation and Gender Identity), 51 which petitioner declares
to reflect binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles contain
norms that are obligatory on the Philippines. There are declarations and obligations
outlined in said Principles which are not reflective of the current state of international
law, and do not find basis in any of the sources of international law enumerated under
Article 38 (1) of the Statute of the International Court of Justice. 52 Petitioner has not
undertaken any objective and rigorous analysis of these alleged principles of international
law to ascertain their true status. ATDHSC
We also hasten to add that not everything that society — or a certain segment of society
— wants or demands is automatically a human right. This is not an arbitrary human
intervention that may be added to or subtracted from at will. It is unfortunate that much
of what passes for human rights today is a much broader context of needs that identifies
many social desires as rights in order to further claims that international law obliges
states to sanction these innovations. This has the effect of diluting real human rights, and
is a result of the notion that if "wants" are couched in "rights" language, then they are no
longer controversial.
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are — at best — de lege
ferenda — and do not constitute binding obligations on the Philippines. Indeed, so much
of contemporary international law is characterized by the "soft law" nomenclature, i.e.,
international law is full of principles that promote international cooperation, harmony,
and respect for human rights, most of which amount to no more than well-meaning
desires, without the support of either State practice or opinio juris. 53
As a final note, we cannot help but observe that the social issues presented by this case
are emotionally charged, societal attitudes are in flux, even the psychiatric and religious
communities are divided in opinion. This Court's role is not to impose its own view of
acceptable behavior. Rather, it is to apply the Constitution and laws as best as it can,
uninfluenced by public opinion, and confident in the knowledge that our democracy is
resilient enough to withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission
on Elections dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL)
are hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioner's
application for party-list accreditation. aTcIEH
SO ORDERED.

BAI SANDRA S.A. SEMA, petitioner, vs. HOUSE OF REPRESENTATIVES

ELECTORAL TRIBUNAL and DIDAGEN P. DILANGALEN, respondents.
DECISION
PERALTA, J p:
This resolves the Petition for Certiorari under Rule 65 of the Rules of Court, praying that
the Decision of the House of Representatives Electoral Tribunal (HRET), dated
September 10, 2009, and its Resolution dated November 12, 2009, be declared null and
void ab initio. aSIDCT
The narration of facts in the HRET Decision is not disputed by the parties. Pertinent
portions thereof are reproduced hereunder:
On 12 June 2007, protestant Bai Sandra S.A. Sema, a congressional candidate of the
Lakas-CMD who obtained 87,237 votes or 18,345-vote difference from protestee
Dilangalen, who obtained 105,582 votes, filed an election protest against the latter.
Allegedly, it was on 1 June 2007, when the Provincial Board of Canvassers of Shariff
Kabunsuan proclaimed protestee Didagen P. Dilangalen as Representative of the Lone
District of Shariff Kabunsuan with Cotabato City (as no certified true copy of the
Certificate of Canvass of Votes and Proclamation of the Winning Candidate for Member
of the House of Representatives was attached to the protest). CIScaA
Protestant Sema is protesting a total of 195 precincts of the Municipality of Datu Odin
Sinsuat of the Lone District of Shariff Kabunsuan with Cotabato City, based on the
following grounds:
1. The various Boards of Election Inspectors (BEI), in connivance with the
protestee, deliberately and wrongfully read, appreciated, and/or tabulated the votes
appearing in the ballots that were lawfully and validly cast in favor of the protestant as
votes cast for the protestee;
2. Ballots containing valid votes cast for the protestant were misappreciated and
considered as marked ballots and declared null and void;
3. Ballots prepared by persons other than the voters themselves, and fake or
unofficial ballots wherein the name of the protestee was written, were illegally read and
counted in favor of the protestee;
4. Ballots wherein no name of any candidate for Member of the House of
Representatives was written in the blank space for the said position were illegally read
and counted in favor of the protestee;
5. Valid votes entered in the ballots in favor of the protestant were considered stray;
6. Groups of ballots wherein the protestee was voted as Representative but which
were evidently prepared by one (1) person were purposely considered as valid ballots and
counted in favor of the protestee;
7. Individual ballots wherein the protestee was voted as Representative but which
were evidently prepared by two (2) or more persons were purposely considered as valid
ballots and counted in favor of the protestee; ADcSHC
8. Ballots wherein the protestee was voted as Representative but were void because
stickers were posted unto them, and/or because of other patent or pattern markings
appearing on them, were unlawfully read and counted in favor of the protestee;
9. The protestee and his supporters illegally switched the ballots and election returns
to manipulate the results;
10. The election returns purportedly coming from these precincts that were used in
the canvassing by the Provincial Board of Canvassers bear badges of fraud or irregularity,
such as the uniform appearance and pattern of writing of taras, showing that they are
manufactured and prepared in an environment that allowed the people who prepared them
the luxury of time, convenience and comfort;
11. The election returns purportedly coming from these precincts that were used in
the canvassing are spurious as they did not contain the thumbmarks and/or the signatures
of the members of the BEI;
12. The election returns purportedly coming from these precincts that were used in
the canvassing by the Provincial Board of Canvassers were spurious as they were
thumbmarked and/or signed by persons who were not members of the BEI on record;
13. The election returns purportedly coming from these precincts that were used in
the canvassing by the Provincial Board of Canvassers appear to have been tampered with
to increase the votes for the protestee recorded therein, as shown by the additional taras in
the row for the protestee that are in handwriting different from the other taras; HSCcTD
14. The total number of votes for the position of Member of the House of
Representatives in the election returns purportedly coming from these precincts that were
used in the canvassing by the Provincial Board of Canvassers exceeded the total number
of registered voters in these precincts;
15. The total number of votes for the position of Member of the House of
Representatives in the election returns purportedly coming from these precincts that were
used in the canvassing by the Provincial Board of Canvassers exceeded the total number
of voters who actually voted;
16. The protestee engaged in pervasive vote-buying in order to induce the people
voting in these precincts to vote for him;
17. The protestee engaged in the so-called negative vote-buying to induce people who
would have voted for protestant not to cast their votes anymore;
18. The protestee employed and deployed "flying voters" to unlawfully increase the
votes cast in his favor;
19. The protestee employed armed men to terrorize and intimidate voters and compel
them to vote for him; acHDTA
20. The protestee, employing armed men to terrorize and intimidate the protestant's
supporters, prevented them from casting their votes in these precincts; and
21. The protestee, employing armed men to terrorize and intimidate the members of
the BEI in these precincts, coerced the said election inspectors to manipulate the counting
and tallying of the votes for the position of the Member of the House of Representatives
by padding the tallied votes cast for the protestee and/or reducing the tallied votes for the
protestant.
On July 19, 2007, protestee filed an Answer with Counter-Protest, counter-protesting 198
clustered/merged precincts in Sultan Kudarat and 50 precincts in Sultan Mastura on the
following grounds:
(i) The duly appointed watchers of herein protestant [Dilangalen] were not allowed
by the protestee [Sema] and her supporters to enter the hereunder enumerated protested
precincts and to [observe] the casting of votes as well as the counting of votes by the
Board of Election Inspectors (BEI's);
(ii) The ballots in most of the protested precincts were written by only one or two
persons indicating that no actual voting took place.
(iii) Flying voters were employed by the protestee and her supporters.
(iv) Protestee engaged in massive vote-buying during the campaign period and even
during the election day. AHDaET
(v) Registered voters in the protested municipalities, who are active supporters of
herein protestant, were prevented by the protestee and her supporters, through violence
and intimidation, from casting their votes.
(vi) In connivance with herein protestee, the members of the BEI's in most of the
protested precincts merely filled up the Election Returns giving protestee a wide margin
over herein protestant.
(vii) During the canvassing before the Municipal Board of Canvassers, the votes
allegedly obtained by the protestee were padded by the members of the board of
canvassers in favor of the protestee.
(viii) Obviously manufactured election returns, prepared by the protestee and her
supporters were used during the canvassing by the Municipal Board of Canvassers in the
protested Municipalities.
From September 16-29, 2008, the Tribunal conducted revision of ballots in all the
contested precincts. During the revision of ballots, it was discovered that only one (1) out
of the 248 ballot boxes of the counter-protested precincts contained ballots. The other 247
counter-protested ballots were totally empty or did not contain ballots and election
documents. The results of revision of ballots in the 195 protested precincts and one (1)
counter-protested precinct are shown in the Table below. IDSaTE
Protestant Sema Protestee Dilangalen
Votes per election returns 2,238 33,707
Votes per physical count 2,794 32,603
On November 27, 2008, protestant filed her Formal Offer of Exhibits . . . .
xxx xxx xxx
On January 22, 2009, protestee filed his Comment (on the Formal Offer of Exhibits of the
Protestant) . . . .
xxx xxx xxx
On May 13, 2009, protestee filed his Formal Offer of Evidence . . . .
xxx xxx xxx
On May 20, 2009, protestant filed her Comment/Objections (Re: Protestee's Formal Offer
of Evidence), . . . .
xxx xxx xxx
The Tribunal received the memoranda of the parties on June 25, 2009. CEDHTa
Protestant seeks a resolution of her protest by way of appreciation of ballots, asserting
that the spurious ballots containing votes for protestee be rejected and be themselves
considered as proof that the will of the people was thwarted by election fraud in the
protested 195 precincts of Datu Odin Sinsuat.
On the other hand, protestee belied protestant's allegation of fraud invoking the
presumptions stipulated by the parties and his reliance in the stipulated testimony of then
Acting Municipal Treasurer of Datu Odin Sinsuat, Aladin D. Abdullah, vice Municipal
Treasurer Datu Eden Ala, who inhibited himself being a relative of a local candidate, that
in such capacity she distributed to the different Boards of Election Inspectors (BEIs) in
the municipality of Datu Odin Sinsuat the same official ballots, election returns and other
election documents which she received from the COMELEC. To protestee, the votes for
him were cast by the voters themselves in official ballots validly read for him, and the
entries in the objected ballots were not written by the voters themselves.
In contrast to her position in respect to the votes in Datu Odin Sinsuat, as regards the
counter-protested precincts in Sultan Kudarat and Sultan Mastura, where protestant was
shown to have attained higher number of votes than protestee based on available official
results, but when the ballot boxes of 247 out of 248 precincts were opened during
revision, they yielded no ballots and other election documents, protestant asserts that
determination of votes of the parties should be based on sources other than the missing
ballots. 1
The tribunal summarized the issues as follows: TCADEc
I. Whether or not there were election irregularities, anomalies or errors committed
during the May 14, 2007 elections which will nullify the votes counted and canvassed for
each party, or stated differently, whether the irregularities uncovered during revision and
appreciation, among others, were committed during or after the elections.
II. Who is the real winner in the May 14, 2007 congressional elections for the Lone
District of Shariff Kabunsuan with Cotabato City after a revision and appreciation of the
ballots? 2
On September 10, 2009, the HRET issued the assailed Decision. The HRET found that
majority of the ballots in the 195 protested precincts of Datu Odin Sinsuat were rejected
as fake or spurious ballots since they did not contain security features described by
Commissioner Resurreccion Borra of the Commission on Elections (COMELEC). It was
also pointed out that "Reports on Revision Results, duly signed by both parties' revisors,
showed that during the revision, all the ballot boxes in the 195 protested precincts of Datu
Odin Sinsuat had no self-locking metal seals . . ., [t]hus, it cannot be conclusively stated,
that the ballot boxes at the time that they were opened for revision purposes were in the
same condition as they were when closed by the Chairman and Members of the Board of
Election Inspectors (BEI) after the completion of the canvassing proceedings." On the
other hand, only one (1) out of the 248 ballot boxes of the counter-protested precincts
contained ballots. Nevertheless, the HRET ruled that petitioner failed to prove by
convincing evidence that the election itself, conducted on May 14, 2007, was tainted by
fraud and irregularities that frustrated the will of the electorate. The HRET concluded that
the ballots and/or ballot boxes must have been tampered with after the elections and the
counting and canvassing of votes. Thus, the HRET relied on the election returns and
other election documents to arrive at the number of votes validly cast for petitioner and
respondent Dilangalen.
The dispositive portion of the assailed Decision reads as follows:
WHEREFORE, the Tribunal DISMISSES the instant election protest; AFFIRMS the
proclamation of protestee Didagen P. Dilangalen; and DECLARES him to be the duly
elected Representative of the Lone District of Shariff Kabunsuan with Cotabato City.
Pursuant to Rule 96 of the 2004 Rules of the House of Representatives Electoral
Tribunal, as soon as this Decision becomes final and executory, let notice hereof be sent
to the President of the Philippines, the House of Representatives through the Speaker and
the Commission on Audit, through its Chairman.
No pronouncement as to costs.
SO ORDERED. 3
Petitioner moved for reconsideration, but the same was denied in a Resolution dated
November 12, 2009.
Hence, this petition, where it is alleged that:
A.
THE RESPONDENT HRET COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN RULING THAT
PETITIONER HAD NOT SUCCESSFULLY PROVEN BY CONVINCING
EVIDENCE THAT THE CONTESTED ELECTION WAS ATTENDED BY FRAUDS
AND IRREGULARITIES WHEN THE PETITIONER PRESENTED
OVERWHELMING EVIDENCE OF FRAUD EXEMPLIFIED BY THE DISCOVERY
DURING REVISION OF THE NUMEROUS SPURIOUS BALLOTS FOR
RESPONDENT DILANGALEN INSIDE THE BALLOT BOXES. HACaSc
B.
THE RESPONDENT HRET GRAVELY ABUSED ITS DISCRETION IN A MANNER
AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT RULED THAT
THE SPURIOUS BALLOTS CONTAINING VOTES FOR RESPONDENT
DILANGALEN THAT WERE FOUND INSIDE THE BALLOT BOXES DURING
REVISION PROCEEDINGS WERE INTRODUCED INTO SAID BALLOT BOXES
AFTER, AND NOT DURING THE ELECTIONS, WHEN SUCH DEDUCTION WAS
NOT SUPPORTED BY ANY OF RESPONDENT DILANGALEN'S EVIDENCE,
THEREBY DEVIATING FROM THE BASIC RULE THAT WHEN WHAT IS
INVOLVED IS THE CORRECTNESS OF THE NUMBER OF VOTES OF EACH
CANDIDATE, THE BEST AND MOST CONCLUSIVE EVIDENCE ARE THE
BALLOTS THEMSELVES.
C.
THE RESPONDENT HRET COMMITTED GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT DEDUCTING
FROM THE TOTAL NUMBER OF VOTES CREDITED TO RESPONDENT
DILANGALEN THE FRAUDULENT BALLOTS IN HIS NAME THAT WERE
DISCOVERED DURING THE REVISION PROCEEDINGS. aADSIc
D.
THE RESPONDENT HRET GRAVELY ABUSED ITS DISCRETION IN A MANNER
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AFFIRMING THE
PROCLAMATION OF RESPONDENT DILANGALEN WHEN THE NUMBER OF
VALID VOTES WHICH REMAINED AFTER DEDUCTING THE SPURIOUS
BALLOTS COUNTED FOR HIM WAS LESS THAN THE NUMBER OF VOTES
LEGALLY OBTAINED BY HEREIN PETITIONER. 4
The above allegations boil down to the issue of whether the HRET committed grave
abuse of discretion amounting to lack or excess of jurisdiction by relying on election
returns and other election documents, instead of the ballots themselves, in determining
who actually won in the May 14, 2007 congressional elections for the Lone District of
Shariff Kabunsuan with Cotabato City.
The Court finds the petition unmeritorious.
At the outset, it must be emphasized that this Court is not a trier of facts and its
jurisdiction to review decisions and orders of electoral tribunals is exercised only upon a
showing of grave abuse of discretion committed by the tribunal. Absent such grave abuse
of discretion, this Court shall not interfere with the electoral tribunal's exercise of its
discretion or jurisdiction. 5 Grave abuse of discretion has been described in Juan v.
Commission on Elections, 6 as follows:
Grave abuse of discretion arises when a lower court or tribunal violates the Constitution,
the law or existing jurisprudence. It means such capricious and whimsical exercise of
judgment as would amount to lack of jurisdiction; it contemplates a situation where the
power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, so patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform the duty enjoined by law. The office of a petition for certiorari is not to
correct simple errors of judgment; any resort to the said petition under . . . Rule 65 of the
1997 Rules of Civil Procedure is limited to the resolution of jurisdictional issues. Thus, it
is imperative for the petitioner to show caprice and arbitrariness on the part of the
COMELEC [or, in this case, the tribunal] whose exercise of discretion is being assailed. 7
DCIAST
There is no cavil of doubt as to the factual findings regarding the fake ballots in the 195
precincts in Datu Odin Sinsuat, or the lost ballots for the 247 ballots boxes from the
counter-protested precincts. What petitioner questions is the Tribunal's reliance on
election returns and/or tally sheets and other election documents to arrive at the number
of votes for each of the parties. However, jurisprudence has established that such action
of the HRET was well within its discretion and jurisdiction.
Indeed, the general rule is, if what is being questioned is the correctness of the number of
votes for each candidate, the best and most conclusive evidence is the ballots themselves.
However, this rule applies only if the ballots are available and their integrity has been
preserved from the day of elections until revision. When the ballots are unavailable or
cannot be produced, then recourse can be made to untampered and unaltered election
returns or other election documents as evidence. 8 SaAcHE
Petitioner admits in her petition that elections were actually held in Datu Odin Sinsuat.
Both parties agreed with the HRET's findings of fact that majority of the ballots in the
195 protested precincts of Datu Odin Sinsuat were fake or spurious ballots, and all the
ballot boxes in the 195 protested precincts of Datu Odin Sinsuat had no self-locking
metal seals. Neither do they dispute that only one (1) out of the 248 ballot boxes of the
counter-protested precincts contained ballots. The parties have not presented any
evidence that there were any incidents of ballot snatching or switching on May 14, 2007-
the day of the election itself. On the contrary, the only evidence on record, i.e., the
affidavits of the Chief of Police of Sultan Kudarat, Philip M. Liwan (Exhibit "1"); the
Station Commander at Sultan Mastura, John R. Calinga (Exhibit "3"), and the Election
Officer of Datu Odin Sinsuat, Raufden A. Mangelen (Exhibit "4"), all attest to the fact
that there were no such incidents of switching nor were there reports of violence or
irregularities during the casting, counting and canvassing of votes. Thus, as concluded by
the HRET, when said ballot boxes were opened for revision purposes, they could not be
said to be in the same condition as they were when closed by the Chairman and Members
of the BEI after the completion of the canvassing proceedings.
In Rosal v. Commission on Elections, 9 the Court ruled, thus:
. . . where a ballot box is found in such a condition as would raise a reasonable suspicion
that unauthorized persons could have gained unlawful access to its contents, no
evidentiary value can be given to the ballots in it and the official count reflected in the
election return must be upheld as the better and more reliable account of how and for
whom the electorate voted. 10
Significantly, nothing on record shows that the election returns, tally sheets and other
election documents that the HRET had on hand had been tampered or altered. Since it is
undisputed that there are hardly any valid or authentic ballots upon which the HRET
could base its determination of the number of votes cast for each of the parties, the HRET
merely acted in accordance with settled jurisprudence when it resorted to untampered
and/or unaltered election returns and other election documents as evidence of such votes.
In sum, there is no showing whatsoever that the HRET committed grave abuse of
discretion.
WHEREFORE, the instant petition is DISMISSED. The Decision and Resolution of the
House of Representatives Electoral Tribunal, dated September 10, 2009 and November
12, 2009, respectively, are AFFIRMED.
SO ORDERED. EC

SENATOR BENIGNO SIMEON C. AQUINO III and MAYOR JESSE ROBREDO,

petitioners, vs. COMMISSION ON ELECTIONS represented by its Chairman JOSE
A.R. MELO and its Commissioners, RENE V. SARMIENTO, NICODEMO T.
FERRER, LUCENITO N. TAGLE, ARMANDO VELASCO, ELIAS R. YUSOPH AND
GREGORIO LARRAZABAL, respondents.
DECISION
PEREZ, J p:
This case comes before this Court by way of a Petition for Certiorari and Prohibition
under Rule 65 of the Rules of Court. In this original action, petitioners Senator Benigno
Simeon C. Aquino III and Mayor Jesse Robredo, as public officers, taxpayers and
citizens, seek the nullification as unconstitutional of Republic Act No. 9716, entitled "An
Act Reapportioning the Composition of the First (1st) and Second (2nd) Legislative
Districts in the Province of Camarines Sur and Thereby Creating a New Legislative
District from such Reapportionment." Petitioners consequently pray that the respondent
Commission on Elections be restrained from making any issuances and from taking any
steps relative to the implementation of Republic Act No. 9716. DCcIaE
Republic Act No. 9716 originated from House Bill No. 4264, and was signed into law by
President Gloria Macapagal Arroyo on 12 October 2009. It took effect on 31 October
2009, or fifteen (15) days following its publication in the Manila Standard, a newspaper
of general circulation. 1 In substance, the said law created an additional legislative
district for the Province of Camarines Sur by reconfiguring the existing first and second
legislative districts of the province.
Prior to Republic Act No. 9716, the Province of Camarines Sur was estimated to have a
population of 1,693,821, 2 distributed among four (4) legislative districts in this wise:
District Municipalities/Cities Population
1st District Del Gallego Libmanan 417,304
Ragay Minalabac
Lupi Pamplona
Sipocot Pasacao
Cabusao San Fernando
2nd District Gainza Canaman 474,899
Milaor Camaligan
Naga Magarao
Pili Bombon
Ocampo Calabanga
3rd District Caramoan Sangay372,548
Garchitorena San Jose
Goa Tigaon
Lagonoy Tinamba
Presentacion Siruma
4th District Iriga Buhi 429,070
Baao Bula
Balatan Nabua
Bato
Following the enactment of Republic Act No. 9716, the first and second districts of
Camarines Sur were reconfigured in order to create an additional legislative district for
the province. Hence, the first district municipalities of Libmanan, Minalabac, Pamplona,
Pasacao, and San Fernando were combined with the second district municipalities of
Milaor and Gainza to form a new second legislative district. The following table 3
illustrates the reapportionment made by Republic Act No. 9716: AIaSTE
District Municipalities/Cities Population
1st District Del Gallego 176,383
Ragay
Lupi
Sipocot
Cabusao
2nd District Libmanan San Fernando 276,777
Minalabac Gainza
Pamplona Milaor
Pasacao
3rd District Naga Camaligan 439,043
(formerly 2nd Pili Magarao
District) Ocampo Bombon
Canaman Calabanga
4th District Caramoan Sangay372,548
(formerly 3rd Garchitorena San Jose
District) Goa Tigaon
Lagonoy Tinamba
Presentacion Siruma
5th District Iriga Buhi 429,070
(formerly 4th Baao Bula
District) Balatan Nabua
Bato
Republic Act No. 9716 is a well-milled legislation. The factual recitals by both parties of
the origins of the bill that became the law show that, from the filing of House Bill No.
4264 until its approval by the Senate on a vote of thirteen (13) in favor and two (2)
against, the process progressed step by step, marked by public hearings on the sentiments
and position of the local officials of Camarines Sur on the creation of a new
congressional district, as well as argumentation and debate on the issue, now before us,
concerning the stand of the oppositors of the bill that a population of at least 250,000 is
required by the Constitution for such new district. 4 EHTSCD
Petitioner Aquino III was one of two senators who voted against the approval of the Bill
by the Senate. His co-petitioner, Robredo, is the Mayor of Naga City, which was a part of
the former second district from which the municipalities of Gainza and Milaor were taken
for inclusion in the new second district. No other local executive joined the two; neither
did the representatives of the former third and fourth districts of the province.
Petitioners contend that the reapportionment introduced by Republic Act No. 9716, runs
afoul of the explicit constitutional standard that requires a minimum population of two
hundred fifty thousand (250,000) for the creation of a legislative district. 5 The
petitioners claim that the reconfiguration by Republic Act No. 9716 of the first and
second districts of Camarines Sur is unconstitutional, because the proposed first district
will end up with a population of less than 250,000 or only 176,383.
Petitioners rely on Section 5 (3), Article VI of the 1987 Constitution as basis for the cited
250,000 minimum population standard. 6 The provision reads:
Article VI
Section 5. (1) . . .
(2) ...
(3) Each legislative district shall comprise, as far as practicable, contiguous, compact,
and adjacent territory. Each city with a population of at least two hundred fifty thousand,
or each province, shall have at least one representative. DIcSHE
(4) . . . (Emphasis supplied).
The petitioners posit that the 250,000 figure appearing in the above-cited provision is the
minimum population requirement for the creation of a legislative district. 7 The
petitioners theorize that, save in the case of a newly created province, each legislative
district created by Congress must be supported by a minimum population of at least
250,000 in order to be valid. 8 Under this view, existing legislative districts may be
reapportioned and severed to form new districts, provided each resulting district will
represent a population of at least 250,000. On the other hand, if the reapportionment
would result in the creation of a legislative seat representing a populace of less than
250,000 inhabitants, the reapportionment must be stricken down as invalid for non-
compliance with the minimum population requirement.
In support of their theory, the petitioners point to what they claim is the intent of the
framers of the 1987 Constitution to adopt a population minimum of 250,000 in the
creation of additional legislative seats. 9 The petitioners argue that when the
Constitutional Commission fixed the original number of district seats in the House of
Representatives to two hundred (200), they took into account the projected national
population of fifty five million (55,000,000) for the year 1986. 10 According to the
petitioners, 55 million people represented by 200 district representatives translates to
roughly 250,000 people for every one (1) representative. 11 Thus, the 250,000 population
requirement found in Section 5 (3), Article VI of the 1987 Constitution is actually based
on the population constant used by the Constitutional Commission in distributing the
initial 200 legislative seats. SCaEcD
Thus did the petitioners claim that in reapportioning legislative districts independently
from the creation of a province, Congress is bound to observe a 250,000 population
threshold, in the same manner that the Constitutional Commission did in the original
apportionment.
Verbatim, the submission is that:
1. Republic Act 9716 is unconstitutional because the newly apportioned first district
of Camarines Sur failed to meet the population requirement for the creation of the
legislative district as explicitly provided in Article VI, Section 5, Paragraphs (1) and (3)
of the Constitution and Section 3 of the Ordinance appended thereto; and
2. Republic Act 9716 violates the principle of proportional representation as
provided in Article VI, Section 5 paragraphs (1), (3) and (4) of the Constitution. 12
The provision subject of this case states:
Article VI
Section 5. (1) The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities and the Metropolitan Manila
area in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected
through a party-list system of registered national, regional and sectoral parties or
organizations. EaHcDS
(2) ...
(3) Each legislative district shall comprise, as far as practicable, contiguous, compact,
and adjacent territory. Each city with a population of at least two hundred fifty thousand,
or each province, shall have at least one representative.
(4) Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this section.
On the other hand, the respondents, through the Office of the Solicitor General, seek the
dismissal of the present petition based on procedural and substantive grounds.
On procedural matters, the respondents argue that the petitioners are guilty of two (2)
fatal technical defects: first, petitioners committed an error in choosing to assail the
constitutionality of Republic Act No. 9716 via the remedy of Certiorari and Prohibition
under Rule 65 of the Rules of Court; and second, the petitioners have no locus standi to
question the constitutionality of Republic Act No. 9716. ADaECI
On substantive matters, the respondents call attention to an apparent distinction between
cities and provinces drawn by Section 5 (3), Article VI of the 1987 Constitution. The
respondents concede the existence of a 250,000 population condition, but argue that a
plain and simple reading of the questioned provision will show that the same has no
application with respect to the creation of legislative districts in provinces. 13 Rather, the
250,000 minimum population is only a requirement for the creation of a legislative
district in a city.
In sum, the respondents deny the existence of a fixed population requirement for the
reapportionment of districts in provinces. Therefore, Republic Act No. 9716, which only
creates an additional legislative district within the province of Camarines Sur, should be
sustained as a perfectly valid reapportionment law.
We first pass upon the threshold issues.
The respondents assert that by choosing to avail themselves of the remedies of Certiorari
and Prohibition, the petitioners have committed a fatal procedural lapse. The respondents
cite the following reasons: EHITaS
1. The instant petition is bereft of any allegation that the respondents had acted
without or in excess of jurisdiction, or with grave abuse of discretion.
2. The remedy of Certiorari and Prohibition must be directed against a tribunal,
board, officer or person, whether exercising judicial, quasi-judicial, or ministerial
functions. Respondents maintain that in implementing Republic Act No. 9716, they were
not acting as a judicial or quasi-judicial body, nor were they engaging in the performance
of a ministerial act.
3. The petitioners could have availed themselves of another plain, speedy and
adequate remedy in the ordinary course of law. Considering that the main thrust of the
instant petition is the declaration of unconstitutionality of Republic Act No. 9716, the
same could have been ventilated through a petition for declaratory relief, over which the
Supreme Court has only appellate, not original jurisdiction. STcHDC
The respondents likewise allege that the petitioners had failed to show that they had
sustained, or is in danger of sustaining any substantial injury as a result of the
implementation of Republic Act No. 9716. The respondents, therefore, conclude that the
petitioners lack the required legal standing to question the constitutionality of Republic
Act No. 9716.
This Court has paved the way away from procedural debates when confronted with issues
that, by reason of constitutional importance, need a direct focus of the arguments on their
content and substance.
The Supreme Court has, on more than one occasion, tempered the application of
procedural rules, 14 as well as relaxed the requirement of locus standi whenever
confronted with an important issue of overreaching significance to society. 15
Hence, in Del Mar v. Philippine Amusement and Gaming Corporation (PAGCOR) 16
and Jaworski v. PAGCOR, 17 this Court sanctioned momentary deviation from the
principle of the hierarchy of courts, and took original cognizance of cases raising issues
of paramount public importance. The Jaworski case ratiocinates: CAaSED
Granting arguendo that the present action cannot be properly treated as a petition for
prohibition, the transcendental importance of the issues involved in this case warrants
that we set aside the technical defects and take primary jurisdiction over the petition at
bar. One cannot deny that the issues raised herein have potentially pervasive influence on
the social and moral well being of this nation, specially the youth; hence, their proper and
just determination is an imperative need. This is in accordance with the well-entrenched
principle that rules of procedure are not inflexible tools designed to hinder or delay, but
to facilitate and promote the administration of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate, rather than promote substantial
justice, must always be eschewed. (Emphasis supplied)
Anent the locus standi requirement, this Court has already uniformly ruled in Kilosbayan
v. Guingona, 18 Tatad v. Executive Secretary, 19 Chavez v. Public Estates Authority 20
and Bagong Alyansang Makabayan v. Zamora, 21 just to name a few, that absence of
direct injury on the part of the party seeking judicial review may be excused when the
latter is able to craft an issue of transcendental importance. In Lim v. Executive
Secretary, 22 this Court held that in cases of transcendental importance, the cases must be
settled promptly and definitely, and so, the standing requirements may be relaxed. This
liberal stance has been echoed in the more recent decision on Chavez v. Gonzales. 23
IEaATD
Given the weight of the issue raised in the instant petition, the foregoing principles must
apply. The beaten path must be taken. We go directly to the determination of whether or
not a population of 250,000 is an indispensable constitutional requirement for the
creation of a new legislative district in a province.
We deny the petition.
We start with the basics. Any law duly enacted by Congress carries with it the
presumption of constitutionality. 24 Before a law may be declared unconstitutional by
this Court, there must be a clear showing that a specific provision of the fundamental law
has been violated or transgressed. When there is neither a violation of a specific provision
of the Constitution nor any proof showing that there is such a violation, the presumption
of constitutionality will prevail and the law must be upheld. To doubt is to sustain. 25
There is no specific provision in the Constitution that fixes a 250,000 minimum
population that must compose a legislative district. TaCDIc
As already mentioned, the petitioners rely on the second sentence of Section 5 (3), Article
VI of the 1987 Constitution, coupled with what they perceive to be the intent of the
framers of the Constitution to adopt a minimum population of 250,000 for each
legislative district.
The second sentence of Section 5 (3), Article VI of the Constitution, succinctly provides:
"Each city with a population of at least two hundred fifty thousand, or each province,
shall have at least one representative."
The provision draws a plain and clear distinction between the entitlement of a city to a
district on one hand, and the entitlement of a province to a district on the other. For while
a province is entitled to at least a representative, with nothing mentioned about
population, a city must first meet a population minimum of 250,000 in order to be
similarly entitled.
The use by the subject provision of a comma to separate the phrase "each city with a
population of at least two hundred fifty thousand" from the phrase "or each province"
point to no other conclusion than that the 250,000 minimum population is only required
for a city, but not for a province. 26 cDACST
Plainly read, Section 5 (3) of the Constitution requires a 250,000 minimum population
only for a city to be entitled to a representative, but not so for a province.
The 250,000 minimum population requirement for legislative districts in cities was, in
turn, the subject of interpretation by this Court in Mariano, Jr. v. COMELEC. 27
In Mariano, the issue presented was the constitutionality of Republic Act No. 7854,
which was the law that converted the Municipality of Makati into a Highly Urbanized
City. As it happened, Republic Act No. 7854 created an additional legislative district for
Makati, which at that time was a lone district. The petitioners in that case argued that the
creation of an additional district would violate Section 5 (3), Article VI of the
Constitution, because the resulting districts would be supported by a population of less
than 250,000, considering that Makati had a total population of only 450,000. The
Supreme Court sustained the constitutionality of the law and the validity of the newly
created district, explaining the operation of the Constitutional phrase "each city with a
population of at least two hundred fifty thousand," to wit: DTEScI
Petitioners cannot insist that the addition of another legislative district in Makati is not in
accord with section 5(3), Article VI of the Constitution for as of the latest survey (1990
census), the population of Makati stands at only four hundred fifty thousand (450,000).
Said section provides, inter alia, that a city with a population of at least two hundred fifty
thousand (250,000) shall have at least one representative. Even granting that the
population of Makati as of the 1990 census stood at four hundred fifty thousand
(450,000), its legislative district may still be increased since it has met the minimum
population requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the
Ordinance appended to the Constitution provides that a city whose population has
increased to more than two hundred fifty thousand (250,000) shall be entitled to at least
one congressional representative. 28 (Emphasis supplied)
The Mariano case limited the application of the 250,000 minimum population
requirement for cities only to its initial legislative district. In other words, while Section 5
(3), Article VI of the Constitution requires a city to have a minimum population of
250,000 to be entitled to a representative, it does not have to increase its population by
another 250,000 to be entitled to an additional district. SADECI
There is no reason why the Mariano case, which involves the creation of an additional
district within a city, should not be applied to additional districts in provinces. Indeed, if
an additional legislative district created within a city is not required to represent a
population of at least 250,000 in order to be valid, neither should such be needed for an
additional district in a province, considering moreover that a province is entitled to an
initial seat by the mere fact of its creation and regardless of its population.
Apropos for discussion is the provision of the Local Government Code on the creation of
a province which, by virtue of and upon creation, is entitled to at least a legislative
district. Thus, Section 461 of the Local Government Code states:
Requisites for Creation. — (a) A province may be created if it has an average annual
income, as certified by the Department of Finance, of not less than Twenty million pesos
(P20,000,000.00) based on 1991 constant prices and either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers, as
certified by the Lands Management Bureau; or DTAcIa
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as
certified by the National Statistics Office.
Notably, the requirement of population is not an indispensable requirement, but is merely
an alternative addition to the indispensable income requirement.
Mariano, it would turn out, is but a reflection of the pertinent ideas that ran through the
deliberations on the words and meaning of Section 5 of Article VI.
The whats, whys, and wherefores of the population requirement of "at least two hundred
fifty thousand" may be gleaned from the records of the Constitutional Commission
which, upon framing the provisions of Section 5 of Article VI, proceeded to form an
ordinance that would be appended to the final document. The Ordinance is captioned
"APPORTIONING THE SEATS OF THE HOUSE OF REPRESENTATIVES OF THE
CONGRESS OF THE PHILIPPINES TO THE DIFFERENT LEGISLATIVE
DISTRICTS IN PROVINCES AND CITIES AND THE METROPOLITAN MANILA
AREA." Such records would show that the 250,000 population benchmark was used for
the 1986 nationwide apportionment of legislative districts among provinces, cities and
Metropolitan Manila. Simply put, the population figure was used to determine how many
districts a province, city, or Metropolitan Manila should have. Simply discernible too is
the fact that, for the purpose, population had to be the determinant. Even then, the
requirement of 250,000 inhabitants was not taken as an absolute minimum for one
legislative district. And, closer to the point herein at issue, in the determination of the
precise district within the province to which, through the use of the population
benchmark, so many districts have been apportioned, population as a factor was not the
sole, though it was among, several determinants. THSaEC
From its journal, 29 we can see that the Constitutional Commission originally divided the
entire country into two hundred (200) districts, which corresponded to the original
number of district representatives. The 200 seats were distributed by the Constitutional
Commission in this manner: first, one (1) seat each was given to the seventy-three (73)
provinces and the ten (10) cities with a population of at least 250,000; 30 second, the
remaining seats were then redistributed among the provinces, cities and the Metropolitan
Area "in accordance with the number of their inhabitants on the basis of a uniform and
progressive ratio." 31 Commissioner Davide, who later became a Member and then Chief
Justice of the Court, explained this in his sponsorship remark 32 for the Ordinance to be
appended to the 1987 Constitution:
Commissioner Davide: The ordinance fixes at 200 the number of legislative seats which
are, in turn, apportioned among provinces and cities with a population of at least 250,000
and the Metropolitan Area in accordance with the number of their respective inhabitants
on the basis of a uniform and progressive ratio. The population is based on the 1986
projection, with the 1980 official enumeration as the point of reckoning. This projection
indicates that our population is more or less 56 million. Taking into account the mandate
that each city with at least 250,000 inhabitants and each province shall have at least one
representative, we first allotted one seat for each of the 73 provinces, and each one for all
cities with a population of at least 250,000, which are the Cities of Manila, Quezon,
Pasay, Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga.
Thereafter, we then proceed[ed] to increase whenever appropriate the number of seats for
the provinces and cities in accordance with the number of their inhabitants on the basis of
a uniform and progressive ratio. (Emphasis supplied). cEAIHa
Thus was the number of seats computed for each province and city. Differentiated from
this, the determination of the districts within the province had to consider "all protests
and complaints formally received" which, the records show, dealt with determinants other
than population as already mentioned.
Palawan is a case in point. Journal No. 107 of the Constitutional Commission narrates:
INTERPELLATION OF MR. NOLLEDO:
Mr. Nolledo inquired on the reason for including Puerto Princesa in the northern towns
when it was more affinity with the southern town of Aborlan, Batarasa, Brooke's Point,
Narra, Quezon and Marcos. He stated that the First District has a greater area than the
Second District. He then queried whether population was the only factor considered by
the Committee in redistricting.
Replying thereto, Mr. Davide explained that the Committee took into account the
standards set in Section 5 of the Article on the Legislative Department, namely: 1) the
legislative seats should be apportioned among the provinces and cities and the
Metropolitan Manila area in accordance with their inhabitants on the basis of a uniform
and progressive ratio; and 2) the legislative district must be compact, adjacent and
contiguous. DTCSHA
Mr. Nolledo pointed out that the last factor was not met when Puerto Princesa was
included with the northern towns. He then inquired what is the distance between Puerto
Princesa from San Vicente.
xxx xxx xxx
Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of 75,480 and based
on the apportionment, its inclusion with the northern towns would result in a combined
population of 265,000 as against only 186,000 for the south. He added that Cuyo and
Coron are very important towns in the northern part of Palawan and, in fact, Cuyo was
the capital of Palawan before its transfer to Puerto Princesa. He also pointed out that there
are more potential candidates in the north and therefore if Puerto Princesa City and the
towns of Cuyo and Coron are lumped together, there would be less candidates in the
south, most of whose inhabitants are not interested in politics. He then suggested that
Puerto Princesa be included in the south or the Second District.
Mr. Davide stated that the proposal would be considered during the period of
amendments. He requested that the COMELEC staff study said proposal. 33
"PROPOSED AMENDMENT OF MR. NOLLEDO
On the districting of Palawan, Mr. Nolledo pointed out that it was explained in the
interpellations that District I has a total population of 265,358 including the City of
Puerto Princesa, while the Second District has a total population of 186,733. He
proposed, however, that Puerto Princesa be included in the Second District in order to
satisfy the contiguity requirement in the Constitution considering that said City is nearer
the southern towns comprising the Second District. DEIHAa
In reply to Mr. Monsod's query, Mr. Nolledo explained that with the proposed transfer of
Puerto Princesa City to the Second District, the First District would only have a total
population of 190,000 while the Second District would have 262,213, and there would be
no substantial changes.
Mr. Davide accepted Mr. Nolledo's proposal to insert Puerto Princesa City before the
Municipality of Aborlan.
There being no objection on the part of the Members the same was approved by the
Body.
APPROVAL OF THE APPORTIONMENT AND DISTRICTING OF PALAWAN
There being no other amendment, on motion of Mr. Davide, there being no objection, the
apportionment and districting for the province of Palawan was approved by the Body. 34
The districting of Palawan disregarded the 250,000 population figure. It was decided by
the importance of the towns and the city that eventually composed the districts.
SHDAEC
Benguet and Baguio are another reference point. The Journal further narrates:
At this juncture, Mr. Davide informed the Body that Mr. Regalado made a reservation
with the Committee for the possible reopening of the approval of Region I with respect to
Benguet and Baguio City.
REMARKS OF MR. REGALADO
Mr. Regalado stated that in the formulation of the Committee, Baguio City and Tuba are
placed in one district. He stated that he was toying with the idea that, perhaps as a special
consideration for Baguio because it is the summer capital of the Philippines, Tuba could
be divorced from Baguio City so that it could, by itself, have its own constituency and
Tuba could be transferred to the Second District together with Itogon. Mr. Davide,
however, pointed out that the population of Baguio City is only 141,149.
Mr. Regalado admitted that the regular population of Baguio may be lower during certain
times of the year, but the transient population would increase the population substantially
and, therefore, for purposes of business and professional transactions, it is beyond
question that population-wise, Baguio would more than qualify, not to speak of the
official business matters, transactions and offices that are also there. cSTCDA
Mr. Davide adverted to Director de Lima's statement that unless Tuba and Baguio City
are united, Tuba will be isolated from the rest of Benguet as the place can only be
reached by passing through Baguio City. He stated that the Committee would submit the
matter to the Body.
Upon inquiry of the Chair whether he is insisting on his amendment, Mr. Regalado stated
that the Body should have a say on the matter and that the considerations he had given
are not on the demographic aspects but on the fact that Baguio City is the summer capital,
the venue and situs of many government offices and functions.
On motion of Mr. Davide, there being no objection, the Body approved the
reconsideration of the earlier approval of the apportionment and districting of Region I,
particularly Benguet.
Thereafter, on motion of Mr. Davide, there being no objection, the amendment of Mr.
Regalado was put to a vote. With 14 Members voting in favor and none against, the
amendment was approved by the Body.
Mr. Davide informed that in view of the approval of the amendment, Benguet with
Baguio City will have two seats. The First District shall comprise of the municipalities of
Mankayan, Buguias, Bakun, Kabayan, Kibungan, Bokod, Atok, Kapangan, Tublay, La
Trinidad, Sablan, Itogon and Tuba. The Second District shall comprise of Baguio City
alone. EcICDT
There being no objection, the Body approved the apportionment and districting of Region
I. 35
Quite emphatically, population was explicitly removed as a factor.
It may be additionally mentioned that the province of Cavite was divided into districts
based on the distribution of its three cities, with each district having a city: one district
"supposed to be a fishing area; another a vegetable and fruit area; and the third, a rice
growing area," because such consideration "fosters common interests in line with the
standard of compactness." 36 In the districting of Maguindanao, among the matters
discussed were "political stability and common interest among the people in the area" and
the possibility of "chaos and disunity" considering the "accepted regional, political,
traditional and sectoral leaders." 37 For Laguna, it was mentioned that municipalities in
the highland should not be grouped with the towns in the lowland. For Cebu,
Commissioner Maambong proposed that they should "balance the area and population."
38
Consistent with Mariano and with the framer deliberations on district apportionment, we
stated in Bagabuyo v. COMELEC 39 that: TcSHaD
. . . Undeniably, these figures show a disparity in the population sizes of the districts. The
Constitution, however, does not require mathematical exactitude or rigid equality as a
standard in gauging equality of representation. . . . . To ensure quality representation
through commonality of interests and ease of access by the representative to the
constituents, all that the Constitution requires is that every legislative district should
comprise, as far as practicable, contiguous, compact and adjacent territory. (Emphasis
supplied).
This 2008 pronouncement is fresh reasoning against the uncompromising stand of
petitioner that an additional provincial legislative district, which does not have at least a
250,000 population is not allowed by the Constitution.
The foregoing reading and review lead to a clear lesson.
Neither in the text nor in the essence of Section 5, Article VI of the Constitution can, the
petition find support. And the formulation of the Ordinance in the implementation of the
provision, nay, even the Ordinance itself, refutes the contention that a population of
250,000 is a constitutional sine qua non for the formation of an additional legislative
district in a province, whose population growth has increased beyond the 1986 numbers.
cSEDTC
Translated in the terms of the present case:
1. The Province of Camarines Sur, with an estimated population of 1,693,821 in
2007 is — based on the formula and constant number of 250,000 used by the
Constitutional Commission in nationally apportioning legislative districts among
provinces and cities — entitled to two (2) districts in addition to the four (4) that it was
given in the 1986 apportionment. Significantly, petitioner Aquino concedes this point. 40
In other words, Section 5 of Article VI as clearly written allows and does not prohibit an
additional district for the Province of Camarines Sur, such as that provided for in
Republic Act No. 9786;
2. Based on the pith and pitch of the exchanges on the Ordinance on the protests and
complaints against strict conformity with the population standard, and more importantly
based on the final districting in the Ordinance on considerations other than population,
the reapportionment or the recomposition of the first and second legislative districts in
the Province of Camarines Sur that resulted in the creation of a new legislative district is
valid even if the population of the new district is 176,383 and not 250,000 as insisted
upon by the petitioners. EcIaTA
3. The factors mentioned during the deliberations on House Bill No. 4264, were:
(a) the dialects spoken in the grouped municipalities;
(b) the size of the original groupings compared to that of the regrouped
municipalities;
(c) the natural division separating the municipality subject of the discussion from the
reconfigured District One; and
(d) the balancing of the areas of the three districts resulting from the redistricting of
Districts One and Two. 41
Each of such factors and in relation to the others considered together, with the increased
population of the erstwhile Districts One and Two, point to the utter absence of abuse of
discretion, much less grave abuse of discretion, 42 that would warrant the invalidation of
Republic Act No. 9716. TaCDcE
To be clear about our judgment, we do not say that in the reapportionment of the first and
second legislative districts of Camarines Sur, the number of inhabitants in the resulting
additional district should not be considered. Our ruling is that population is not the only
factor but is just one of several other factors in the composition of the additional district.
Such settlement is in accord with both the text of the Constitution and the spirit of the
letter, so very clearly given form in the Constitutional debates on the exact issue
presented by this petition.
WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716 entitled "An
Act Reapportioning the Composition of the First (1st) and Second (2nd) Legislative
Districts in the Province of Camarines Sur and Thereby Creating a New Legislative
District from Such Reapportionment" is a VALID LAW.
SO ORDERED.

REPRESENTATIVE ALVIN S. SANDOVAL (Lone District of Navotas-Malabon),

petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL,
JOSEPHINE VERONIQUE R. LACSON-NOEL, and HON. SPEAKER PROSPERO
NOGRALES, respondents.
DECISION
PERALTA, J p:
This resolves the Petition for Certiorari under Rule 65 of the Rules of Court, praying that
the Decision 1 of the House of Representatives Electoral Tribunal (HRET) dated
September 24, 2009 and its Resolution 2 dated November 12, 2009 be declared null and
void ab initio. ETDAaC
The accurate narration of facts in the HRET Decision is not disputed by the parties.
Pertinent portions thereof are reproduced hereunder:
On 19 May 2007, after the canvass of votes, as evidenced by the Certificate of Canvass of
Votes and Proclamation of the Winning Candidates for the Member of the House of
Representatives, the Board of Canvassers of the Legislative District of Malabon City-
Navotas proclaimed protestee Sandoval [herein petitioner] the winning candidate for the
Office of the Member of the House of Representatives with Seventy-one Thousand Four
Hundred Ninety (71,490) votes as against protestant Lacson-Noel who obtained the
second highest number of votes with Seventy Thousand Three Hundred Thirty-One
(70,331) votes; or a winning margin of One Thousand One Hundred Fifty-Nine (1,159)
votes. Per the Summary Statement of Votes, the distribution of all votes legally cast in
the district is as follows:
SANDOVAL, Alvin S. — 71,490
LACSON-NOEL, Josephine Veronique R. — 70,331
FRANCISCO, Maritoni Z. — 35,634
CINCO, Roberto T. — 412
Refusing to concede defeat, protestant Lacson-Noel filed the instant Petition of Protest on
29 May 2007, and alleged in substance that "the results [of the election] do not reflect the
true will of the voters as they are but products of various fraudulent and illegal acts,
schemes and machinations employed by [protestee] Sandoval, his agents and supporters,
with the connivance or conspiracy of the Board of Election Inspectors (BEIs), which
defrauded and deprived [her] of lawful votes cast at the precinct level." Specifically,
protestant Lacson-Noel assails the results of election in 623 precincts (441 from Malabon
City and 182 from Navotas) out of the 1,437 total number of precincts in the Lone
Legislative District of Malabon City-Navotas on the following grounds:
a. Misreading, miscounting and/or miscrediting of votes [in favor of protestee
Sandoval and/or ballots intended for protestant Lacson-Noel were not counted in her
favor] . . . .
b. Misappreciation of ballots in violation of Section 211 of the Omnibus Election
Code and case law [such as the non-counting of protestant Lacson-Noel's maiden
surname "Lacson" in her favor] . . . . TCIEcH
c. . . . written-by-One ballots, in pairs or in groups of ballots [were counted in favor
of protestee].
d. The use of either fake, spurious ballots or genuine but manufactured ballots to
increase protestee Sandoval's votes. . . . .
e. The use of manufactured election returns which are prepared . . . prior to the start
of voting and/or counting.
f. Manipulation, alteration and falsification of the votes and related data in the
election returns and/or vote padding in favor of protestee Sandoval and vote-shaving
from protestant Lacson-Noel's votes.
Protestant Lacson-Noel claims that she would have obtained a greater number of votes if
not for the fraud and irregularities that marred the election. She posits that "[t]here is a
need for a recount, revision and due appreciation of the ballots and examination or
scrutiny of election documents in the [623] protested precincts," as the result thereof "will
affect the presumptive results of the congressional elections in the Malabon City-Navotas
Legislative District in a very substantial degree as to overcome protestee Sandoval's
presumptive lead." Consequently, protestant Lacson-Noel prays that, after the revision
and appreciation of ballots and due hearing, judgment be rendered annulling the
proclamation of protestee Sandoval; and declaring her the duly elected Representative of
the Lone Legislative District of Malabon City-Navotas.
On 25 June 2007, protestee Sandoval filed his Answer (with counter-protest, motion for
preliminary hearing on Affirmative Defenses and counter claim) wherein he specifically
denied the material allegations of the protest regarding the number of contested precincts,
grounds for protest, commission of frauds and irregularities, and the necessity of recount
and revision, for being self-serving and unsupported by evidence. By way of Special and
Affirmative Defenses, protestee Sandoval contends that it is protestant Lacson-Noel who
is guilty of violating "election laws, rules and regulations . . . [committed to benefit her],
and which, on the other hand, resulted to (sic) the loss of legal and valid votes in [his]
favor." He narrates that during the crucial hours of voting, counting, recording of the
votes cast and transmittal of the records of the votes cast, most of his poll watchers were
unable to effectively keep an eye on the proceedings and secure his votes because the
latter were supposedly prevented from entering the Navotas polling precincts unlike
protestant Lacson-Noel's poll watchers who were readily accommodated. As a result of
the illegal schemes and machinations employed by protestant Lacson-Noel and her
supporters, protestee Sandoval maintains that protestant Lacson-Noel "was able to garner
a substantial number of illegal and undeserved votes from the Municipality of Navotas."
With respect to Malabon City, protestee Sandoval similarly claims that "massive fraud
and illegal electoral practices were committed" all through the election process which
tarnished the results of several identified precincts in Malabon City.
By way of counter-protest, protestee Sandoval questions the results of the voting in 1,006
precincts (393 from Malabon City and 613 from Navotas) in Malabon City-Navotas on
the allegation that, thereat, he was deprived of votes cast in his favor and where
protestant Lacson-Noel was illegitimately benefited with votes meant for him. The bases
for protestee Sandoval's counter-protest are: (1) the loss of legal votes in his favor; (2) the
counting of illegal, marked and stray votes for him in favor of protestant Lacson-Noel;
(3) the use of manufactured or falsified election returns to favor protestant Lacson-Noel;
(4) the padding of election returns to increase the votes of protestant Lacson-Noel and to
reduce his (protestee Sandoval's) votes; and (5) the commission of electoral fraud and
irregularities by protestant Lacson-Noel and supporters in connivance with the Board of
Election Inspectors (BEI). SITCcE
On 29 June 2007, protestee Sandoval filed an Ex Parte Motion to Withdraw Counterclaim
(for damages representing his attorney's fees and litigation expenses). This was granted
by the Tribunal in its Resolution No. 07-074 dated 12 July 2007.
On 31 July 2007, after the issues were joined, the Tribunal ordered the City/Municipal
Treasurers and Election Officers of Malabon City and Navotas to release to the duly
authorized representatives of the Tribunal the following: (1) protested and counter-
protested ballot boxes with their keys; (2) the lists of voters with voting records; (3)
books of voters; and (4) other election documents and paraphernalia pertaining to the
protested and counter-protested precincts.
The Tribunal set the preliminary conference of the instant election protest case on 23
August 2007.
On 6 September 2007, the Tribunal issued the Preliminary Conference Order . . . .
xxx xxx xxx
And as agreed to by the parties, the issues for resolution are (1) whether or not the
recount, revision, and re-appreciation of ballots, including election documents, from the
protested and counter-protested precincts will affect the results of the election in the Lone
District of Malabon City-Navotas; and (2) whether or not protestant Lacson-Noel and
protestee Sandoval each committed electoral frauds and irregularities to cause the
nullification of the votes counted in their favor.
On 2 October 2007, the employees of the Tribunal were able to collect the ballot boxes
and election documents and paraphernalias of 822 protested and counter-protested
precincts from the City Treasurer of Malabon City. On 11 December 2008, the ballot
boxes from 613 protested and counter-protested precincts in Navotas were collected from
the custody of the Regional Trial Court (RTC), Branch 170 of Malabon City-Navotas, as
the same had been previously transferred thereto in connection with an election protest
concerning the position of Mayor in the Municipality of Navotas.
On 21 February 2008, the Tribunal ordered the revision of ballots from the protested and
counter-protested precincts after finally collecting and taking custody of the concerned
ballot boxes.
On 4 March 2008, both parties filed their respective motions to photocopy their objected
and claimed ballots, as well as the Minutes of Voting. . . . .
On 11 March 2008, the revision of ballots from the 1,434 protested and/or counter-
protested precincts commenced and continued until terminated on 21 April 2008.
In the interregnum, however, protestee Sandoval moved to photocopy the front and dorsal
portions of all ballots subject of the revision "for purposes of authentication and
verification, . . . to check the signatures [of the BEI] appearing at the back of the ballots."
He alleged that, "upon examination, of the ballots obtained from the protested precincts
(sic) the ballot boxes of which have so far been opened, strong indications exist that the
ballots retrieved are not genuine." In an Order dated 24 March 2008, the Tribunal
partially granted protestee Sandoval's prayer, to wit: cAIDEa
WHEREFORE, protestee Sandoval's Motion for the Photocopying of Both the Front and
Dorsal Sides of Ballots is partially GRANTED insofar as the ballots that are not yet
revised and photocopied are concerned. With respect to the ballots that were already
revised and photocopied, protestee is DIRECTED to specify within five (5) days from
receipt of the Order, the ballots containing questionable signatures of the BEI
chairpersons, as recorded in the revision reports that should be photocopied on the dorsal
sides.
xxx xxx xxx
On 21 April 2008, upon conclusion of the revision of ballots, the physical count thereof
yielded the following results: 70,530 ballots were counted for protestant Lacson-Noel,
while 69,939 votes cast were for protestee Sandoval.
On 12 May 2008, or twenty-one (21) days after the termination of the revision of ballots,
protestee Sandoval filed a Motion for Technical Examination of "ballots and election
documents obtained from the ballot boxes from no less than twenty-eight (28) precincts
in the City of Malabon" where manifest irregularities were noticed. Protestee Sandoval
basically contends that the ballot boxes from the identified twenty-eight (28) precincts:
(1) are missing padlocks and/or inner/outer metal seals; and (2) contain fake or spurious
ballots. He reports that the examination of the contents of said ballot boxes revealed that
there are substantial discrepancies between the number of votes cast and counted as
against the number of ballots physically counted during revision.
On 22 May 2008, the Tribunal issued Resolution No. 08-174 noting the protestee
Sandoval's aforestated Motion for Technical Examination. In the same resolution, the
Tribunal directed protestant Lacson-Noel to comment thereon within five (5) days from
notice.
In the meantime, on 27 May 2008, protestant Lacson-Noel started presenting and
marking her evidence before the designated hearing commissioner, Atty. Michael D.
Villaret.
On 10 June 2008, protestant Lacson-Noel filed her opposition to protestee Sandoval's
prayer for technical examination of specific ballots. She contends that the Tribunal is
competent to determine the validity of contested ballots, including fake or spurious ones;
and that it had already developed an expertise in verifying the claims of alleged
tampering of ballots and in identifying valid from invalid ballots.
On 20 June 2008, in Resolution No. 08-216, the Tribunal denied protestee Sandoval's
Motion for Technical Examination of ballots in twenty-eight (28) precincts on the ground
that:
When the matters which the parties seek to be examined are those which are well within
the judicial determination of the Tribunal without resorting to technical examination, the
Tribunal itself, in the course of the appreciation of ballots and other election documents
involved, can determine whether paid or groups of ballots are written by one or two
persons. SECHIA
The Tribunal further noted that Hon. Resureccion Z. Borra, then Acting Chairman of the
COMELEC, already testified on the various security features of an official ballot used
during the 14 May 2007 synchronized National and Local Elections. Hence, resort to
technical examination is no longer necessary to determine the authenticity of ballots.
On 23 June 2008, protestant Lacson-Noel formally offered the following documentary
evidence:
xxx xxx xxx
On 8 July 2008, protestee Sandoval filed his Comment/Opposition to protestant Lacson-
Noel's formal offer of evidence.
On 24 July 2008, in Resolution No. 08-244, the Tribunal admitted all documentary
exhibits formally offered by protestant Lacson-Noel . . . .
On 14 August 2008, the hearing for the presentation of protestee Sandoval's evidence was
set on 2, 15, 18, 23 and 25 September 2008.
On 2 September 2008, protestee Sandoval presented for authentication photocopies of
three hundred eleven Revision Reports . . . .
On 15 September 2008, protestee Sandoval presented for authentication photocopies of
additional Revision Reports . . . .
Again, on 18 September 2008, protestee Sandoval presented photocopies of more
Revision Reports for authentication . . . .
The scheduled hearing on 23 September 2008 was canceled upon the motion of protestee
Sandoval.
During the hearing conducted on 25 September 2008, protestee Sandoval presented
photocopies of various election documents . . . .
On 29 September 2008, the Hearing Commissioner of the instant case set additional
hearing dates for the reception of protestee Sandoval's evidence — 2, 13, 27, 28, 29 and
31 October 2008 and on 3 November 2008.
From the record of the case, though, except for the hearing scheduled on 3 November
2008, it appears that no hearings were held on the dates aforestated in view of the
unavailability of the counsel of protestee Sandoval. Particularly, protestee Sandoval
asked that the hearing scheduled on 27 and 28 October 2008 be cancelled because of an
"apparent conflict in the schedule" of his witnesses (party-revisors) in view of the
supposed appearance before the Senate Electoral Tribunal (SET) relative to another case.
Again, on 29 October 2008, in a written motion, Manifestation and Urgent Motion,
protestee Sandoval prayed that the cancellation of the day's hearing for the reason that the
same witnesses still remained "unavailable due to an equally urgent engagement as the
party-revisors in the electoral protest case in the SET involving Senator Juan Miguel
Zubiri. The motion to reset the hearing was denied by the Hearing Officer, who, instead,
ruled that the same shall continue on the next scheduled hearing date on 3 November
2008.
Worth noting at this point is the fact that on the hearing of 29 October 2008, in response
to the aforesaid motion, counsel for protestant Lacson-Noel manifested that being one of
the counsels of record of the only case before the SET, she knew for a fact that no
hearings were scheduled on 27 and 28 October 2008.
On 3 and 11 November 2008, the hearings resumed and protestee Sandoval was able to
present fourteen (14) party revisors . . . .
On the last scheduled hearing, or on 11 November 2008, protestee filed another motion
— Motion for Leave (to Present Additional Witnesses) with Request for Subpoena.
Protestee Sandoval wanted to present expert witnesses . . . .
On 12 November 2008, protestant Lacson-Noel opposed the preceding motion on the
ground that the same was merely another dilatory move to delay the resolution of the
instant election protest case. She argued that per HRET Rules, protestee Sandoval had
already used up the time allocated him and that he "squandered the time given him to
present his evidence" by presenting party revisors as witnesses whose opinions on the
authenticity of the subject ballots allegedly bear no evidentiary weight. Further, she
contended that (1) the period of two months to be reckoned from 2 September 2008
within which the presentation of protestee Sandoval's evidence must be concluded,
including the filing of his [Formal Offer of Evidence], had already expired on 3
November 2008; (2) four of the 13 hearing dates set by the Hearing Commissioner were
cancelled upon the instance of protestee Sandoval; and (3) the presentation of additional
evidence beyond 3 November 2008 is in direct contravention of Rule 59 of the 2004
HRET Rule of Procedure providing for a period of only two months, from inception, to
conclude the presentation of a party's evidence. HAcaCS
Despite the opposition, in Resolution No. 08-342 issued on 24 November 2008, the
Tribunal resolved to grant protestee Sandoval's motion with the necessary warning that
no further extension shall be given. Accordingly, an additional period of ten (10) days
was set within which to present his additional evidence. In granting the prayer for
additional time, the Tribunal took into consideration the provision of the HRET Rules
where, in the interest of justice and meritorious grounds, it may grant an extension of ten
(10) days for a party to present his evidence. The Tribunal further directed the Hearing
Commissioner assigned to the present case to set successive dates, not to exceed ten (10)
days, for the presentation of protestee Sandoval's additional evidence and to issue the
corresponding subpoena duces tecum and ad testificandum to the witnesses concerned.
In compliance to the foregoing, on 25 November 2008, the Hearing Commissioner
notified the parties herein that further hearings will be conducted on 10 and 11 December
2008.
xxx xxx xxx
On 18 December 2008, despite the warning issued by the Tribunal that "no further
extensions will be given," protestee Sandoval once more prayed for leave to present an
additional expert witness. . . .
As expected, protestant Lacson-Noel opposed the above; and asked the Tribunal to deny
the same . . . .
On 22 January 2009, in Resolution No. 09-009, the Tribunal denied protestee Sandoval's
motion for suspension of the period to file formal offer of evidence, and considered him
to have waived the completion of the presentation of his evidence, to wit:
WHEREFORE, the Tribunal (1) DENIES protestee's Manifestation and Motion [With
Prayer for Suspension of the Period to File Protestee's Formal Offer of Evidence]; (2)
CONSIDERS protestee to have waived the completion of the presentation of his
evidence; and (3) DIRECTS protestant and protestee to submit their respective
Memoranda within ten (10) days from notice.
xxx xxx xxx
Protestant Lacson-Noel and protestee Sandoval filed their respective Memoranda on 11
and 16 February 2009, respectively.
On the same day he filed his Memorandum, or on 16 February 2009, protestee Sandoval
also filed a Manifestation and Motion for Partial Reconsideration. Essentially, he moved
that he "be allowed to formally offer his documentary pieces of evidence" based on the
argument that "to prevent [him] from formally offering his documentary pieces of pt'>
xxx xxx xxx
On 13 March 2009, the Tribunal issued Resolution No. 09-046 dated 26 February 2009,
the dispositive of which reads:
WHEREFORE, the Tribunal DENIES protestee's Manifestation and Motion for Partial
Reconsideration. (Italics supplied.) 3 aIcDCT
Thereafter, on September 24, 2009, the HRET issued the assailed Decision, the
dispositive portion of which reads as follows:
WHEREFORE, premises considered, the Tribunal hereby DECLARES that protestant
Josephine Veronique Lacson-Noel is the duly elected Representative of the Lone District
of Malabon City-Navotas in the election held on 14 May 2007, with a winning margin of
Five Hundred Forty-Two (542) votes, with the right to assume the duties of her office.
Consequently, protestee Alvin Sandoval is hereby declared unseated.
As soon as this Decision becomes final, let notices be sent to the President of the
Philippines, the House of Representatives through the Speaker, and the Commission on
Audit through its Chairman.
SO ORDERED. 4
Petitioner moved for reconsideration, but the same was denied per Resolution dated
November 12, 2009.
Hence, this petition alleging that the HRET committed grave abuse of discretion
amounting to lack or excess of jurisdiction by not admitting petitioner's formal offer of
evidence, thereby denying him due process.
The petition lacks merit.
It is hornbook principle that this Court's jurisdiction to review decisions and orders of
electoral tribunals is exercised only upon a showing of grave abuse of discretion
committed by the tribunal. Absent such grave abuse of discretion, this Court shall not
interfere with the electoral tribunal's exercise of its discretion or jurisdiction. 5 Grave
abuse of discretion has been defined in Villarosa v. House of Representatives Electoral
Tribunal 6 as follows:
Grave abuse of discretion implies such capricious and whimsical exercise of judgment as
is equivalent to lack of jurisdiction; or, in other words, where the power is exercised in an
arbitrary manner by reason of passion or personal hostility. It must be so patent and gross
as to amount to an evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law. 7
Petitioner mainly assails the Tribunal's denial of his pleas for an additional period of time
within which to make his formal offer of evidence. However, a review of the proceedings
will reveal that the HRET acted in accordance with its rules of procedure and well within
its jurisdiction.
Petitioner commenced presentation of his evidence on September 2, 2008. Further
hearings were scheduled for September 15, 18, 23 and 25, 2008. He was able to present
evidence on September 15, 18, and 25, 2008, but the hearing set for September 23, 2008
was canceled upon motion of petitioner. On September 29, 2008, the Hearing
Commissioner set additional hearings for October 2, 13, 27, 28, 29 and 31, 2008 and
November 3, 2008, for reception of petitioner's evidence. However, due to unavailability
of petitioner's counsel, no hearings were held on the dates set for the whole month of
October. Hearings only resumed on November 3 and 11, 2008 and, on the latter date,
petitioner moved that he be allowed more time to present additional witnesses. Despite
opposition from respondent Lacson-Noel, the Tribunal issued Resolution No. 08-342
dated November 24, 2008, granting petitioner an additional period of ten (10) days within
which to present evidence, with the warning that no further extension shall be given. The
Hearing Commissioner notified the parties that further hearings will be held on December
10 and 11, 2008. Said hearing dates were utilized by petitioner. aSHAIC
Nevertheless, in utter disregard of the Tribunal's warning, petitioner again filed on
December 18, 2008 a Manifestation and Motion (with Prayer for Suspension of the
Period to File Protestee's Formal Offer of Evidence), praying for more time to present
more witnesses, and that he be allowed to file his Formal Offer of Evidence upon
completion of presentation of his evidence. Respondent Lacson-Noel opposed said
motion, pointing out that the additional period of ten (10) days granted to petitioner
lapsed on December 24, 2008. Thus, on January 22, 2009, the Tribunal issued Resolution
No. 09-009, pointing out that despite the additional period of ten days granted to him and
the lapse of more than three (3) months reckoned from September 2, 2008, petitioner had
not completed the presentation of his evidence. Since the last day of the extension
granted to him was on December 23, 2008 and said period lapsed without petitioner
completing presentation of his evidence including formal offer thereof, he was deemed to
have waived the same.
Such action of the HRET was not a denial of petitioner's right to due process. In
Villarosa, 8 it was held, thus:
The essence of due process is the reasonable opportunity to be heard and submit evidence
in support of one's defense. To be heard does not mean verbal arguments in court; one
may be heard also through pleadings. Where opportunity to be heard, either through oral
arguments or pleadings, is accorded, there is no denial of due process. 9
It is quite clear from the foregoing narration of how the proceedings were conducted that
petitioner was given all the opportunity to be heard. So many hearing dates were set for
his presentation of evidence, but he merely wasted a good number of those days. He was
granted an extension of time so he could file his formal offer of evidence, but he still
failed to fulfill his responsibility.
Note that the 2004 Rules of the House of Representatives Electoral Tribunal provide for a
definite period of time within which a party should complete or terminate his presentation
of evidence, to wit:
Rule 59. Time Limit for Presentation of Evidence. — Each party is given a period
of twenty (20) working days, preferably successive, to complete the presentation of his
evidence, including the formal offer thereof. Unless provided otherwise, this period is
terminated within two (2) months, which shall begin to run from the first date set for the
presentation of the party's evidence, either before the Tribunal or before a Hearing
Commissioner. Once commenced, presentation of the evidence-in-chief shall continue
every working day until completed or until the period granted for such purpose is
exhausted. Upon motion based on meritorious grounds, the Tribunal may grant a ten-day
extension of the period herein fixed.
The hearing for any particular day or days may be postponed or cancelled upon the
request of the party presenting evidence, provided, however, that the delay caused by
such postponement or cancellation shall be charged to said party's period for presenting
evidence.
xxx xxx xxx
The rule cannot be any clearer that parties are mandated to complete the presentation of
their evidence within a period of two (2) months, which shall begin to run from the first
date set for the presentation of the party's evidence. In this case, petitioner's presentation
of evidence should have been terminated by November 2, 2008. It was petitioner's and/or
his counsel's duty to always have the foregoing rule or time limit in mind in planning and
scheduling the presentation of his testimonial and documentary evidence. Petitioner had
actually been accorded leniency because on November 24, 2008, which was already
beyond the two-month time limit under Rule 59, the Tribunal issued Resolution No. 08-
342 granting him an additional ten days for presentation of evidence including a formal
offer thereof. Petitioner had been sufficiently warned that that would be the last
extension, but he chose not to heed such warning and failed to use the additional time
wisely. Only petitioner deserves to be blamed for the woes that befell him. HCEaDI
In Hofer v. House of Representatives Electoral Tribunal, 10 a case that is closely
analogous to the instant petition, the Court emphasized that "[p]rocedural rules in election
cases are designed to achieve not only a correct but also an expeditious determination of
the popular will of the electorate." 11 Thus, the time limit set by the rules is not
something to be taken lightly, for it was stressed in the same case that "the observance of
the HRET Rules in conjunction with our own Rules of Court, must be taken seriously."
12 Quoting Baltazar v. Commission of Elections, 13 The Court reiterated in Hofer 14
that:
By their very nature and given the public interest involved in the determination of the
results of an election, the controversies arising from the canvass must be resolved
speedily, otherwise the will of the electorate would be frustrated. And the delay brought
about by the tactics resorted to by petitioner is precisely the very evil sought to be
prevented by election statutes and controlling case law on the matter. 15
From the foregoing, it is quite clear that the Tribunal acted in the best interest of the
electorate, ensuring the determination of the latter's will within a reasonable time. In sum,
there is absolutely nothing in this case that would justify a finding that the HRET gravely
abused its discretion by not granting petitioner an extension of time to present additional
evidence and formally offer the same.
IN VIEW OF THE FOREGOING, the instant petition is DISMISSED.
SO ORDERED. cCAIaD

[G.R. No. 188078. March 15, 2010.]

VICTORINO B. ALDABA, CARLO JOLETTE S. FAJARDO, JULIO G. MORADA,
and MINERVA ALDABA MORADA, petitioners, vs. COMMISSION ON
ELECTIONS, respondent.
RESOLUTION
CARPIO, J p:
This resolves the motion for reconsideration of respondent Commission on Elections
(COMELEC) of the Decision dated 25 January 2010. 1
The COMELEC grounds its motion on the singular reason, already considered and
rejected in the Decision, that Congress' reliance on the Certification of Alberto N.
Miranda (Miranda), Region III Director, National Statistics Office (NSO), projecting
Malolos City's population in 2010, is non-justiciable. The COMELEC also calls attention
to the other sources of Malolos City's population indicators as of 2007 (2007 Census of
Population — PMS 3 — Progress Enumeration Report) 2 and as of 2008 (Certification of
the City of Malolos' Water District, dated 31 July 2008, 3 and Certification of the Liga ng
Barangay, dated 22 August 2008) 4 which Congress allegedly used in enacting Republic
Act No. 9591 (RA 9591). The COMELEC extends its non-justiciability argument to these
materials. IESDCH
We find no reason to grant the motion.
First. It will not do for the COMELEC to insist that the reliability and authoritativeness of
the population indicators Congress used in enacting RA 9591 are non-justiciable. If laws
creating legislative districts are unquestionably within the ambit of this Court's judicial
review power, 5 then there is more reason to hold justiciable subsidiary questions
impacting on their constitutionality, such as their compliance with a specific
constitutional limitation under Section 5 (3), Article VI of the 1987 Constitution that only
cities with at least 250,000 constituents are entitled to representation in Congress. To
fulfill this obligation, the Court, of necessity, must inquire into the authoritativeness and
reliability of the population indicators Congress used to comply with the constitutional
limitation. Thus, nearly five decades ago, we already rejected claims of non-justiciability
of an apportionment law alleged to violate the constitutional requirement of proportional
representation:
It is argued in the motion to reconsider, that since Republic Act 3040 improves existing
conditions, this Court could perhaps, in the exercise of judicial statesmanship, consider
the question involved as purely political and therefore non-justiciable. The overwhelming
weight of authority is that district apportionment laws are subject to review by the
courts[:] TCDcSE
The constitutionality of a legislative apportionment act is a judicial question, and not one
which the court cannot consider on the ground that it is a political question.
It is well settled that the passage of apportionment acts is not so exclusively within the
political power of the legislature as to preclude a court from inquiring into their
constitutionality when the question is properly brought before it.
It may be added in this connection, that the mere impact of the suit upon the political
situation does not render it political instead of judicial.
The alleged circumstance that this statute improves the present set-up constitutes no
excuse for approving a transgression of constitutional limitations, because the end does
not justify the means. Furthermore, there is no reason to doubt that, aware of the existing
inequality of representation, and impelled by its sense of duty, Congress will opportunely
approve remedial legislation in accord with the precepts of the Constitution. 6 (Emphasis
supplied; internal citations omitted) DACTSH
To deny the Court the exercise of its judicial review power over RA 9591 is to contend
that this Court has no power "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government," a duty mandated under Section 1, Article VIII of the
Constitution. Indeed, if we subscribe to the COMELEC's theory, this Court would be
reduced to rubberstamping laws creating legislative districts no matter how unreliable
and non-authoritative the population indicators Congress used to justify their creation.
There can be no surer way to render meaningless the limitation in Section 5 (3), Article
VI of the 1987 Constitution. 7 aETASc
Second. Under Executive Order No. 135 (EO 135), the population indicators Congress
used to measure Malolos City's compliance with the constitutional limitation are
unreliable and non-authoritative. On Miranda's Certification, (that the "projected
population of the [City] of Malolos will be 254,030 by the year 2010 using the population
growth rate of 3.78[%] between 1995 and 2000"), this fell short of EO 135's requirements
that (a) for intercensal years, the certification should be based on a set of demographic
projections and estimates declared official by the National Statistical and Coordination
Board (NSCB); (b) certifications on intercensal population estimates will be as of the
middle of every year; and (c) certifications based on projections or estimates must be
issued by the NSO Administrator or his designated certifying officer. Further, using
Miranda's own growth rate assumption of 3.78%, Malolos City's population as of 1
August 2010 will only be 249,333, below the constitutional threshold of 250,000 (using
as base Malolos City's population as of 1 August 2007 which is 223,069). That Miranda
issued his Certification "by authority of the NSO administrator" does not make the
document reliable as it neither makes Miranda the NSO Administrator's designated
certifying officer nor cures the Certification of its fatal defects for failing to use
demographic projections and estimates declared official by the NSCB or make the
projection as of the middle of 2010.
Nor are the 2007 Census of Population — PMS 3 — Progress Enumeration Report, the
Certification of the City of Malolos' Water District, dated 31 July 2008 and the
Certification of the Liga ng Barangay, dated 22 August 2008, reliable because none of
them qualifies as authoritative population indicator under EO 135. The 2007 Census of
Population — PMS 3 — Progress Enumeration Report merely contains preliminary data
on the population census of Bulacan which were subsequently adjusted to reflect actual
population as indicated in the 2007 Census results (showing Malolos City's population at
223,069). The COMELEC, through the Office of the Solicitor General (OSG), adopts
Malolos City's claim that the 2007 census for Malolos City was "sloped to make it appear
that come Year 2010, the population count for Malolos would still fall short of the
constitutional requirement." 8 This unbecoming attack by the government's chief counsel
on the integrity of the processes of the government's census authority has no place in our
judicial system. The OSG ought to know that absent convincing proof of so-called data
"sloping," the NSO enjoys the presumption of the regularity in the performance of its
functions. CDHaET
The Certification of the City of Malolos' Water District fares no better. EO 135 excludes
from its ambit certifications from a public utility gathered incidentally in the course of
pursuing its business. To elevate the water district's so-called population census to the
level of credibility NSO certifications enjoy is to render useless the existence of NSO.
This will allow population data incidentally gathered by electric, telephone, sewage, and
other utilities to enter into legislative processes even though these private entities are not
in the business of generating statistical data and thus lack the scientific training,
experience and competence to handle, collate and process them.
Similarly, the Certification of the Liga ng Barangay is not authoritative because much
like the Malolos City Water District, the Liga ng Barangay is not authorized to conduct
population census, much less during off-census years. The non-NSO entities EO 135
authorizes to conduct population census are local government units (that is, province,
city, municipality or barangay) subject to the prior approval of the NSCB and under the
technical supervision of the NSO from planning to data processing. 9
By presenting these alternative population indicators with their widely divergent
population figures, 10 the COMELEC unwittingly highlighted the danger of relying on
non-NSO authorized certifications. EO 135's stringent standards ensuring reliability of
population census cannot be diluted as these data lie at the core of crucial government
decisions and, in this case, the legislative function of enforcing the constitutional mandate
of creating congressional districts in cities with at least 250,000 constituents. EHTIDA
There can be no doubt on the applicability of EO 135 to test the constitutionality of RA
9591. The COMELEC invoked EO 135 to convince the Court of the credibility and
authoritativeness of Miranda's certificate. 11 It is hardly alien for the Court to adopt
standards contained in a parallel statute to fill gaps in the law in the absence of an express
prohibition. 12 Indeed, one is hard-pressed to find any distinction, statistically speaking,
on the reliability of an NSO certification of a city's population for purposes of creating its
legislative district and for purposes of converting it to a highly-urbanized or an
independent component city. 13 Congress itself confirms the wisdom and relevance of
EO 135's paradigm of privileging NSO certifications by mandating that compliance with
the population requirement in the creation and conversion of local government units shall
be proved exclusively by an NSO certification. 14 Unquestionably, representation in
Congress is no less important than the creation of local government units in enhancing
our democratic institutions, thus both processes should be subject to the same stringent
standards.
Third. Malolos City is entitled to representation in Congress only if, before the 10 May
2010 elections, it breaches the 250,000 population mark following the mandate in Section
3 of the Ordinance appended to the 1987 Constitution that "any city whose population
may hereafter increase to more than two hundred fifty thousand shall be entitled in the
immediately following election to at least one Member." COMELEC neither alleged nor
proved that Malolos City is in compliance with Section 3 of the Ordinance. IDaEHC
Fourth. Aside from failing to comply with Section 5 (3), Article VI of the Constitution on
the population requirement, the creation by RA 9591 of a legislative district for Malolos
City, carving the city from the former First Legislative District, leaves the town of
Bulacan isolated from the rest of the geographic mass of that district. 15 This contravenes
the requirement in Section 5 (3), Article VI that each legislative district shall "comprise,
as far as practicable, contiguous, compact, and adjacent territory." It is no argument to
say, as the OSG does, that it was impracticable for Congress to create a district with
contiguous, compact, and adjacent territory because Malolos city lies at the center of the
First Legislative District. The geographic lay-out of the First Legislative District is not an
insuperable condition making compliance with Section 5 (3) impracticable. To adhere to
the constitutional mandate, and thus maintain fidelity to its purpose of ensuring efficient
representation, the practicable alternative for Congress was to include the municipality of
Bulacan in Malolos City's legislative district. Although unorthodox, the resulting
contiguous and compact district fulfills the constitutional requirements of geographic
unity and population floor, ensuring efficient representation of the minimum mass of
constituents.
WHEREFORE, the Supplemental Motion for Reconsideration of respondent Commission
on Elections dated 22 February 2010 is DENIED WITH FINALITY. Let no further
pleadings be allowed. CITcSH
SO ORDERED.

[G.R. No. 174105. April 2, 2009.]

REGHIS M. ROMERO II, EDMOND Q. SESE, LEOPOLDO T. SANCHEZ, REGHIS
M. ROMERO III, MICHAEL L. ROMERO, NATHANIEL L. ROMERO, and JEROME
R. CANLAS, petitioners, vs. SENATOR JINGGOY E. ESTRADA and SENATE
COMMITTEE ON LABOR, EMPLOYMENT AND HUMAN RESOURCES
DEVELOPMENT, respondents.
DECISION
VELASCO, JR., J p:
At issue once again is Section 21, Article VI of the 1987 Constitution which provides:
ISEHTa
The Senate or the House of Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.
The Case
This is a petition for prohibition with application for temporary restraining order (TRO)
and preliminary injunction under Rule 65, assailing the constitutionality of the invitations
and other compulsory processes issued by the Senate Committee on Labor, Employment,
and Human Resources Development (Committee) in connection with its investigation on
the investment of Overseas Workers Welfare Administration (OWWA) funds in the
Smokey Mountain project.
The Facts
On August 15, 2006, petitioner Reghis Romero II, as owner of R-II Builders, Inc.,
received from the Committee an invitation, 1 signed by the Legislative Committee
Secretary, which pertinently reads as follows: IaHCAD
Dear Mr. Romero:
Pursuant to P.S. Resolution No. 537, entitled: "RESOLUTION DIRECTING THE
LABOR COMMITTEE TO INVESTIGATE, IN AID OF LEGISLATION, THE
LIABILITY FOR PLUNDER OF THE FORMER PRESIDENT RAMOS AND
OTHERS, FOR THE ILLEGAL INVESTMENT OF OWWA FUNDS IN THE
SMOKEY MOUNTAIN PROJECT, CAUSING A LOSS TO OWWA OF P550.86
MILLION" and P.S. Resolution No. 543, entitled: "RESOLUTION DIRECTING THE
COMMITTEE ON LABOR AND EMPLOYMENT, IN ITS ONGOING INQUIRY IN
AID OF LEGISLATION, ON THE ALLEGED OWWA LOSS OF P480 MILLION TO
FOCUS ON THE CULPABILITY OF THEN PRESIDENT FIDEL RAMOS, THEN
OWWA ADMINISTRATOR WILHELM SORIANO, AND R-II BUILDERS OWNER
REGHIS ROMERO II", . . . the Committee on Labor, Employment and Human
Resources Development chaired by Sen. Jinggoy Ejercito Estrada will conduct a public
hearing at 1:00 p.m. on the 23rd day of August 2006 at the Sen. G.T. Pecson Room, 2nd
floor, Senate of the Philippines, Pasay City.
The inquiry/investigation is specifically intended to aid the Senate in the review and
possible amendments to the pertinent provisions of R.A. 8042, "the Migrant Workers
Act" and to craft a much needed legislation relative to the stated subject matter and
purpose of the aforementioned Resolutions. IaHCAD
By virtue of the power vested in Congress by Section 21, Article VI of 1987 Constitution
regarding inquiries in aid of legislation, may we have the privilege of inviting you to the
said hearing to shed light on any matter, within your knowledge and competence, covered
by the subject matter and purpose of the inquiry. Rest assured that your rights, when
properly invoked and not unfounded, will be duly respected. (Emphasis in the original.)
In his letter-reply 2 dated August 18, 2006, petitioner Romero II requested to be excused
from appearing and testifying before the Committee at its scheduled hearings of the
subject matter and purpose of Philippine Senate (PS) Resolution Nos. 537 and 543. He
predicated his request on grounds he would later substantially reiterate in this petition for
prohibition.
On August 28, 2006, the Committee sent petitioner Romero II a letter informing him that
his request, being unmeritorious, was denied. 3 On the same date, invitations were sent to
each of the other six petitioners, then members of the Board of Directors of R-II Builders,
Inc., requesting them to attend the September 4, 2006 Committee hearing. The following
day, Senator Jinggoy Estrada, as Chairperson of the Committee, caused the service of a
subpoena ad testificandum 4 on petitioner Romero II directing him to appear and testify
before the Committee at its hearing on September 4, 2006 relative to the aforesaid Senate
resolutions. The Committer later issued separate subpoenas 5 to other petitioners, albeit
for a different hearing date. CcaDHT
On August 30, 2006, petitioners filed the instant petition, docketed as G.R. No. 174105,
seeking to bar the Committee from continuing with its inquiry and to enjoin it from
compelling petitioners to appear before it pursuant to the invitations thus issued.
Failing to secure the desired TRO sought in the petition, petitioner Romero II appeared at
the September 4, 2006 Committee investigation.
Two days after, petitioner Romero II filed a Manifestation with Urgent Plea for a TRO 6
alleging, among others, that: (1) he answered questions concerning the investments of
OWWA funds in the Smokey Mountain project and how much of OWWA's original
investment had already been paid; (2) when Senator Estrada called on Atty. Francisco I.
Chavez, as resource person, the latter spoke of the facts and issues he raised with the
Court in Chavez v. National Housing Authority, 7 none of which were related to the
subject of the inquiry; and (3) when Senator Estrada adjourned the investigation, he asked
petitioners Romero II and Canlas to return at the resumption of the investigation.
The manifestation was followed by the filing on September 19, 2006 of another urgent
motion for a TRO in which petitioners imputed to the Committee the intention to harass
them as, except for petitioner Romero II, none of them had even been mentioned in
relation to the subject of the investigation. TCcDaE
Meanwhile, respondents, in compliance with our September 5, 2006 Resolution that
ordered them to submit a comment on the original plea for a TRO, interposed an
opposition, 8 observing that the Senate's motives in calling for an investigation in aid of
legislation were a political question. They also averred that the pendency of Chavez "is
not sufficient ground to divest the respondents of their jurisdiction to conduct an inquiry
into the matters alleged in the petition."
In this petition, petitioners in gist claim that: (1) the subject matter of the investigation is
sub judice owing to the pendency of the Chavez petition; (2) since the investigation has
been intended to ascertain petitioners' criminal liability for plunder, it is not in aid of
legislation; (3) the inquiry compelled them to appear and testify in violation of their
rights against self-incrimination; and (4) unless the Court immediately issues a TRO,
some or all of petitioners would be in danger of being arrested, detained, and forced to
give testimony against their will, before the Court could resolve the issues raised in G.R.
No. 164527.
In their Comment dated October 17, 2006, 9 respondents made a distinction between the
issues raised in Chavez and the subject matter of the Senate resolutions, nixing the notion
of sub judice that petitioners raised at every possible turn. Respondents averred that the
subject matter of the investigation focused on the alleged dissipation of OWWA funds
and the purpose of the probe was to aid the Senate determine the propriety of amending
Republic Act No. 8042 or The Migrant Workers Act of 1995 and enacting laws to protect
OWWA funds in the future. They likewise raised the following main arguments: (1) the
proposed resolutions were a proper subject of legislative inquiry; and (2) petitioners' right
against self-incrimination was well-protected and could be invoked when incriminating
questions were propounded. SHacCD
On December 28, 2006, petitioners filed their Reply 10 reiterating the arguments stated in
their petition, first and foremost of which is: Whether or not the subject matter of the
Committee's inquiry is sub judice.
The Court's Ruling
The Court resolves to dismiss the instant petition.
The Subject Matter of the Senate Inquiry Is no Longer Sub Judice
Petitioners contend that the subject matter of the legislative inquiry is sub judice in view
of the Chavez petition.
The sub judice rule restricts comments and disclosures pertaining to judicial proceedings
to avoid prejudging the issue, influencing the court, or obstructing the administration of
justice. A violation of the sub judice rule may render one liable for indirect contempt
under Sec. 3(d), Rule 71 of the Rules of Court. 11 The rationale for the rule adverted to is
set out in Nestle Philippines v. Sanchez: AIHTEa
[I]t is a traditional conviction of civilized society everywhere that courts and juries, in the
decision of issues of fact and law should be immune from every extraneous influence;
that facts should be decided upon evidence produced in court; and that the determination
of such facts should be uninfluenced by bias, prejudice or sympathies. 12
Chavez, assuming for argument that it involves issues subject of the respondent
Committee's assailed investigation, is no longer sub judice or "before a court or judge for
consideration". 13 For by an en banc Resolution dated July 1, 2008, the Court, in G.R.
No. 164527, denied with finality the motion of Chavez, as the petitioner in Chavez, for
reconsideration of the Decision of the Court dated August 15, 2007. In fine, it will not
avail petitioners any to invoke the sub judice effect of Chavez and resist, on that ground,
the assailed congressional invitations and subpoenas. The sub judice issue has been
rendered moot and academic by the supervening issuance of the en banc Resolution of
July 1, 2008 in G.R. No. 164527. An issue or a case becomes moot and academic when it
ceases to present a justiciable controversy, so that a determination of the issue would be
without practical use and value. In such cases, there is no actual substantial relief to
which the petitioner would be entitled and which would be negated by the dismissal of
the petition. 14 Courts decline jurisdiction over such cases or dismiss them on the ground
of mootness, save in certain exceptional instances, 15 none of which, however, obtains
under the premises. aDSHIC
Thus, there is no more legal obstacle — on the ground of sub judice, assuming it is
invocable — to the continuation of the Committee's investigation challenged in this
proceeding.
At any rate, even assuming hypothetically that Chavez is still pending final adjudication
by the Court, still, such circumstance would not bar the continuance of the committee
investigation. What we said in Sabio v. Gordon suggests as much:
The same directors and officers contend that the Senate is barred from inquiring into the
same issues being litigated before the Court of Appeals and the Sandiganbayan. Suffice it
to state that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation
provide that the filing or pendency of any prosecution or administrative action should not
stop or abate any inquiry to carry out a legislative purpose. 16
A legislative investigation in aid of legislation and court proceedings has different
purposes. On one hand, courts conduct hearings or like adjudicative procedures to settle,
through the application of a law, actual controversies arising between adverse litigants
and involving demandable rights. On the other hand, inquiries in aid of legislation are,
inter alia, undertaken as tools to enable the legislative body to gather information and,
thus, legislate wisely and effectively; 17 and to determine whether there is a need to
improve existing laws or enact new or remedial legislation, 18 albeit the inquiry need not
result in any potential legislation. On-going judicial proceedings do not preclude
congressional hearings in aid of legislation. Standard Chartered Bank (Philippine Branch)
v. Senate Committee on Banks, Financial Institutions and Currencies (Standard Chartered
Bank) provides the following reason: cHTCaI
[T]he mere filing of a criminal or an administrative complaint before a court or quasi-
judicial body should not automatically bar the conduct of legislative investigation.
Otherwise, it would be extremely easy to subvert any intended inquiry by Congress
through the convenient ploy of instituting a criminal or an administrative complaint.
Surely, the exercise of sovereign legislative authority, of which the power of legislative
inquiry is an essential component, cannot be made subordinate to a criminal or
administrative investigation.
As succinctly stated in . . . Arnault v. Nazareno —
[T]he power of inquiry — with process to enforce it — is an essential and appropriate
auxiliary to the legislative function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the conditions which the legislation is
intended to affect or change; and where the legislative body does not itself possess the
requisite information — which is not infrequently true — recourse must be had to others
who possess it. 19
While Sabio and Standard Chartered Bank advert only to pending criminal and
administrative cases before lower courts as not posing a bar to the continuation of a
legislative inquiry, there is no rhyme or reason that these cases' doctrinal pronouncement
and their rationale cannot be extended to appealed cases and special civil actions awaiting
final disposition before this Court. CIDcHA
The foregoing consideration is not all. The denial of the instant recourse is still indicated
for another compelling reason. As may be noted, PS Resolution Nos. 537 and 543 were
passed in 2006 and the letter-invitations and subpoenas directing the petitioners to appear
and testify in connection with the twin resolutions were sent out in the month of August
2006 or in the past Congress. On the postulate that the Senate of each Congress acts
separately and independently of the Senate before and after it, the aforesaid invitations
and subpoenas are considered functos oficio and the related legislative inquiry conducted
is, for all intents and purposes, terminated. In this regard, the Court draws attention to its
pronouncements embodied in its Resolution of September 4, 2008 in G.R. No. 180643
entitled Neri v. Senate Committee on Accountability of Public Officers and
Investigations:
Certainly, . . . the Senate as an institution is "continuing", as it is not dissolved as an
entity with each national election or change in the composition of its members. However,
in the conduct of its day-to-day business, the Senate of each Congress acts separately and
independently of the Senate before it. The Rules of the Senate itself confirms this when it
states: DSEaHT
xxx xxx xxx
SEC. 123. Unfinished business at the end of the session shall be taken up at the next
session in the same status.
All pending matters and proceedings shall terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding Congress as if present[ed] for the first
time.
Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills
and even legislative investigations, of the Senate of a particular Congress are considered
terminated upon the expiration of that Congress and it is merely optional on the Senate of
the succeeding Congress to take up such unfinished matters, not in the same status, but as
if presented for the first time. The logic and practicality of such rule is readily apparent
considering that the Senate of the succeeding Congress (which will typically have a
different composition as that of the previous Congress) should not be bound by the acts
and deliberations of the Senate of which they had no part. . . . (Emphasis added.)
TaCDcE
Following the lessons of Neri, as reiterated in Garcillano v. The House of Representatives
Committees on Public Information, Public Order and Safety, et al., 20 it can very well be
stated that the termination of the assailed investigations has veritably mooted the instant
petition. This disposition becomes all the more impeccable, considering that the Senate of
the present Congress has not, per available records, opted to take up anew, as an
unfinished matter, its inquiry into the investment of OWWA funds in the Smokey
Mountain project.
With the foregoing disquisition, the Court need not belabor the other issues raised in this
recourse. Suffice it to state that when the Committee issued invitations and subpoenas to
petitioners to appear before it in connection with its investigation of the aforementioned
investments, it did so pursuant to its authority to conduct inquiries in aid of legislation.
This is clearly provided in Art. VI, Sec. 21 of the Constitution, which was quoted at the
outset. And the Court has no authority to prohibit a Senate committee from requiring
persons to appear and testify before it in connection with an inquiry in aid of legislation
in accordance with its duly published rules of procedure. 21 Sabio emphasizes the
importance of the duty of those subpoenaed to appear before the legislature, even if
incidentally incriminating questions are expected to be asked: cACDaH
Anent the right against self-incrimination, it must be emphasized that ["this right may be]
invoked by the said directors and officers of Philcomsat . . . only when the incriminating
question is being asked, since they have no way of knowing in advance the nature or
effect of the questions to be asked of them." That this right may possibly be violated or
abused is no ground for denying respondent Senate Committees their power of inquiry.
The consolation is that when this power is abused, such issue may be presented before the
courts.
xxx xxx xxx
Let it be stressed at this point that so long as the constitutional rights of witnesses . . . will
be respected by respondent Senate Committees, it [is] their duty to cooperate with them
in their efforts to obtain the facts needed for intelligent legislative action. The unremitting
obligation of every citizen is to respond to subpoenae, to respect the dignity of the
Congress and its Committees, and to testify fully with respect to matters within the realm
of proper investigation. 22 (Emphasis supplied.) DHESca
As a matter of long and sound practice, the Court refrains from touching on the issue of
constitutionality except when it is unavoidable and is the very lis mota 23 of the
controversy. So it must be here. Indeed, the matter of the constitutionality of the assailed
Committee invitations and subpoenas issued vis-à-vis the investigation conducted
pursuant to PS Resolution Nos. 537 and 543 has ceased to be a justiciable controversy,
having been rendered moot and academic by supervening events heretofore indicated. In
short, there is no more investigation to be continued by virtue of said resolutions; there is
no more investigation the constitutionality of which is subject to a challenge.
WHEREFORE, the petition is DENIED.
No pronouncement as to costs.
SO ORDERED.

[G.R. No. 180088. January 19, 2009.]

MANUEL B. JAPZON, petitioner, vs. COMMISSION ON ELECTIONS and JAIME S.
TY, respondents.
DECISION
CHICO-NAZARIO, J p:
This is a Petition for Review on Certiorari under Rules 64 1 and 65 2 of the Revised
Rules of Court seeking to annul and set aside the Resolution 3 dated 31 July 2007 of the
First Division of public respondent Commission on Elections (COMELEC) and the
Resolution 4 dated 28 September 2007 of COMELEC en banc, in SPA No. 07-568, for
having been rendered with grave abuse of discretion, amounting to lack or excess of
jurisdiction. SAHIaD
Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty) were
candidates for the Office of Mayor of the Municipality of General Macarthur, Eastern
Samar, in the local elections held on 14 May 2007. 2009jur
On 15 June 2007, Japzon instituted SPA No. 07-568 by filing before the COMELEC a
Petition 5 to disqualify and/or cancel Ty's Certificate of Candidacy on the ground of
material misrepresentation. Japzon averred in his Petition that Ty was a former natural-
born Filipino, having been born on 9 October 1943 in what was then Pambujan Sur,
Hernani Eastern Samar (now the Municipality of General Macarthur, Easter Samar) to
spouses Ang Chim Ty (a Chinese) and Crisanta Aranas Sumiguin (a Filipino). Ty
eventually migrated to the United States of America (USA) and became a citizen thereof.
Ty had been residing in the USA for the last 25 years. When Ty filed his Certificate of
Candidacy on 28 March 2007, he falsely represented therein that he was a resident of
Barangay 6, Poblacion, General Macarthur, Eastern Samar, for one year before 14 May
2007, and was not a permanent resident or immigrant of any foreign country. While Ty
may have applied for the reacquisition of his Philippine citizenship, he never actually
resided in Barangay 6, Poblacion, General Macarthur, Eastern Samar, for a period of one
year immediately preceding the date of election as required under Section 39 of Republic
Act No. 7160, otherwise known as the Local Government Code of 1991. In fact, even
after filing his application for reacquisition of his Philippine citizenship, Ty continued to
make trips to the USA, the most recent of which was on 31 October 2006 lasting until 20
January 2007. Moreover, although Ty already took his Oath of Allegiance to the
Republic of the Philippines, he continued to comport himself as an American citizen as
proven by his travel records. He had also failed to renounce his foreign citizenship as
required by Republic Act No. 9225, otherwise known as the Citizenship Retention and
Reacquisition Act of 2003, or related laws. Hence, Japzon prayed for in his Petition that
the COMELEC order the disqualification of Ty from running for public office and the
cancellation of the latter's Certificate of Candidacy. HcSCED
In his Answer 6 to Japzon's Petition in SPA No. 07-568, Ty admitted that he was a
natural-born Filipino who went to the USA to work and subsequently became a
naturalized American citizen. Ty claimed, however, that prior to filing his Certificate of
Candidacy for the Office of Mayor of the Municipality of General Macarthur, Eastern
Samar, on 28 March 2007, he already performed the following acts: (1) with the
enactment of Republic Act No. 9225, granting dual citizenship to natural-born Filipinos,
Ty filed with the Philippine Consulate General in Los Angeles, California, USA, an
application for the reacquisition of his Philippine citizenship; (2) on 2 October 2005, Ty
executed an Oath of Allegiance to the Republic of the Philippines before Noemi T. Diaz,
Vice Consul of the Philippine Consulate General in Los Angeles, California, USA; (3) Ty
applied for a Philippine passport indicating in his application that his residence in the
Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern
Samar. Ty's application was approved and he was issued on 26 October 2005 a Philippine
passport; (4) on 8 March 2006, Ty personally secured and signed his Community Tax
Certificate (CTC) from the Municipality of General Macarthur, in which he stated that his
address was at Barangay 6, Poblacion, General Macarthur, Eastern Samar; (5) thereafter,
on 17 July 2006, Ty was registered as a voter in Precinct 0013A, Barangay 6, Poblacion,
General Macarthur, Eastern Samar; (6) Ty secured another CTC dated 4 January 2007
again stating therein his address as Barangay 6, Poblacion, General Macarthur, Eastern
Samar; and (7) finally, Ty executed on 19 March 2007 a duly notarized Renunciation of
Foreign Citizenship. Given the aforementioned facts, Ty argued that he had reacquired
his Philippine citizenship and renounced his American citizenship, and he had been a
resident of the Municipality of General Macarthur, Eastern Samar, for more than one year
prior to the 14 May 2007 elections. Therefore, Ty sought the dismissal of Japzon's
Petition in SPA No. 07-568. STcADa
Pending the submission by the parties of their respective Position Papers in SPA No. 07-
568, the 14 May 2007 elections were already held. Ty acquired the highest number of
votes and was declared Mayor of the Municipality of General Macarthur, Eastern Samar,
by the Municipal Board of Canvassers on 15 May 2007. 7
Following the submission of the Position Papers of both parties, the COMELEC First
Division rendered its Resolution 8 dated 31 July 2007 in favor of Ty.
The COMELEC First Division found that Ty complied with the requirements of Sections
3 and 5 of Republic Act No. 9225 and reacquired his Philippine citizenship, to wit:
Philippine citizenship is an indispensable requirement for holding an elective public
office, and the purpose of the citizenship qualification is none other than to ensure that no
alien, i.e., no person owing allegiance to another nation, shall govern our people and our
country or a unit of territory thereof. Evidences revealed that [Ty] executed an Oath of
Allegiance before Noemi T. Diaz, Vice Consul of the Philippine Consulate General, Los
Angeles, California, U.S.A. on October 2, 2005 and executed a Renunciation of Foreign
Citizenship on March 19, 2007 in compliance with R.A. [No.] 9225. Moreover, neither is
[Ty] a candidate for or occupying public office nor is in active service as commissioned
or non-commissioned officer in the armed forces in the country of which he was
naturalized citizen. 9 HICcSA
The COMELEC First Division also held that Ty did not commit material
misrepresentation in stating in his Certificate of Candidacy that he was a resident of
Barangay 6, Poblacion, General Macarthur, Eastern Samar, for at least one year before
the elections on 14 May 2007. It reasoned that:
Although [Ty] has lost his domicile in [the] Philippines when he was naturalized as U.S.
citizen in 1969, the reacquisition of his Philippine citizenship and subsequent acts thereof
proved that he has been a resident of Barangay 6, Poblacion, General Macarthur, Eastern
Samar for at least one (1) year before the elections held on 14 May 2007 as he
represented in his certificate of candidacy[.]
As held in Coquilla vs. Comelec:
"The term 'residence' is to be understood not in its common acceptation as referring to
'dwelling' or 'habitation', but rather to 'domicile' or legal residence, that is, 'the place
where a party actually or constructively has his permanent home, where he, no matter
where he may be found at any given time, eventually intends to return and remain
(animus manendi).' A domicile of origin is acquired by every person at birth. It is usually
the place where the child's parents reside and continues until the same is abandoned by
acquisition of new domicile (domicile of choice). DCaEAS
In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen
after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000,
when he reacquired Philippine citizenship, petitioner was an alien without any right to
reside in the Philippines save as our immigration laws may have allowed him to stay as a
visitor or as a resident alien.
Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen.
Title 8, §1427(a) of the United States Code provides:
Requirements of naturalization: Residence
(a) No person, except as otherwise provided in this subchapter, shall be naturalized
unless such applicant, (1) year immediately preceding the date of filing his application for
naturalization has resided continuously, after being lawfully admitted for permanent
residence, within the United States for at least five years and during the five years
immediately preceding the date of filing his petition has been physically present therein
for periods totaling at least half of that time, and who has resided within the State or
within the district of the Service in the United States in which the applicant filed the
application for at least three months, (2) has resided continuously within the United
States from the date of the application up to the time of admission to citizenship, and (3)
during all period referred to in this subsection has been and still is a person of good moral
character, attached to the principles of the Constitution of the United States, and well
disposed to the good order and happiness of the United States. (Emphasis added)
TICDSc
In Caasi v. Court of Appeals, this Court ruled that immigration to the United States by
virtue of a 'greencard', which entitles one to reside permanently in that country,
constitutes abandonment of domicile in the Philippines. With more reason then does
naturalization in a foreign country result in an abandonment of domicile in the
Philippines.
Records showed that after taking an Oath of Allegiance before the Vice Consul of the
Philippine Consulate General on October 2, 2005, [Ty] applied and was issued a
Philippine passport on October 26, 2005; and secured a community tax certificate from
the Municipality of General Macarthur on March 8, 2006. Evidently, [Ty] was already a
resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar for more than one
(1) year before the elections on May 14, 2007. 10 (Emphasis ours.)
The dispositive portion of the 31 July 2007 Resolution of the COMELEC First Division,
thus, reads:
WHEREFORE, premises considered, the petition is DENIED for lack of merit. 11
cDEHIC
Japzon filed a Motion for Reconsideration of the foregoing Resolution of the COMELEC
First Division. On 28 September 2007, the COMELEC en banc issued its Resolution 12
denying Japzon's Motion for Reconsideration and affirming the assailed Resolution of the
COMELEC First Division, on the basis of the following ratiocination:
We have held that a Natural born Filipino who obtains foreign citizenship, and
subsequently spurns the same, is by clear acts of repatriation a Filipino Citizen and hence
qualified to run as a candidate for any local post. 2009jur
xxx xxx xxx
It must be noted that absent any showing of irregularity that overturns the prevailing
status of a citizen, the presumption of regularity remains. Citizenship is an important
aspect of every individual's constitutionally granted rights and privileges. This is essential
in determining whether one has the right to exercise pre-determined political rights such
as the right to vote or the right to be elected to office and as such rights spring from
citizenship.
Owing to its primordial importance, it is thus presumed that every person is a citizen of
the country in which he resides; that citizenship once granted is presumably retained
unless voluntarily relinquished; and that the burden rests upon who alleges a change in
citizenship and allegiance to establish the fact. CTAIHc
Our review of the Motion for Reconsideration shows that it does not raise any new or
novel issues. The arguments made therein have already been dissected and expounded
upon extensively by the first Division of the Commission, and there appears to be no
reason to depart from the wisdom of the earlier resolution. We thus affirm that [Ty] did
not commit any material misrepresentation when he accomplished his Certificate of
Candidacy. The only ground for denial of a Certificate of Candidacy would be when
there was material misrepresentation meant to mislead the electorate as to the
qualifications of the candidate. There was none in this case, thus there is not enough
reason to deny due course to the Certificate of Candidacy of Respondent James S. Ty. 13
Failing to obtain a favorable resolution from the COMELEC, Japzon proceeded to file the
instant Petition for Certiorari, relying on the following grounds:
A. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
CAPRICIOUSLY, WHIMSICALLY AND WANTONLY DISREGARDED THE
PARAMETERS SET BY LAW AND JURISPRUDENCE FOR THE ACQUISITION
OF A NEW DOMICILE OF CHOICE AND RESIDENCE. 14 DCcIaE
B. THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION WHEN IT
CAPRICIOUSLY, WHIMSICALLY AND WANTONLY REFUSED TO CANCEL
[TY'S] CERTIFICATE OF CANDIDACY, AND CONSEQUENTLY DECLARE
[JAPZON] AS THE DULY ELECTED MAYOR OF GEN. MACARTHUR, EASTERN
SAMAR. 15
Japzon argues that when Ty became a naturalized American citizen, he lost his domicile
of origin. Ty did not establish his residence in the Municipality of General Macarthur,
Eastern Samar, Philippines, just because he reacquired his Philippine citizenship. The
burden falls upon Ty to prove that he established a new domicile of choice in General
Macarthur, Eastern Samar, a burden which he failed to discharge. Ty did not become a
resident of General Macarthur, Eastern Samar, by merely executing the Oath of
Allegiance under Republic Act No. 9225. 2009jur
Therefore, Japzon asserts that Ty did not meet the one-year residency requirement for
running as a mayoralty candidate in the 14 May 2007 local elections. The one-year
residency requirement for those running for public office cannot be waived or liberally
applied in favor of dual citizens. Consequently, Japzon believes he was the only
remaining candidate for the Office of Mayor of the Municipality of General Macarthur,
Eastern Samar, and is the only placer in the 14 May 2007 local elections. AHcCDI
Japzon prays for the Court to annul and set aside the Resolutions dated 31 July 2007 and
28 September 2007 of the COMELEC First Division and en banc, respectively; to issue a
new resolution denying due course to or canceling Ty's Certificate of Candidacy; and to
declare Japzon as the duly elected Mayor of the Municipality of General Macarthur,
Eastern Samar.
As expected, Ty sought the dismissal of the present Petition. According to Ty, the
COMELEC already found sufficient evidence to prove that Ty was a resident of the
Municipality of General Macarthur, Eastern Samar, one year prior to the 14 May 2007
local elections. The Court cannot evaluate again the very same pieces of evidence without
violating the well-entrenched rule that findings of fact of the COMELEC are binding on
the Court. Ty disputes Japzon's assertion that the COMELEC committed grave abuse of
discretion in rendering the assailed Resolutions, and avers that the said Resolutions were
based on the evidence presented by the parties and consistent with prevailing
jurisprudence on the matter. Even assuming that Ty, the winning candidate for the Office
of Mayor of the Municipality of General Macarthur, Eastern Samar, is indeed disqualified
from running in the local elections, Japzon as the second placer in the same elections
cannot take his place. CTHDcE
The Office of the Solicitor General (OSG), meanwhile, is of the position that Ty failed to
meet the one-year residency requirement set by law to qualify him to run as a mayoralty
candidate in the 14 May 2007 local elections. The OSG opines that Ty was unable to
prove that he intended to remain in the Philippines for good and ultimately make it his
new domicile. Nonetheless, the OSG still prays for the dismissal of the instant Petition
considering that Japzon, gathering only the second highest number of votes in the local
elections, cannot be declared the duly elected Mayor of the Municipality of General
Macarthur, Eastern Samar, even if Ty is found to be disqualified from running for the
said position. And since it took a position adverse to that of the COMELEC, the OSG
prays from this Court to allow the COMELEC to file its own Comment on Japzon's
Petition. The Court, however, no longer acted on this particular prayer of the COMELEC,
and with the submission of the Memoranda by Japzon, Ty, and the OSG, it already
submitted the case for decision. 2009jur
The Court finds no merit in the Petition at bar.
There is no dispute that Ty was a natural-born Filipino. He was born and raised in the
Municipality of General Macarthur, Eastern Samar, Philippines. However, he left to work
in the USA and eventually became an American citizen. On 2 October 2005, Ty
reacquired his Philippine citizenship by taking his Oath of Allegiance to the Republic of
the Philippines before Noemi T. Diaz, Vice Consul of the Philippine Consulate General
in Los Angeles, California, USA, in accordance with the provisions of Republic Act No.
9225. 16 At this point, Ty still held dual citizenship, i.e., American and Philippine. It was
only on 19 March 2007 that Ty renounced his American citizenship before a notary
public and, resultantly, became a pure Philippine citizen again. ADEaHT
It bears to point out that Republic Act No. 9225 governs the manner in which a natural-
born Filipino may reacquire or retain 17 his Philippine citizenship despite acquiring a
foreign citizenship, and provides for his rights and liabilities under such circumstances. A
close scrutiny of said statute would reveal that it does not at all touch on the matter of
residence of the natural-born Filipino taking advantage of its provisions. Republic Act
No. 9225 imposes no residency requirement for the reacquisition or retention of
Philippine citizenship; nor does it mention any effect of such reacquisition or retention of
Philippine citizenship on the current residence of the concerned natural-born Filipino.
Clearly, Republic Act No. 9225 treats citizenship independently of residence. This is only
logical and consistent with the general intent of the law to allow for dual citizenship.
Since a natural-born Filipino may hold, at the same time, both Philippine and foreign
citizenships, he may establish residence either in the Philippines or in the foreign country
of which he is also a citizen.
Residency in the Philippines only becomes relevant when the natural-born Filipino with
dual citizenship decides to run for public office.
Section 5 (2) of Republic Act No. 9225 reads:
SEC. 5. Civil and Political Rights and Liabilities. — Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions: TAacCE
xxx xxx xxx
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution and existing
laws and, at the time of the filing of the certificate of candidacy, make a personal and
sworn renunciation of any and all foreign citizenship before any public officer authorized
to administer an oath.
Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or
retained his Philippine citizenship under Republic Act No. 9225, to run for public office,
he must: (1) meet the qualifications for holding such public office as required by the
Constitution and existing laws; and (2) make a personal and sworn renunciation of any
and all foreign citizenships before any public officer authorized to administer an oath.
That Ty complied with the second requirement is beyond question. On 19 March 2007,
he personally executed a Renunciation of Foreign Citizenship before a notary public. By
the time he filed his Certificate of Candidacy for the Office of Mayor of the Municipality
of General Macarthur, Eastern Samar, on 28 March 2007, he had already effectively
renounced his American citizenship, keeping solely his Philippine citizenship.
DAHSaT
The other requirement of Section 5 (2) of Republic Act No. 9225 pertains to the
qualifications required by the Constitution and existing laws.
Article X, Section 3 of the Constitution left it to Congress to enact a local government
code which shall provide, among other things, for the qualifications, election,
appointment and removal, term, salaries, powers and functions and duties of local
officials, and all other matters relating to the organization and operation of the local units.
Pursuant to the foregoing mandate, Congress enacted Republic Act No. 7160, the Local
Government Code of 1991, Section 39 of which lays down the following qualifications
for local elective officials:
SEC. 39. Qualifications. — (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city or province or, in the
case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or
sanggunian bayan, the district where he intends to be elected; a resident therein for at
least one (1) year immediately preceding the day of the election; and able to read and
write Filipino or any other local language or dialect.
xxx xxx xxx
(c) Candidates for the position of mayor or vice mayor of independent component
cities, component cities, or municipalities must be at least twenty-one (21) years of age
on election day. TaSEHD
The challenge against Ty's qualification to run as a candidate for the Office of Mayor of
the Municipality of General Macarthur, Eastern Samar, centers on his purported failure to
meet the one-year residency requirement in the said municipality.
The term "residence" is to be understood not in its common acceptation as referring to
"dwelling" or "habitation", but rather to "domicile" or legal residence, that is, "the place
where a party actually or constructively has his permanent home, where he, no matter
where he may be found at any given time, eventually intends to return and remain
(animus manendi)." 18
A domicile of origin is acquired by every person at birth. It is usually the place where the
child's parents reside and continues until the same is abandoned by acquisition of new
domicile (domicile of choice). In Coquilla, 19 the Court already acknowledged that for an
individual to acquire American citizenship, he must establish residence in the USA. Since
Ty himself admitted that he became a naturalized American citizen, then he must have
necessarily abandoned the Municipality of General Macarthur, Eastern Samar,
Philippines, as his domicile of origin; and transferred to the USA, as his domicile of
choice.
As has already been previously discussed by this Court herein, Ty's reacquisition of his
Philippine citizenship under Republic Act No. 9225 had no automatic impact or effect on
his residence/domicile. He could still retain his domicile in the USA, and he did not
necessarily regain his domicile in the Municipality of General Macarthur, Eastern Samar,
Philippines. Ty merely had the option to again establish his domicile in the Municipality
of General Macarthur, Eastern Samar, Philippines, said place becoming his new domicile
of choice. The length of his residence therein shall be determined from the time he made
it his domicile of choice, and it shall not retroact to the time of his birth. CETDHA
How then could it be established that Ty indeed established a new domicile in the
Municipality of General Macarthur, Eastern Samar, Philippines?
In Papandayan, Jr. v. Commission on Elections, 20 the Court provided a summation of
the different principles and concepts in jurisprudence relating to the residency
qualification for elective local officials. Pertinent portions of the ratio in Papandayan are
reproduced below:
Our decisions have applied certain tests and concepts in resolving the issue of whether or
not a candidate has complied with the residency requirement for elective positions. The
principle of animus revertendi has been used to determine whether a candidate has an
"intention to return" to the place where he seeks to be elected. Corollary to this is a
determination whether there has been an "abandonment" of his former residence which
signifies an intention to depart therefrom. In Caasi v. Court of Appeals, this Court set
aside the appealed orders of the COMELEC and the Court of Appeals and annulled the
election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that
respondent's immigration to the United States in 1984 constituted an abandonment of his
domicile and residence in the Philippines. Being a green card holder, which was proof
that he was a permanent resident or immigrant of the United States, and in the absence of
any waiver of his status as such before he ran for election on January 18, 1988,
respondent was held to be disqualified under §68 of the Omnibus Election Code of the
Philippines (Batas Pambansa Blg. 881). TcCDIS
In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was
proclaimed the duly elected representative of the 2nd District of Northern Samar. The
House of Representatives Electoral Tribunal (HRET) upheld his election against claims
that he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar.
In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the
concept of animus revertendi or "intent to return", stating that his absence from his
residence in order to pursue studies or practice his profession as a certified public
accountant in Manila or his registration as a voter other than in the place where he was
elected did not constitute loss of residence. The fact that respondent made periodical
journeys to his home province in Laoag revealed that he always had animus revertendi.
In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was
explained that the determination of a person's legal residence or domicile largely depends
upon the intention that may be inferred from his acts, activities, and utterances. In that
case, petitioner Adelina Larrazabal, who had obtained the highest number of votes in the
local elections of February 1, 1988 and who had thus been proclaimed as the duly elected
governor, was disqualified by the COMELEC for lack of residence and registration
qualifications, not being a resident nor a registered voter of Kananga, Leyte. The
COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one
year before the election by registering at Kananga, Leyte to qualify her to run for the
position of governor of the province of Leyte was proof that she considered herself a
resident of Ormoc City. This Court affirmed the ruling of the COMELEC and held that
petitioner Larrazabal had established her residence in Ormoc City, not in Kananga, Leyte,
from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on
February 1, 1988. There was no evidence to show that she and her husband maintained
separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The fact
that she occasionally visited Kananga, Leyte through the years did not signify an
intention to continue her residence after leaving that place. cCaDSA
In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and
"residence" are synonymous. The term "residence", as used in the election law, imports
not only an intention to reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent
residence to which when absent for business or pleasure, or for like reasons, one intends
to return. In that case, petitioner Philip G. Romualdez established his residence during the
early 1980's in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure
from the country of petitioner, because of the EDSA People's Power Revolution of 1986,
to go into self-exile in the United States until favorable conditions had been established,
was not voluntary so as to constitute an abandonment of residence. The Court explained
that in order to acquire a new domicile by choice, there must concur (1) residence or
bodily presence in the new locality, (2) an intention to remain there, and (3) an intention
to abandon the old domicile. There must be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual.
Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is
the decisive factor in determining whether or not an individual has satisfied the residency
qualification requirement. IcTaAH
As espoused by Ty, the issue of whether he complied with the one-year residency
requirement for running for public office is a question of fact. Its determination requires
the Court to review, examine and evaluate or weigh the probative value of the evidence
presented by the parties before the COMELEC.
The COMELEC, taking into consideration the very same pieces of evidence presently
before this Court, found that Ty was a resident of the Municipality of General Macarthur,
Eastern Samar, one year prior to the 14 May 2007 local elections. It is axiomatic that
factual findings of administrative agencies, such as the COMELEC, which have acquired
expertise in their field are binding and conclusive on the Court. An application for
certiorari against actions of the COMELEC is confined to instances of grave abuse of
discretion amounting to patent and substantial denial of due process, considering that the
COMELEC is presumed to be most competent in matters falling within its domain. 21
The Court even went further to say that the rule that factual findings of administrative
bodies will not be disturbed by courts of justice, except when there is absolutely no
evidence or no substantial evidence in support of such findings, should be applied with
greater force when it concerns the COMELEC, as the framers of the Constitution
intended to place the COMELEC — created and explicitly made independent by the
Constitution itself — on a level higher than statutory administrative organs. The factual
finding of the COMELEC en banc is therefore binding on the Court. 22 aHcACT
The findings of facts of quasi-judicial agencies which have acquired expertise in the
specific matters entrusted to their jurisdiction are accorded by this Court not only respect
but even finality if they are supported by substantial evidence. Only substantial, not
preponderance, of evidence is necessary. Section 5, Rule 133 of the Rules of Court
provides that in cases filed before administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial evidence, or that amount of relevant
evidence which a reasonable mind might accept as adequate to justify a conclusion. 23
The assailed Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC
First Division and en banc, respectively, were both supported by substantial evidence and
are, thus, binding and conclusive upon this Court.
Ty's intent to establish a new domicile of choice in the Municipality of General
Macarthur, Eastern Samar, Philippines, became apparent when, immediately after
reacquiring his Philippine citizenship on 2 October 2005, he applied for a Philippine
passport indicating in his application that his residence in the Philippines was at A.
Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar. For the years
2006 and 2007, Ty voluntarily submitted himself to the local tax jurisdiction of the
Municipality of General Macarthur, Eastern Samar, by paying community tax and
securing CTCs from the said municipality stating therein his address as A. Mabini St.,
Barangay 6, Poblacion, General Macarthur, Eastern Samar. Thereafter, Ty applied for
and was registered as a voter on 17 July 2006 in Precinct 0013A, Barangay 6, Poblacion,
General Macarthur, Eastern Samar. SAHIaD
In addition, Ty has also been bodily present in the Municipality of General Macarthur,
Eastern Samar, Philippines, since his arrival on 4 May 2006, inarguably, just a little over
a year prior to the 14 May 2007 local elections. Japzon maintains that Ty's trips abroad
during said period, i.e., to Bangkok, Thailand (from 14 to 18 July 2006), and to the USA
(from 31 October 2006 to 19 January 2007), indicate that Ty had no intention to
permanently reside in the Municipality of General Macarthur, Eastern Samar,
Philippines. The COMELEC First Division and en banc, as well as this Court, however,
view these trips differently. The fact that Ty did come back to the Municipality of
General Macarthur, Eastern Samar, Philippines, after said trips, is a further manifestation
of his animus manendi and animus revertendi.
There is no basis for this Court to require Ty to stay in and never leave at all the
Municipality of General Macarthur, Eastern Samar, for the full one-year period prior to
the 14 May 2007 local elections so that he could be considered a resident thereof. To the
contrary, the Court has previously ruled that absence from residence to pursue studies or
practice a profession or registration as a voter other than in the place where one is
elected, does not constitute loss of residence. 24 The Court also notes, that even with his
trips to other countries, Ty was actually present in the Municipality of General
Macarthur, Eastern Samar, Philippines, for at least nine of the 12 months preceding the
14 May 2007 local elections. Even if length of actual stay in a place is not necessarily
determinative of the fact of residence therein, it does strongly support and is only
consistent with Ty's avowed intent in the instant case to establish residence/domicile in
the Municipality of General Macarthur, Eastern Samar. CSTDEH
Japzon repeatedly brings to the attention of this Court that Ty arrived in the Municipality
of General Macarthur, Eastern Samar, on 4 May 2006 only to comply with the one-year
residency requirement, so Ty could run as a mayoralty candidate in the 14 May 2007
elections. In Aquino v. COMELEC, 25 the Court did not find anything wrong in an
individual changing residences so he could run for an elective post, for as long as he is
able to prove with reasonable certainty that he has effected a change of residence for
election law purposes for the period required by law. As this Court already found in the
present case, Ty has proven by substantial evidence that he had established
residence/domicile in the Municipality of General Macarthur, Eastern Samar, by 4 May
2006, a little over a year prior to the 14 May 2007 local elections, in which he ran as a
candidate for the Office of the Mayor and in which he garnered the most number of
votes. 2009jur
Finally, when the evidence of the alleged lack of residence qualification of a candidate
for an elective position is weak or inconclusive and it clearly appears that the purpose of
the law would not be thwarted by upholding the victor's right to the office, the will of the
electorate should be respected. For the purpose of election laws is to give effect to, rather
than frustrate, the will of the voters. 26 To successfully challenge Ty's disqualification,
Japzon must clearly demonstrate that Ty's ineligibility is so patently antagonistic to
constitutional and legal principles that overriding such ineligibility and thereby giving
effect to the apparent will of the people would ultimately create greater prejudice to the
very democratic institutions and juristic traditions that our Constitution and laws so
zealously protect and promote. In this case, Japzon failed to substantiate his claim that Ty
is ineligible to be Mayor of the Municipality of General Macarthur, Eastern Samar,
Philippines.
WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED.
TCAHES
SO ORDERED.

[G.R. No. 179271. April 21, 2009.]

BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT AND
TRANSPARENCY (BANAT), petitioner, vs. COMMISSION ON ELECTIONS (sitting
as the National Board of Canvassers), respondent.
ARTS BUSINESS AND SCIENCE PROFESSIONALS, intervenor.
AANGAT TAYO, intervenor.
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES,
INC. (SENIOR CITIZENS), intervenor.
[G.R. No. 179295. April 21, 2009.]
BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT THROUGH
ACTION, COOPERATION AND HARMONY TOWARDS EDUCATIONAL
REFORMS, INC., and ABONO, petitioners, vs. COMMISSION ON ELECTIONS,
respondent.
DECISION
CARPIO, J p:
The Case
Petitioner in G.R. No. 179271 — Barangay Association for National Advancement and
Transparency (BANAT) — in a petition for certiorari and mandamus, 1 assails the
Resolution 2 promulgated on 3 August 2007 by the Commission on Elections
(COMELEC) in NBC No. 07-041 (PL). The COMELEC's resolution in NBC No. 07-041
(PL) approved the recommendation of Atty. Alioden D. Dalaig, Head of the National
Board of Canvassers (NBC) Legal Group, to deny the petition of BANAT for being
moot. BANAT filed before the COMELEC En Banc, acting as NBC, a Petition to
Proclaim the Full Number of Party-List Representatives Provided by the Constitution.
aIAcCH
The following are intervenors in G.R. No. 179271: Arts Business and Science
Professionals (ABS), Aangat Tayo (AT), and Coalition of Associations of Senior Citizens
in the Philippines, Inc. (Senior Citizens).
Petitioners in G.R. No. 179295 — Bayan Muna, Abono, and Advocacy for Teacher
Empowerment Through Action, Cooperation and Harmony Towards Educational
Reforms (A Teacher) — in a petition for certiorari with mandamus and prohibition, 3
assails NBC Resolution No. 07-60 4 promulgated on 9 July 2007. NBC No. 07-60 made a
partial proclamation of parties, organizations and coalitions that obtained at least two
percent of the total votes cast under the Party-List System. The COMELEC announced
that, upon completion of the canvass of the party-list results, it would determine the total
number of seats of each winning party, organization, or coalition in accordance with
Veterans Federation Party v. COMELEC 5 (Veterans).
Estrella DL Santos, in her capacity as President and First Nominee of the Veterans
Freedom Party, filed a motion to intervene in both G.R. Nos. 179271 and 179295.
The Facts
The 14 May 2007 elections included the elections for the party-list representatives. The
COMELEC counted 15,950,900 votes cast for 93 parties under the Party-List System. 6
On 27 June 2002, BANAT filed a Petition to Proclaim the Full Number of Party-List
Representatives Provided by the Constitution, docketed as NBC No. 07-041 (PL) before
the NBC. BANAT filed its petition because "[t]he Chairman and the Members of the
[COMELEC] have recently been quoted in the national papers that the [COMELEC] is
duty bound to and shall implement the Veterans ruling, that is, would apply the
Panganiban formula in allocating party-list seats". 7 There were no intervenors in
BANAT's petition before the NBC. BANAT filed a memorandum on 19 July 2007.
aTEACS
On 9 July 2007, the COMELEC, sitting as the NBC, promulgated NBC Resolution No.
07-60. NBC Resolution No. 07-60 proclaimed thirteen (13) parties as winners in the
party-list elections, namely: Buhay Hayaan Yumabong (BUHAY), Bayan Muna,
Citizens' Battle Against Corruption (CIBAC), Gabriela's Women Party (Gabriela),
Association of Philippine Electric Cooperatives (APEC), A Teacher, Akbayan! Citizen's
Action Party (AKBAYAN), Alagad, Luzon Farmers Party (BUTIL), Cooperative-Natco
Network Party (COOP-NATCCO), Anak Pawis, Alliance of Rural Concerns (ARC), and
Abono. We quote NBC Resolution No. 07-60 in its entirety below:
WHEREAS, the Commission on Elections sitting en banc as National Board of
Canvassers, thru its Sub-Committee for Party-List, as of 03 July 2007, had officially
canvassed, in open and public proceedings, a total of fifteen million two hundred eighty
three thousand six hundred fifty-nine (15,283,659) votes under the Party-List System of
Representation, in connection with the National and Local Elections conducted last 14
May 2007;
WHEREAS, the study conducted by the Legal and Tabulation Groups of the National
Board of Canvassers reveals that the projected/maximum total party-list votes cannot go
any higher than sixteen million seven hundred twenty three thousand one hundred
twenty-one (16,723,121) votes given the following statistical data:
Projected/Maximum Party-List Votes for May 2007 Elections
i. Total party-list votes already canvassed/ 15,283,659
tabulated
ii. Total party-list votes remaining uncanvassed/ 1,337,032
untabulated (i.e. canvass deferred)
iii. Maximum party-list votes (based on 100% 102,430
 outcome) from areas not yet submitted for
canvass (Bogo, Cebu; Bais City; Pantar,
Lanao del Norte; and Pagalungan,
Maguindanao)
Maximum Total Party-List Votes 16,723,121
WHEREAS, Section 11 of Republic Act No. 7941 (Party-List System Act) provides in
part:
The parties, organizations, and coalitions receiving at least two percent (2%) of the total
votes cast for the party-list system shall be entitled to one seat each: provided, that those
garnering more than two percent (2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes: provided, finally, that each party, organization,
or coalition shall be entitled to not more than three (3) seats.
WHEREAS, for the 2007 Elections, based on the above projected total of party-list votes,
the presumptive two percent (2%) threshold can be pegged at three hundred thirty four
thousand four hundred sixty-two (334,462) votes; SECIcT
WHEREAS, the Supreme Court, in Citizen's Battle Against Corruption (CIBAC) versus
COMELEC, reiterated its ruling in Veterans Federation Party versus COMELEC
adopting a formula for the additional seats of each party, organization or coalition
receiving more than the required two percent (2%) votes, stating that the same shall be
determined only after all party-list ballots have been completely canvassed;
WHEREAS, the parties, organizations, and coalitions that have thus far garnered at least
three hundred thirty four thousand four hundred sixty-two (334,462) votes are as follows:
RANK PARTY/ORGANIZATION/ VOTES
COALITION RECEIVED
1 BUHAY 1,163,218
2 BAYAN MUNA 972,730
3 CIBAC 760,260
4 GABRIELA 610,451
5 APEC 538,971
6 A TEACHER 476,036
7 AKBAYAN 470,872
8 ALAGAD 423,076
9 BUTIL405,052
10 COOP-NATCO 390,029
11 BATAS 386,361
12 ANAK PAWIS 376,036
13 ARC 338,194
14 ABONO 337,046
WHEREAS, except for Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan
(BATAS), against which an URGENT PETITION FOR CANCELLATION/REMOVAL
OF REGISTRATION AND DISQUALIFICATION OF PARTY-LIST NOMINEE (With
Prayer for the Issuance of Restraining Order) has been filed before the Commission,
docketed as SPC No. 07-250, all the parties, organizations and coalitions included in the
aforementioned list are therefore entitled to at least one seat under the party-list system of
representation in the meantime. SATDHE
NOW, THEREFORE, by virtue of the powers vested in it by the Constitution, the
Omnibus Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941,
and other election laws, the Commission on Elections, sitting en banc as the National
Board of Canvassers, hereby RESOLVES to PARTIALLY PROCLAIM, subject to
certain conditions set forth below, the following parties, organizations and coalitions
participating under the Party-List System:
1 Buhay Hayaan Yumabong BUHAY
2 Bayan Muna BAYAN MUNA
3 Citizens Battle Against Corruption CIBAC
4 Gabriela Women's Party GABRIELA
5 Association of Philippine Electric APEC
Cooperatives
6 Advocacy for TeacherA TEACHER
Empowerment Through
Action, Cooperation and
Harmony Towards
Educational Reforms, Inc.
7 Akbayan! Citizen's Action Party AKBAYAN
8 Alagad ALAGAD
9 Luzon Farmers Party BUTIL
10 Cooperative-Natco Network Party COOP-NATCCO
11 Anak Pawis ANAKPAWIS
12 Alliance of Rural Concerns ARC
13 Abono ABONO
This is without prejudice to the proclamation of other parties, organizations, or coalitions
which may later on be established to have obtained at least two percent (2%) of the total
actual votes cast under the Party-List System.
The total number of seats of each winning party, organization or coalition shall be
determined pursuant to Veterans Federation Party versus COMELEC formula upon
completion of the canvass of the party-list results. aSIATD
The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan
(BATAS) is hereby deferred until final resolution of SPC No. 07-250, in order not to
render the proceedings therein moot and academic.
Finally, all proclamation of the nominees of concerned parties, organizations and
coalitions with pending disputes shall likewise be held in abeyance until final resolution
of their respective cases.
Let the Clerk of the Commission implement this Resolution, furnishing a copy thereof to
the Speaker of the House of Representatives of the Philippines.
SO ORDERED. 8 (Emphasis in the original)
Pursuant to NBC Resolution No. 07-60, the COMELEC, acting as NBC, promulgated
NBC Resolution No. 07-72, which declared the additional seats allocated to the
appropriate parties. We quote from the COMELEC's interpretation of the Veterans
formula as found in NBC Resolution No. 07-72:
WHEREAS, on July 9, 2007, the Commission on Elections sitting en banc as the
National Board of Canvassers proclaimed thirteen (13) qualified parties, organization[s]
and coalitions based on the presumptive two percent (2%) threshold of 334,462 votes
from the projected maximum total number of party-list votes of 16,723,121, and were
thus given one (1) guaranteed party-list seat each;
WHEREAS, per Report of the Tabulation Group and Supervisory Committee of the
National Board of Canvassers, the projected maximum total party-list votes, as of July
11, 2007, based on the votes actually canvassed, votes canvassed but not included in
Report No. 29, votes received but uncanvassed, and maximum votes expected for Pantar,
Lanao del Norte, is 16,261,369; and that the projected maximum total votes for the
thirteen (13) qualified parties, organizations and coalition[s] are as follows:
Party-List Projected total number of votes
1 BUHAY 1,178,747
2 BAYAN MUNA 977,476
3 CIBAC 755,964
4 GABRIELA 621,718
5 APEC 622,489
6 A TEACHER 492,369
7 AKBAYAN 462,674
8 ALAGAD 423,190
9 BUTIL409,298
10 COOP-NATCO 412,920
11 ANAKPAWIS 370,165
12 ARC 375,846
13 ABONO 340,151
WHEREAS, based on the above Report, Buhay Hayaan Yumabong (Buhay) obtained the
highest number of votes among the thirteen (13) qualified parties, organizations and
coalitions, making it the "first party" in accordance with Veterans Federation Party versus
COMELEC, reiterated in Citizen's Battle Against Corruption (CIBAC) versus
COMELEC; acITSD
WHEREAS, qualified parties, organizations and coalitions participating under the party-
list system of representation that have obtained one guaranteed (1) seat may be entitled to
an additional seat or seats based on the formula prescribed by the Supreme Court in
Veterans;
WHEREAS, in determining the additional seats for the "first party", the correct formula
as expressed in Veterans, is:
Number of votes of first party Proportion of votes of first
————————————— = party relative to total votes for
Total votes for party-list system party-list system
wherein the proportion of votes received by the first party (without rounding off) shall
entitle it to additional seats:
Proportion of votes received Additional seats
by the first party
Equal to or at least 6% Two (2) additional seats
Equal to or greater than 4% but less One (1) additional seat
than 6%
Less than 4% No additional seat
WHEREAS, applying the above formula, Buhay obtained the following percentage:
1,178,747
 ————— = 0.07248 or 7.2%
16,261,369
which entitles it to two (2) additional seats. HCITAS
WHEREAS, in determining the additional seats for the other qualified parties,
organizations and coalitions, the correct formula as expressed in Veterans and reiterated
in CIBAC is, as follows:
No. of votes of
concerned party No. of additional
Additional seats for = —————— x seats allocated to
a concerned party No. of votes of first party
first party
WHEREAS, applying the above formula, the results are as follows:
Party List Percentage Additional Seat
BAYAN MUNA 1.65 1
CIBAC 1.28 1
GABRIELA 1.05 1
APEC 1.05 1
A TEACHER 0.83 0
AKBAYAN 0.78 0
ALAGAD 0.71 0
BUTIL0.69 0
COOP-NATCO 0.69 0
ANAKPAWIS 0.62 0
ARC 0.63 0
ABONO 0.57 0
NOW THEREFORE, by virtue of the powers vested in it by the Constitution, Omnibus
Election Code, Executive Order No. 144, Republic Act Nos. 6646, 7166, 7941 and other
elections laws, the Commission on Elections en banc sitting as the National Board of
Canvassers, hereby RESOLVED, as it hereby RESOLVES, to proclaim the following
parties, organizations or coalitions as entitled to additional seats, to wit: aEHASI
Party List Additional Seats
BUHAY 2
BAYAN MUNA 1
CIBAC 1
GABRIELA 1
APEC 1
This is without prejudice to the proclamation of other parties, organizations or coalitions
which may later on be established to have obtained at least two per cent (2%) of the total
votes cast under the party-list system to entitle them to one (1) guaranteed seat, or to the
appropriate percentage of votes to entitle them to one (1) additional seat.
Finally, all proclamation of the nominees of concerned parties, organizations and
coalitions with pending disputes shall likewise be held in abeyance until final resolution
of their respective cases.
Let the National Board of Canvassers Secretariat implement this Resolution, furnishing a
copy hereof to the Speaker of the House of Representatives of the Philippines.
SO ORDERED. 9
Acting on BANAT's petition, the NBC promulgated NBC Resolution No. 07-88 on 3
August 2007, which reads as follows:
This pertains to the Petition to Proclaim the Full Number of Party-List Representatives
Provided by the Constitution filed by the Barangay Association for National
Advancement and Transparency (BANAT).
Acting on the foregoing Petition of the Barangay Association for National Advancement
and Transparency (BANAT) party-list, Atty. Alioden D. Dalaig, Head, National Board of
Canvassers Legal Group submitted his comments/observations and recommendation
thereon [NBC 07-041 (PL)], which reads:
COMMENTS/OBSERVATIONS:
Petitioner Barangay Association for National Advancement and Transparency (BANAT),
in its Petition to Proclaim the Full Number of Party-List Representatives Provided by the
Constitution prayed for the following reliefs, to wit:
1. That the full number — twenty percent (20%) — of Party-List representatives as
mandated by Section 5, Article VI of the Constitution shall be proclaimed. CaDEAT
2. Paragraph (b), Section 11 of RA 7941 which prescribes the 2% threshold votes,
should be harmonized with Section 5, Article VI of the Constitution and with Section 12
of the same RA 7941 in that it should be applicable only to the first party-list
representative seats to be allotted on the basis of their initial/first ranking.
3. The 3-seat limit prescribed by RA 7941 shall be applied; and
4. Initially, all party-list groups shall be given the number of seats corresponding to
every 2% of the votes they received and the additional seats shall be allocated in
accordance with Section 12 of RA 7941, that is, in proportion to the percentage of votes
obtained by each party-list group in relation to the total nationwide votes cast in the
party-list election, after deducting the corresponding votes of those which were allotted
seats under the 2% threshold rule. In fine, the formula/procedure prescribed in the
"ALLOCATION OF PARTY-LIST SEATS, ANNEX "A" of COMELEC
RESOLUTION 2847 dated 25 June 1996, shall be used for [the] purpose of determining
how many seats shall be proclaimed, which party-list groups are entitled to representative
seats and how many of their nominees shall seat [sic].
5. In the alternative, to declare as unconstitutional Section 11 of Republic Act No.
7941 and that the procedure in allocating seats for party-list representative prescribed by
Section 12 of RA 7941 shall be followed.
RECOMMENDATION:
The petition of BANAT is now moot and academic.
The Commission En Banc in NBC Resolution No. 07-60 promulgated July 9, 2007 re "In
the Matter of the Canvass of Votes and Partial Proclamation of the Parties, Organizations
and Coalitions Participating Under the Party-List System During the May 14, 2007
National and Local Elections" resolved among others that the total number of seats of
each winning party, organization or coalition shall be determined pursuant to the
Veterans Federation Party versus COMELEC formula upon completion of the canvass of
the party-list results".
WHEREFORE, premises considered, the National Board of Canvassers RESOLVED, as
it hereby RESOLVES, to approve and adopt the recommendation of Atty. Alioden D.
Dalaig, Head, NBC Legal Group, to DENY the herein petition of BANAT for being moot
and academic.
Let the Supervisory Committee implement this resolution.
SO ORDERED. 10 EASIHa
BANAT filed a petition for certiorari and mandamus assailing the ruling in NBC
Resolution No. 07-88. BANAT did not file a motion for reconsideration of NBC
Resolution No. 07-88.
On 9 July 2007, Bayan Muna, Abono, and A Teacher asked the COMELEC, acting as
NBC, to reconsider its decision to use the Veterans formula as stated in its NBC
Resolution No. 07-60 because the Veterans formula is violative of the Constitution and of
Republic Act No. 7941 (R.A. No. 7941). On the same day, the COMELEC denied
reconsideration during the proceedings of the NBC. 11
Aside from the thirteen party-list organizations proclaimed on 9 July 2007, the
COMELEC proclaimed three other party-list organizations as qualified parties entitled to
one guaranteed seat under the Party-List System: Agricultural Sector Alliance of the
Philippines, Inc. (AGAP), 12 Anak Mindanao (AMIN), 13 and An Waray. 14 Per the
certification 15 by COMELEC, the following party-list organizations have been
proclaimed as of 19 May 2008:
Party-List No. of Seat(s)
1.1 Buhay 3
1.2 Bayan Muna 2
1.3 CIBAC 2
1.4 Gabriela 2
1.5 APEC 2
1.6 A Teacher 1
1.7 Akbayan 1
1.8 Alagad 1
1.9 Butil 1
1.10 Coop-Natco [sic] 1
1.11 Anak Pawis 1
1.12 ARC 1
1.13 Abono 1
1.14 AGAP 1
1.15 AMIN 1
The proclamation of Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan
(BATAS), against which an Urgent Petition for Cancellation/Removal of Registration
and Disqualification of Party-list Nominee (with Prayer for the Issuance of Restraining
Order) has been filed before the COMELEC, was deferred pending final resolution of
SPC No. 07-250. SaHIEA
Issues
BANAT brought the following issues before this Court:
1. Is the twenty percent allocation for party-list representatives provided in Section
5(2), Article VI of the Constitution mandatory or is it merely a ceiling?
2. Is the three-seat limit provided in Section 11(b) of RA 7941 constitutional?
3. Is the two percent threshold and "qualifier" votes prescribed by the same Section
11(b) of RA 7941 constitutional?
4. How shall the party-list representatives be allocated? 16
Bayan Muna, A Teacher, and Abono, on the other hand, raised the following issues in
their petition:
I. Respondent Commission on Elections, acting as National Board of Canvassers,
committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
promulgated NBC Resolution No. 07-60 to implement the First-Party Rule in the
allocation of seats to qualified party-list organizations as said rule:
A. Violates the constitutional principle of proportional representation.
B. Violates the provisions of RA 7941 particularly:
1. The 2-4-6 Formula used by the First Party Rule in allocating additional seats for
the "First Party" violates the principle of proportional representation under RA 7941.
2. The use of two formulas in the allocation of additional seats, one for the "First
Party" and another for the qualifying parties, violates Section 11(b) of RA 7941.
3. The proportional relationships under the First Party Rule are different from those
required under RA 7941;
C. Violates the "Four Inviolable Parameters" of the Philippine party-list system as
provided for under the same case of Veterans Federation Party, et al. v. COMELEC.
TEcHCA
II. Presuming that the Commission on Elections did not commit grave abuse of
discretion amounting to lack or excess of jurisdiction when it implemented the First-Party
Rule in the allocation of seats to qualified party-list organizations, the same being merely
in consonance with the ruling in Veterans Federations Party, et al. v. COMELEC, the
instant Petition is a justiciable case as the issues involved herein are constitutional in
nature, involving the correct interpretation and implementation of RA 7941, and are of
transcendental importance to our nation. 17
Considering the allegations in the petitions and the comments of the parties in these
cases, we defined the following issues in our advisory for the oral arguments set on 22
April 2008:
1. Is the twenty percent allocation for party-list representatives in Section 5(2),
Article VI of the Constitution mandatory or merely a ceiling?
2. Is the three-seat limit in Section 11(b) of RA 7941 constitutional?
3. Is the two percent threshold prescribed in Section 11(b) of RA 7941 to qualify for
one seat constitutional?
4. How shall the party-list representative seats be allocated?
5. Does the Constitution prohibit the major political parties from participating in the
party-list elections? If not, can the major political parties be barred from participating in
the party-list elections? 18
The Ruling of the Court
The petitions have partial merit. We maintain that a Philippine-style party-list election
has at least four inviolable parameters as clearly stated in Veterans. For easy reference,
these are:
First, the twenty percent allocation — the combined number of all party-list congressmen
shall not exceed twenty percent of the total membership of the House of Representatives,
including those elected under the party list;
Second, the two percent threshold — only those parties garnering a minimum of two
percent of the total valid votes cast for the party-list system are "qualified" to have a seat
in the House of Representatives;
Third, the three-seat limit — each qualified party, regardless of the number of votes it
actually obtained, is entitled to a maximum of three seats; that is, one "qualifying" and
two additional seats;
Fourth, proportional representation — the additional seats which a qualified party is
entitled to shall be computed "in proportion to their total number of votes". 19 ITSacC
However, because the formula in Veterans has flaws in its mathematical interpretation of
the term "proportional representation", this Court is compelled to revisit the formula for
the allocation of additional seats to party-list organizations.
Number of Party-List Representatives:
The Formula Mandated by the Constitution
Section 5, Article VI of the Constitution provides:
Section 5.(1) The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan Manila
area in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected
through a party-list system of registered national, regional, and sectoral parties or
organizations.
(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party-list. For three consecutive
terms after the ratification of this Constitution, one-half of the seats allocated to party-list
representatives shall be filled, as provided by law, by selection or election from the labor,
peasant, urban poor, indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector.
The first paragraph of Section 11 of R.A. No. 7941 reads:
Section 11. Number of Party-List Representatives. — The party-list representatives
shall constitute twenty per centum (20%) of the total number of the members of the
House of Representatives including those under the party-list.
xxx xxx xxx
Section 5 (1), Article VI of the Constitution states that the "House of Representatives
shall be composed of not more than two hundred and fifty members, unless otherwise
fixed by law". The House of Representatives shall be composed of district representatives
and party-list representatives. The Constitution allows the legislature to modify the
number of the members of the House of Representatives.
Section 5 (2), Article VI of the Constitution, on the other hand, states the ratio of party-
list representatives to the total number of representatives. We compute the number of
seats available to party-list representatives from the number of legislative districts. On
this point, we do not deviate from the first formula in Veterans, thus: cAHITS
Number of seats available to Number of seats available to
legislative districts x .20 = party-list representatives
————————————
.80
This formula allows for the corresponding increase in the number of seats available for
party-list representatives whenever a legislative district is created by law. Since the 14th
Congress of the Philippines has 220 district representatives, there are 55 seats available to
party-list representatives.
 220
———— x .20 = 55
.80
After prescribing the ratio of the number of party-list representatives to the total number
of representatives, the Constitution left the manner of allocating the seats available to
party-list representatives to the wisdom of the legislature.
Allocation of Seats for Party-List Representatives:
The Statutory Limits Presented by the Two Percent Threshold
and the Three-Seat Cap
All parties agree on the formula to determine the maximum number of seats reserved
under the Party-List System, as well as on the formula to determine the guaranteed seats
to party-list candidates garnering at least two-percent of the total party-list votes.
However, there are numerous interpretations of the provisions of R.A. No. 7941 on the
allocation of "additional seats" under the Party-List System. Veterans produced the First
Party Rule, 20 and Justice Vicente V. Mendoza's dissent in Veterans presented
Germany's Niemeyer formula 21 as an alternative.
The Constitution left to Congress the determination of the manner of allocating the seats
for party-list representatives. Congress enacted R.A. No. 7941, paragraphs (a) and (b) of
Section 11 and Section 12 of which provide:
Section 11. Number of Party-List Representatives. — . . .
In determining the allocation of seats for the second vote, 22 the following procedure
shall be observed:
(a) The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.
(b) The parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list system shall be entitled to one seat each: Provided,
That those garnering more than two percent (2%) of the votes shall be entitled to
additional seats in proportion to their total number of votes: Provided, finally, That each
party, organization, or coalition shall be entitled to not more than three (3) seats.
Section 12. Procedure in Allocating Seats for Party-List Representatives. — The
COMELEC shall tally all the votes for the parties, organizations, or coalitions on a
nationwide basis, rank them according to the number of votes received and allocate party-
list representatives proportionately according to the percentage of votes obtained by each
party, organization, or coalition as against the total nationwide votes cast for the party-list
system. (Emphasis supplied)
In G.R. No. 179271, BANAT presents two interpretations through three formulas to
allocate party-list representative seats.
The first interpretation allegedly harmonizes the provisions of Section 11 (b) on the 2%
requirement with Section 12 of R.A. No. 7941. BANAT described this procedure as
follows: ASEIDH
(a) The party-list representatives shall constitute twenty percent (20%) of the total
Members of the House of Representatives including those from the party-list groups as
prescribed by Section 5, Article VI of the Constitution, Section 11 (1st par.) of RA 7941
and Comelec Resolution No. 2847 dated 25 June 1996. Since there are 220 District
Representatives in the 14th Congress, there shall be 55 Party-List Representatives. All
seats shall have to be proclaimed.
(b) All party-list groups shall initially be allotted one (1) seat for every two per
centum (2%) of the total party-list votes they obtained; provided, that no party-list groups
shall have more than three (3) seats (Section 11, RA 7941).
(c) The remaining seats shall, after deducting the seats obtained by the party-list
groups under the immediately preceding paragraph and after deducting from their total
the votes corresponding to those seats, the remaining seats shall be allotted
proportionately to all the party-list groups which have not secured the maximum three (3)
seats under the 2% threshold rule, in accordance with Section 12 of RA 7941. 23
Forty-four (44) party-list seats will be awarded under BANAT's first interpretation.
The second interpretation presented by BANAT assumes that the 2% vote requirement is
declared unconstitutional, and apportions the seats for party-list representatives by
following Section 12 of R.A. No. 7941. BANAT states that the COMELEC:
(a) shall tally all the votes for the parties, organizations, or coalitions on a nationwide
basis;
(b) rank them according to the number of votes received; and,
(c) allocate party-list representatives proportionately according to the percentage of
votes obtained by each party, organization or coalition as against the total nationwide
votes cast for the party-list system. 24
BANAT used two formulas to obtain the same results: one is based on the proportional
percentage of the votes received by each party as against the total nationwide party-list
votes, and the other is "by making the votes of a party-list with a median percentage of
votes as the divisor in computing the allocation of seats". 25 Thirty-four (34) party-list
seats will be awarded under BANAT's second interpretation. TIESCA
In G.R. No. 179295, Bayan Muna, Abono, and A Teacher criticize both the COMELEC's
original 2-4-6 formula and the Veterans formula for systematically preventing all the
party-list seats from being filled up. They claim that both formulas do not factor in the
total number of seats allotted for the entire Party-List System. Bayan Muna, Abono, and
A Teacher reject the three-seat cap, but accept the 2% threshold. After determining the
qualified parties, a second percentage is generated by dividing the votes of a qualified
party by the total votes of all qualified parties only. The number of seats allocated to a
qualified party is computed by multiplying the total party-list seats available with the
second percentage. There will be a first round of seat allocation, limited to using the
whole integers as the equivalent of the number of seats allocated to the concerned party-
list. After all the qualified parties are given their seats, a second round of seat allocation
is conducted. The fractions, or remainders, from the whole integers are ranked from
highest to lowest and the remaining seats on the basis of this ranking are allocated until
all the seats are filled up. 26
We examine what R.A. No. 7941 prescribes to allocate seats for party-list representatives.
Section 11 (a) of R.A. No. 7941 prescribes the ranking of the participating parties from
the highest to the lowest based on the number of votes they garnered during the elections.
Table 1. Ranking of the participating parties from the highest to the lowest based on the
number of votes garnered during the elections. 27
Rank Party Votes
Garnered
1 BUHAY 1,169,234
2 BAYAN MUNA 979,039
3 CIBAC 755,686
4 GABRIELA 621,171
5 APEC 619,657
6 A TEACHER 490,379
7 AKBAYAN 466,112
8 ALAGAD 423,149
9 COOP-NATCCO 409,883
10 BUTIL409,160
11 BATAS 385,810
12 ARC 374,288
13 ANAKPAWIS 370,261
14 ABONO 339,990
15 AMIN 338,185
16 AGAP 328,724
17 AN WARAY 321,503
18 YACAP 310,889
19 FPJPM300,923
20 UNI-MAD 245,382
21 ABS 235,086
22 KAKUSA 228,999
23 KABATAAN 228,637
24 ABA-AKO 218,818
25 ALIF 217,822
26 SENIOR CITIZENS 213,058
27 AT 197,872
28 VFP 196,266
29 ANAD 188,521
30 BANAT 177,028
31 ANG KASANGGA 170,531
32 BANTAY 169,801
33 ABAKADA 166,747
34 1-UTAK 164,980
35 TUCP 162,647
36 COCOFED 155,920
37 AGHAM 146,032
38 ANAK 141,817
39 ABANSE! PINAY 130,356
40 PM 119,054
41 AVE 110,769
42 SUARA 110,732
43 ASSALAM 110,440
44 DIWA 107,021
45 ANC 99,636
46 SANLAKAS 97,375
47 ABC 90,058
48 KALAHI 88,868
49 APOI 79,386
50 BP 78,541
51 AHONBAYAN 78,424
52 BIGKIS 77,327
53 PMAP 75,200
54 AKAPIN 74,686
55 PBA 71,544
56 GRECON 62,220
57 BTM 60,993
58 A SMILE 58,717
59 NELFFI 57,872
60 AKSA 57,012
61 BAGO 55,846
62 BANDILA 54,751
63 AHON 54,522
64 ASAHAN MO 51,722
65 AGBIAG! 50,837
66 SPI 50,478
67 BAHANDI 46,612
68 ADD 45,624
69 AMANG SCIAaT 43,062
70 ABAY PARAK 42,282
71 BABAE KA 36,512
72 SB 34,835
73 ASAP 34,098
74 PEP 33,938
75 ABA ILONGGO 33,903
76 VENDORS 33,691
77 ADD-TRIBAL 32,896
78 ALMANA 32,255
79 AANGAT KA PILIPINO 29,130
80 AAPS 26,271
81 HAPI 25,781
82 AAWAS 22,946
83 SM 20,744
84 AG 16,916
85 AGING PINOY 16,729
86 APO 16,421
87 BIYAYANG BUKID 16,241
88 ATS 14,161
89 UMDJ 9,445
90 BUKLOD FILIPINA 8,915
91 LYPAD 8,471
92 AA-KASOSYO 8,406
93 KASAPI 6,221
—————
 TOTAL 15,950,900
=========
The first clause of Section 11 (b) of R.A. No. 7941 states that "parties, organizations, and
coalitions receiving at least two percent (2%) of the total votes cast for the party-list
system shall be entitled to one seat each". This clause guarantees a seat to the two-
percenters. In Table 2 below, we use the first 20 party-list candidates for illustration
purposes. The percentage of votes garnered by each party is arrived at by dividing the
number of votes garnered by each party by 15,950,900, the total number of votes cast for
all party-list candidates. SEIacA
Table 2. The first 20 party-list candidates and their respective percentage of votes
garnered over the total votes for the party-list. 28
Rank Party Votes Votes Guaranteed
Garnered Garnered over Seat
Total Votes
for Party-List,
in %
1 BUHAY 1,169,234 7.33% 1
2 BAYAN MUNA 979,039 6.14% 1
3 CIBAC 755,686 4.74% 1
4 GABRIELA 621,171 3.89% 1
5 APEC 619,657 3.88% 1
6 A TEACHER 490,379 3.07% 1
7 AKBAYAN 466,112 2.92% 1
8 ALAGAD 423,149 2.65% 1
9 COOP-NATCCO 409,883 2.57% 1
10 BUTIL409,160 2.57% 1
11 BATAS 29 385,810 2.42% 1
12 ARC 374,288 2.35% 1
13 ANAKPAWIS 370,261 2.32% 1
14 ABONO 339,990 2.13% 1
15 AMIN 338,185 2.12% 1
16 AGAP IDTHcA 328,724 2.06% 1
17 AN WARAY 321,503 2.02% 1
——
Total 17
===
18 YACAP 310,889 1.95% 0
19 FPJPM300,923 1.89% 0
20 UNI-MAD 245,382 1.54% 0
From Table 2 above, we see that only 17 party-list candidates received at least 2% from
the total number of votes cast for party-list candidates. The 17 qualified party-list
candidates, or the two-percenters, are the party-list candidates that are "entitled to one
seat each", or the guaranteed seat. In this first round of seat allocation, we distributed 17
guaranteed seats. aDSAEI
The second clause of Section 11 (b) of R.A. No. 7941 provides that "those garnering
more than two percent (2%) of the votes shall be entitled to additional seats in proportion
to their total number of votes". This is where petitioners' and intervenors' problem with
the formula in Veterans lies. Veterans interprets the clause "in proportion to their total
number of votes" to be in proportion to the votes of the first party. This interpretation is
contrary to the express language of R.A. No. 7941. IATHaS
We rule that, in computing the allocation of additional seats, the continued operation of
the two percent threshold for the distribution of the additional seats as found in the
second clause of Section 11 (b) of R.A. No. 7941 is unconstitutional. This Court finds
that the two percent threshold makes it mathematically impossible to achieve the
maximum number of available party list seats when the number of available party list
seats exceeds 50. The continued operation of the two percent threshold in the distribution
of the additional seats frustrates the attainment of the permissive ceiling that 20% of the
members of the House of Representatives shall consist of party-list representatives.
To illustrate: There are 55 available party-list seats. Suppose there are 50 million votes
cast for the 100 participants in the party list elections. A party that has two percent of the
votes cast, or one million votes, gets a guaranteed seat. Let us further assume that the first
50 parties all get one million votes. Only 50 parties get a seat despite the availability of
55 seats. Because of the operation of the two percent threshold, this situation will repeat
itself even if we increase the available party-list seats to 60 seats and even if we increase
the votes cast to 100 million. Thus, even if the maximum number of parties get two
percent of the votes for every party, it is always impossible for the number of occupied
party-list seats to exceed 50 seats as long as the two percent threshold is present.
We therefore strike down the two percent threshold only in relation to the distribution of
the additional seats as found in the second clause of Section 11 (b) of R.A. No. 7941. The
two percent threshold presents an unwarranted obstacle to the full implementation of
Section 5 (2), Article VI of the Constitution and prevents the attainment of "the broadest
possible representation of party, sectoral or group interests in the House of
Representatives". 30
In determining the allocation of seats for party-list representatives under Section 11 of
R.A. No. 7941, the following procedure shall be observed:
1. The parties, organizations, and coalitions shall be ranked from the highest to the
lowest based on the number of votes they garnered during the elections.
2. The parties, organizations, and coalitions receiving at least two percent (2%) of
the total votes cast for the party-list system shall be entitled to one guaranteed seat each.
3. Those garnering sufficient number of votes, according to the ranking in paragraph
1, shall be entitled to additional seats in proportion to their total number of votes until all
the additional seats are allocated. IDCcEa
4. Each party, organization, or coalition shall be entitled to not more than three (3)
seats.
In computing the additional seats, the guaranteed seats shall no longer be included
because they have already been allocated, at one seat each, to every two-percenter. Thus,
the remaining available seats for allocation as "additional seats" are the maximum seats
reserved under the Party List System less the guaranteed seats. Fractional seats are
disregarded in the absence of a provision in R.A. No. 7941 allowing for a rounding off of
fractional seats.
In declaring the two percent threshold unconstitutional, we do not limit our allocation of
additional seats in Table 3 below to the two-percenters. The percentage of votes garnered
by each party-list candidate is arrived at by dividing the number of votes garnered by
each party by 15,950,900, the total number of votes cast for party-list candidates. There
are two steps in the second round of seat allocation. First, the percentage is multiplied by
the remaining available seats, 38, which is the difference between the 55 maximum seats
reserved under the Party-List System and the 17 guaranteed seats of the two-percenters.
The whole integer of the product of the percentage and of the remaining available seats
corresponds to a party's share in the remaining available seats. Second, we assign one
party-list seat to each of the parties next in rank until all available seats are completely
distributed. We distributed all of the remaining 38 seats in the second round of seat
allocation. Finally, we apply the three-seat cap to determine the number of seats each
qualified party-list candidate is entitled. Thus:
Table 3. Distribution of Available Party-List Seats
Rank Party Votes Votes Guaranteed Additional (B) plus
Applying
Garnered Garnered Seat Seats (C), in the three
over whole seat
Total integers cap
Votes for
Party List,
in %
(First (Second
Round) Round)
(A) (B) (C) (D) (E)
1 BUHAY 1,169,234 7.33% 1 2.79 3 N.A.
2 BAYAN MUNA 979,039 6.14% 1 2.33 3 N.A.
3 CIBAC 755,686 4.74% 1 1.80 2 N.A.
4 GABRIELA 621,171 3.89% 1 1.48 2 N.A.
5 APEC 619,657 3.88% 1 1.48 2 N.A.
6 A Teacher 490,379 3.07% 1 1.17 2 N.A.
7 AKBAYAN 466,112 2.92% 1 1.11 2 N.A.
8 ALAGAD 423,149 2.65% 1 1.01 2 N.A.
931 COOP-NATCCO 409,883 2.57% 1 1 2 N.A.
10 BUTIL409,160 2.57% 1 1 2 N.A.
11 BATAS 385,810 2.42% 1 1 2 N.A.
12 ARC 374,288 2.35% 1 1 2 N.A.
13 ANAKPAWIS 370,261 2.32% 1 1 2 N.A.
14 ABONO 339,990 2.13% 1 1 2 N.A.
15 AMIN 338,185 2.12% 1 1 2 N.A.
16 AGAP 328,724 2.06% 1 1 2 N.A.
17 AN WARAY 321,503 2.02% 1 1 2 N.A.
18 YACAP 310,889 1.95% 0 1 1 N.A.
19 FPJPM300,923 1.89% 0 1 1 N.A.
20 UNI-MAD 245,382 1.54% 0 1 1 N.A.
21 ABS 235,086 1.47% 0 1 1 N.A.
22 KAKUSA 228,999 1.44% 0 1 1 N.A.
23 KABATAAN 228,637 1.43% 0 1 1 N.A.
 24 ABA-AKO 218,818 1.37% 0 1 1 N.A.
25 ALIF 217,822 1.37% 0 1 1 N.A.
26 SENIOR CITIZENS 213,058 1.34% 0 1 1 N.A.
27 AT 197,872 1.24% 0 1 1 N.A.
28 VFP 196,266 1.23% 0 1 1 N.A.
29 ANAD 188,521 1.18% 0 1 1 N.A.
30 BANAT 177,028 1.11% 0 1 1 N.A.
31 ANG KASANGGA 170,531 1.07% 0 1 1 N.A.
32 BANTAY 169,801 1.06% 0 1 1 N.A.
33 ABAKADA 166,747 1.05% 0 1 1 N.A.
34 1-UTAK 164,980 1.03% 0 1 1 N.A.
35 TUCP 162,647 1.02% 0 1 1 N.A.
36 COCOFED 155,920 0.98% 0 1 1 N.A.
—— ——
Total 17 55
==== ====
Applying the procedure of seat allocation as illustrated in Table 3 above, there are 55
party-list representatives from the 36 winning party-list organizations. All 55 available
party-list seats are filled. The additional seats allocated to the parties with sufficient
number of votes for one whole seat, in no case to exceed a total of three seats for each
party, are shown in column (D). IcADSE
Participation of Major Political Parties in Party-List Elections
The Constitutional Commission adopted a multi-party system that allowed all political
parties to participate in the party-list elections. The deliberations of the Constitutional
Commission clearly bear this out, thus:
MR. MONSOD.
Madam President, I just want to say that we suggested or proposed the party list
system because we wanted to open up the political system to a pluralistic society through
a multiparty system. . . . We are for opening up the system, and we would like very much
for the sectors to be there. That is why one of the ways to do that is to put a ceiling on the
number of representatives from any single party that can sit within the 50 allocated under
the party list system. . . . .
xxx xxx xxx
MR. MONSOD.
Madam President, the candidacy for the 198 seats is not limited to political
parties. My question is this: Are we going to classify for example Christian Democrats
and Social Democrats as political parties? Can they run under the party list concept or
must they be under the district legislation side of it only?
MR. VILLACORTA.
In reply to that query, I think these parties that the Commissioner mentioned can
field candidates for the Senate as well as for the House of Representatives. Likewise, they
can also field sectoral candidates for the 20 percent or 30 percent, whichever is adopted,
of the seats that we are allocating under the party list system. cIDHSC
MR. MONSOD.
In other words, the Christian Democrats can field district candidates and can also
participate in the party list system?
MR. VILLACORTA.
Why not? When they come to the party list system, they will be fielding only
sectoral candidates.
MR. MONSOD.
May I be clarified on that? Can UNIDO participate in the party list system?
MR. VILLACORTA.
Yes, why not? For as long as they field candidates who come from the different
marginalized sectors that we shall designate in this Constitution.
MR. MONSOD.
Suppose Senator Tañada wants to run under BAYAN group and says that he
represents the farmers, would he qualify?
MR. VILLACORTA.
No, Senator Tañada would not qualify.
MR. MONSOD.
But UNIDO can field candidates under the party list system and say Juan dela
Cruz is a farmer. Who would pass on whether he is a farmer or not?
MR. TADEO.
Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties,
particularly minority political parties, are not prohibited to participate in the party list
election if they can prove that they are also organized along sectoral lines.
MR. MONSOD.
What the Commissioner is saying is that all political parties can participate
because it is precisely the contention of political parties that they represent the broad base
of citizens and that all sectors are represented in them. Would the Commissioner agree?
MR. TADEO.
Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party,
it will dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo
ng political parties ang party list system. Gusto ko lamang bigyan ng diin ang "reserve".
Hindi ito reserve seat sa marginalized sectors. Kung titingnan natin itong 198 seats,
reserved din ito sa political parties.
MR. MONSOD. DAETHc
Hindi po reserved iyon kasi anybody can run there. But my question to
Commissioner Villacorta and probably also to Commissioner Tadeo is that under this
system, would UNIDO be banned from running under the party list system?
MR. VILLACORTA.
No, as I said, UNIDO may field sectoral candidates. On that condition alone,
UNIDO may be allowed to register for the party list system.
MR. MONSOD.
May I inquire from Commissioner Tadeo if he shares that answer?
MR. TADEO.
The same.
MR. VILLACORTA.
Puwede po ang UNIDO, pero sa sectoral lines.
xxx xxx xxx
MR. OPLE.
 . . . In my opinion, this will also create the stimulus for political parties and mass
organizations to seek common ground. For example, we have the PDP-Laban and the
UNIDO. I see no reason why they should not be able to make common goals with mass
organizations so that the very leadership of these parties can be transformed through the
participation of mass organizations. And if this is true of the administration parties, this
will be true of others like the Partido ng Bayan which is now being formed. There is no
question that they will be attractive to many mass organizations. In the opposition parties
to which we belong, there will be a stimulus for us to contact mass organizations so that
with their participation, the policies of such parties can be radically transformed because
this amendment will create conditions that will challenge both the mass organizations and
the political parties to come together. And the party list system is certainly available,
although it is open to all the parties. It is understood that the parties will enter in the roll
of the COMELEC the names of representatives of mass organizations affiliated with
them. So that we may, in time, develop this excellent system that they have in Europe
where labor organizations and cooperatives, for example, distribute themselves either in
the Social Democratic Party and the Christian Democratic Party in Germany, and their
very presence there has a transforming effect upon the philosophies and the leadership of
those parties. CSTEHI
It is also a fact well known to all that in the United States, the AFL-CIO always
vote with the Democratic Party. But the businessmen, most of them, always vote with the
Republican Party, meaning that there is no reason at all why political parties and mass
organizations should not combine, reenforce, influence and interact with each other so
that the very objectives that we set in this Constitution for sectoral representation are
achieved in a wider, more lasting, and more institutionalized way. Therefore, I support
this [Monsod-Villacorta] amendment. It installs sectoral representation as a constitutional
gift, but at the same time, it challenges the sector to rise to the majesty of being elected
representatives later on through a party list system; and even beyond that, to become
actual political parties capable of contesting political power in the wider constitutional
arena for major political parties.
xxx xxx xxx 32 (Emphasis supplied)
R.A. No. 7941 provided the details for the concepts put forward by the Constitutional
Commission. Section 3 of R.A. No. 7941 reads:
Definition of Terms. (a) The party-list system is a mechanism of proportional
representation in the election of representatives to the House of Representatives from
national, regional and sectoral parties or organizations or coalitions thereof registered
with the Commission on Elections (COMELEC). Component parties or organizations of
a coalition may participate independently provided the coalition of which they form part
does not participate in the party-list system.
(b) A party means either a political party or a sectoral party or a coalition of parties.
(c) A political party refers to an organized group of citizens advocating an ideology
or platform, principles and policies for the general conduct of government and which, as
the most immediate means of securing their adoption, regularly nominates and supports
certain of its leaders and members as candidates for public office.
It is a national party when its constituency is spread over the geographical territory of at
least a majority of the regions. It is a regional party when its constituency is spread over
the geographical territory of at least a majority of the cities and provinces comprising the
region. cDaEAS
(d) A sectoral party refers to an organized group of citizens belonging to any of the
sectors enumerated in Section 5 hereof whose principal advocacy pertains to the special
interests and concerns of their sector,
(e) A sectoral organization refers to a group of citizens or a coalition of groups of
citizens who share similar physical attributes or characteristics, employment, interests or
concerns.
(f) A coalition refers to an aggrupation of duly registered national, regional, sectoral
parties or organizations for political and/or election purposes.
Congress, in enacting R.A. No. 7941, put the three-seat cap to prevent any party from
dominating the party-list elections.
Neither the Constitution nor R.A. No. 7941 prohibits major political parties from
participating in the party-list system. On the contrary, the framers of the Constitution
clearly intended the major political parties to participate in party-list elections through
their sectoral wings. In fact, the members of the Constitutional Commission voted down,
19-22, any permanent sectoral seats, and in the alternative the reservation of the party-list
system to the sectoral groups. 33 In defining a "party" that participates in party-list
elections as either "a political party or a sectoral party", R.A. No. 7941 also clearly
intended that major political parties will participate in the party-list elections. Excluding
the major political parties in party-list elections is manifestly against the Constitution, the
intent of the Constitutional Commission, and R.A. No. 7941. This Court cannot engage in
socio-political engineering and judicially legislate the exclusion of major political parties
from the party-list elections in patent violation of the Constitution and the law.
Read together, R.A. No. 7941 and the deliberations of the Constitutional Commission
state that major political parties are allowed to establish, or form coalitions with, sectoral
organizations for electoral or political purposes. There should not be a problem if, for
example, the Liberal Party participates in the party-list election through the Kabataang
Liberal ng Pilipinas (KALIPI), its sectoral youth wing. The other major political parties
can thus organize, or affiliate with, their chosen sector or sectors. To further illustrate, the
Nacionalista Party can establish a fisherfolk wing to participate in the party-list election,
and this fisherfolk wing can field its fisherfolk nominees. Kabalikat ng Malayang Pilipino
(KAMPI) can do the same for the urban poor.
The qualifications of party-list nominees are prescribed in Section 9 of R.A. No. 7941:
Qualifications of Party-List Nominees. — No person shall be nominated as party-list
representative unless he is a natural born citizen of the Philippines, a registered voter, a
resident of the Philippines for a period of not less than one (1) year immediately
preceding the day of the elections, able to read and write, bona fide member of the party
or organization which he seeks to represent for at least ninety (90) days preceding the day
of the election, and is at least twenty-five (25) years of age on the day of the election.
In case of a nominee of the youth sector, he must at least be twenty-five (25) but not
more than thirty (30) years of age on the day of the election. Any youth sectoral
representative who attains the age of thirty (30) during his term shall be allowed to
continue until the expiration of his term. CHEDAc
Under Section 9 of R.A. No. 7941, it is not necessary that the party-list organization's
nominee "wallow in poverty, destitution and infirmity" 34 as there is no financial status
required in the law. It is enough that the nominee of the sectoral
party/organization/coalition belongs to the marginalized and underrepresented sectors, 35
that is, if the nominee represents the fisherfolk, he or she must be a fisherfolk, or if the
nominee represents the senior citizens, he or she must be a senior citizen.
Neither the Constitution nor R.A. No. 7941 mandates the filling-up of the entire 20%
allocation of party-list representatives found in the Constitution. The Constitution, in
paragraph 1, Section 5 of Article VI, left the determination of the number of the members
of the House of Representatives to Congress: "The House of Representatives shall be
composed of not more than two hundred and fifty members, unless otherwise fixed by
law, . . . ." The 20% allocation of party-list representatives is merely a ceiling; party-list
representatives cannot be more than 20% of the members of the House of
Representatives. However, we cannot allow the continued existence of a provision in the
law which will systematically prevent the constitutionally allocated 20% party-list
representatives from being filled. The three-seat cap, as a limitation to the number of
seats that a qualified party-list organization may occupy, remains a valid statutory device
that prevents any party from dominating the party-list elections. Seats for party-list
representatives shall thus be allocated in accordance with the procedure used in Table 3
above.
However, by a vote of 8-7, the Court decided to continue the ruling in Veterans
disallowing major political parties from participating in the party-list elections, directly or
indirectly. Those who voted to continue disallowing major political parties from the
party-list elections joined Chief Justice Reynato S. Puno in his separate opinion. On the
formula to allocate party-list seats, the Court is unanimous in concurring with this
ponencia.
WHEREFORE, we PARTIALLY GRANT the petition. We SET ASIDE the Resolution
of the COMELEC dated 3 August 2007 in NBC No. 07-041 (PL) as well as the
Resolution dated 9 July 2007 in NBC No. 07-60. We declare unconstitutional the two
percent threshold in the distribution of additional party-list seats. The allocation of
additional seats under the Party-List System shall be in accordance with the procedure
used in Table 3 of this Decision. Major political parties are disallowed from participating
in party-list elections. This Decision is immediately executory. No pronouncement as to
costs.
SO ORDERED. ECISAD

[G.R. No. 179313. September 17, 2009.]

MAKIL U. PUNDAODAYA, petitioner, vs. COMMISSION ON ELECTIONS and
ARSENIO DENSING NOBLE, respondents.
DECISION
YNARES-SANTIAGO, J p:
This petition 1 for certiorari under Rule 65 assails the August 3, 2007 Resolution 2 of the
Commission on Elections (COMELEC) En Banc in SPA No. 07-202, which declared
private respondent Arsenio Densing Noble (Noble) qualified to run for municipal mayor
of Kinoguitan, Misamis Oriental, in the May 14, 2007 Synchronized National and Local
Elections. cdtai
The facts are as follows:
Petitioner Makil U. Pundaodaya (Pundaodaya) is married to Judith Pundaodaya, who ran
against Noble for the position of municipal mayor of Kinoguitan, Misamis Oriental in the
2007 elections.
On March 27, 2007, Noble filed his Certificate of Candidacy, indicating therein that he
has been a resident of Purok 3, Barangay Esperanza, Kinoguitan, Misamis Oriental for 15
years.
On April 3, 2007, Pundaodaya filed a petition for disqualification 3 against Noble
docketed as SPA No. 07-202, alleging that the latter lacks the residency qualification
prescribed by existing laws for elective local officials; that he never resided nor had any
physical presence at a fixed place in Purok 3, Barangay Esperanza, Kinoguitan, Misamis
Oriental; and that he does not appear to have the intention of residing therein
permanently. Pundaodaya claimed that Noble is in fact a resident of Lapasan, Cagayan de
Oro City, where he also maintains a business called OBERT Construction Supply.
In his Answer, 4 Noble averred that he is a registered voter and resident of Barangay
Esperanza, Kinoguitan, Misamis Oriental; that on January 18, 1992, he married Bernadith
Go, the daughter of then Mayor Narciso Go of Kinoguitan, Misamis Oriental; that he has
been engaged in electoral activities since his marriage; and that he voted in the said
municipality in the 1998, 2001 and 2004 elections. SAHITC
In a resolution dated May 13, 2007, 5 the Second Division of the COMELEC ruled in
favor of Pundaodaya and disqualified Noble from running as mayor, thus:
Respondent Noble's claim that he is a registered voter and has actually voted in the past
three (3) elections in the said municipality does not sufficiently establish that he has
actually elected residency at Kinoguitan, Misamis Oriental. Neither does campaigning in
previous elections sufficiently establish residence.
Respondent Noble failed to show that he has indeed acquired domicile at Kinoguitan,
Misamis Oriental. He failed to prove not only his bodily presence in the new locality but
has likewise failed to show that he intends to remain at Kinoguitan, Misamis Oriental and
abandon his residency at Lapasan, Cagayan de Oro City.
WHEREFORE, premises considered, the instant Petition to Disqualify Aresnio Densing
Noble is hereby GRANTED.
SO ORDERED. 6
Noble filed a motion for reconsideration of the above resolution. In the meantime, he
garnered the highest number of votes and was proclaimed the winning candidate on May
15, 2007. Pundaodaya then filed an Urgent Motion to Annul Proclamation. 7 CaESTA
On August 3, 2007, the COMELEC En Banc reversed the decision of the Second
Division and declared Noble qualified to run for the mayoralty position.
The COMELEC En Banc held that when Noble married Bernadith Go on January 18,
1992, the couple has since resided in Kinoguitan, Misamis Oriental; that he was a
registered voter and that he participated in the last three elections; and although he is
engaged in business in Cagayan de Oro City, the fact that he resides in Kinoguitan and is
a registered voter and owns property thereat, sufficiently meet the residency requirement.
8 Thus:
WHEREFORE, premises considered, the Commission (en banc) RESOLVED, as it
hereby RESOLVES, to GRANT the instant Motion for Reconsideration and to
REVERSE AND SET ASIDE the Resolution promulgated on May 13, 2007 issued by the
Commission (Second Division).
ACCORDINGLY, respondent ARSENIO DENSING NOBLE is QUALIFIED to run for
the local elective position of Municipal Mayor of the Municipality of Kinoguitan,
Misamis Oriental in the May 14, 2007 Synchronized National and Local Elections.
SO ORDERED. 9
Pundaodaya filed the instant petition for certiorari, alleging that the COMELEC En Banc
acted with grave abuse of discretion when it declared Noble qualified to run; when it did
not annul Noble's proclamation; and when it failed to proclaim the true winning
candidate, Judith Pundaodaya. IHDCcT
In a resolution dated November 13, 2007, 10 the Court required the respondents to
comment on the petition.
Public respondent, through the Office of the Solicitor General, filed a Manifestation and
Motion 11 praying that it be excused from filing a separate comment and that the said
pleading be considered sufficient compliance with the November 13, 2007 Resolution.
Meanwhile, for Noble's failure to comply, the Court issued Resolutions 12 dated July 15,
2008 and December 9, 2008 requiring him to show cause why he should not be
disciplinarily dealt with or held in contempt, imposing a fine of P1,000.00, and requiring
him to file a comment. On June 2, 2009, the Court deemed Noble to have waived the
filing of the comment. 13
The issues for resolution are: whether the COMELEC En Banc gravely abused its
discretion: 1) in declaring Noble qualified to run for the mayoralty position; and 2) in
failing to order the annulment of Noble's proclamation and refusing to proclaim Judith
Pundaodaya as the winning candidate.
Section 39 of Republic Act No. 7160, otherwise known as the Local Government Code,
requires that an elective local official must be a resident in the barangay, municipality,
city or province where he intends to serve for at least one year immediately preceding the
election. 14
In Japzon v. Commission on Elections, 15 it was held that the term "residence" is to be
understood not in its common acceptation as referring to "dwelling" or "habitation", but
rather to "domicile" or legal residence, that is, "the place where a party actually or
constructively has his permanent home, where he, no matter where he may be found at
any given time, eventually intends to return and remain (animus manendi)". aASDTE
In Domino v. Commission on Elections, 16 the Court explained that domicile denotes a
fixed permanent residence to which, whenever absent for business, pleasure, or some
other reasons, one intends to return. It is a question of intention and circumstances. In the
consideration of circumstances, three rules must be borne in mind, namely: (1) that a man
must have a residence or domicile somewhere; (2) when once established it remains until
a new one is acquired; and (3) a man can have but one residence or domicile at a time.
If one wishes to successfully effect a change of domicile, he must demonstrate an actual
removal or an actual change of domicile, a bona fide intention of abandoning the former
place of residence and establishing a new one, and definite acts which correspond with
the purpose. 17 Without clear and positive proof of the concurrence of these three
requirements, the domicile of origin continues. 18
Records show that Noble's domicile of origin was Lapasan, Cagayan de Oro City.
However, he claims to have chosen Kinoguitan, Misamis Oriental as his new domicile.
To substantiate this, he presented before the COMELEC his voter registration records; 19
a Certification dated April 25, 2007 from Election Officer II Clavel Z. Tabada; 20 his
Marriage Certificate; 21 and affidavits of residents of Kinoguitan 22 attesting that he
established residence in the municipality after his marriage to Bernadith Go. In addition,
he presented receipts 23 from the Provincial Treasurer for payment of his water bills, and
Certifications from the Municipal Treasurer and Municipal Engineer that he has been a
consumer of the Municipal Water System since June 2003. To prove ownership of
property, he also presented a Deed of Sale 24 over a real property dated June 3, 1996.
HICSaD
The above pieces of documentary evidence, however, fail to convince us that Noble
successfully effected a change of domicile. As correctly ruled by the COMELEC Second
Division, private respondent's claim that he is a registered voter and has actually voted in
the past 3 elections in Kinoguitan, Misamis Oriental do not sufficiently establish that he
has actually elected residency in the said municipality. Indeed, while we have ruled in the
past that voting gives rise to a strong presumption of residence, it is not conclusive
evidence thereof. 25 Thus, in Perez v. Commission on Elections, 26 we held that a
person's registration as voter in one district is not proof that he is not domiciled in another
district. The registration of a voter in a place other than his residence of origin is not
sufficient to consider him to have abandoned or lost his residence. 27
To establish a new domicile of choice, personal presence in the place must be coupled
with conduct indicative of that intention. It requires not only such bodily presence in that
place but also a declared and probable intent to make it one's fixed and permanent place
of abode. 28
In this case, Noble's marriage to Bernadith Go does not establish his actual physical
presence in Kinoguitan, Misamis Oriental. Neither does it prove an intention to make it
his permanent place of residence. We are also not persuaded by his alleged payment of
water bills in the absence of evidence showing to which specific properties they pertain.
And while Noble presented a Deed of Sale for real property, the veracity of this
document is belied by his own admission that he does not own property in Kinoguitan,
Misamis Oriental. 29 TICDSc
On the contrary, we find that Noble has not abandoned his original domicile as shown by
the following: a) Certification dated April 12, 2007 of the Barangay Kagawad of
Barangay Lapasan, Cagayan de Oro City stating that Noble is a resident of the barangay;
30 b) Affidavit 31 of the Barangay Kagawad of Esperanza, Kinoguitan, Misamis Oriental
dated April 14, 2007, attesting that Noble has not resided in Barangay Esperanza in
Kinoguitan; c) photos 32 and official receipts 33 showing that Noble and his wife
maintain their residence and businesses in Lapasan; d) tax declarations 34 of real
properties in Cagayan de Oro City under the name of Noble; and e) the "Household
Record of Barangay Inhabitants" 35 of Mayor Narciso Go, which did not include Noble
or his wife, Bernadith Go, which disproves Noble's claim that he resides with his father-
in-law.
From the foregoing, we find that Noble's alleged change of domicile was effected solely
for the purpose of qualifying as a candidate in the 2007 elections. This we cannot allow.
In Torayno, Sr. v. Commission on Elections, 36 we held that the one-year residency
requirement is aimed at excluding outsiders "from taking advantage of favorable
circumstances existing in that community for electoral gain". Establishing residence in a
community merely to meet an election law requirement defeats the purpose of
representation: to elect through the assent of voters those most cognizant and sensitive to
the needs of the community. 37 Thus, we find Noble disqualified from running as
municipal mayor of Kinoguitan, Misamis Oriental in the 2007 elections. TCaADS
Notwithstanding Noble's disqualification, we find no basis for the proclamation of Judith
Pundaodaya, as mayor. The rules on succession under the Local Government Code,
explicitly provides:
SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,
Mayor, and Vice-Mayor. — If a permanent vacancy occurs in the office of the xxx
mayor, the xxx vice-mayor concerned shall become the xxx mayor.
xxx xxx xxx
For purposes of this Chapter, a permanent vacancy arises when an elective local official
fills a higher vacant office, refuses to assume office, fails to qualify or is removed from
office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the
functions of his office.
xxx xxx xxx (Emphasis ours)
Thus, considering the permanent vacancy in the Office of the Mayor of Kinoguitan,
Misamis Oriental occasioned by Noble's disqualification, the proclaimed Vice-Mayor
shall then succeed as mayor. 38
WHEREFORE, the petition is GRANTED. The August 3, 2007 Resolution of the
COMELEC En Banc in SPA No. 07-202 declaring respondent Arsenio Densing Noble
qualified to run as Mayor of Kinoguitan, Misamis Oriental, is REVERSED AND SET
ASIDE. In view of the permanent vacancy in the Office of the Mayor of Kinoguitan,
Misamis Oriental, the proclaimed Vice-Mayor is ORDERED to succeed as Mayor.
caADSE
SO ORDERED.

[G.R. No. 187478. December 21, 2009.]

REPRESENTATIVE DANILO RAMON S. FERNANDEZ, petitioner, vs. HOUSE OF
REPRESENTATIVES ELECTORAL TRIBUNAL AND JESUS L. VICENTE,
respondents.
DECISION
LEONARDO-DE CASTRO, J p:
This petition for certiorari and prohibition filed under Rule 65 of the Rules of Court
stems from the Decision 1 in HRET CASE No. 07-034 for quo warranto entitled Jesus L.
Vicente v. Danilo Ramon S. Fernandez promulgated by the House of Representatives
Electoral Tribunal (HRET) on December 16, 2008 as well as Minute Resolution No. 09-
080 promulgated on April 30, 2009, likewise issued by the HRET, denying petitioner's
Motion for Reconsideration. IcTEaC
The dispositive portion of the questioned Decision reads as follows:
WHEREFORE, the Tribunal DECLARES respondent Danilo Ramon S. Fernandez
ineligible for the Office of Representative of [the] First District of Laguna for lack of
residence in the district and [ORDERS] him to vacate his office.
As soon as this Resolution becomes final and executory, let notices be sent to the
President of the Philippines, the House of Representatives through the Speaker, and the
Commission on Audit through its Chairman, pursuant to Rule 96 of the 2004 Rules of the
House of Representatives Electoral Tribunal.
No pronouncement as to costs.
SO ORDERED. 2
On December 22, 2008, petitioner Danilo Ramon S. Fernandez (petitioner) filed a Motion
for Reconsideration of the above-quoted Decision. The HRET, in the questioned
Resolution, found petitioner's Motion to be "bereft of new issues/arguments that [had] not
been appropriately resolved" 3 in the Decision. TaCDcE
Petitioner thus applied for relief to this Court, claiming that the questioned Decision and
Resolution should be declared null and void for having been respectively issued with
grave abuse of discretion amounting to lack of or in excess of jurisdiction, and praying
for the issuance of a writ of prohibition to enjoin and prohibit the HRET from
implementing the questioned Decision and Resolution. 4
The antecedent facts are clear and undisputed.
Petitioner filed for candidacy as Representative of the First Legislative District of the
Province of Laguna in the May 14, 2007 elections. In his Certificate of Candidacy
(COC), he indicated his complete/exact address as "No. 13 Maharlika St., Villa Toledo
Subdivision, Barangay Balibago, Sta. Rosa City, Laguna" (alleged Sta. Rosa residence). 5
Private respondent Jesus L. Vicente (private respondent) filed a "Petition to Deny Due
Course to and/or Cancel Certificate of Candidacy and Petition for Disqualification"
before the Office of the Provincial Election Supervisor of Laguna. This was forwarded to
the Commission on Elections (COMELEC) and docketed therein as SPA No. 07-046
(PES). Private respondent sought the cancellation of petitioner's COC and the latter's
disqualification as a candidate on the ground of an alleged material misrepresentation in
his COC regarding his place of residence, because during past elections, he had declared
Pagsanjan, Laguna as his address, and Pagsanjan was located in the Fourth Legislative
District of the Province of Laguna. Private respondent likewise claimed that petitioner
maintained another house in Cabuyao, Laguna, which was also outside the First District.
6 The COMELEC (First Division) dismissed said petition for lack of merit. 7 AScHCD
Petitioner was proclaimed as the duly elected Representative of the First District of
Laguna on June 27, 2007, having garnered a total of 95,927 votes, winning by a margin
of 35,000 votes over the nearest candidate. 8
On July 5, 2007, private respondent filed a petition for quo warranto before the HRET,
docketed as HRET CASE No. 07-034, praying that petitioner be declared ineligible to
hold office as a Member of the House of Representatives representing the First
Legislative District of the Province of Laguna, and that petitioner's election and
proclamation be annulled and declared null and void. 9
Private respondent's main ground for the quo warranto petition was that petitioner lacked
the required one-year residency requirement provided under Article VI, Section 6 of the
1987 Constitution. In support of his petition, private respondent argued that petitioner
falsely declared under oath: (1) his alleged Sta. Rosa residence; (2) the period of his
residence in the legislative district before May 14, 2007, which he indicated as one year
and two months; and (3) his eligibility for the office where he was seeking to be elected.
Private respondent presented the testimony of a certain Atty. Noel T. Tiampong, who
stated that petitioner is not from the alleged Sta. Rosa residence but a resident of
Barangay Pulo, Cabuyao, Laguna; as well as the respective testimonies of Barangay
Balibago Health Workers who attested that they rarely, if ever, saw respondent in the
leased premises at the alleged Sta. Rosa residence; and other witnesses who testified that
contrary to the misrepresentations of petitioner, he is not a resident of the alleged Sta.
Rosa residence. A witness testified that petitioner attempted to coerce some of the other
witnesses to recant their declarations and change their affidavits. Finally, private
respondent presented as witness the lawyer who notarized the Contract of Lease dated
March 8, 2007 between petitioner as lessee and Bienvenido G. Asuncion as lessor. 10
ADaSEH
Petitioner, as respondent in HRET Case No. 07-034, presented as his witnesses residents
of Villa de Toledo who testified that they had seen respondent and his family residing in
their locality, as well as Bienvenido G. Asuncion who testified that petitioner is the lessee
in Unit No. 13 Block 1 Lot I, Maharlika St., Villa de Toledo Subdivision, Brgy. Balibago,
Sta. Rosa City, Laguna. Petitioner likewise presented Mr. Joseph Wade, President of
South Point Homeowner's Association of Cabuyao, Laguna, as well as Engr. Larry E.
Castro (Castro), who testified that since February 2006 up to the present, petitioner had
no longer been residing in his property located at Block 28, Lot 18, South Point
Subdivision, Cabuyao, Laguna, and that said property was being offered for sale and
temporarily being used by Castro, together with some security men of petitioner and
employees of Rafters Music Lounge owned by petitioner. 11 Petitioner testified that he
had been a resident of Sta. Rosa even before February 2006; that he owned property in
another Sta. Rosa subdivision (Bel-Air); that he and his wife had put up a business
therein, the "RAFTERS" restaurant/bar; and that he had prior residence in another place
also at Sta. Rosa as early as 2001. 12
Since the HRET ruled in favor of private respondent, this petition was filed before us.
TCIEcH
In petitioner's assignment of errors, he alleges that the HRET grievously erred and
committed grave abuse of discretion:
1. In not placing on the quo warranto petitioner Jesus L. Vicente the burden of
proving that then respondent (now petitioner) Fernandez is not a qualified candidate for
Representative of the First District of the Province of Laguna;
2. When it disregarded the ruling of a co-equal tribunal in SPA No. 07-046;
3. When it added a property qualification to a Member of Congress;
4. When it determined that the petitioner failed to comply with the one (1) year
residency requirement based on the contract of lease;
5. When it completely disregarded the testimonies of material witnesses;
6. When it failed to consider the intent of the petitioner to transfer domicile based on
the totality of the evidence adduced; and ACETSa
7. When it failed to find the petitioner in HRET Case No. 07-034 guilty of forum-
shopping. 13
On the first assignment of error, petitioner questions the following pronouncement of the
HRET in its decision:
In the case before us, petitioner has clearly asserted, and respondent does not deny, that
his domicile of origin is Pagsanjan in the Fourth District of Laguna. Hence, the burden is
now on respondent to prove that he has abandoned his domicile of origin, or since his
birth, where he formerly ran for provincial Board Member of Laguna in 1998, for Vice-
Governor of Laguna in 2001 and for Governor of Laguna in 2004. In all his Certificates
of Candidacy when he ran for these positions, he indicated under oath that his domicile or
permanent residence was in Pagsanjan in the Fourth District of Laguna, not in the First
District where he later ran in the last elections. 14
Petitioner contends that "it is a basic evidentiary rule that the burden of proof is on he
who alleges, and he who relies on such an allegation as his cause of action should prove
the same." 15 Since private respondent is the party alleging that petitioner is not eligible
for his position, it is therefore incumbent on the former, who filed the quo warranto case
before the HRET, to prove such allegation. He cites in support of his contention Sec. 1,
Rule 131 of the Rules of Court, to wit: HDTCSI
SECTION 1. Burden of proof. — Burden of proof is the duty of a party to present
evidence on the facts in issue necessary to establish his claim or defense by the amount of
evidence required by law.
Petitioner avers that private respondent failed to establish his claim and to adduce
evidence sufficient to overcome petitioner's eligibility to be a candidate for
Representative of the First District of Laguna.
On the second assignment of error, petitioner submits that the HRET should have been
"guided and/or cautioned" by the COMELEC's dispositions in SPA No. 07-046, wherein
he was adjudged as qualified to run for the position of Congressman of the First District
of Laguna by an agency tasked by law and the Constitution to ascertain the qualifications
of candidates before election. Petitioner claims that the HRET should have respected the
findings of the COMELEC and should have discreetly denied the petition.
On the third assignment of error, petitioner argues that under Article V, Section 1, of the
1987 Constitution, any citizen of the Philippines who is a qualified voter may likewise, if
so qualified under the appertaining law and the constitution, be able to run and be voted
for as a candidate for public office. Said provision reads: HTaSEA
SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for at
least six months immediately preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of suffrage.
Petitioner alleges that in the questioned Decision, the HRET added a new qualification
requirement for candidates seeking election to the position of Member of the House of
Representatives, and that is, they must be real property owners in the legislative district
where they seek election.
On the fourth assignment of error, petitioner addresses private respondent's arguments
against the contract of lease that he presented as part of the proof of his compliance with
the residency requirement. Petitioner asserts that the nomenclature used by contracting
parties to describe a contract does not determine its nature, but the decisive factor is the
intention of the parties to a contract — as shown by their conduct, words, actions, and
deeds — prior to, during and after executing the agreement. 16 Petitioner claims that he
has presented ample proof of his residency in terms of evidence more numerous and
bearing more weight and credibility than those of private respondent. He proceeds to
highlight some of the evidence he offered in the quo warranto case that allegedly prove
that his transfer of residence and intention to reside in Sta. Rosa were proven by his stay
in Villa de Toledo, to wit: (1) even earlier than 2006, he had purchased a house and lot in
Bel-Air Subdivision in Sta. Rosa which he rented out because he was not yet staying
there at that time; (2) he sent his children to schools in Sta. Rosa as early as 2002; and (3)
he and his wife established a restaurant business there in 2003. Petitioner contends that
when he and his family moved to Sta. Rosa by initially renting a townhouse in Villa de
Toledo, it cannot be said that he did this only in order to run for election in the First
Legislative District. 17 aCTHEA
As regards the alleged infirmities characterizing the execution of the contract of lease and
the renewal of said contract of lease, petitioner contends that these are not material since
the lessor, Bienvenido Asuncion, affirmed his stay in his townhouse; the neighbors and
other barangay personalities confirmed his and his family's stay in their area; and
petitioner has continued actual residence in Sta. Rosa from early 2006 to the present.
Petitioner claims that all these prove that he had effectively changed his residence and
could therefore likewise transfer his voter's registration from Pagsanjan to Sta. Rosa
under Sec. 12 of R.A. No. 8189. 18 Petitioner also alleges that he had become qualified
to seek elective office in his new place of residence and registration as a voter.
To further prove that he has made Sta. Rosa his domicile of choice from early 2006 to the
present, petitioner points out that he and his wife had purchased a lot in the same area,
Villa de Toledo, on April 21, 2007, built a house thereon, and moved in said house with
their family.
Regarding the non-notarization of the contract of lease raised by private respondent,
petitioner avers that this "does not necessarily nullify nor render the parties' transaction
void ab initio." 19 EcHTDI
On the fifth assignment of error, petitioner alleges that the HRET relied on private
respondent's witnesses in negating petitioner's claim that he had validly resided at the
alleged Sta. Rosa residence for more than one year and two months prior to the May 14,
2007 elections, and did not touch on the testimonies of his witnesses. The questioned
Decision pointed out petitioner's alleged non-appearance in the day-to-day activities of
the Homeowners' Association and considered this as failure to prove that he is a resident
of Villa de Toledo, without considering the fact that private respondent failed to
discharge the burden of proof in support of his indictment against petitioner.
On the sixth assignment of error, petitioner claims that the questioned Decision was
arrived at based on the perceived weakness of his evidence and arguments as respondent,
instead of the strength of private respondent's own evidence and arguments in his quo
warranto petition.
On the seventh and last assignment of error, petitioner alleges that the matters raised in
HRET Case No. 07-034 were no different from the ones raised by private respondent
before the COMELEC in SPA No. 07-046 (PES); thus, private respondent's petition
should have been dismissed by the HRET for forum-shopping. AHaETS
In his Comment dated June 22, 2009, private respondent summarized the issues raised in
petitioner's assignment of errors into two: (1) those that involve the issue of conflict of
jurisdiction between the HRET and the COMELEC respecting the eligibility,
qualification/s or disqualification of elective public officials; and (2) those that involve
factual and evidentiary matters designed as supposed errors. 20
Regarding the first issue, private respondent contends that the 1987 Constitution is most
equivocal in declaring that the HRET is the sole judge of all contests relating to the
election, returns and qualifications of Members of the House of Representatives, under
the following provision:
Art. VI, SECTION 17. The Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members.
Private respondent alleges that the above constitutional provision was adopted by the
HRET in its Rules, which read: EcHIDT
THE 1998 RULES OF THE HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL
The House of Representatives Electoral Tribunal hereby adopts and promulgates the
following Rules governing its proceedings as the sole judge of all contests relating to the
election, returns and qualifications of Members of the House of Representatives, pursuant
to Section 17, Article VI of the Constitution.
xxx xxx xxx
RULE 17
Quo Warranto
A verified petition for quo warranto contesting the election of a Member of the House of
Representatives on the ground of ineligibility or of disloyalty to the Republic of the
Philippines shall be filed by any voter within ten (10) days after the proclamation of the
winner. The party filing the petition shall be designated as the petitioner while the
adverse party shall be known as the respondent. CASTDI
The rule on verification provided in Section 16 hereof shall apply to petitions for quo
warranto.
xxx xxx xxx
Private respondent concludes from the above that petitioner had no legal basis to claim
that the HRET, when reference to the qualification/s of Members of the House of
Representatives is concerned, is "co-equal" to the COMELEC, such that the HRET
cannot disregard any ruling of COMELEC respecting the matter of eligibility and
qualification of a member of the House of Representatives. The truth is the other way
around, because the COMELEC is subservient to the HRET when the dispute or contest
at issue refers to the eligibility and/or qualification of a Member of the House of
Representatives. A petition for quo warranto is within the exclusive jurisdiction of the
HRET as sole judge, and cannot be considered forum shopping even if another body may
have passed upon in administrative or quasi-judicial proceedings the issue of the
Member's qualification while the Member was still a candidate. There is forum-shopping
only where two cases involve the same parties and the same cause of action. The two
cases here are distinct and dissimilar in their nature and character. EDSHcT
Anent the second issue, private respondent contends that petitioner raised errors of
judgment, mistakes in the factual findings, and/or flaws in the evidence appreciation,
which are appropriate on appeal, but not in a petition for certiorari which is a special civil
action, where the only allowable ground in order to prosper is grave abuse of discretion
amounting to lack or in excess of jurisdiction.
For its part, public respondent HRET, through the Solicitor General, filed a Comment
dated July 14, 2009, arguing that it did not commit grave abuse of discretion amounting
to lack or excess of jurisdiction when it held that petitioner failed to comply with the one
year residency requirement under Section 6, Article VI of the 1987 Constitution. 21
The HRET avers that the questioned Decision is supported by factual and legal basis, for
it found that the original and extended contracts of lease presented by petitioner were
defective and fabricated, as it contained "several apparent, if not visible, deficiencies as
to form, i.e.[,] it being not notarized; the absence of witnesses, the intercalations thereat
especially on the term/period of the alleged lease; the absence of respondent's
participation therein and some others pointed out in the petition." 22 The Decision states
that even if the contract of lease was valid and legitimate, "a fixed period of one year . . .
negates the concept of permanency that would suffice to prove abandonment of
respondent's previous residence or domicile at Pagsanjan." The Decision further reads as
follows: ICcaST
Respondent's connection to the First District of Laguna is an alleged lease agreement of a
townhouse unit in the area. The intention not to establish a permanent home in the First
District of Laguna is evident in his leasing a townhouse unit instead of buying one. The
short length of time he claims to be a resident of the First District of Laguna (and the fact
that his domicile of origin is Pagsanjan, Laguna is not within the First District of Laguna)
indicate that his sole purpose in transferring his physical residence is not to acquire a new
residence or domicile but only to qualify as a candidate for Representative of the First
District of Laguna. 23
xxx xxx xxx
Exhibit — "3" is the very document that was produced and presented by respondent to
attest that while the original contract, replete with infirmities, as only for one year
expiring even before the May 14, 2007 elections, here now comes the renewed Contract
of Lease, signed by respondent himself, no longer his wife, immaculately perfect on its
face, now notarized and properly witnessed, and even the terms and conditions thereof
undeniably clear and explicit, with the added feature of a prolonged 2-year period of
lease that will go well beyond the May 14, 2007 elections. THADEI
We cannot however, simply accept the renewed Contract of Lease (Exhibit — "3") on its
face. In fact, as succinctly pointed out by petitioner, the renewed Contract of Lease
suffers from a more grievous infirmity.
. . . As respondent's brother-in-law, Atty. Macalalag is prohibited from notarizing a
document that involves the respondent. 24
xxx xxx xxx
But the lack of notarial authentication does not even constitute the main defect of
[Exhibit "3"]. The surfacing of Exhibit "3" very late in the day cannot but lead to the
conclusion that the same was a mere afterthought. . . . 25
xxx xxx xxx
We have to emphasize that the initial one-year lease contract expired on February 27,
2007, and as such, standing alone, the same cannot prove and will not establish the
declared one-year and two months prior residence eligibility requirement of respondent,
unless it is shown that the expired lease agreement was extended or renewed beyond the
May 14, 2007 elections, and, more importantly, accompanied by a copy of the claimed
existing renewed lease agreement. . . . 26 AaCTID
xxx xxx xxx
By the unexplained delay in the production and presentation of Exhibit "3", respondent's
residence qualifications suffered a fatal blow. For it can no longer be denied that
respondent's claimed residence at the alleged townhouse unit in Sta. Rosa for one year
and two months prior to the May 14, 2007 election is not only most doubtful, but also
negates the concept of permanency that would suffice to prove abandonment of
respondent's previous residence or domicile at Pagsanjan. 27
Furthermore, the HRET alleges that, as it found in the questioned Decision, the witnesses
presented who were residents of Sta. Rosa, Laguna were consistent and credible in
disputing petitioner's alleged physical presence at any given time in said place. Among
these witnesses were three Barangay Health Workers, one of whom, Rowena Dineros,
submitted an affidavit that her job required her to frequently go around Villa de Toledo,
knocking on every household door to inquire about its occupants, and not once did she
see petitioner at the alleged Sta. Rosa residence. The HRET claims that this testimony
was corroborated by another Barangay Health Worker (BHW), Jeanet Cabingas, who
stated in her affidavit that every time she accompanied her niece, who was petitioner's
goddaughter, to request a favor from petitioner, the latter would ask them to return to his
house in Cabuyao, Laguna, even if she was a resident of Sta. Rosa. 28 The Solicitor
General quotes the following portion from the questioned Decision: CETDHA

What appears very evident from this is that respondent has absolutely not the slightest
intention to reside in Sta. Rosa permanently.
This ineluctably confirms that respondent has not developed animus manendi over the
latter place, Sta. Rosa[,] and that he has not actually abandoned his old domicile of origin
in Pagsanjan. 29
As for the third BHW witness, Flocerfina Torres, the HRET gives credence to her
testimony that she conducted a household census in Villa de Toledo every three months,
but not once had she seen petitioner in the alleged Sta. Rosa residence, and that she was
advised by petitioner to proceed to his house in Cabuyao, Laguna when she had
attempted to solicit from petitioner at his "Rafter's establishment because it was near her
residence in Sta. Rosa." From the foregoing testimonies, the HRET found in the
questioned Decision that:
The uniform testimony of our 3 BHW witnesses disputing the physical presence of the
respondent at his claimed Toledo address during all the time that they were performing
their routine duties at that community, and which encompassed the period of "1 year and
2 months before the May 14, 2007 election", revealed that he was not staying in Sta.
Rosa. 30 DHIcET
The HRET likewise contends that the fact that petitioner registered as a voter in Sta. Rosa
does not prove that he is a resident thereat, given that a voter is required to reside in the
place wherein he proposes to vote only for six months preceding the election.
The HRET avers that this Court had explained the importance of property ownership in
Aquino v. COMELEC, et al. 31 and finds no merit in petitioner's insistence that the will
of the electorate attests to his residence in Sta. Rosa because, the HRET further avers,
"[a] disqualified candidate cannot assume office." 32
The HRET likewise contends that the purpose of the residency requirement is to ensure
that the person elected is familiar with the needs and problems of his constituency.
The issues for determination are: (1) whether the HRET had jurisdiction over the case;
and (2) whether petitioner sufficiently complied with the one-year residency requirement
to be a Member of the House of Representatives, as provided in the 1987 Constitution.
IETCAS
The first issue is procedural and involves the jurisdiction of the HRET vis-à-vis that of
the COMELEC in cases involving the qualification of Members of the House of
Representatives. Petitioner suggests that the matters raised in HRET Case No. 07-034
were already passed upon by the COMELEC in SPA No. 07-046 (PES), thus the HRET
should have dismissed the case for forum-shopping.
We do not agree. The 1987 Constitution explicitly provides under Article VI, Section 17
thereof that the HRET and the Senate Electoral Tribunal (SET) shall be the sole judges of
all contests relating to the election, returns, and qualifications of their respective
members. The authority conferred upon the Electoral Tribunal is full, clear and complete.
The use of the word sole emphasizes the exclusivity of the jurisdiction of these Tribunals,
33 which is conferred upon the HRET and the SET after elections and the proclamation
of the winning candidates. A candidate who has not been proclaimed and who has not
taken his oath of office cannot be said to be a member of the House of Representatives.
34
Thus, private respondent correctly pointed out that a petition for quo warranto is within
the exclusive jurisdiction of the HRET, and cannot be considered forum shopping even if,
as in this case, the COMELEC had already passed upon in administrative or quasi-
judicial proceedings the issue of the qualification of the Member of the House of
Representatives while the latter was still a candidate. cSDHEC
Anent the second issue pertaining to petitioner's compliance with the residency
requirement for Members of the House of Representatives, after studying the evidence
submitted by the parties, we find for petitioner, taking into account our ruling in Frivaldo
v. COMELEC, 35 which reads in part:
This Court has time and again liberally and equitably construed the electoral laws of our
country to give fullest effect to the manifest will of our people, for in case of doubt,
political laws must be interpreted to give life and spirit to the popular mandate freely
expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot
stand in the way of the sovereign will. . . . (Emphasis supplied)
For the foregoing reason, the Court must exercise utmost caution before disqualifying a
winning candidate, shown to be the clear choice of the constituents that he wishes to
represent in Congress.
The qualifications of a member of the House of Representatives are found in Article VI,
Section 6 of the Constitution, which provides: HDacIT
Section 6. No person shall be a Member of the House of Representatives unless he is
a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-
five years of age, able to read and write, and, except the party-list representatives, a
registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the day of the election. (Emphasis
supplied)
We find the interpretation of the HRET of the residency requirement under the
Constitution to be overly restrictive and unwarranted under the factual circumstances of
this case.
The evidence presented by private respondent before the HRET hardly suffices to prove
that petitioner failed to comply with the one-year residency requirement under the
Constitution. Private respondent's documentary evidence to disqualify petitioner mainly
consisted of (a) petitioner's certificates of candidacy (COCs) for various positions in
1998, 2001 and 2004, which all indicated his residence as Pagsanjan, Laguna within the
Fourth District of said province; (b) his application for a driver's license in August 2005
that indicated Pagsanjan, Laguna as his residence; and (c) the statement in his COCs
including his 2007 COC for Congressman for the First District of Laguna that his place
of birth was Pagsanjan, Laguna. CSIDEc
The only thing these pieces of documentary evidence prove is that petitioner's domicile of
origin was Pagsanjan, Laguna and it remained his domicile up to 2005, at the latest. On
the other hand, what petitioner asserted in his 2007 COC is that he had been a resident of
Sta. Rosa, Laguna in the First District of Laguna as of February 2006 and respondent's
evidence failed contradict that claim.
If it is true that petitioner and his family had been living in Sta. Rosa, Laguna as of
February 2006 with the intent to reside therein permanently, that would more than fulfill
the requirement that petitioner be a resident of the district where he was a candidate for at
least one year before election day, which in this case was May 14, 2007.
In order to buttress his claim that he and his family actually resided in Sta. Rosa, Laguna
beginning at least in February 2006, petitioner's evidence included, among others: (a)
original and extended lease contracts for a townhouse in Villa de Toledo, Barangay
Balibago, Sta. Rosa, Laguna; (b) certification issued by the President of the Villa de
Toledo Homeowners Association, Inc, that petitioner has been a resident of said
Subdivision since February 2006; (c) affidavits of petitioner's neighbors in Villa de
Toledo attesting that petitioner has been a resident of said subdivision since February
2006; (d) certification of the barangay chairman of Barangay Balibago, Sta. Rosa,
Laguna that petitioner is a resident of Villa de Toledo within the said barangay; (e)
certificates of attendance of petitioner's children in schools located in Sta. Rosa, Laguna
since 2005; and (f) DTI certificates of business issued in the name of petitioner and his
wife to show that they own and operate businesses in Sta. Rosa, Laguna since 2003.
AaSTIH
The fact that a few barangay health workers attested that they had failed to see petitioner
whenever they allegedly made the rounds in Villa de Toledo is of no moment, especially
considering that there were witnesses (including petitioner's neighbors in Villa de
Toledo) that were in turn presented by petitioner to prove that he was actually a resident
of Villa de Toledo, in the address he stated in his COC. The law does not require a person
to be in his home twenty-four (24) hours a day, seven days a week, in order to fulfill the
residency requirement. It may be that whenever these health workers do their rounds
petitioner was out of the house to attend to his own employment or business. It is not
amiss to note that even these barangay health workers, with the exception of one, confirm
seeing petitioner's wife at the address stated in petitioner's 2007 COC. Indeed, these
health workers' testimonies do not conclusively prove that petitioner did not in fact reside
in Villa de Toledo for at least the year before election day.
Neither do we find anything wrong if petitioner sometimes transacted business or
received visitors in his Cabuyao house, instead of the alleged Sta. Rosa residence, as
there is nothing in the residency requirement for candidates that prohibits them from
owning property and exercising their rights of ownership thereto in other places aside
from the address they had indicated as their place of residence in their COC. HcSDIE
As regards the weight to be given the contract of lease vis-à-vis petitioner's previous
COCs, we find Perez v. COMELEC 36 to be instructive in this case, and quote the
pertinent portions of the decision below:
In the case at bar, the COMELEC found that private respondent changed his residence
from Gattaran to Tuguegarao, the capital of Cagayan, in July 1990 on the basis of the
following: (1) the affidavit of Engineer Alfredo Ablaza, the owner of the residential
apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where private respondent had
lived in 1990; (2) the contract of lease between private respondent, as lessee, and Tomas
T. Decena, as lessor, of a residential apartment at Kamias St., Tanza, Tuguegarao,
Cagayan, for the period July 1, 1995 to June 30, 1996; (3) the marriage certificate, dated
January 18, 1998, between private respondent and Lerma Dumaguit; (4) the certificate of
live birth of private respondent's second daughter; and (5) various letters addressed to
private respondent and his family, which all show that private respondent was a resident
of Tuguegarao, Cagayan for at least one (1) year immediately preceding the elections on
May 11, 1998.
There is thus substantial evidence supporting the finding that private respondent had been
a resident of the Third District of Cagayan and there is nothing in the record to detract
from the merit of this factual finding. HTDCAS
Petitioner contends that the fact that private respondent was a resident of Gattaran, at
least until June 22, 1997, is shown by the following documentary evidence in the record,
to wit: (1) his certificates of candidacy for governor of Cagayan in the 1988, 1992 and
1995 elections; (2) his voter's registration records, the latest of which was made on June
22, 1997; and (3) the fact that private respondent voted in Gattaran, Cagayan, in the
elections of 1987, 1988, 1992 and 1995.
The contention is without merit. The fact that a person is registered as a voter in one
district is not proof that he is not domiciled in another district. Thus, in Faypon v.
Quirino, this Court held that the registration of a voter in a place other than his residence
of origin is not sufficient to consider him to have abandoned or lost his residence.
Nor is it of much importance that in his certificates of candidacy for provincial governor
in the elections of 1988, 1992, and 1995, private respondent stated that he was a resident
of Gattaran. Under the law, what is required for the election of governor is residency in
the province, not in any district or municipality, one year before the election. IaAScD
Moreover, as this Court said in Romualdez-Marcos v. COMELEC:
It is the fact of residence, not a statement in a certificate of candidacy, which ought to be
decisive in determining whether or not an individual has satisfied the constitution's
residency qualification requirement. The said statement becomes material only when
there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which
would otherwise render a candidate ineligible.
In this case, although private respondent declared in his certificates of candidacy prior to
the May 11, 1998 elections that he was a resident of Gattaran, Cagayan, the fact is that he
was actually a resident of the Third District not just for one (1) year prior to the May 11,
1998 elections but for more than seven (7) years since July 1990. His claim that he had
been a resident of Tuguegarao since July 1990 is credible considering that he was
governor from 1988 to 1998 and, therefore, it would be convenient for him to maintain
his residence in Tuguegarao, which is the capital of the province of Cagayan.
As always, the polestar of adjudication in cases of this nature is Gallego v. Vera, in which
this Court held: "[W]hen the evidence on the alleged lack of residence qualification is
weak or inconclusive and it clearly appears, as in the instant case, that the purpose of the
law would not be thwarted by upholding the right to the office, the will of the electorate
should be respected." In this case, considering the purpose of the residency requirement,
i.e., to ensure that the person elected is familiar with the needs and problems of his
constituency, there can be no doubt that private respondent is qualified, having been
governor of the entire province of Cagayan for ten years immediately before his election
as Representative of that province's Third District. 37 EcICDT
Thus, in the case above, the Court found that the affidavit of the lessor and the contract of
lease were sufficient proof that private respondent therein had changed his residence. In
the case now before us, although private respondent raised alleged formal defects in the
contract of lease, the lessor himself testified that as far as he was concerned, he and
petitioner had a valid contract and he confirmed that petitioner and his family are the
occupants of the leased premises.
Petitioner correctly pointed out that the lack of proper notarization does not necessarily
nullify nor render the parties' transaction void ab initio. In Mallari v. Alsol, we found a
contract of lease to be valid despite the non-appearance of one of the parties before a
notary public, and ruled in this wise:
Notarization converts a private document into a public document. However, the non-
appearance of the parties before the notary public who notarized the document does not
necessarily nullify nor render the parties' transaction void ab initio. Thus:
. . . Article 1358 of the New Civil Code on the necessity of a public document is only for
convenience, not for validity or enforceability. Failure to follow the proper form does not
invalidate a contract. Where a contract is not in the form prescribed by law, the parties
can merely compel each other to observe that form, once the contract has been perfected.
This is consistent with the basic principle that contracts are obligatory in whatever form
they may have been entered into, provided all essential requisites are present. cDCEHa
Hence, the Lease Contract is valid despite Mayor Perez's failure to appear before the
notary public. 38
The HRET puts undue emphasis on the fact that petitioner is only leasing a townhouse in
Sta. Rosa while he owns houses in Pagsanjan and Cabuyao. His ownership of properties
in other places has been taken to mean that petitioner did not intend to make Sta. Rosa his
permanent residence or that he had not abandoned his domicile of origin.
Although it is true that the latest acquired abode is not necessarily the domicile of choice
of a candidate, there is nothing in the Constitution or our election laws which require a
congressional candidate to sell a previously acquired home in one district and buy a new
one in the place where he seeks to run in order to qualify for a congressional seat in that
other district. Neither do we see the fact that petitioner was only leasing a residence in
Sta. Rosa at the time of his candidacy as a barrier for him to run in that district. Certainly,
the Constitution does not require a congressional candidate to be a property owner in the
district where he seeks to run but only that he resides in that district for at least a year
prior to election day. To use ownership of property in the district as the determinative
indicium of permanence of domicile or residence implies that only the landed can
establish compliance with the residency requirement. This Court would be, in effect,
imposing a property requirement to the right to hold public office, which property
requirement would be unconstitutional. AEIcSa
This case must be distinguished from Aquino v. COMELEC 39 and Domino v.
COMELEC, 40 where the disqualified candidate was shown to be merely leasing a
residence in the place where he sought to run for office. In Aquino and Domino, there
appeared to be no other material reason for the candidate to lease residential property in
the place where he filed his COC, except to fulfill the residency requirement under
election laws.
In the case at bar, there are real and substantial reasons for petitioner to establish Sta.
Rosa as his domicile of choice and abandon his domicile of origin and/or any other
previous domicile. To begin with, petitioner and his wife have owned and operated
businesses in Sta. Rosa since 2003. Their children have attended schools in Sta. Rosa at
least since 2005. Although ownership of property should never be considered a
requirement for any candidacy, petitioner had sufficiently confirmed his intention to
permanently reside in Sta. Rosa by purchasing residential properties in that city even
prior to the May 2007 election, as evidenced by certificates of title issued in the name of
petitioner and his wife. One of these properties is a residence in Bel-Air, Sta. Rosa which
petitioner acquired even before 2006 but which petitioner had been leasing out. He claims
that he rented out this property because prior to 2006 he had not decided to permanently
reside in Sta. Rosa. This could explain why in early 2006 petitioner had to rent a
townhouse in Villa de Toledo — his Bel-Air residence was occupied by a tenant. The
relatively short period of the lease was also adequately explained by petitioner — they
rented a townhouse while they were in the process of building their own house in Sta.
Rosa. True enough, petitioner and his spouse subsequently purchased a lot also in Villa
de Toledo in April 2007, about a month before election day, where they have constructed
a home for their family's use as a residence. In all, petitioner had adequately shown that
his transfer of residence to Sta. Rosa was bona fide and was not merely for complying
with the residency requirement under election laws. ESCDHA
It was incumbent upon private respondent to prove his assertion that petitioner is indeed
disqualified from holding his congressional seat. Private respondent's burden of proof
was not only to establish that petitioner's domicile of origin is different from Sta. Rosa
but also that petitioner's domicile for the one year prior to election day continued to be
Pagsanjan, Laguna which was petitioner's domicile of origin or that petitioner had chosen
a domicile other than Sta. Rosa, Laguna for that same period. In other words, to prove
petitioner's disqualification, the relevant period is the one year period prior to election
day. It would be absurd to rule that the petitioner in a quo warranto suit only needs to
prove that the candidate had some other previous domicile, regardless of how remote in
time from election day that previous domicile was established, and then the candidate
would already have the burden to prove abandonment of that previous domicile. It is the
burden of the petitioner in a quo warranto case to first prove the very fact of
disqualification before the candidate should even be called upon to defend himself with
countervailing evidence.
In our considered view, private respondent failed to discharge his burden of proof.
Petitioner's COCs for previous elections and his 2005 application for a driver's license
only proved that his domicile of origin was Pagsanjan, Laguna and it remained to be so
up to 2005. Affidavits/testimonies of respondent's witnesses, at most, tended to prove that
petitioner was on several instances found in his house in Cabuyao, Laguna, which was
not even his domicile of origin. Cabuyao, Laguna is in the Second District of Laguna
while petitioner's domicile of origin, Pagsanjan, is in the Fourth District of Laguna.
Based on private respondent's own documentary submissions, Cabuyao was never even
stated as a domicile or residence in any of the petitioner's COCs. Moreover, owning an
abode in Cabuyao where petitioner is occasionally found did not prove that Cabuyao is
petitioner's real domicile. Indeed, disregarding Cabuyao as petitioner's domicile would be
consistent with the established principle that physical presence in a place sans the intent
to permanently reside therein is insufficient to establish domicile. Neither did private
respondent's submissions refute petitioner's evidence that since February 2006 petitioner
has chosen Sta. Rosa as his domicile. ITAaHc
To summarize, private respondent's own evidence did not categorically establish where
petitioner's domicile is nor did said evidence conclusively prove that for the year prior to
the May 14, 2007 petitioner had a domicile other than where he actually resided, i.e., Sta.
Rosa, Laguna. To be sure, Gallego v. Vera 41 decreed that:
We might add that the manifest intent of the law in fixing a residence qualification is to
exclude a stranger or newcomer, unacquainted with the conditions and needs of a
community and not identified with the latter, from an elective office to serve that
community; and when the evidence on the alleged lack of residence qualification is weak
or inconclusive and it clearly appears, as in the instant case, that the purpose of the law
would not be thwarted by upholding the right to the office, the will of the electorate
should be respected. . . . (Emphasis supplied)
Frivaldo 42 likewise prescribed that:
. . . To successfully challenge a winning candidate's qualifications, the petitioner must
clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and
legal principles that overriding such ineligibility and thereby giving effect to the apparent
will of the people, would ultimately create greater prejudice to the very democratic
institutions and juristic traditions that our Constitution and laws so zealously protect and
promote. . . . (Emphasis supplied) cACHSE
In Torayno, 43 the Court had the occasion to say that:
The Constitution and the law requires residence as a qualification for seeking and holding
elective public office, in order to give candidates the opportunity to be familiar with the
needs, difficulties, aspirations, potentials for growth and all matters vital to the welfare of
their constituencies; likewise, it enables the electorate to evaluate the office seekers'
qualifications and fitness for the job they aspire for. . . .
Recently, in Japzon v. COMELEC, 44 the Court, citing Papandayan, Jr. v. COMELEC,
45 said:
In Papandayan, Jr. v. Commission on Elections, the Court provided a summation of the
different principles and concepts in jurisprudence relating to the residency qualification
for elective local officials. Pertinent portions of the ratio in Papandayan are reproduced
below:
Our decisions have applied certain tests and concepts in resolving the issue of whether or
not a candidate has complied with the residency requirement for elective positions. The
principle of animus revertendi has been used to determine whether a candidate has an
"intention to return" to the place where he seeks to be elected. Corollary to this is a
determination whether there has been an "abandonment" of his former residence which
signifies an intention to depart therefrom. In Caasi v. Court of Appeals, this Court set
aside the appealed orders of the COMELEC and the Court of Appeals and annulled the
election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that
respondent's immigration to the United States in 1984 constituted an abandonment of his
domicile and residence in the Philippines. Being a green card holder, which was proof
that he was a permanent resident or immigrant of the United States, and in the absence of
any waiver of his status as such before he ran for election on January 18, 1988,
respondent was held to be disqualified under §68 of the Omnibus Election Code of the
Philippines (Batas Pambansa Blg. 881). TaCEHA
In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was
proclaimed the duly elected representative of the 2nd District of Northern Samar. The
House of Representatives Electoral Tribunal (HRET) upheld his election against claims
that he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar.
In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the
concept of animus revertendi or "intent to return", stating that his absence from his
residence in order to pursue studies or practice his profession as a certified public
accountant in Manila or his registration as a voter other than in the place where he was
elected did not constitute loss of residence. The fact that respondent made periodical
journeys to his home province in Laoag revealed that he always had animus revertendi.
In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was
explained that the determination of a person's legal residence or domicile largely depends
upon the intention that may be inferred from his acts, activities, and utterances. In that
case, petitioner Adelina Larrazabal, who had obtained the highest number of votes in the
local elections of February 1, 1988 and who had thus been proclaimed as the duly elected
governor, was disqualified by the COMELEC for lack of residence and registration
qualifications, not being a resident nor a registered voter of Kananga, Leyte. The
COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one
year before the election by registering at Kananga, Leyte to qualify her to run for the
position of governor of the province of Leyte was proof that she considered herself a
resident of Ormoc City. This Court affirmed the ruling of the COMELEC and held that
petitioner Larrazabal had established her residence in Ormoc City, not in Kananga, Leyte,
from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on
February 1, 1988. There was no evidence to show that she and her husband maintained
separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The fact
that she occasionally visited Kananga, Leyte through the years did not signify an
intention to continue her residence after leaving that place. cda
In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and
"residence" are synonymous. The term "residence", as used in the election law, imports
not only an intention to reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent
residence to which when absent for business or pleasure, or for like reasons, one intends
to return. In that case, petitioner Philip G. Romualdez established his residence during the
early 1980's in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure
from the country of petitioner, because of the EDSA People's Power Revolution of 1986,
to go into self-exile in the United States until favorable conditions had been established,
was not voluntary so as to constitute an abandonment of residence. The Court explained
that in order to acquire a new domicile by choice, there must concur (1) residence or
bodily presence in the new locality, (2) an intention to remain there, and (3) an intention
to abandon the old domicile. There must be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual.
Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is
the decisive factor in determining whether or not an individual has satisfied the residency
qualification requirement. CTAIDE
We do not doubt that the residency requirement is a means to prevent a stranger or
newcomer from holding office on the assumption that such stranger or newcomer would
be insufficiently acquainted with the needs of his prospective constituents. However, it is
appropriate to point out at this juncture that aside from petitioner's actual, physical
presence in Sta. Rosa for more than a year prior to election day, he has demonstrated that
he has substantial ties to Sta. Rosa and the First District of Laguna for an even longer
period than that. Petitioner has business interests in Sta. Rosa comprised of restaurants
and a residential property for lease. Petitioner has two children studying in Sta. Rosa
schools even before 2006. These circumstances provided petitioner with material reasons
to frequently visit the area and eventually take up residence in the said district.
Significantly, petitioner previously served as Board Member and Vice-Governor for the
Province of Laguna, of which the First District and Sta. Rosa are a part. It stands to
reason that in his previous elected positions petitioner has acquired knowledge of the
needs and aspirations of the residents of the First District who were among his
constituents.
Simply put, petitioner could not be considered a "stranger" to the community which he
sought to represent and that evil that the residency requirement was designed to prevent is
not present in this case. acCTIS
We take this occasion to reiterate our ruling in Sinaca v. Mula, 46 to wit:
[When] a candidate has received popular mandate, overwhelmingly and clearly
expressed, all possible doubts should be resolved in favor of the candidate's eligibility for
to rule otherwise is to defeat the will of the people. Above and beyond all, the
determination of the true will of the electorate should be paramount. It is their voice, not
ours or of anyone else, that must prevail. This, in essence, is the democracy we continue
to hold sacred.
WHEREFORE, premises considered, the petition is hereby GRANTED. The decision of
the HRET in HRET CASE No. 07-034 promulgated on December 16, 2008, and its
Minute Resolution No. 09-080 promulgated on April 30, 2009 in the same case, are
hereby REVERSED AND SET ASIDE.
SO ORDERED.

[G.R. No. 175352. July 15, 2009.]

DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR M. VIARI,
petitioners, vs. RICHARD J. GORDON, respondent.
DECISION
CARPIO, J p:
The Case
This is a petition to declare Senator Richard J. Gordon (respondent) as having forfeited
his seat in the Senate. HScCEa
The Facts
Petitioners Dante V. Liban, Reynaldo M. Bernardo, and Salvador M. Viari (petitioners)
filed with this Court a Petition to Declare Richard J. Gordon as Having Forfeited His Seat
in the Senate. Petitioners are officers of the Board of Directors of the Quezon City Red
Cross Chapter while respondent is Chairman of the Philippine National Red Cross
(PNRC) Board of Governors.
During respondent's incumbency as a member of the Senate of the Philippines, 1 he was
elected Chairman of the PNRC during the 23 February 2006 meeting of the PNRC Board
of Governors. Petitioners allege that by accepting the chairmanship of the PNRC Board
of Governors, respondent has ceased to be a member of the Senate as provided in Section
13, Article VI of the Constitution, which reads:
SEC. 13. No Senator or Member of the House of Representatives may hold any
other office or employment in the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries, during his term without forfeiting his seat. Neither shall he be appointed to
any office which may have been created or the emoluments thereof increased during the
term for which he was elected.
Petitioners cite Camporedondo v. NLRC, 2 which held that the PNRC is a government-
owned or controlled corporation. Petitioners claim that in accepting and holding the
position of Chairman of the PNRC Board of Governors, respondent has automatically
forfeited his seat in the Senate, pursuant to Flores v. Drilon, 3 which held that incumbent
national legislators lose their elective posts upon their appointment to another
government office. caITAC
In his Comment, respondent asserts that petitioners have no standing to file this petition
which appears to be an action for quo warranto, since the petition alleges that respondent
committed an act which, by provision of law, constitutes a ground for forfeiture of his
public office. Petitioners do not claim to be entitled to the Senate office of respondent.
Under Section 5, Rule 66 of the Rules of Civil Procedure, only a person claiming to be
entitled to a public office usurped or unlawfully held by another may bring an action for
quo warranto in his own name. If the petition is one for quo warranto, it is already barred
by prescription since under Section 11, Rule 66 of the Rules of Civil Procedure, the
action should be commenced within one year after the cause of the public officer's
forfeiture of office. In this case, respondent has been working as a Red Cross volunteer
for the past 40 years. Respondent was already Chairman of the PNRC Board of
Governors when he was elected Senator in May 2004, having been elected Chairman in
2003 and re-elected in 2005.
Respondent contends that even if the present petition is treated as a taxpayer's suit,
petitioners cannot be allowed to raise a constitutional question in the absence of any
claim that they suffered some actual damage or threatened injury as a result of the
allegedly illegal act of respondent. Furthermore, taxpayers are allowed to sue only when
there is a claim of illegal disbursement of public funds, or that public money is being
diverted to any improper purpose, or where petitioners seek to restrain respondent from
enforcing an invalid law that results in wastage of public funds. TSHIDa
Respondent also maintains that if the petition is treated as one for declaratory relief, this
Court would have no jurisdiction since original jurisdiction for declaratory relief lies with
the Regional Trial Court.
Respondent further insists that the PNRC is not a government-owned or controlled
corporation and that the prohibition under Section 13, Article VI of the Constitution does
not apply in the present case since volunteer service to the PNRC is neither an office nor
an employment.
In their Reply, petitioners claim that their petition is neither an action for quo warranto
nor an action for declaratory relief. Petitioners maintain that the present petition is a
taxpayer's suit questioning the unlawful disbursement of funds, considering that
respondent has been drawing his salaries and other compensation as a Senator even if he
is no longer entitled to his office. Petitioners point out that this Court has jurisdiction over
this petition since it involves a legal or constitutional issue which is of transcendental
importance.
The Issues
Petitioners raise the following issues:
1. Whether the Philippine National Red Cross (PNRC) is a government-owned or
controlled corporation;
2. Whether Section 13, Article VI of the Philippine Constitution applies to the case
of respondent who is Chairman of the PNRC and at the same time a Member of the
Senate; cDCIHT
3. Whether respondent should be automatically removed as a Senator pursuant to
Section 13, Article VI of the Philippine Constitution; and
4. Whether petitioners may legally institute this petition against respondent. 4
The substantial issue boils down to whether the office of the PNRC Chairman is a
government office or an office in a government-owned or controlled corporation for
purposes of the prohibition in Section 13, Article VI of the Constitution.
The Court's Ruling
We find the petition without merit.
Petitioners Have No Standing to File this Petition
A careful reading of the petition reveals that it is an action for quo warranto. Section 1,
Rule 66 of the Rules of Court provides:
Section 1. Action by Government against individuals. — An action for the
usurpation of a public office, position or franchise may be commenced by a verified
petition brought in the name of the Republic of the Philippines against: aIEDAC
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise;
(b) A public officer who does or suffers an act which by provision of law, constitutes
a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines without being
legally incorporated or without lawful authority so to act. (Emphasis supplied)
Petitioners allege in their petition that:
4. Respondent became the Chairman of the PNRC when he was elected as such
during the First Regular Luncheon-Meeting of the Board of Governors of the PNRC held
on February 23, 2006, the minutes of which is hereto attached and made integral part
hereof as Annex "A".
5. Respondent was elected as Chairman of the PNRC Board of Governors, during
his incumbency as a Member of the House of Senate of the Congress of the Philippines,
having been elected as such during the national elections last May 2004.
6. Since his election as Chairman of the PNRC Board of Governors, which position
he duly accepted, respondent has been exercising the powers and discharging the
functions and duties of said office, despite the fact that he is still a senator. TCIHSa
7. It is the respectful submission of the petitioner[s] that by accepting the
chairmanship of the Board of Governors of the PNRC, respondent has ceased to be a
Member of the House of Senate as provided in Section 13, Article VI of the Philippine
Constitution, . . .
xxx xxx xxx
10. It is respectfully submitted that in accepting the position of Chairman of the
Board of Governors of the PNRC on February 23, 2006, respondent has automatically
forfeited his seat in the House of Senate and, therefore, has long ceased to be a Senator,
pursuant to the ruling of this Honorable Court in the case of FLORES, ET AL. VS.
DRILON AND GORDON, G.R. No. 104732, . . .
11. Despite the fact that he is no longer a senator, respondent continues to act as such
and still performs the powers, functions and duties of a senator, contrary to the
constitution, law and jurisprudence.
12. Unless restrained, therefore, respondent will continue to falsely act and represent
himself as a senator or member of the House of Senate, collecting the salaries,
emoluments and other compensations, benefits and privileges appertaining and due only
to the legitimate senators, to the damage, great and irreparable injury of the Government
and the Filipino people. 5 (Emphasis supplied) CSAaDE
Thus, petitioners are alleging that by accepting the position of Chairman of the PNRC
Board of Governors, respondent has automatically forfeited his seat in the Senate. In
short, petitioners filed an action for usurpation of public office against respondent, a
public officer who allegedly committed an act which constitutes a ground for the
forfeiture of his public office. Clearly, such an action is for quo warranto, specifically
under Section 1 (b), Rule 66 of the Rules of Court.
Quo warranto is generally commenced by the Government as the proper party plaintiff.
However, under Section 5, Rule 66 of the Rules of Court, an individual may commence
such an action if he claims to be entitled to the public office allegedly usurped by
another, in which case he can bring the action in his own name. The person instituting
quo warranto proceedings in his own behalf must claim and be able to show that he is
entitled to the office in dispute, otherwise the action may be dismissed at any stage. 6 In
the present case, petitioners do not claim to be entitled to the Senate office of respondent.
Clearly, petitioners have no standing to file the present petition.
Even if the Court disregards the infirmities of the petition and treats it as a taxpayer's suit,
the petition would still fail on the merits.
PNRC is a Private Organization Performing Public Functions
On 22 March 1947, President Manuel A. Roxas signed Republic Act No. 95, 7 otherwise
known as the PNRC Charter. The PNRC is a non-profit, donor-funded, voluntary,
humanitarian organization, whose mission is to bring timely, effective, and
compassionate humanitarian assistance for the most vulnerable without consideration of
nationality, race, religion, gender, social status, or political affiliation. 8 The PNRC
provides six major services: Blood Services, Disaster Management, Safety Services,
Community Health and Nursing, Social Services and Voluntary Service. 9 HScDIC
The Republic of the Philippines, adhering to the Geneva Conventions, established the
PNRC as a voluntary organization for the purpose contemplated in the Geneva
Convention of 27 July 1929. 10 The Whereas clauses of the PNRC Charter read:
WHEREAS, there was developed at Geneva, Switzerland, on August 22, 1864, a
convention by which the nations of the world were invited to join together in
diminishing, so far lies within their power, the evils inherent in war;
WHEREAS, more than sixty nations of the world have ratified or adhered to the
subsequent revision of said convention, namely the 'Convention of Geneva of July 29
[sic], 1929 for the Amelioration of the Condition of the Wounded and Sick of Armies in
the Field' (referred to in this Charter as the Geneva Red Cross Convention);
WHEREAS, the Geneva Red Cross Convention envisages the establishment in each
country of a voluntary organization to assist in caring for the wounded and sick of the
armed forces and to furnish supplies for that purpose;
WHEREAS, the Republic of the Philippines became an independent nation on July 4,
1946 and proclaimed its adherence to the Geneva Red Cross Convention on February 14,
1947, and by that action indicated its desire to participate with the nations of the world in
mitigating the suffering caused by war and to establish in the Philippines a voluntary
organization for that purpose as contemplated by the Geneva Red Cross Convention;
SaICcT
WHEREAS, there existed in the Philippines since 1917 a Charter of the American
National Red Cross which must be terminated in view of the independence of the
Philippines; and
WHEREAS, the volunteer organizations established in the other countries which have
ratified or adhered to the Geneva Red Cross Convention assist in promoting the health
and welfare of their people in peace and in war, and through their mutual assistance and
cooperation directly and through their international organizations promote better
understanding and sympathy among the peoples of the world. (Emphasis supplied)
The PNRC is a member * National Society of the International Red Cross and Red
Crescent Movement (Movement), which is composed of the International Committee of
the Red Cross (ICRC), the International Federation of Red Cross and Red Crescent
Societies (International Federation), and the National Red Cross and Red Crescent
Societies (National Societies). The Movement is united and guided by its seven
Fundamental Principles:
1. HUMANITY — The International Red Cross and Red Crescent Movement, born
of a desire to bring assistance without discrimination to the wounded on the battlefield,
endeavors, in its international and national capacity, to prevent and alleviate human
suffering wherever it may be found. Its purpose is to protect life and health and to ensure
respect for the human being. It promotes mutual understanding, friendship, cooperation
and lasting peace amongst all peoples. AcCTaD
2. IMPARTIALITY — It makes no discrimination as to nationality, race, religious
beliefs, class or political opinions. It endeavors to relieve the suffering of individuals,
being guided solely by their needs, and to give priority to the most urgent cases of
distress.
3. NEUTRALITY — In order to continue to enjoy the confidence of all, the
Movement may not take sides in hostilities or engage at any time in controversies of a
political, racial, religious or ideological nature.
4. INDEPENDENCE — The Movement is independent. The National Societies,
while auxiliaries in the humanitarian services of their governments and subject to the
laws of their respective countries, must always maintain their autonomy so that they may
be able at all times to act in accordance with the principles of the Movement.
5. VOLUNTARY SERVICE — It is a voluntary relief movement not prompted in
any manner by desire for gain.
6. UNITY — There can be only one Red Cross or one Red Crescent Society in any
one country. It must be open to all. It must carry on its humanitarian work throughout its
territory. cEHSIC
7. UNIVERSALITY — The International Red Cross and Red Crescent Movement,
in which all Societies have equal status and share equal responsibilities and duties in
helping each other, is worldwide. (Emphasis supplied)
The Fundamental Principles provide a universal standard of reference for all members of
the Movement. The PNRC, as a member National Society of the Movement, has the duty
to uphold the Fundamental Principles and ideals of the Movement. In order to be
recognized as a National Society, the PNRC has to be autonomous and must operate in
conformity with the Fundamental Principles of the Movement. 11
The reason for this autonomy is fundamental. To be accepted by warring belligerents as
neutral workers during international or internal armed conflicts, the PNRC volunteers
must not be seen as belonging to any side of the armed conflict. In the Philippines where
there is a communist insurgency and a Muslim separatist rebellion, the PNRC cannot be
seen as government-owned or controlled, and neither can the PNRC volunteers be
identified as government personnel or as instruments of government policy. Otherwise,
the insurgents or separatists will treat PNRC volunteers as enemies when the volunteers
tend to the wounded in the battlefield or the displaced civilians in conflict areas.
Thus, the PNRC must not only be, but must also be seen to be, autonomous, neutral and
independent in order to conduct its activities in accordance with the Fundamental
Principles. The PNRC must not appear to be an instrument or agency that implements
government policy; otherwise, it cannot merit the trust of all and cannot effectively carry
out its mission as a National Red Cross Society. 12 It is imperative that the PNRC must
be autonomous, neutral, and independent in relation to the State. ITAaHc
To ensure and maintain its autonomy, neutrality, and independence, the PNRC cannot be
owned or controlled by the government. Indeed, the Philippine government does not own
the PNRC. The PNRC does not have government assets and does not receive any
appropriation from the Philippine Congress. 13 The PNRC is financed primarily by
contributions from private individuals and private entities obtained through solicitation
campaigns organized by its Board of Governors, as provided under Section 11 of the
PNRC Charter:
SEC. 11. As a national voluntary organization, the Philippine National Red Cross
shall be financed primarily by contributions obtained through solicitation campaigns
throughout the year which shall be organized by the Board of Governors and conducted
by the Chapters in their respective jurisdictions. These fund raising campaigns shall be
conducted independently of other fund drives by other organizations. (Emphasis
supplied)
The government does not control the PNRC. Under the PNRC Charter, as amended, only
six of the thirty members of the PNRC Board of Governors are appointed by the
President of the Philippines. Thus, twenty-four members, or four-fifths (4/5), of the
PNRC Board of Governors are not appointed by the President. Section 6 of the PNRC
Charter, as amended, provides: STECDc
SEC. 6. The governing powers and authority shall be vested in a Board of
Governors composed of thirty members, six of whom shall be appointed by the President
of the Philippines, eighteen shall be elected by chapter delegates in biennial conventions
and the remaining six shall be selected by the twenty-four members of the Board already
chosen. . . . .
Thus, of the twenty-four members of the PNRC Board, eighteen are elected by the
chapter delegates of the PNRC, and six are elected by the twenty-four members already
chosen — a select group where the private sector members have three-fourths majority.
Clearly, an overwhelming majority of four-fifths of the PNRC Board are elected or
chosen by the private sector members of the PNRC.
The PNRC Board of Governors, which exercises all corporate powers of the PNRC,
elects the PNRC Chairman and all other officers of the PNRC. The incumbent Chairman
of PNRC, respondent Senator Gordon, was elected, as all PNRC Chairmen are elected,
by a private sector-controlled PNRC Board four-fifths of whom are private sector
members of the PNRC. The PNRC Chairman is not appointed by the President or by any
subordinate government official.
Under Section 16, Article VII of the Constitution, 14 the President appoints all officials
and employees in the Executive branch whose appointments are vested in the President
by the Constitution or by law. The President also appoints those whose appointments are
not otherwise provided by law. Under this Section 16, the law may also authorize the
'heads of departments, agencies, commissions, or boards' to appoint officers lower in rank
than such heads of departments, agencies, commissions or boards. 15 In Rufino v.
Endriga, 16 the Court explained appointments under Section 16 in this wise: TIESCA
Under Section 16, Article VII of the 1987 Constitution, the President appoints three
groups of officers. The first group refers to the heads of the Executive departments,
ambassadors, other public ministers and consuls, officers of the armed forces from the
rank of colonel or naval captain, and other officers whose appointments are vested in the
President by the Constitution. The second group refers to those whom the President may
be authorized by law to appoint. The third group refers to all other officers of the
Government whose appointments are not otherwise provided by law.
Under the same Section 16, there is a fourth group of lower-ranked officers whose
appointments Congress may by law vest in the heads of departments, agencies,
commissions, or boards. . . .
xxx xxx xxx
In a department in the Executive branch, the head is the Secretary. The law may not
authorize the Undersecretary, acting as such Undersecretary, to appoint lower-ranked
officers in the Executive department. In an agency, the power is vested in the head of the
agency for it would be preposterous to vest it in the agency itself. In a commission, the
head is the chairperson of the commission. In a board, the head is also the chairperson of
the board. In the last three situations, the law may not also authorize officers other than
the heads of the agency, commission, or board to appoint lower-ranked officers.
HIACac
xxx xxx xxx
The Constitution authorizes Congress to vest the power to appoint lower-ranked officers
specifically in the 'heads' of the specified offices, and in no other person. The word
'heads' refers to the chairpersons of the commissions or boards and not to their members,
for several reasons.
The President does not appoint the Chairman of the PNRC. Neither does the head of any
department, agency, commission or board appoint the PNRC Chairman. Thus, the PNRC
Chairman is not an official or employee of the Executive branch since his appointment
does not fall under Section 16, Article VII of the Constitution. Certainly, the PNRC
Chairman is not an official or employee of the Judiciary or Legislature. This leads us to
the obvious conclusion that the PNRC Chairman is not an official or employee of the
Philippine Government. Not being a government official or employee, the PNRC
Chairman, as such, does not hold a government office or employment.
Under Section 17, Article VII of the Constitution, 17 the President exercises control over
all government offices in the Executive branch. If an office is legally not under the
control of the President, then such office is not part of the Executive branch. In Rufino v.
Endriga, 18 the Court explained the President's power of control over all government
offices as follows: aDcHIC
Every government office, entity, or agency must fall under the Executive, Legislative, or
Judicial branches, or must belong to one of the independent constitutional bodies, or must
be a quasi-judicial body or local government unit. Otherwise, such government office,
entity, or agency has no legal and constitutional basis for its existence.
The CCP does not fall under the Legislative or Judicial branches of government. The
CCP is also not one of the independent constitutional bodies. Neither is the CCP a quasi-
judicial body nor a local government unit. Thus, the CCP must fall under the Executive
branch. Under the Revised Administrative Code of 1987, any agency "not placed by law
or order creating them under any specific department" falls "under the Office of the
President".
Since the President exercises control over "all the executive departments, bureaus, and
offices", the President necessarily exercises control over the CCP which is an office in
the Executive branch. In mandating that the President "shall have control of all
executive . . . offices", Section 17, Article VII of the 1987 Constitution does not exempt
any executive office — one performing executive functions outside of the independent
constitutional bodies — from the President's power of control. There is no dispute that
the CCP performs executive, and not legislative, judicial, or quasi-judicial functions.
The President's power of control applies to the acts or decisions of all officers in the
Executive branch. This is true whether such officers are appointed by the President or by
heads of departments, agencies, commissions, or boards. The power of control means the
power to revise or reverse the acts or decisions of a subordinate officer involving the
exercise of discretion. SaICcT
In short, the President sits at the apex of the Executive branch, and exercises 'control of
all the executive departments, bureaus, and offices.' There can be no instance under the
Constitution where an officer of the Executive branch is outside the control of the
President. The Executive branch is unitary since there is only one President vested with
executive power exercising control over the entire Executive branch. Any office in the
Executive branch that is not under the control of the President is a lost command whose
existence is without any legal or constitutional basis. (Emphasis supplied)
An overwhelming four-fifths majority of the PNRC Board are private sector individuals
elected to the PNRC Board by the private sector members of the PNRC. The PNRC
Board exercises all corporate powers of the PNRC. The PNRC is controlled by private
sector individuals. Decisions or actions of the PNRC Board are not reviewable by the
President. The President cannot reverse or modify the decisions or actions of the PNRC
Board. Neither can the President reverse or modify the decisions or actions of the PNRC
Chairman. It is the PNRC Board that can review, reverse or modify the decisions or
actions of the PNRC Chairman. This proves again that the office of the PNRC Chairman
is a private office, not a government office.
Although the State is often represented in the governing bodies of a National Society, this
can be justified by the need for proper coordination with the public authorities, and the
government representatives may take part in decision-making within a National Society.
However, the freely-elected representatives of a National Society's active members must
remain in a large majority in a National Society's governing bodies. 19 HaIESC
The PNRC is not government-owned but privately owned. The vast majority of the
thousands of PNRC members are private individuals, including students. Under the
PNRC Charter, those who contribute to the annual fund campaign of the PNRC are
entitled to membership in the PNRC for one year. Thus, any one between 6 and 65 years
of age can be a PNRC member for one year upon contributing P35, P100, P300, P500 or
P1,000 for the year. 20 Even foreigners, whether residents or not, can be members of the
PNRC. Section 5 of the PNRC Charter, as amended by Presidential Decree No. 1264, 21
reads:
SEC. 5. Membership in the Philippine National Red Cross shall be open to the
entire population in the Philippines regardless of citizenship. Any contribution to the
Philippine National Red Cross Annual Fund Campaign shall entitle the contributor to
membership for one year and said contribution shall be deductible in full for taxation
purposes.
Thus, the PNRC is a privately owned, privately funded, and privately run charitable
organization. The PNRC is not a government-owned or controlled corporation.
Petitioners anchor their petition on the 1999 case of Camporedondo v. NLRC, 22 which
ruled that the PNRC is a government-owned or controlled corporation. In ruling that the
PNRC is a government-owned or controlled corporation, the simple test used was
whether the corporation was created by its own special charter for the exercise of a public
function or by incorporation under the general corporation law. Since the PNRC was
created under a special charter, the Court then ruled that it is a government corporation.
However, the Camporedondo ruling failed to consider the definition of a government-
owned or controlled corporation as provided under Section 2 (13) of the Introductory
Provisions of the Administrative Code of 1987: aHTDAc
SEC. 2. General Terms Defined. — . . .
(13) Government-owned or controlled corporation refers to any agency organized as a
stock or non-stock corporation, vested with functions relating to public needs whether
governmental or proprietary in nature, and owned by the Government directly or through
its instrumentalities either wholly, or where applicable as in the case of stock
corporations, to the extent of at least fifty-one (51) percent of its capital stock: Provided,
That government-owned or controlled corporations may be further categorized by the
Department of the Budget, the Civil Service Commission, and the Commission on Audit
for purposes of the exercise and discharge of their respective powers, functions and
responsibilities with respect to such corporations.(Boldfacing and underscoring supplied)
A government-owned or controlled corporation must be owned by the government, and
in the case of a stock corporation, at least a majority of its capital stock must be owned by
the government. In the case of a non-stock corporation, by analogy at least a majority of
the members must be government officials holding such membership by appointment or
designation by the government. Under this criterion, and as discussed earlier, the
government does not own or control PNRC.
The PNRC Charter is Violative of the Constitutional Proscription against the Creation of
Private Corporations by Special Law HIDCTA
The 1935 Constitution, as amended, was in force when the PNRC was created by special
charter on 22 March 1947. Section 7, Article XIV of the 1935 Constitution, as amended,
reads:
SEC. 7. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations, unless such corporations are owned or
controlled by the Government or any subdivision or instrumentality thereof.
The subsequent 1973 and 1987 Constitutions contain similar provisions prohibiting
Congress from creating private corporations except by general law. Section 1 of the
PNRC Charter, as amended, creates the PNRC as a "body corporate and politic", thus:
SEC. 1. There is hereby created in the Republic of the Philippines a body corporate
and politic to be the voluntary organization officially designated to assist the Republic of
the Philippines in discharging the obligations set forth in the Geneva Conventions and to
perform such other duties as are inherent upon a National Red Cross Society. The
national headquarters of this Corporation shall be located in Metropolitan Manila.
(Emphasis supplied)
In Feliciano v. Commission on Audit, 23 the Court explained the constitutional provision
prohibiting Congress from creating private corporations in this wise: IDATCE
We begin by explaining the general framework under the fundamental law. The
Constitution recognizes two classes of corporations. The first refers to private
corporations created under a general law. The second refers to government-owned or
controlled corporations created by special charters. Section 16, Article XII of the
Constitution provides:
Sec. 16. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-owned or controlled
corporations may be created or established by special charters in the interest of the
common good and subject to the test of economic viability.
The Constitution emphatically prohibits the creation of private corporations except by
general law applicable to all citizens. The purpose of this constitutional provision is to
ban private corporations created by special charters, which historically gave certain
individuals, families or groups special privileges denied to other citizens.
In short, Congress cannot enact a law creating a private corporation with a special
charter. Such legislation would be unconstitutional. Private corporations may exist only
under a general law. If the corporation is private, it must necessarily exist under a general
law. Stated differently, only corporations created under a general law can qualify as
private corporations. Under existing laws, the general law is the Corporation Code,
except that the Cooperative Code governs the incorporation of cooperatives. ESIcaC
The Constitution authorizes Congress to create government-owned or controlled
corporations through special charters. Since private corporations cannot have special
charters, it follows that Congress can create corporations with special charters only if
such corporations are government-owned or controlled. 24 (Emphasis supplied)
In Feliciano, the Court held that the Local Water Districts are government-owned or
controlled corporations since they exist by virtue of Presidential Decree No. 198, which
constitutes their special charter. The seed capital assets of the Local Water Districts, such
as waterworks and sewerage facilities, were public property which were managed,
operated by or under the control of the city, municipality or province before the assets
were transferred to the Local Water Districts. The Local Water Districts also receive
subsidies and loans from the Local Water Utilities Administration (LWUA). In fact,
under the 2009 General Appropriations Act, 25 the LWUA has a budget amounting to
P400,000,000 for its subsidy requirements. 26 There is no private capital invested in the
Local Water Districts. The capital assets and operating funds of the Local Water Districts
all come from the government, either through transfer of assets, loans, subsidies or the
income from such assets or funds.
The government also controls the Local Water Districts because the municipal or city
mayor, or the provincial governor, appoints all the board directors of the Local Water
Districts. Furthermore, the board directors and other personnel of the Local Water
Districts are government employees subject to civil service laws and anti-graft laws.
Clearly, the Local Water Districts are considered government-owned or controlled
corporations not only because of their creation by special charter but also because the
government in fact owns and controls the Local Water Districts. CDEaAI
Just like the Local Water Districts, the PNRC was created through a special charter.
However, unlike the Local Water Districts, the elements of government ownership and
control are clearly lacking in the PNRC. Thus, although the PNRC is created by a special
charter, it cannot be considered a government-owned or controlled corporation in the
absence of the essential elements of ownership and control by the government. In
creating the PNRC as a corporate entity, Congress was in fact creating a private
corporation. However, the constitutional prohibition against the creation of private
corporations by special charters provides no exception even for non-profit or charitable
corporations. Consequently, the PNRC Charter, insofar as it creates the PNRC as a
private corporation and grants it corporate powers, 27 is void for being unconstitutional.
Thus, Sections 1, 28 2, 29 3, 30 4 (a), 31 5, 32 6, 33 7, 34 8, 35 9, 36 10, 37 11, 38 12, 39
and 13 40 of the PNRC Charter, as amended, are void.
The other provisions 41 of the PNRC Charter remain valid as they can be considered as a
recognition by the State that the unincorporated PNRC is the local National Society of the
International Red Cross and Red Crescent Movement, and thus entitled to the benefits,
exemptions and privileges set forth in the PNRC Charter. The other provisions of the
PNRC Charter implement the Philippine Government's treaty obligations under Article 4
(5) of the Statutes of the International Red Cross and Red Crescent Movement, which
provides that to be recognized as a National Society, the Society must be "duly
recognized by the legal government of its country on the basis of the Geneva
Conventions and of the national legislation as a voluntary aid society, auxiliary to the
public authorities in the humanitarian field." cTADCH
In sum, we hold that the office of the PNRC Chairman is not a government office or an
office in a government-owned or controlled corporation for purposes of the prohibition in
Section 13, Article VI of the 1987 Constitution. However, since the PNRC Charter is
void insofar as it creates the PNRC as a private corporation, the PNRC should
incorporate under the Corporation Code and register with the Securities and Exchange
Commission if it wants to be a private corporation.
WHEREFORE, we declare that the office of the Chairman of the Philippine National Red
Cross is not a government office or an office in a government-owned or controlled
corporation for purposes of the prohibition in Section 13, Article VI of the 1987
Constitution. We also declare that Sections 1, 2, 3, 4 (a), 5, 6, 7, 8, 9, 10, 11, 12, and 13
of the Charter of the Philippine National Red Cross, or Republic Act No. 95, as amended
by Presidential Decree Nos. 1264 and 1643, are VOID because they create the PNRC as a
private corporation or grant it corporate powers.
SO ORDERED.

[G.R. No. 175888. February 11, 2009.]

SUZETTE NICOLAS y SOMBILON, petitioner, vs. ALBERTO ROMULO, in his
capacity as Secretary of Foreign Affairs; RAUL GONZALEZ, in his capacity as
Secretary of Justice; EDUARDO ERMITA, in his capacity as Executive Secretary;
RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government;
SERGIO APOSTOL, in his capacity as Presidential Legal Counsel; and L/CPL. DANIEL
SMITH, respondents.
[G.R. No. 176051. February 11, 2009.]
JOVITO R. SALONGA, WIGBERTO E. TAÑADA, JOSE DE LA RAMA, EMILIO C.
CAPULONG, H. HARRY L. ROQUE, JR., FLORIN HILBAY, and BENJAMIN
POZON, petitioners, vs. DANIEL SMITH, SECRETARY RAUL GONZALEZ,
PRESIDENTIAL LEGAL COUNSEL SERGIO APOSTOL, SECRETARY RONALDO
PUNO, SECRETARY ALBERTO ROMULO, The Special 16th Division of the COURT
OF APPEALS, and all persons acting in their capacity, respondents.
[G.R. No. 176222. February 11, 2009.]
BAGONG ALYANSANG MAKABAYAN (BAYAN), represented by Dr. Carol
Araullo; GABRIELA, represented by Emerenciana de Jesus; BAYAN MUNA,
represented by Rep. Satur Ocampo; GABRIELA WOMEN'S PARTY, represented by
Rep. Liza Maza; KILUSANG MAYO UNO (KMU), represented by Elmer Labog;
KILUSANG MAGBUBUKID NG PILIPINAS (KMP), represented by Willy Marbella;
LEAGUE OF FILIPINO STUDENTS (LFS), represented by Vencer Crisostomo; and
THE PUBLIC INTEREST LAW CENTER, represented by Atty. Rachel Pastores,
petitioners, vs. PRESIDENT GLORIA MACAPAGAL-ARROYO, in her capacity as
concurrent Defense Secretary, EXECUTIVE SECRETARY EDUARDO ERMITA,
FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, JUSTICE SECRETARY
RAUL GONZALEZ, AND INTERIOR AND LOCAL GOVERNMENT SECRETARY
RONALDO PUNO, respondents.

DECISION
AZCUNA, J p:
These are petitions for certiorari, etc. as special civil actions and/or for review of the
Decision of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T.
Pozon, et al., in CA-G.R. SP No. 97212, dated January 2, 2007. HSEcTC
The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States
Armed Forces. He was charged with the crime of rape committed against a Filipina,
petitioner herein, sometime on November 1, 2005, as follows:
The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic
Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article
266-A of the Revised Penal Code, as amended by Republic Act 8353, upon a complaint
under oath filed by Suzette S. Nicolas, which is attached hereto and made an integral part
hereof as Annex "A", committed as follows: 2009jur
"That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport
Zone, Olongapo City and within the jurisdiction of this Honorable Court, the above-
named accused's (sic), being then members of the United States Marine Corps, except
Timoteo L. Soriano, Jr., conspiring, confederating together and mutually helping one
another, with lewd design and by means of force, threat and intimidation, with abuse of
superior strength and taking advantage of the intoxication of the victim, did then and
there willfully, unlawfully and feloniously sexually abuse and have sexual intercourse
with or carnal knowledge of one Suzette S. Nicolas, a 22-year old unmarried woman
inside a Starex Van with Plate No. WKF-162, owned by Starways Travel and Tours, with
Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused
Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her
damage and prejudice. HSTAcI
CONTRARY TO LAW." 1
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the
Philippines and the United States, entered into on February 10, 1998, the United States, at
its request, was granted custody of defendant Smith pending the proceedings.
During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales
to the RTC of Makati for security reasons, the United States Government faithfully
complied with its undertaking to bring defendant Smith to the trial court every time his
presence was required.
On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its
Decision, finding defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient
evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH
SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps
assigned at the USS Essex, are hereby ACQUITTED to the crime charged. EcTIDA
The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J.
SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him
GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE defined under
Article 266-A, paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353,
and, in accordance with Article 266-B, first paragraph thereof, hereby sentences him to
suffer the penalty of reclusion perpetua together with the accessory penalties provided for
under Article 41 of the same Code.
Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into
by the Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve
his sentence in the facilities that shall, thereafter, be agreed upon by appropriate
Philippine and United States authorities. Pending agreement on such facilities, accused
L/CPL. DANIEL J. SMITH is hereby temporarily committed to the Makati City Jail.
SDHITE
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant
SUZETTE S. NICOLAS in the amount of P50,000.00 as compensatory damages plus
P50,000.00 as moral damages.
SO ORDERED. 2
As a result, the Makati court ordered Smith detained at the Makati jail until further
orders.
On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a
contingent of Philippine law enforcement agents, purportedly acting under orders of the
Department of the Interior and Local Government, and brought to a facility for detention
under the control of the United States government, provided for under new agreements
between the Philippines and the United States, referred to as the Romulo-Kenney
Agreement of December 19, 2006 which states: SEAHcT
The Government of the Republic of the Philippines and the Government of the United
States of America agree that, in accordance with the Visiting Forces Agreement signed
between our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps,
be returned to U.S. military custody at the U.S. Embassy in Manila.
(SGD.) KRISTIE A. KENNEY (SGD.) ALBERTO G. ROMULO
Representative of the United Representative of the Republic
States of America of the Philippines
DATE: 12-19-06 DATE: December 19, 2006
and the Romulo-Kenney Agreement of December 22, 2006 which states:
The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of
the United States of America agree that, in accordance with the Visiting Forces
Agreement signed between the two nations, upon transfer of Lance Corporal Daniel J.
Smith, United States Marine Corps, from the Makati City Jail, he will be detained at the
first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of
approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military
personnel. The Philippine police and jail authorities, under the direct supervision of the
Philippine Department of Interior and Local Government (DILG) will have access to the
place of detention to ensure the United States is in compliance with the terms of the VFA.
DScTaC
The matter was brought before the Court of Appeals which decided on January 2, 2007,
as follows:
WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for
having become moot. 3
Hence, the present actions.
The petitions were heard on oral arguments on September 19, 2008, after which the
parties submitted their memoranda.
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith
because, first of all, the VFA is void and unconstitutional. EHSAaD
This issue had been raised before, and this Court resolved in favor of the constitutionality
of the VFA. This was in Bayan v. Zamora, 4 brought by Bayan, one of petitioners in the
present cases.
Against the barriers of res judicata vis-à-vis Bayan, and stare decisis vis-à-vis all the
parties, the reversal of the previous ruling is sought on the ground that the issue is of
primordial importance, involving the sovereignty of the Republic, as well as a specific
mandate of the Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and
the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in
by the Senate and, when the Congress so requires, ratified by a majority of the votes cast
by the people in a national referendum held for that purpose, and recognized as a treaty
by the other contracting State. aIHCSA
The reason for this provision lies in history and the Philippine experience in regard to the
United States military bases in the country.
It will be recalled that under the Philippine Bill of 1902, which laid the basis for the
Philippine Commonwealth and, eventually, for the recognition of independence, the
United States agreed to cede to the Philippines all the territory it acquired from Spain
under the Treaty of Paris, plus a few islands later added to its realm, except certain naval
ports and/or military bases and facilities, which the United States retained for itself.
This is noteworthy, because what this means is that Clark and Subic and the other places
in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not
Philippine territory, as they were excluded from the cession and retained by the US.

Accordingly, the Philippines had no jurisdiction over these bases except to the extent
allowed by the United States. Furthermore, the RP-US Military Bases Agreement was
never advised for ratification by the United States Senate, a disparity in treatment,
because the Philippines regarded it as a treaty and had it concurred in by our Senate.
TSIDEa
Subsequently, the United States agreed to turn over these bases to the Philippines; and
with the expiration of the RP-US Military Bases Agreement in 1991, the territory covered
by these bases were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question was adopted in the
1987 Constitution.
The provision is thus designed to ensure that any agreement allowing the presence of
foreign military bases, troops or facilities in Philippine territory shall be equally binding
on the Philippines and the foreign sovereign State involved. The idea is to prevent a
recurrence of the situation in which the terms and conditions governing the presence of
foreign armed forces in our territory were binding upon us but not upon the foreign State.
Applying the provision to the situation involved in these cases, the question is whether or
not the presence of US Armed Forces in Philippine territory pursuant to the VFA is
allowed "under a treaty duly concurred in by the Senate . . . and recognized as a treaty by
the other contracting State".
This Court finds that it is, for two reasons. aEIcHA
First, as held in Bayan v. Zamora, 5 the VFA was duly concurred in by the Philippine
Senate and has been recognized as a treaty by the United States as attested and certified
by the duly authorized representative of the United States government.
The fact that the VFA was not submitted for advice and consent of the United States
Senate does not detract from its status as a binding international agreement or treaty
recognized by the said State. For this is a matter of internal United States law. Notice can
be taken of the internationally known practice by the United States of submitting to its
Senate for advice and consent agreements that are policymaking in nature, whereas those
that carry out or further implement these policymaking agreements are merely submitted
to Congress, under the provisions of the so-called Case-Zablocki Act, within sixty days
from ratification. 6 HDITCS
The second reason has to do with the relation between the VFA and the RP-US Mutual
Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified
with the concurrence of both the Philippine Senate and the United States Senate.
The RP-US Mutual Defense Treaty states: 7
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES
AND THE UNITED STATES OF AMERICA. Signed at Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the Charter of the United Nations
and their desire to live in peace with all peoples and all governments, and desiring to
strengthen the fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which brought their two peoples
together in a common bond of sympathy and mutual ideals to fight side-by-side against
imperialist aggression during the last war. CEHcSI
Desiring to declare publicly and formally their sense of unity and their common
determination to defend themselves against external armed attack, so that no potential
aggressor could be under the illusion that either of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for collective defense for the
preservation of peace and security pending the development of a more comprehensive
system of regional security in the Pacific area.
Agreeing that nothing in this present instrument shall be considered or interpreted as in
any way or sense altering or diminishing any existing agreements or understandings
between the Republic of the Philippines and the United States of America.
Have agreed as follows:
ARTICLE I. The parties undertake, as set forth in the Charter of the United Nations, to
settle any international disputes in which they may be involved by peaceful means in
such a manner that international peace and security and justice are not endangered and to
refrain in their international relation from the threat or use of force in any manner
inconsistent with the purposes of the United Nations. IDAESH
ARTICLE II. In order more effectively to achieve the objective of this Treaty, the
Parties separately and jointly by self-help and mutual aid will maintain and develop their
individual and collective capacity to resist armed attack.
ARTICLE III. The Parties, through their Foreign Ministers or their deputies, will consult
together from time to time regarding the implementation of this Treaty and whenever in
the opinion of either of them the territorial integrity, political independence or security of
either of the Parties is threatened by external armed attack in the Pacific.
ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either of
the parties would be dangerous to its own peace and safety and declares that it would act
to meet the common dangers in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately
reported to the Security Council of the United Nations. Such measures shall be
terminated when the Security Council has taken the measures necessary to restore and
maintain international peace and security. DHITCc
ARTICLE V. For the purpose of Article IV, an armed attack on either of the Parties is
deemed to include an armed attack on the metropolitan territory of either of the Parties, or
on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public
vessels or aircraft in the Pacific.
ARTICLE VI. This Treaty does not affect and shall not be interpreted as affecting in any
way the rights and obligations of the Parties under the Charter of the United Nations or
the responsibility of the United Nations for the maintenance of international peace and
security.
ARTICLE VII. This Treaty shall be ratified by the Republic of the Philippines and
the United Nations of America in accordance with their respective constitutional
processes and will come into force when instruments of ratification thereof have been
exchanged by them at Manila.
ARTICLE VIII. This Treaty shall remain in force indefinitely. Either Party may
terminate it one year after notice has been given to the other party. HScDIC
IN WITHNESS * WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
DONE in duplicate at Washington this thirtieth day of August, 1951.
For the Republic of the Philippines:
(Sgd.) CARLOS P. ROMULO
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
(Sgd.) DIOSDADO MACAPAGAL
For the United States of America:
(Sgd.) DEAN ACHESON
(Sgd.) JOHN FOSTER DULLES
(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY 8
Clearly, therefore, joint RP-US military exercises for the purpose of developing the
capability to resist an armed attack fall squarely under the provisions of the RP-US
Mutual Defense Treaty. The VFA, which is the instrument agreed upon to provide for the
joint RP-US military exercises, is simply an implementing agreement to the main RP-US
Military Defense Treaty. The Preamble of the VFA states: EIDTAa
The Government of the United States of America and the Government of the Republic of
the Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations
and their desire to strengthen international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the
Republic of the Philippines;
Considering that cooperation between the United States and the Republic of the
Philippines promotes their common security interests; STIHaE
Recognizing the desirability of defining the treatment of United States personnel visiting
the Republic of the Philippines;
Have agreed as follows: 9
Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was
not necessary to submit the VFA to the US Senate for advice and consent, but merely to
the US Congress under the Case — Zablocki Act within 60 days of its ratification. It is
for this reason that the US has certified that it recognizes the VFA as a binding
international agreement, i.e., a treaty, and this substantially complies with the
requirements of Art. XVIII, Sec. 25 of our Constitution. 10
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the
fact that the presence of the US Armed Forces through the VFA is a presence "allowed
under" the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself
has been ratified and concurred in by both the Philippine Senate and the US Senate, there
is no violation of the Constitutional provision resulting from such presence. IcDESA
The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.
The VFA provides that in cases of offenses committed by the members of the US Armed
Forces in the Philippines, the following rules apply:
Article V
Criminal Jurisdiction
xxx xxx xxx
6. The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military authorities, if
they so request, from the commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon formal notification by the
Philippine authorities and without delay, make such personnel available to those
authorities in time for any investigative or judicial proceedings relating to the offense
with which the person has been charged. In extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding custody,
which the United States Government shall take into full account. In the event Philippine
judicial proceedings are not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one year period will not include the
time necessary to appeal. Also, the one year period will not include any time during
which scheduled trial procedures are delayed because United States authorities, after
timely notification by Philippine authorities to arrange for the presence of the accused,
fail to do so. cECaHA
Petitioners contend that these undertakings violate another provision of the Constitution,
namely, that providing for the exclusive power of this Court to adopt rules of procedure
for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer
of custody of an accused to a foreign power is to provide for a different rule of procedure
for that accused, which also violates the equal protection clause of the Constitution (Art.
III, Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a substantial basis for a
different treatment of a member of a foreign military armed forces allowed to enter our
territory and all other accused. 11 cda
The rule in international law is that a foreign armed forces allowed to enter one's territory
is immune from local jurisdiction, except to the extent agreed upon. The Status of Forces
Agreements involving foreign military units around the world vary in terms and
conditions, according to the situation of the parties involved, and reflect their bargaining
power. But the principle remains, i.e., the receiving State can exercise jurisdiction over
the forces of the sending State only to the extent agreed upon by the parties. 12
As a result, the situation involved is not one in which the power of this Court to adopt
rules of procedure is curtailed or violated, but rather one in which, as is normally
encountered around the world, the laws (including rules of procedure) of one State do not
extend or apply — except to the extent agreed upon — to subjects of another State due to
the recognition of extraterritorial immunity given to such bodies as visiting foreign armed
forces.
Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-
recognized subjects of such immunity like Heads of State, diplomats and members of the
armed forces contingents of a foreign State allowed to enter another State's territory. On
the contrary, the Constitution states that the Philippines adopts the generally accepted
principles of international law as part of the law of the land. (Art. II, Sec. 2). HCEaDI
Applying, however, the provisions of VFA, the Court finds that there is a different
treatment when it comes to detention as against custody. The moment the accused has to
be detained, e.g., after conviction, the rule that governs is the following provision of the
VFA:
Article V
Criminal Jurisdiction
xxx xxx xxx
Sec. 10. The confinement or detention by Philippine authorities of United States
personnel shall be carried out in facilities agreed on by appropriate Philippines and
United States authorities. United States personnel serving sentences in the Philippines
shall have the right to visits and material assistance. ECTIHa
It is clear that the parties to the VFA recognized the difference between custody during
the trial and detention after conviction, because they provided for a specific arrangement
to cover detention. And this specific arrangement clearly states not only that the detention
shall be carried out in facilities agreed on by authorities of both parties, but also that the
detention shall be "by Philippine authorities". Therefore, the Romulo-Kenney
Agreements of December 19 and 22, 2006, which are agreements on the detention of the
accused in the United States Embassy, are not in accord with the VFA itself because such
detention is not "by Philippine authorities".
Respondents should therefore comply with the VFA and negotiate with representatives of
the United States towards an agreement on detention facilities under Philippine
authorities as mandated by Art. V, Sec. 10 of the VFA.
Next, the Court addresses the recent decision of the United States Supreme Court in
Medellin v. Texas (552 US ____ No. 06-984, March 25, 2008), which held that treaties
entered into by the United States are not automatically part of their domestic law unless
these treaties are self-executing or there is an implementing legislation to make them
enforceable. TAESDH
On February 3, 2009, the Court issued a Resolution, thus:
"G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No.
176051 (Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong
Alyansang Makabayan [BAYAN], et al. v. President Gloria Macapagal-Arroyo, et al.).
The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:
1. What is the implication on the RP-US Visiting Forces Agreement of the recent
US Supreme Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to
the effect that treaty stipulations that are not self-executory can only be enforced pursuant
to legislation to carry them into effect; and that, while treaties may comprise international
commitments, they are not domestic law unless Congress has enacted implementing
statutes or the treaty itself conveys an intention that it be "self-executory" and is ratified
on these terms? EIAaDC
2. Whether the VFA is enforceable in the US as domestic law, either because it is
self-executory or because there exists legislation to implement it.
3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in
by the US Senate and, if so, is there proof of the US Senate advice and consent
resolution? Peralta, J., no part."
After deliberation, the Court holds, on these points, as follows: 2009jur
First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself,
because the parties intend its provisions to be enforceable, precisely because the
Agreement is intended to carry out obligations and undertakings under the RP-US Mutual
Defense Treaty. As a matter of fact, the VFA has been implemented and executed, with
the US faithfully complying with its obligation to produce L/CPL Smith before the court
during the trial.
Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki
Act, USC Sec. 112 (b), inasmuch as it is the very purpose and intent of the US Congress
that executive agreements registered under this Act within 60 days from their ratification
be immediately implemented. The parties to these present cases do not question the fact
that the VFA has been registered under the Case-Zablocki Act. DaCTcA
In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations
and the Avena decision of the International Court of Justice (ICJ), subject matter of the
Medellin decision. The Convention and the ICJ decision are not self-executing and are
not registrable under the Case-Zablocki Act, and thus lack legislative implementing
authority.
Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US
Senate on March 20, 1952, as reflected in the US Congressional Record, 82nd Congress,
Second Session, Vol. 98 — Part 2, pp. 2594-2595.
The framers of the Constitution were aware that the application of international law in
domestic courts varies from country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF
INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some countries
require legislation whereas others do not. HCTAEc
It was not the intention of the framers of the 1987 Constitution, in adopting Article
XVIII, Sec. 25, to require the other contracting State to convert their system to achieve
alignment and parity with ours. It was simply required that the treaty be recognized as a
treaty by the other contracting State. With that, it becomes for both parties a binding
international obligation and the enforcement of that obligation is left to the normal
recourse and processes under international law.
Furthermore, as held by the US Supreme Court in Weinberger v. Rossi, 13 an executive
agreement is a "treaty" within the meaning of that word in international law and
constitutes enforceable domestic law vis-à-vis the United States. Thus, the US Supreme
Court in Weinberger enforced the provisions of the executive agreement granting
preferential employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the American system:
1. Art. II, Sec. 2 treaties — These are advised and consented to by the US Senate in
accordance with Art. II, Sec. 2 of the US Constitution. HScAEC
2. Executive-Congressional Agreements: These are joint agreements of the President
and Congress and need not be submitted to the Senate.
3. Sole Executive Agreements. — These are agreements entered into by the
President. They are to be submitted to Congress within sixty (60) days of ratification
under the provisions of the Case-Zablocki Act, after which they are recognized by the
Congress and may be implemented.
As regards the implementation of the RP-US Mutual Defense Treaty, military aid or
assistance has been given under it and this can only be done through implementing
legislation. The VFA itself is another form of implementation of its provisions.
WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals'
Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting
Forces Agreement (VFA) between the Republic of the Philippines and the United States,
entered into on February 10, 1998, is UPHELD as constitutional, but the Romulo-Kenney
Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the
VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith
negotiate with the United States representatives for the appropriate agreement on
detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA,
pending which the status quo shall be maintained until further orders by this Court.
IEcDCa
The Court of Appeals is hereby directed to resolve without delay the related matters
pending therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith
from the judgment of conviction.
No costs.
SO ORDERED.

[G.R. No. 176970. December 8, 2008.]

ROGELIO Z. BAGABUYO, petitioner, vs. COMMISSION ON ELECTIONS,
respondent.
DECISION
BRION, J p:
Before us is the petition for certiorari, prohibition, and mandamus, 1 with a prayer for the
issuance of a temporary restraining order and a writ of preliminary injunction, filed by
Rogelio Bagabuyo (petitioner) to prevent the Commission on Elections (COMELEC)
from implementing Resolution No. 7837 on the ground that Republic Act No. 9371 2 —
the law that Resolution No. 7837 implements — is unconstitutional. DEICTS
BACKGROUND FACTS
On October 10, 2006, Cagayan de Oro's then Congressman Constantino G. Jaraula filed
and sponsored House Bill No. 5859: "An Act Providing for the Apportionment of the
Lone Legislative District of the City of Cagayan de Oro." 3 This law eventually became
Republic Act (R.A.) No. 9371. 4 It increased Cagayan de Oro's legislative district from
one to two. For the election of May 2007, Cagayan de Oro's voters would be classified as
belonging to either the first or the second district, depending on their place of residence.
The constituents of each district would elect their own representative to Congress as well
as eight members of the Sangguniang Panglungsod. TADCSE
Section 1 of R.A. No. 9371 apportioned the City's barangays as follows:
Legislative Districts — The lone legislative district of the City of Cagayan De Oro is
hereby apportioned to commence in the next national elections after the effectivity of this
Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua,
Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan,
Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon,
Tignapoloan and Bisigan shall comprise the first district while barangays Macabalan,
Puntod, Consolacion, Camaman-an, Nazareth, Macasandig, Indahag, Lapasan, Gusa,
Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo, and Balubal and all urban
barangays from Barangay 1 to Barangay 40 shall comprise the second district. 5
On March 13, 2007, the COMELEC en Banc promulgated Resolution No. 7837 6
implementing R.A. No. 9371. EaTCSA
Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on March
27, 2007. 7 On 10 April 2008, the petitioner amended the petition to include the
following as respondents: Executive Secretary Eduardo Ermita; the Secretary of the
Department of Budget and Management; the Chairman of the Commission on Audit; the
Mayor and the members of the Sangguniang Panglungsod of Cagayan de Oro City; and
its Board of Canvassers. 8
In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on
constitutional grounds, the petitioner argued that the COMELEC cannot implement R.A.
No. 9371 without providing for the rules, regulations and guidelines for the conduct of a
plebiscite which is indispensable for the division or conversion of a local government
unit. He prayed for the issuance of an order directing the respondents to cease and desist
from implementing R.A. No. 9371 and COMELEC Resolution No. 7837, and to revert
instead to COMELEC Resolution No. 7801 which provided for a single legislative
district for Cagayan de Oro. IScaAE
Since the Court did not grant the petitioner's prayer for a temporary restraining order or
writ of preliminary injunction, the May 14 National and Local Elections proceeded
according to R.A. No. 9371 and Resolution No. 7837.
The respondent's Comment on the petition, filed through the Office of the Solicitor
General, argued that: 1) the petitioner did not respect the hierarchy of courts, as the
Regional Trial Court (RTC) is vested with concurrent jurisdiction over cases assailing the
constitutionality of a statute; 2) R.A. No. 9371 merely increased the representation of
Cagayan de Oro City in the House of Representatives and Sangguniang Panglungsod
pursuant to Section 5, Article VI of the 1987 Constitution; 3) the criteria established
under Section 10, Article X of the 1987 Constitution only apply when there is a creation,
division, merger, abolition or substantial alteration of boundaries of a province, city,
municipality, or barangay; in this case, no such creation, division, merger, abolition or
alteration of boundaries of a local government unit took place; and 4) R.A. No. 9371 did
not bring about any change in Cagayan de Oro's territory, population and income
classification; hence, no plebiscite is required. AEDCHc
The petitioner argued in his reply that: 1) pursuant to the Court's ruling in Del Mar v.
PAGCOR, 9 the Court may take cognizance of this petition if compelling reasons, or the
nature and importance of the issues raised, warrant the immediate exercise of its
jurisdiction; 2) Cagayan de Oro City's reapportionment under R.A. No. 9371 falls within
the meaning of creation, division, merger, abolition or substantial alteration of boundaries
of cities under Section 10, Article X of the Constitution; 3) the creation, division, merger,
abolition or substantial alteration of boundaries of local government units involve a
common denominator — the material change in the political and economic rights of the
local government units directly affected, as well as of the people therein; 4) a voter's
sovereign power to decide on who should be elected as the entire city's Congressman was
arbitrarily reduced by at least one half because the questioned law and resolution only
allowed him to vote and be voted for in the district designated by the COMELEC; 5) a
voter was also arbitrarily denied his right to elect the Congressman and the members of
the city council for the other legislative district, and 6) government funds were illegally
disbursed without prior approval by the sovereign electorate of Cagayan De Oro City. 10
HcSaAD
THE ISSUES
The core issues, based on the petition and the parties' memoranda, can be limited to the
following contentious points:
1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant
petition be dismissed on this ground?
2) Does R.A. No. 9371 merely provide for the legislative reapportionment of
Cagayan de Oro City, or does it involve the division and conversion of a local
government unit?
3) Does R.A. No. 9371 violate the equality of representation doctrine?
OUR RULING
Except for the issue of the hierarchy of courts rule, we find the petition totally without
merit.
The hierarchy of courts principle.
The Supreme Court has original jurisdiction over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus. 11 It was pursuant to this original
jurisdiction that the petitioner filed the present petition. AcDHCS
While this jurisdiction is shared with the Court of Appeals 12 and the RTCs, 13 a direct
invocation of the Supreme Court's jurisdiction is allowed only when there are special and
important reasons therefor, clearly and especially set out in the petition. Reasons of
practicality, dictated by an increasingly overcrowded docket and the need to prioritize in
favor of matters within our exclusive jurisdiction, justify the existence of this rule
otherwise known as the "principle of hierarchy of courts". More generally stated, the
principle requires that recourse must first be made to the lower-ranked court exercising
concurrent jurisdiction with a higher court. 14
Among the cases we have considered sufficiently special and important to be exceptions
to the rule, are petitions for certiorari, prohibition, mandamus and quo warranto against
our nation's lawmakers when the validity of their enactments is assailed. 15 The present
petition is of this nature; its subject matter and the nature of the issues raised — among
them, whether legislative reapportionment involves a division of Cagayan de Oro City as
a local government unit — are reasons enough for considering it an exception to the
principle of hierarchy of courts. Additionally, the petition assails as well a resolution of
the COMELEC en banc issued to implement the legislative apportionment that R.A. No.
9371 decrees. As an action against a COMELEC en banc resolution, the case falls under
Rule 64 of the Rules of Court that in turn requires a review by this Court via a Rule 65
petition for certiorari. 16 For these reasons, we do not see the principle of hierarchy of
courts to be a stumbling block in our consideration of the present case. TEcHCA
The Plebiscite Requirement.
The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de Oro
as a local government unit, and does not merely provide for the City's legislative
apportionment. This argument essentially proceeds from a misunderstanding of the
constitutional concepts of apportionment of legislative districts and division of local
government units.
Legislative apportionment is defined by Black's Law Dictionary as the determination of
the number of representatives which a State, county or other subdivision may send to a
legislative body. 17 It is the allocation of seats in a legislative body in proportion to the
population; the drawing of voting district lines so as to equalize population and voting
power among the districts. 18 Reapportionment, on the other hand, is the realignment or
change in legislative districts brought about by changes in population and mandated by
the constitutional requirement of equality of representation. 19 IEDHAT
Article VI (entitled Legislative Department) of the 1987 Constitution lays down the rules
on legislative apportionment under its Section 5 which provides:
Sec. 5(1). (1) The House of Representatives shall be composed of not more than two
hundred fifty members unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan Manila
area in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected
through a party-list system of registered national, regional and sectoral parties or
organizations.
xxx xxx xxx
(3) Each legislative district shall comprise, as far as practicable, continuous, compact,
and adjacent territory. Each city with a population of at least two hundred fifty thousand,
or each province, shall have at least one representative. aCATSI
(4) Within three years following the return of every census, the Congress shall make
a reapportionment of legislative districts based on the standards provided in this section.
Separately from the legislative districts that legal apportionment or reapportionment
speaks of, are the local government units (historically and generically referred to as
"municipal corporations") that the Constitution itself classified into provinces, cities,
municipalities and barangays. 20 In its strict and proper sense, a municipality has been
defined as "a body politic and corporate constituted by the incorporation of the
inhabitants of a city or town for the purpose of local government thereof." 21 The
creation, division, merger, abolition or alteration of boundary of local government units,
i.e., of provinces, cities, municipalities, and barangays, are covered by the Article on
Local Government (Article X). Section 10 of this Article provides:
No province, city, municipality, or barangay may be created, divided, merged, abolished,
or its boundary substantially altered, except in accordance with the criteria established in
the local government code and subject to approval by a majority of the votes cast in a
plebiscite in the political unit directly affected. ICcDaA
Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the
authority to act has been vested in the Legislature. The Legislature undertakes the
apportionment and reapportionment of legislative districts, 22 and likewise acts on local
government units by setting the standards for their creation, division, merger, abolition
and alteration of boundaries and by actually creating, dividing, merging, abolishing local
government units and altering their boundaries through legislation. Other than this, not
much commonality exists between the two provisions since they are inherently different
although they interface and relate with one another.
The concern that leaps from the text of Article VI, Section 5 is political representation
and the means to make a legislative district sufficiently represented so that the people can
be effectively heard. As above stated, the aim of legislative apportionment is "to equalize
population and voting power among districts". 23 Hence, emphasis is given to the
number of people represented; the uniform and progressive ratio to be observed among
the representative districts; and accessibility and commonality of interests in terms of
each district being, as far as practicable, continuous, compact and adjacent territory. In
terms of the people represented, every city with at least 250,000 people and every
province (irrespective of population) is entitled to one representative. In this sense,
legislative districts, on the one hand, and provinces and cities, on the other, relate and
interface with each other. To ensure continued adherence to the required standards of
apportionment, Section 5 (4) specifically mandates reapportionment as soon as the given
standards are met. DSITEH
In contrast with the equal representation objective of Article VI, Section 5, Article X,
Section 10 expressly speaks of how local government units may be "created, divided,
merged, abolished, or its boundary substantially altered". Its concern is the
commencement, the termination, and the modification of local government units'
corporate existence and territorial coverage; and it speaks of two specific standards that
must be observed in implementing this concern, namely, the criteria established in the
local government code and the approval by a majority of the votes cast in a plebiscite in
the political units directly affected. Under the Local Government Code (R.A. No. 7160)
passed in 1991, the criteria of income, population and land area are specified as verifiable
indicators of viability and capacity to provide services. 24 The division or merger of
existing units must comply with the same requirements (since a new local government
unit will come into being), provided that a division shall not reduce the income,
population, or land area of the unit affected to less than the minimum requirement
prescribed in the Code. 25 ITHADC
A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is on
the requirement of a plebiscite. The Constitution and the Local Government Code
expressly require a plebiscite to carry out any creation, division, merger, abolition or
alteration of boundary of a local government unit. 26 In contrast, no plebiscite
requirement exists under the apportionment or reapportionment provision. In Tobias v.
Abalos, 27 a case that arose from the division of the congressional district formerly
covering San Juan and Mandaluyong into separate districts, we confirmed this distinction
and the fact that no plebiscite is needed in a legislative reapportionment. The plebiscite
issue came up because one was ordered and held for Mandaluyong in the course of its
conversion into a highly urbanized city, while none was held for San Juan. In explaining
why this happened, the Court ruled that no plebiscite was necessary for San Juan because
the objective of the plebiscite was the conversion of Mandaluyong into a highly
urbanized city as required by Article X, Section 10 the Local Government Code; the
creation of a new legislative district only followed as a consequence. In other words, the
apportionment alone and by itself did not call for a plebiscite, so that none was needed
for San Juan where only a reapportionment took place. DEacIT
The need for a plebiscite under Article X, Section 10 and the lack of requirement for one
under Article VI, Section 5 can best be appreciated by a consideration of the historical
roots of these two provisions, the nature of the concepts they embody as heretofore
discussed, and their areas of application.
A Bit of History.
In Macias v. COMELEC, 28 we first jurisprudentially acknowledged the American roots
of our apportionment provision, noting its roots from the Fourteenth Amendment 29 of
the U.S. Constitution and from the constitutions of some American states. The Philippine
Organic Act of 1902 created the Philippine Assembly, 30 the body that acted as the lower
house of the bicameral legislature under the Americans, with the Philippine Commission
acting as the upper house. While the members of the Philippine Commission were
appointed by the U.S. President with the conformity of the U.S. Senate, the members of
the Philippine Assembly were elected by representative districts previously delineated
under the Philippine Organic Act of 1902 pursuant to the mandate to apportion the seats
of the Philippine Assembly among the provinces as nearly as practicable according to
population. Thus, legislative apportionment first started in our country. IcHTED
The Jones Law or the Philippine Autonomy Act of 1916 maintained the apportionment
provision, dividing the country into 12 senate districts and 90 representative districts
electing one delegate each to the House of Representatives. Section 16 of the Act
specifically vested the Philippine Legislature with the authority to redistrict the
Philippine Islands.
Under the 1935 Constitution, Article VI, Section 5 retained the concept of legislative
apportionment together with "district" as the basic unit of apportionment; the concern
was "equality of representation . . . as an essential feature of republican institutions" as
expressed in the leading case of Macias v. COMELEC. 31 The case ruled that inequality
of representation is a justiciable, not a political issue, which ruling was reiterated in
Montejo v. COMELEC. 32 Notably, no issue regarding the holding of a plebiscite ever
came up in these cases and the others that followed, as no plebiscite was required.
CSTDEH
Article VIII, Section 2 of the 1973 Constitution retained the concept of equal
representation "in accordance with the number of their respective inhabitants and on the
basis of a uniform and progressive ratio" with each district being, as far as practicable,
contiguous, compact and adjacent territory. This formulation was essentially carried over
to the 1987 Constitution, distinguished only from the previous one by the presence of
party-list representatives. In neither Constitution was a plebiscite required.
The need for a plebiscite in the creation, division, merger, or abolition of local
government units was not constitutionally enshrined until the 1973 Constitution.
However, as early as 1959, R.A. No. 2264 33 required, in the creation of barrios by
Provincial Boards, that the creation and definition of boundaries be "upon petition of a
majority of the voters in the areas affected". In 1961, the Charter of the City of Caloocan
(R.A. No. 3278) carried this further by requiring that the "Act shall take effect after a
majority of voters of the Municipality of Caloocan vote in favor of the conversion of their
municipality into a city in a plebiscite." This was followed up to 1972 by other legislative
enactments requiring a plebiscite as a condition for the creation and conversion of local
government units as well as the transfer of sitios from one legislative unit to another. 34
In 1973, the plebiscite requirement was accorded constitutional status. CcHDSA
Under these separate historical tracks, it can be seen that the holding of a plebiscite was
never a requirement in legislative apportionment or reapportionment. After it became
constitutionally entrenched, a plebiscite was also always identified with the creation,
division, merger, abolition and alteration of boundaries of local government units, never
with the concept of legislative apportionment.
Nature and Areas of Application.
The legislative district that Article VI, Section 5 speaks of may, in a sense, be called a
political unit because it is the basis for the election of a member of the House of
Representatives and members of the local legislative body. It is not, however, a political
subdivision through which functions of government are carried out. It can more
appropriately be described as a representative unit that may or may not encompass the
whole of a city or a province, but unlike the latter, it is not a corporate unit. Not being a
corporate unit, a district does not act for and in behalf of the people comprising the
district; it merely delineates the areas occupied by the people who will choose a
representative in their national affairs. Unlike a province, which has a governor; a city or
a municipality, which has a mayor; and a barangay, which has a punong barangay, a
district does not have its own chief executive. The role of the congressman that it elects is
to ensure that the voice of the people of the district is heard in Congress, not to oversee
the affairs of the legislative district. Not being a corporate unit also signifies that it has no
legal personality that must be created or dissolved and has no capacity to act. Hence,
there is no need for any plebiscite in the creation, dissolution or any other similar action
on a legislative district. cDTCIA
The local government units, on the other hand, are political and corporate units. They are
the territorial and political subdivisions of the state. 35 They possess legal personality on
the authority of the Constitution and by action of the Legislature. The Constitution
defines them as entities that Congress can, by law, create, divide, abolish, merge; or
whose boundaries can be altered based on standards again established by both the
Constitution and the Legislature. 36 A local government unit's corporate existence begins
upon the election and qualification of its chief executive and a majority of the members
of its Sanggunian. 37 ECaSIT
As a political subdivision, a local government unit is an "instrumentality of the state in
carrying out the functions of government." 38 As a corporate entity with a distinct and
separate juridical personality from the State, it exercises special functions for the sole
benefit of its constituents. It acts as "an agency of the community in the administration of
local affairs" 39 and the mediums through which the people act in their corporate
capacity on local concerns. 40 In light of these roles, the Constitution saw it fit to
expressly secure the consent of the people affected by the creation, division, merger,
abolition or alteration of boundaries of local government units through a plebiscite.
cCSEaA
These considerations clearly show the distinctions between a legislative apportionment or
reapportionment and the division of a local government unit. Historically and by its
intrinsic nature, a legislative apportionment does not mean, and does not even imply, a
division of a local government unit where the apportionment takes place. Thus, the
plebiscite requirement that applies to the division of a province, city, municipality or
barangay under the Local Government Code should not apply to and be a requisite for the
validity of a legislative apportionment or reapportionment.
R.A. No. 9371 and COMELEC Res. No. 7837
R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed in
accordance with the authority granted to Congress under Article VI, Section 5 (4) of the
Constitution. Its core provision — Section 1 — provides:
SEC. 1. Legislative Districts. — The lone legislative district of the City of
Cagayan de Oro is hereby apportioned to commence in the next national elections after
the effectivity of this Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen,
Patag, Bulua, Iponan, Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia,
Pagalungan, Tagpangi, Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya,
Dansulihon, Tignapoloan and Bisigan shall comprise the first district while barangays
Macabalan, Puntod, Consolacion, Camaman-an, Nazareth, Macansandig, Indahag,
Lapasan, Gusa, Cugman, FS Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all
urban barangays from Barangay 1 to Barangay 40 shall comprise the second district.
SICDAa
Under these wordings, no division of Cagayan de Oro City as a political and corporate
entity takes place or is mandated. Cagayan de Oro City politically remains a single unit
and its administration is not divided along territorial lines. Its territory remains
completely whole and intact; there is only the addition of another legislative district and
the delineation of the city into two districts for purposes of representation in the House of
Representatives. Thus, Article X, Section 10 of the Constitution does not come into play
and no plebiscite is necessary to validly apportion Cagayan de Oro City into two districts.
Admittedly, the legislative reapportionment carries effects beyond the creation of another
congressional district in the city by providing, as reflected in COMELEC Resolution No.
7837, for additional Sangguniang Panglunsod seats to be voted for along the lines of the
congressional apportionment made. The effect on the Sangguniang Panglunsod, however,
is not directly traceable to R.A. No. 9371 but to another law — R.A. No. 6636 41 —
whose Section 3 provides: EAcIST
SEC. 3. Other Cities. — The provision of any law to the contrary notwithstanding
the City of Cebu, City of Davao, and any other city with more than one representative
district shall have eight (8) councilors for each district who shall be residents thereof to
be elected by the qualified voters therein, provided that the cities of Cagayan de Oro,
Zamboanga, Bacolod, Iloilo and other cities comprising a representative district shall
have twelve (12) councilors each and all other cities shall have ten (10) councilors each
to be elected at large by the qualified voters of the said cities: Provided, That in no case
shall the present number of councilors according to their charters be reduced.
However, neither does this law have the effect of dividing the City of Cagayan de Oro
into two political and corporate units and territories. Rather than divide the city either
territorially or as a corporate entity, the effect is merely to enhance voter representation
by giving each city voter more and greater say, both in Congress and in the Sangguniang
Panglunsod. DAaEIc
To illustrate this effect, before the reapportionment, Cagayan de Oro had only one
congressman and 12 city council members citywide for its population of approximately
500,000. 42 By having two legislative districts, each of them with one congressman,
Cagayan de Oro now effectively has two congressmen, each one representing 250,000 of
the city's population. In terms of services for city residents, this easily means better
access to their congressman since each one now services only 250,000 constituents as
against the 500,000 he used to represent. The same goes true for the Sangguniang
Panglungsod with its ranks increased from 12 to 16 since each legislative district now has
8 councilors. In representation terms, the fewer constituents represented translate to a
greater voice for each individual city resident in Congress and in the Sanggunian; each
congressman and each councilor represents both a smaller area and fewer constituents
whose fewer numbers are now concentrated in each representative. The City, for its part,
now has twice the number of congressmen speaking for it and voting in the halls of
Congress. Since the total number of congressmen in the country has not increased to the
point of doubling its numbers, the presence of two congressman (instead of one) from the
same city cannot but be a quantitative and proportional improvement in the representation
of Cagayan de Oro City in Congress. TAacIE
Equality of representation.
The petitioner argues that the distribution of the legislative districts is unequal. District 1
has only 93,719 registered voters while District 2 has 127,071. District 1 is composed
mostly of rural barangays while District 2 is composed mostly of urban barangays. 43
Thus, R.A. No. 9371 violates the principle of equality of representation.
A clarification must be made. The law clearly provides that the basis for districting shall
be the number of the inhabitants of a city or a province, not the number of registered
voters therein. We settled this very same question in Herrera v. COMELEC 44 when we
interpreted a provision in R.A. No. 7166 and COMELEC Resolution No. 2313 that
applied to the Province of Guimaras. We categorically ruled that the basis for districting
is the number of inhabitants of the Province of Guimaras by municipality based on the
official 1995 Census of Population as certified to by Tomas P. Africa, Administrator of
the National Statistics Office. ADSIaT
The petitioner, unfortunately, did not provide information about the actual population of
Cagayan de Oro City. However, we take judicial notice of the August 2007 census of the
National Statistics Office which shows that barangays comprising Cagayan de Oro's first
district have a total population of 254,644, while the second district has 299,322
residents. Undeniably, these figures show a disparity in the population sizes of the
districts. 45 The Constitution, however, does not require mathematical exactitude or rigid
equality as a standard in gauging equality of representation. 46 In fact, for cities, all it
asks is that "each city with a population of at least two hundred fifty thousand shall have
one representative", while ensuring representation for every province regardless of the
size of its population. To ensure quality representation through commonality of interests
and ease of access by the representative to the constituents, all that the Constitution
requires is that every legislative district should comprise, as far as practicable,
contiguous, compact, and adjacent territory. Thus, the Constitution leaves the local
government units as they are found and does not require their division, merger or transfer
to satisfy the numerical standard it imposes. Its requirements are satisfied despite some
numerical disparity if the units are contiguous, compact and adjacent as far as practicable.
CAIHTE
The petitioner's contention that there is a resulting inequality in the division of Cagayan
de Oro City into two districts because the barangays in the first district are mostly rural
barangays while the second district is mostly urban, is largely unsubstantiated. But even
if backed up by proper proof, we cannot question the division on the basis of the
difference in the barangays' levels of development or developmental focus as these are
not part of the constitutional standards for legislative apportionment or reapportionment.
What the components of the two districts of Cagayan de Oro would be is a matter for the
lawmakers to determine as a matter of policy. In the absence of any grave abuse of
discretion or violation of the established legal parameters, this Court cannot intrude into
the wisdom of these policies. 47
WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs against the
petitioner. THaCAI
SO ORDERED.

[G.R. No. 191124. April 27, 2010.]

LUIS A. ASISTIO, petitioner, vs. HON. THELMA CANLAS TRINIDAD-PE
AGUIRRE, Presiding Judge, Regional Trial Court, Caloocan City, Branch 129; HON.
ARTHUR O. MALABAGUIO, Presiding Judge, Metropolitan Trial Court, Caloocan
City, Branch 52; ENRICO R. ECHIVERRI, Board of Election Inspectors of Precinct
1811A, Barangay 15, Caloocan City; and the CITY ELECTION OFFICER, Caloocan
City, respondents.
RESOLUTION
NACHURA, J p:
This is a petition 1 for certiorari, with prayer for the issuance of a status quo ante order,
under Rule 65 of the Rules of Court, assailing the Order 2 dated February 15, 2010
issued, allegedly with grave abuse of discretion amounting to lack or excess of
jurisdiction, by public respondent Judge Thelma Canlas Trinidad-Pe Aguirre (Judge
Aguirre) of the Regional Trial Court (RTC), Branch 129, Caloocan City in SCA No. 997.
The petition likewise ascribes error in, and seeks to nullify, the decision dated February
5, 2010, promulgated by the Metropolitan Trial Court (MeTC), Branch 52, Caloocan City
in SCA No. 10-582. HAEIac
The Antecedents
On January 26, 2010, private respondent Enrico R. Echiverri (Echiverri) filed against
petitioner Luis A. Asistio (Asistio) a Petition 3 for Exclusion of Voter from the
Permanent List of Voters of Caloocan City (Petition for Exclusion) before the MeTC,
Branch 52, Caloocan City. Public respondent Judge Arthur O. Malabaguio (Judge
Malabaguio) presides over MeTC Branch 52. The petition was docketed as SCA No. 10-
582, entitled "Atty. Enrico R. Echiverri v. Luis Aquino Asistio, the Board of Election
Inspectors of Precinct No. 1811A, Barangay 15, Caloocan City and the City Election
Officer of Caloocan."
In his petition, Echiverri alleged that Asistio is not a resident of Caloocan City,
specifically not of 123 Interior P. Zamora St., Barangay 15, Caloocan City, the address
stated in his Certificate of Candidacy (COC) for Mayor in the 2010 Automated National
and Local Elections. Echiverri, also a candidate for Mayor of Caloocan City, was the
respondent in a Petition to Deny Due Course and/or Cancellation of the Certificate of
Candidacy filed by Asistio. According to Echiverri, when he was about to furnish Asistio
a copy of his Answer to the latter's petition, he found out that Asistio's address is non-
existent. To support this, Echiverri attached to his petition a Certification 4 dated
December 29, 2009 issued by the Tanggapan ng Punong Barangay of Barangay 15 —
Central, Zone 2, District II of Caloocan City. He mentioned that, upon verification of the
2009 Computerized Voters' List (CVL) for Barangay 15, Asistio's name appeared under
voter number 8, with address at 109 Libis Gochuico, Barangay 15, Caloocan City. 5
ICDSca
Echiverri also claimed that Asistio was no longer residing in this address, since what
appeared in the latter's COC for Mayor 6 in the 2007 elections was No. 110 Unit 1, P.
Zamora St., Barangay 15, Caloocan City, 7 but that the address used in Asistio's current
COC is situated in Barangay 17. He said that, per his verification, the voters 8 duly
registered in the 2009 CVL using the address No. 123 P. Zamora St., Barangay 17,
Caloocan City did not include Asistio. 9
On January 28, 2010, the MeTC issued a Notice of Hearing 10 notifying Asistio, through
Atty. Carlos M. Caliwara, his counsel of record in SPA No. 09-151 (DC), entitled
"Asistio v. Echiverri," before the Commission on Elections (COMELEC), of the
scheduled hearings of the case on February 1, 2 and 3, 2010.
On February 2, 2010, Asistio filed his Answer Ex Abundante Ad Cautelam with
Affirmative Defenses. 11 Asistio alleged that he is a resident of No. 116, P. Zamora St.,
Caloocan City, and a registered voter of Precinct No. 1811A because he mistakenly relied
on the address stated in the contract of lease with Angelina dela Torre Tengco (Tengco),
which was 123 Interior P. Zamora St., Barangay 15, Caloocan City. 12
Trial on the merits ensued, after which Judge Malabaguio directed the parties to file their
respective position papers on or before February 4, 2010.
Echiverri filed his Memorandum 13 on February 4, 2010. Asistio, on the other hand,
failed to file his memorandum since the complete transcripts of stenographic notes (TSN)
were not yet available. 14 AcHCED
On February 5, 2010, Judge Malabaguio rendered a decision, 15 disposing, as follows —
WHEREFORE, premises considered, the Election Registration Board, Caloocan City is
hereby directed to remove the name of LUIS AQUINO ASISTIO from the list of
permanent voters of Caloocan City.
SO ORDERED. 16
Meanwhile, on January 26, 2010, Echiverri filed with the COMELEC a Petition for
Disqualification, 17 which was docketed as SPA No. 10-013 (DC). The Petition was
anchored on the grounds that Asistio is not a resident of Caloocan City and that he had
been previously convicted of a crime involving moral turpitude. Asistio, in his Answer
with Special and Affirmative Defenses (Com Memorandum), 18 raised the same
arguments with respect to his residency and also argued that the President of the
Philippines granted him an absolute pardon.
On February 10, 2010, Asistio filed his Notice of Appeal 19 and his Appeal (from the
Decision dated February 5, 2010) 20 and paid the required appeal fees through postal
money orders. 21
On February 11, 2010, Echiverri filed a Motion 22 to Dismiss Appeal, arguing that the
RTC did not acquire jurisdiction over the Appeal on the ground of failure to file the
required appeal fees. DTCSHA
On the scheduled hearing of February 15, 2010, Asistio opposed the Motion and
manifested his intention to file a written comment or opposition thereto. Judge Aguirre
directed Echiverri's counsel to file the appropriate responsive pleading to Asistio's appeal
in her Order 23 of same date given in open court.
Judge Aguirre, however, cancelled her February 15, 2010 Order, and issued an Amended
Order 24 on that date holding in abeyance the filing of the responsive pleading of
Echiverri's counsel and submitting the Motion for resolution.
In another Order also dated February 15, 2010, Judge Aguirre granted the Motion on the
ground of non-payment of docket fees essential for the RTC to acquire jurisdiction over
the appeal. It stated that Asistio paid his docket fee only on February 11, 2010 per the
Official Receipt of the MeTC, Office of the Clerk of Court.
Hence, this petition.
Per Resolution 25 dated February 23, 2010, this Court required the respondents to
comment on the petition, and issued the Status Quo Ante Order prayed for.
On March 8, 2010, Echiverri filed his Comment to the Petition (with Motion to Quash
Status Quo Ante Order). Departing from Echiverri's position against the Petition, the
Office of the Solicitor General (OSG), on March 30, 2010, filed its Comment via
registered mail. The OSG points out that Asistio's family is "known to be one of the
prominent political families in Caloocan City, and that there is no indication whatsoever
that [Asistio] has ever intended to abandon his domicile, Caloocan City." Further, the
OSG proposes that the issue at hand is better resolved by the people of Caloocan City. In
all, the OSG propounds that technicalities and procedural niceties should bow to the
sovereign will of the people of Caloocan City. HCITAS
Our Ruling
In her assailed Order, Judge Aguirre found —
The payment of docket fees is an essential requirement for the perfection of an appeal.
The record shows that Respondent-Appellant paid his docket fee only on February 11,
2010, evidenced by O.R. No. 05247240 for Php1,510.00 at the Metropolitan Trial Court,
Office of the Clerk of Court, yet the Notice of Appeal was filed on February 10, 2010, at
5:30 p.m., which is way beyond the official office hours, and a copy thereof was filed at
the Office of the Clerk of Court, Metropolitan Trial Court at 5:00 p.m. of February 10,
2010. Thus, it is clear that the docket fee was not paid simultaneously with the filing of
the Notice of Appeal.
It taxes the credulity of the Court why the Notice of Appeal was filed beyond the regular
office hours, and why did respondent-appellant had to resort to paying the docket fee at
the Mall of Asia when he can conveniently pay it at the Office of the Clerk of Court,
Metropolitan Trial Court along with the filing of the Notice of Appeal on February 10,
2010 at 5:30 p.m. at the Metropolitan Trial Court, which is passed [sic] the regular office
hours.
The conclusion is then inescapable that for failure to pay the appellate docket fee, the
Court did not acquire jurisdiction over the case. 26 ECaTDc
This Court observes, that while Judge Aguirre declares in her Order that the appellate
docket fees were paid on February 11, 2010, she conveniently omits to mention that the
postal money orders obtained by Asistio for the purpose were purchased on February 10,
2010. 27 It is noteworthy that, as early as February 4, 2010, Asistio already manifested
that he could not properly file his memorandum with the MeTC due to the non-
availability of the TSNs. Obviously, these TSNs were needed in order to prepare an
intelligent appeal from the questioned February 5, 2010 MeTC Order. Asistio was able to
get copies of the TSNs only on February 10, 2010, the last day to file his appeal, and,
naturally, it would take some time for him to review and incorporate them in his
arguments on appeal. Understandably, Asistio filed his notice of appeal and appeal, and
purchased the postal money orders in payment of the appeal fees on the same day. To our
mind, Asistio, by purchasing the postal money orders for the purpose of paying the
appellate docket fees on February 10, 2010, although they were tendered to the MeTC
only on February 11, 2010, had already substantially complied with the procedural
requirements in filing his appeal.
This appeal to the RTC assails the February 5, 2010 MeTC Order directing Asistio's
name to be removed from the permanent list of voters [in Precinct 1811A] of Caloocan
City. The Order, if implemented, would deprive Asistio of his right to vote.
The right to vote is a most precious political right, as well as a bounden duty of every
citizen, enabling and requiring him to participate in the process of government to ensure
that it can truly be said to derive its power solely from the consent of its constituents. 28
Time and again, it has been said that every Filipino's right to vote shall be respected,
upheld, and given full effect. 29 A citizen cannot be disenfranchised for the flimsiest of
reasons. Only on the most serious grounds, and upon clear and convincing proof, may a
citizen be deemed to have forfeited this precious heritage of freedom. IDaEHC
In this case, even if we assume for the sake of argument, that the appellate docket fees
were not filed on time, this incident alone should not thwart the proper determination and
resolution of the instant case on substantial grounds. Blind adherence to a technicality,
with the inevitable result of frustrating and nullifying the constitutionally guaranteed
right of suffrage, cannot be countenanced. 30
On more than one occasion, this Court has recognized the emerging trend towards a
liberal construction of procedural rules to serve substantial justice. Courts have the
prerogative to relax rules of even the most mandatory character, mindful of the duty to
reconcile both the need to speedily end litigation and the parties' right to due process.
It is true that, faced with an appeal, the court has the discretion whether to dismiss it or
not. However, this discretion must be sound; it is to be exercised pursuant to the tenets of
justice, fair play and equity, in consideration of the circumstances obtaining in each case.
Thus, dismissal of appeals on purely technical grounds is frowned upon as the policy of
the Court is to encourage resolution of cases on their merits over the very rigid and
technical application of rules of procedure used only to help secure, not override,
substantial justice. Verily, it is far better and more prudent for the court to excuse a
technical lapse and afford the parties a review of the case on appeal rather than dispose of
it on a technicality that would cause grave injustice to the parties. 31 cHCSDa
The primordial issue in this case is whether Asistio should be excluded from the
permanent list of voters of [Precinct 1811A] of Caloocan City for failure to comply with
the residency required by law.
Section 117 of The Omnibus Election Code (Batas Pambansa Bilang 881) states:
SECTION 117. Qualifications of a voter. — Every citizen of the Philippines, not
otherwise disqualified by law, eighteen years of age or over, who shall have resided in
the Philippines for one year and in the city or municipality wherein he proposes to vote
for at least six months immediately preceding the election, may be registered as a voter.
Any person who transfers residence to another city, municipality or country solely by
reason of his occupation; profession; employment in private or public service;
educational activities; work in military or naval reservations; service in the army, navy or
air force; the constabulary or national police force; or confinement or detention in
government institutions in accordance with law, shall be deemed not to have lost his
original residence.
This provision is echoed in Section 9 of The Voters Registration Act of 1996 (Republic
Act No. 8189), to wit: IaTSED
SEC. 9. Who May Register. — All citizens of the Philippines not otherwise
disqualified by law who are at least eighteen (18) years of age and who shall have resided
in the Philippines for at least one (1) year and in the place wherein they propose to vote
for at least six (6) months immediately preceding the election, may register as a voter.
Any person who temporarily resides in another city, municipality or country solely by
reason of his occupation, profession, employment in private or public service, educational
activities, work in the military or naval reservations within the Philippines, service in the
Armed Forces of the Philippines, the National Police Force, or confinement or detention
in government institutions in accordance with law, shall not be deemed to have lost his
original residence.
Any person who, on the day of registration may not have reached the required age or
period of residence but who, on the day of election shall possess such qualifications, may
register as a voter.
From these provisions, the residency requirement of a voter is at least one (1) year
residence in the Philippines and at least six (6) months in the place where the person
proposes or intends to vote. "Residence," as used in the law prescribing the qualifications
for suffrage and for elective office, is doctrinally settled to mean "domicile," importing
not only an intention to reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention 32 inferable from a person's acts,
activities, and utterances. 33 "Domicile" denotes a fixed permanent residence where,
when absent for business or pleasure, or for like reasons, one intends to return. 34 In the
consideration of circumstances obtaining in each particular case, three rules must be
borne in mind, namely: (1) that a person must have a residence or domicile somewhere;
(2) once established, it remains until a new one is acquired; and (3) that a person can have
but one residence or domicile at a time. 35 cCSDTI

Domicile is not easily lost. To successfully effect a transfer thereof, one must
demonstrate: (1) an actual removal or change of domicile; (2) a bona fide intention of
abandoning the former place of residence and establishing a new one; and (3) acts which
correspond with that purpose. 36 There must be animus manendi coupled with animus
non revertendi. The purpose to remain in or at the domicile of choice must be for an
indefinite period of time; the change of residence must be voluntary; and the residence at
the place chosen for the new domicile must be actual. 37
Asistio has always been a resident of Caloocan City since his birth or for more than 72
years. His family is known to be among the prominent political families in Caloocan
City. In fact, Asistio served in public office as Caloocan City Second District
representative in the House of Representatives, having been elected as such in the 1992,
1995, 1998, and 2004 elections. In 2007, he also sought election as City Mayor. In all of
these occasions, Asistio cast his vote in the same city. Taking these circumstances into
consideration, gauged in the light of the doctrines above enunciated, it cannot be denied
that Asistio has qualified, and continues to qualify, as a voter of Caloocan City. There is
no showing that he has established domicile elsewhere, or that he had consciously and
voluntarily abandoned his residence in Caloocan City. He should, therefore, remain in the
list of permanent registered voters of Precinct No. 1811A, Barangay 15, Caloocan City.
That Asistio allegedly indicated in his Certificate of Candidacy for Mayor, both for the
2007 and 2010 elections, a non-existent or false address, or that he could not be
physically found in the address he indicated when he registered as a voter, should not
operate to exclude him as a voter of Caloocan City. These purported misrepresentations
in Asistio's COC, if true, might serve as basis for an election offense under the Omnibus
Election Code (OEC), 38 or an action to deny due course to the COC. 39 But to our
mind, they do not serve as proof that Asistio has abandoned his domicile in Caloocan
City, or that he has established residence outside of Caloocan City. AEIHCS
With this disquisition, we find no necessity to discuss the other issues raised in the
petition.
WHEREFORE, the petition is GRANTED. The assailed Order dated February 15, 2010
of the Regional Trial Court, Branch 129, Caloocan City in SCA No. 997 and the decision
dated February 5, 2010 of the Metropolitan Trial Court, Branch 52, Caloocan City in
SCA No. 10-582 are REVERSED and SET ASIDE. Petitioner Luis A. Asistio remains a
registered voter of Precinct No. 1811A, Barangay 15, Caloocan City. The Status Quo
Ante Order issued by this Court on February 23, 2010 is MADE PERMANENT.
SO ORDERED.

[G.R. No. 190529. April 29, 2010.]

PHILIPPINE GUARDIANS BROTHERHOOD, INC. (PGBI), represented by its
Secretary-General GEORGE "FGBF GEORGE" DULDULAO, petitioner, vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
BRION, J p:
The Philippine Guardians Brotherhood, Inc. (PGBI) seeks in this petition for certiorari 1
and in the motion for reconsideration it subsequently filed to nullify Commission on
Elections (COMELEC) Resolution No. 8679 dated October 13, 2009 insofar as it relates
to PGBI, and the Resolution dated December 9, 2009 denying PGBI's motion for
reconsideration in SPP No. 09-004 (MP). Via these resolutions, the COMELEC delisted
PGBI from the roster of registered national, regional or sectoral parties, organizations or
coalitions under the party-list system. CDTSEI
BACKGROUND
Section 6 (8) of Republic Act No. 7941 (RA 7941), otherwise known as the Party-List
System Act, provides:
Section 6. Removal and/or Cancellation of Registration. — The COMELEC may
motu proprio or upon verified complaint of any interested party, remove or cancel, after
due notice and hearing, the registration of any national, regional or sectoral party,
organization or coalition on any of the following grounds:
xxx xxx xxx
(8) It fails to participate in the last two (2) preceding elections or fails to obtain at
least two per centum (2%) of the votes cast under the party-list system in the two (2)
preceding elections for the constituency in which it has registered. [Emphasis supplied.]
HCATEa
The COMELEC replicated this provision in COMELEC Resolution No. 2847 — the
Rules and Regulations Governing the Election of the Party-List Representatives through
the Party-List System — which it promulgated on June 25, 1996.
For the upcoming May 2010 elections, the COMELEC en banc issued on October 13,
2009 Resolution No. 8679 deleting several party-list groups or organizations from the list
of registered national, regional or sectoral parties, organizations or coalitions. Among the
party-list organizations affected was PGBI; it was delisted because it failed to get 2% of
the votes cast in 2004 and it did not participate in the 2007 elections. Nevertheless, the
COMELEC stated in this Resolution that any national, regional sectoral party or
organizations or coalitions adversely affected can personally or through its authorized
representative file a verified opposition on October 26, 2009.
PGBI filed its Opposition to Resolution No. 8679, but likewise sought, through its
pleading, the admission ad cautelam of its petition for accreditation as a party-list
organization under the Party-List System Act. Among other arguments, PGBI asserted
that:
(1) The assailed resolution negates the right of movant and those similarly situated to
invoke Section 4 of R.A. No. 7941, which allows any party, organization and coalition
already registered with the Commission to no longer register anew; the party though is
required to file with the Commission, not later than ninety (90) days before the election, a
manifestation of its desire to participate in the party-list system; since PGBI filed a
Request/Manifestation seeking a deferment of its participation in the 2007 elections
within the required period prior to the 2007 elections, it has the option to choose whether
or not to participate in the next succeeding election under the same conditions as to rights
conferred and responsibilities imposed; IaEScC
(2) The Supreme Court's ruling in G.R. No. 177548 — Philippine Mines Safety
Environment Association, also known as "MINERO" v. Commission on Elections —
cannot apply in the instant controversy for two reasons: (a) the factual milieu of the cited
case is removed from PGBI's; (b) MINERO, prior to delisting, was afforded the
opportunity to be heard, while PGBI and the 25 others similarly affected by Resolution
No. 8679 were not. Additionally, the requirement of Section 6(8) has been relaxed by the
Court's ruling in G.R. No. 179271 (Banat v. COMELEC) and the exclusion of PGBI and
the 25 other party-list is a denial of the equal protection of the laws;
(3) The implementation of the challenged resolution should be suspended and/or
aborted to prevent a miscarriage of justice in view of the failure to notify the parties in
accordance with the same Section 6(8) or R.A. No. 7941. 2
The COMELEC denied PGBI's motion/opposition for lack of merit.
First, the COMELEC observed that PGBI clearly misunderstood the import of Section 4
of R.A. 7941. 3 The provision simply means that without the required manifestation or if
a party or organization does not participate, the exemption from registration does not
arise and the party, organization or coalition must go through the process again and apply
for requalification; a request for deferment would not exempt PGBI from registering
anew. aCSDIc
Second, the MINERO ruling is squarely in point, as MINERO failed to get 2% of the
votes in 2001 and did not participate at all in the 2004 elections.
Third, PGBI was given an opportunity to be heard or to seek the reconsideration of the
action or ruling complained of — the essence of due process; this is clear from
Resolution No. 8679 which expressly gave the adversely affected parties the opportunity
to file their opposition.
As regards the alternative relief of application for accreditation, the COMELEC found
the motion to have been filed out of time, as August 17, 2009 was the deadline for
accreditation provided in Resolution 8646. The motion was obviously filed months after
the deadline.
PGBI came to us in its petition for certiorari, arguing the same positions it raised with the
COMELEC when it moved to reconsider its delisting.
We initially dismissed the petition in light of our ruling in Philippine Mines Safety
Environment Association, also known as "MINERO" v. Commission on Elections
(Minero); 4 we said that no grave abuse of discretion exists in a ruling that correctly
applies the prevailing law and jurisprudence. Applying Section 6 (8) of RA 7941, the
Court disqualified MINERO under the following reasoning:
Since petitioner by its own admission failed to get 2% of the votes in 2001 and did not
participate at all in the 2004 elections, it necessarily failed to get at least two per centum
(2%) of the votes cast in the two preceding elections. COMELEC, therefore, is not duty
bound to certify it. SDEHCc
PGBI subsequently moved to reconsider the dismissal of its petition. Among other
arguments, PGBI claimed that the dismissal of the petition was contrary to law, the
evidence and existing jurisprudence. Essentially, PGBI asserts that Section 6 (8) of RA
7941 does not apply if one is to follow the tenor and import of the deliberations inclusive
of the interpellations in Senate Bill No. 1913 on October 19, 1994. It cited the following
excerpts from the Records of the Senate:
Senator Gonzales:
On the other hand, Mr. President, under ground no. (7), Section 5 — there are
actually two grounds it states: "Failure to participate in the last two (2) preceding
elections or its failure to obtain at least ten percent (10%) of the votes case under the
party-list system in either of the last two (2) preceding elections for the constituency in
which it has registered"
In short, the first ground is that, it failed to participate in the last two (2) preceding
elections. The second is, failure to obtain at least 10 percent of the votes cast under the
party-list system in either of the last two preceding elections, Mr. President,
Senator Tolentino:
Actually, these are two separate grounds.
Senator Gonzales:
There are actually two grounds, Mr. President.
Senator Tolentino:
Yes, Mr. President. 5 [Underscoring supplied.]
PGBI thus asserts that Section 6 (8) does not apply to its situation, as it is obvious that it
failed to participate in one (1) but not in the two (2) preceding elections. Implied in this is
that it also failed to secure the required percentage in one (1) but not in the two (2)
preceding elections.
Considering PGBI's arguments, we granted the motion and reinstated the petition in the
court's docket. ISaTCD
THE ISSUES
We are called upon to resolve: (a) whether there is legal basis for delisting PGBI; and (b)
whether PGBI's right to due process was violated.
OUR RULING
We find the petition partly impressed with merit.
a. The Minero Ruling
Our Minero ruling is an erroneous application of Section 6 (8) of RA 7941; hence, it
cannot sustain PGBI's delisting from the roster of registered national, regional or sectoral
parties, organizations or coalitions under the party-list system. cSTCDA
First, the law is clear — the COMELEC may motu proprio or upon verified complaint of
any interested party, remove or cancel, after due notice and hearing, the registration of
any national, regional or sectoral party, organization or coalition if it: (a) fails to
participate in the last two (2) preceding elections; or (b) fails to obtain at least two per
centum (2%) of the votes cast under the party-list system in the two (2) preceding
elections for the constituency in which it has registered. 6 The word "or" is a disjunctive
term signifying disassociation and independence of one thing from the other things
enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies,
as a disjunctive word. 7 Thus, the plain, clear and unmistakable language of the law
provides for two (2) separate reasons for delisting.
Second, Minero is diametrically opposed to the legislative intent of Section 6 (8) of RA
7941, as PGBI's cited congressional deliberations clearly show.
Minero therefore simply cannot stand. Its basic defect lies in its characterization of the
non-participation of a party-list organization in an election as similar to a failure to garner
the 2% threshold party-list vote. What Minero effectively holds is that a party list
organization that does not participate in an election necessarily gets, by default, less than
2% of the party-list votes. To be sure, this is a confused interpretation of the law, given
the law's clear and categorical language and the legislative intent to treat the two
scenarios differently. A delisting based on a mixture or fusion of these two different and
separate grounds for delisting is therefore a strained application of the law — in
jurisdictional terms, it is an interpretation not within the contemplation of the framers of
the law and hence is a gravely abusive interpretation of the law. 8
What we say here should of course take into account our ruling in Barangay Association
for Advancement and National Transparency v. COMELEC 9 (Banat) where we partly
invalidated the 2% party-list vote requirement provided in RA 7941 as follows:
We rule that, in computing the allocation of additional seats, the continued operation of
the two percent threshold for the distribution of the additional seats as found in the
second clause of Section 11(b) of R.A. No. 7941 is unconstitutional. This Court finds that
the two percent threshold makes it mathematically impossible to achieve the maximum
number of available party list seats when the number of available party list seats exceeds
50. The continued operation of the two percent threshold in the distribution of the
additional seats frustrates the attainment of the permissive ceiling that 20% of the
members of the House of Representatives shall consist of party-list representatives.
DSHcTC
The disqualification for failure to get 2% party-list votes in two (2) preceding elections
should therefore be understood in light of the Banat ruling that party-list groups or
organizations garnering less than 2% of the party-list votes may yet qualify for a seat in
the allocation of additional seats.
We need not extensively discuss Banat's significance, except to state that a party-list
group or organization which qualified in the second round of seat allocation cannot now
validly be delisted for the reason alone that it garnered less than 2% in the last two
elections. In other words, the application of this disqualification should henceforth be
contingent on the percentage of party-list votes garnered by the last party-list
organization that qualified for a seat in the House of Representatives, a percentage that is
less than the 2% threshold invalidated in Banat. The disqualification should now
necessarily be read to apply to party-list groups or organizations that did not qualify for a
seat in the two preceding elections for the constituency in which it registered.
To reiterate, (a) Section 6 (8) of RA 7941 provides for two separate grounds for delisting;
these grounds cannot be mixed or combined to support delisting; and (b) the
disqualification for failure to garner 2% party-list votes in two preceding elections should
now be understood, in light of the Banat ruling, to mean failure to qualify for a party-list
seat in two preceding elections for the constituency in which it has registered. This, we
declare, is how Section 6 (8) of RA 7941 should be understood and applied. We do so
under our authority to state what the law is, 10 and as an exception to the application of
the principle of stare decisis. IDcAHT
The doctrine of stare decisis et non quieta movere (to adhere to precedents and not to
unsettle things which are established) is embodied in Article 8 of the Civil Code of the
Philippines which provides, thus:
ART. 8. Judicial decisions applying or interpreting the laws or the Constitution
shall form part of the legal system of the Philippines.
The doctrine enjoins adherence to judicial precedents. It requires courts in a country to
follow the rule established in a decision of its Supreme Court. That decision becomes a
judicial precedent to be followed in subsequent cases by all courts in the land. The
doctrine of stare decisis is based on the principle that once a question of law has been
examined and decided, it should be deemed settled and closed to further argument. 11
The doctrine is grounded on the necessity for securing certainty and stability of judicial
decisions, thus:
Time and again, the court has held that it is a very desirable and necessary judicial
practice that when a court has laid down a principle of law as applicable to a certain state
of facts, it will adhere to that principle and apply it to all future cases in which the facts
are substantially the same. Stare decisis et non quieta movere. Stand by the decisions and
disturb not what is settled. Stare decisis simply means that for the sake of certainty, a
conclusion reached in one case should be applied to those that follow if the facts are
substantially the same, even though the parties may be different. It proceeds from the first
principle of justice that, absent any powerful countervailing considerations, like cases
ought to be decided alike. Thus, where the same questions relating to the same event have
been put forward by the parties similarly situated as in a previous case litigated and
decided by a competent court, the rule of stare decisis is a bar to any attempt to relitigate
the same issue. 12
The doctrine though is not cast in stone for upon a showing that circumstances attendant
in a particular case override the great benefits derived by our judicial system from the
doctrine of stare decisis, the Court is justified in setting it aside. 13 cDIaAS
As our discussion above shows, the most compelling reason to abandon Minero exists; it
was clearly an erroneous application of the law — an application that the principle of
stability or predictability of decisions alone cannot sustain. Minero did unnecessary
violence to the language of the law, the intent of the legislature, and to the rule of law in
general. Clearly, we cannot allow PGBI to be prejudiced by the continuing validity of an
erroneous ruling. Thus, we now abandon Minero and strike it out from our ruling case
law.
We are aware that PGBI's situation — a party list group or organization that failed to
garner 2% in a prior election and immediately thereafter did not participate in the
preceding election — is something that is not covered by Section 6 (8) of RA 7941. From
this perspective, it may be an unintended gap in the law and as such is a matter for
Congress to address. We cannot and do not address matters over which full discretionary
authority is given by the Constitution to the legislature; to do so will offend the principle
of separation of powers. If a gap indeed exists, then the present case should bring this
concern to the legislature's notice. ITDHSE
b. The Issue of Due Process
On the due process issue, we agree with the COMELEC that PGBI's right to due process
was not violated for PGBI was given an opportunity to seek, as it did seek, a
reconsideration of Resolution No. 8679. The essence of due process, we have
consistently held, is simply the opportunity to be heard; as applied to administrative
proceedings, due process is the opportunity to explain one's side or the opportunity to
seek a reconsideration of the action or ruling complained of. A formal or trial-type
hearing is not at all times and in all instances essential. The requirement is satisfied where
the parties are afforded fair and reasonable opportunity to explain their side of the
controversy at hand. What is frowned upon is absolute lack of notice and hearing . . . . 14
We find it obvious under the attendant circumstances that PGBI was not denied due
process. In any case, given the result of this Resolution, PGBI has no longer any cause
for complaint on due process grounds.
WHEREFORE, premises considered, we GRANT the petition and accordingly ANNUL
COMELEC Resolution No. 8679 dated October 13, 2009 insofar as the petitioner PGBI
is concerned, and the Resolution dated December 9, 2009 which denied PGBI's motion
for reconsideration in SPP No. 09-004 (MP). PGBI is qualified to be voted upon as a
party-list group or organization in the coming May 2010 elections.
SO ORDERED. ADSTCI
[G.R. No. 157013. July 10, 2003.]
ATTY. ROMULO B. MACALINTAL, petitioner, vs. COMMISSION ON ELECTIONS,
HON. ALBERTO ROMULO, in his official capacity as Executive Secretary, and HON.
EMILIA T. BONCODIN, Secretary of the Department of Budget and Management,
respondents.
Pete Quirino-Cuadra and Sixto S. Brilliante, Jr. for petitioner.
Henry S. Rojas for Movant-Intervenor.
SYNOPSIS
Petitioner Romulo B. Macalintal, a member of the Philippine Bar, sought to declare
certain provisions of Republic Act No. 9189 entitled, "An Act Providing for A System of
Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad,
Appropriating Funds Therefor, and for Other Purposes" as unconstitutional. Petitioner
contended that Section 5(d) is unconstitutional because it violates Section 1, Article V of
the 1987 Constitution which requires that the voter must be a resident in the Philippines
for at least one year and in the place where he proposes to vote for at least six months
immediately preceding an election. Petitioner cited the ruling of the Court in Caasi vs.
Court of Appeals to support his claim. In that case, the Court held that a "green card"
holder immigrant to the United States is deemed to have abandoned his domicile and
residence in the Philippines.
The Supreme Court upheld the constitutionality of Section 5(d) of R.A. No. 9189.
According to the Court, Section 2 of Article V of the Constitution is an exception to the
residency requirement found in Section 1 of the same Article. Ordinarily, an absentee is
not a resident and vice versa; a person cannot be at the same time, both a resident and an
absentee. However, under existing election laws and the countless pronouncements of the
Court pertaining to elections, an absentee remains attached to his residence in the
Philippines as residence is considered synonymous with domicile. Aware of the
domiciliary legal tie that links an overseas Filipino to his residence in this country, the
framers of the Constitution considered the circumstances that impelled them to require
Congress to establish a system for overseas absentee voting. Thus, Section 2, Article V of
the Constitution came into being to remove any doubt as to the inapplicability of the
residency requirement in Section 1. It is precisely to avoid any problems that could
impede the implementation of its pursuit to enfranchise the largest number of qualified
Filipinos who are not in the Philippines that the Constitutional Commission explicitly
mandated Congress to provide a system for overseas absentee voting. The Court,
however, declared certain provisions of the law unconstitutional, namely, portions of
Secs. 17.1, 19 and 25, as they trampled on the constitutional mandate of independence of
the Commission on Elections. The Court also upheld Section 18.5 of R.A. No. 9189 with
respect only to the authority given to the COMELEC to proclaim the winning candidates
for Senators and party-list representatives but not as to the power to canvass the votes and
proclaim the winning candidates for President and Vice-President which is lodged with
Congress under Section 4, Article VII of the Constitution. The Court likewise upheld Sec.
5 (d) of the law. It also declared that pursuant to Sec. 30 of the law the rest of the
provision of said law continues to be in full force and effect.
SYLLABUS
1. POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL
REVIEW; RIGHT OF PETITIONER TO FILE PRESENT PETITION, UPHELD; THE
CHALLENGED PROVISION OF LAW INVOLVES A PUBLIC RIGHT THAT
AFFECTS A GREAT NUMBER OF CITIZENS AND AN ISSUE OF
TRANSCENDENTAL SIGNIFICANCE TO THE FILIPINO PEOPLE. — The Court
upholds the right of petitioner to file the present petition. R.A. No. 9189, entitled, "An
Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the
Philippines Abroad, Appropriating Funds Therefor, and for Other Purposes," appropriates
funds under Section 29 thereof which provides that a supplemental budget on the General
Appropriations Act of the year of its enactment into law shall provide for the necessary
amount to carry out its provisions. Taxpayers, such as herein petitioner, have the right to
restrain officials from wasting public funds through the enforcement of an
unconstitutional statute. The Court has held that they may assail the validity of a law
appropriating public funds because expenditure of public funds by an officer of the State
for the purpose of executing an unconstitutional act constitutes a misapplication of such
funds. The challenged provision of law involves a public right that affects a great number
of citizens. The Court has adopted the policy of taking jurisdiction over cases whenever
the petitioner has seriously and convincingly presented an issue of transcendental
significance to the Filipino people. This has been explicitly pronounced in Kapatiran ng
mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, where the Court held:
Objections to taxpayers' suit for lack of sufficient personality standing, or interest are,
however, in the main procedural matters. Considering the importance to the public of the
cases at bar, and in keeping with the Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of government have kept themselves within
the limits of the Constitution and the laws and that they have not abused the discretion
given to them, the Court has brushed aside technicalities of procedure and has taken
cognizance of these petitions. Indeed, in this case, the Court may set aside procedural
rules as the constitutional right of suffrage of a considerable number of Filipinos is
involved.
2. ID.; ELECTION LAWS; THE OVERSEAS ABSENTEE VOTING ACT OF
2003 (REPUBLIC ACT NO. 9189); ENACTED IN OBEISANCE TO THE MANDATE
OF THE CONSTITUTION THAT CONGRESS SHALL PROVIDE A SYSTEM FOR
VOTING BY QUALIFIED FILIPINOS ABROAD. — As the essence of R.A. No. 9189
is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view
of the pertinent provisions of both the Constitution and R.A. No. 9189. It is a basic rule in
constitutional construction that the Constitution should be construed as a whole. In
Chiongbian vs. De Leon, the Court held that a constitutional provision should function to
the full extent of its substance and its terms, not by itself alone, but in conjunction with
all other provisions of that great document. Constitutional provisions are mandatory in
character unless, either by express statement or by necessary implication, a different
intention is manifest. The intent of the Constitution may be drawn primarily from the
language of the document itself. Should it be ambiguous, the Court may consider the
intent of is framers through their debates in the constitutional convention. R.A. No. 9189
was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of
the Constitution that Congress shall provide a system for voting by qualified Filipinos
abroad. It must be stressed that Section 2 does not provide for the parameters of the
exercise of legislative authority in enacting said law. Hence, in the absence of
restrictions, Congress is presumed to have duly exercised its function as defined in
Article VI (The Legislative Department) of the Constitution.
3. ID.; ID.; ID.; SECTION 2, ARTICLE V OF THE CONSTITUTION CAME
INTO BEING TO REMOVE DOUBT AS TO THE INAPPLICABILITY OF THE
RESIDENCY REQUIREMENT IN SECTION 1. — Ordinarily, an absentee is not a
resident and vice versa; a person cannot be at the same time, both a resident and an
absentee. However, under our election laws and the countless pronouncements of the
Court pertaining to elections, an absentee remains attached to his residence in the
Philippines as residence is considered synonymous with domicile. Aware of the
domiciliary legal tie that links an overseas Filipino to his residence in this country, the
framers of the Constitution considered the circumstances that impelled them to require
Congress to establish a system for overseas absentee voting. Thus, the Constitutional
Commission recognized the fact that while millions of Filipinos reside abroad principally
for economic reasons and hence they contribute in no small measure to the economic
uplift of this country, their voices are marginal insofar as the choice of this country's
leaders is concerned. The Constitutional Commission realized that under the laws then
existing and considering the novelty of the system of absentee voting in this jurisdiction,
vesting overseas Filipinos with the right to vote would spawn constitutional problems
especially because the Constitution itself provides for the residency requirement of
voters. Thus, Section 2, Article V of the Constitution came into being to remove any
doubt as to the inapplicability of the residency requirement in Section 1. It is precisely to
avoid any problems that could impede the implementation of its pursuit to enfranchise the
largest number of qualified Filipinos who are not in the Philippines that the
Constitutional Commission explicitly mandated Congress to provide a system for
overseas absentee voting.
4. ID.; ID.; ID.; SECTION 2 OF ARTICLE V OF THE CONSTITUTION IS AN
EXCEPTION TO THE RESIDENCY REQUIREMENT FOUND IN SECTION 1 OF
THE SAME ARTICLE. — It is clear from these discussions of the members of the
Constitutional Commission that they intended to enfranchise as much as possible all
Filipino citizens abroad who have not abandoned their domicile of origin. The
Commission even intended to extend to young Filipinos who reach voting age abroad
whose parents' domicile of origin is in the Philippines, and consider them qualified as
voters for the first time. It is in pursuance of that intention that the Commission provided
for Section 2 immediately after the residency requirement of Section 1. By the doctrine of
necessary implication in statutory construction, which may be applied in construing
constitutional provisions, the strategic location of Section 2 indicates that the
Constitutional Commission provided for an exception to the actual residency requirement
of Section 1 with respect to qualified Filipinos abroad. The same Commission has in
effect declared that qualified Filipinos who are not in the Philippines may be allowed to
vote even though they do not satisfy the residency requirement in Section 1, Article V of
the Constitution. That Section 2 of Article V of the Constitution is an exception to the
residency requirement found in Section 1 of the same Article was in fact the subject of
debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon
on the Senate floor.
5. ID.; ID.; ID.; EXECUTION OF REQUIRED AFFIDAVIT IS NOT THE
ENABLING OR ENFRANCHISING ACT; AFFIDAVIT MERELY SERVES AS AN
EXPLICIT EXPRESSION THAT QUALIFIED ABSENTEE HAD NOT IN FACT
ABANDONED HIS OR HER DOMICILE OF ORIGIN. — Section 4 of R.A. No. 9189
provides for the coverage of the absentee voting process. Which does not require physical
residency in the Philippines; and Section 5 of the assailed law which enumerates those
who are disqualified. As finally approved into law, Section 5(d) of R.A. No. 9189
specifically disqualifies an immigrant or permanent resident who is "recognized as such
in the host country" because immigration or permanent residence in another country
implies renunciation of one's residence in his country of origin. However, same Section
allows an immigrant and permanent resident abroad to register as voter for as long as
he/she executes an affidavit to show that he/she has not abandoned his domicile in
pursuance of the constitutional intent expressed in Sections 1 and 2 of Article V that "all
citizens of the Philippines not otherwise disqualified by law" must be entitled to exercise
the right of suffrage and, that Congress must establish a system for absentee voting; for
otherwise, if actual, physical residence in the Philippines is required, there is no sense for
the framers of the Constitution to mandate Congress to establish a system for absentee
voting. Contrary to the claim of petitioner, the execution of the affidavit itself is not the
enabling or enfranchising act. The affidavit required in Section 5(d) is not only proof of
the intention of the immigrant or permanent resident to go back and resume residency in
the Philippines, but more significantly, it serves as an explicit expression that he had not
in fact abandoned his domicile of origin. Thus, it is not correct to say that the execution
of the affidavit under Section 5(d) violates the Constitution that proscribes "provisional
registration or a promise by a voter to perform a condition to be qualified to vote in a
political exercise." To repeat, the affidavit is required of immigrants and permanent
residents abroad because by their status in their host countries, they are presumed to have
relinquished their intent to return to this country; thus, without the affidavit, the
presumption of abandonment of Philippine domicile shall remain.
6. ID.; ID.; ID.; THE JURISPRUDENTIAL DECLARATION IN CAASI VS.
COURT OF APPEALS FINDS NO APPLICATION TO THE PRESENT CASE
BECAUSE IT DID NOT, FOR OBVIOUS REASONS, CONSIDER THE ABSENTEE
VOTING RIGHTS OF FILIPINOS WHO ARE IMMIGRANTS AND PERMANENT
RESIDENTS IN THEIR HOST COUNTRIES. — The jurisprudential declaration in
Caasi vs. Court of Appeals that green card holders are disqualified to run for any elective
office finds no application to the present case because the Caasi case did not, for obvious
reasons, consider the absentee voting rights of Filipinos who are immigrants and
permanent residents in their host countries. In the advent of The Overseas Absentee
Voting Act of 2003 or R.A. 9189, they may still be considered as a "qualified citizen of
the Philippines abroad" upon fulfillment of the requirements of registration under the new
law for the purpose of exercising their right of suffrage. It must be emphasized that
Section 5(d) does not only require an affidavit or a promise to "resume actual physical
permanent residence in the Philippines not later than three years from approval of his/her
registration," the Filipinos abroad must also declare that they have not applied for
citizenship in another country. Thus, they must return to the Philippines; otherwise, their
failure to return "shall be cause for the removal" of their names "from the National
Registry of Absentee Voters and his/her permanent disqualification to vote in absentia."
7. ID.; ID.; ID.; ABSENTEE VOTING PRESUPPOSES THAT THE "QUALIFIED
CITIZEN OF THE PHILIPPINES ABROAD" IS NOT PHYSICALLY PRESENT IN
THE COUNTRY; REQUIRED AFFIDAVIT GIVES THE ABSENTEE AN
OPPORTUNITY TO EXPRESS THAT HE HAS NOT ACTUALLY ABANDONED
HIS DOMICILE IN THE PHILIPPINES. — Contrary to petitioner's claim that Section
5(d) circumvents the Constitution, Congress enacted the law prescribing a system of
overseas absentee voting in compliance with the constitutional mandate. Such mandate
expressly requires that Congress provide a system of absentee voting that necessarily
presupposes that the "qualified citizen of the Philippines abroad" is not physically present
in the country. The provisions of Sections 5(d) and 11 are components of the system of
overseas absentee voting established by R.A. No. 9189. The qualified Filipino abroad
who executed the affidavit is deemed to have retained his domicile in the Philippines. He
is presumed not to have lost his domicile by his physical absence from this country. His
having become an immigrant or permanent resident of his host country does not
necessarily imply an abandonment of his intention to return to his domicile of origin, the
Philippines. Therefore, under the law, he must be given the opportunity to express that he
has not actually abandoned his domicile in the Philippines by executing the affidavit
required by Sections 5(d) and 8(c) of the law.
8. ID.; ID.; ID.; BY VESTING ITSELF WITH THE POWERS TO APPROVE,
REVIEW, AMEND AND REVISE THE IMPLEMENTING RULES AND
REGULATIONS FOR THE OVERSEAS ABSENTEE VOTING ACT OF 2003,
CONGRESS WENT BEYOND THE SCOPE OF ITS CONSTITUTIONAL
AUTHORITY AND TRAMPLED UPON THE CONSTITUTIONAL MANDATE OF
INDEPENDENCE OF THE COMMISSION ON ELECTIONS. — The Court has no
general powers of supervision over COMELEC which is an independent body "except
those specifically granted by the Constitution," that is, to review its decisions, orders and
rulings. In the same vein, it is not correct to hold that because of its recognized extensive
legislative power to enact election laws, Congress may intrude into the independence of
the COMELEC by exercising supervisory powers over its rule-making authority. By
virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to
"issue the necessary rules and regulations to effectively implement the provisions of this
Act within sixty days from the effectivity of this Act." This provision of law follows the
usual procedure in drafting rules and regulations to implement a law — the legislature
grants an administrative agency the authority to craft the rules and regulations
implementing the law it has enacted, in recognition of the administrative expertise of that
agency in its particular field of operation. Once a law is enacted and approved, the
legislative function is deemed accomplished and complete. The legislative function may
spring back to Congress relative to the same law only if that body deems it proper to
review, amend and revise the law, but certainly not to approve, review, revise and amend
the IRR of the COMELEC. By vesting itself with the powers to approve, review, amend,
and revise the IRR for The Overseas Absentee Voting Act of 2003, Congress went
beyond the scope of its constitutional authority. Congress trampled upon the
constitutional mandate of independence of the COMELEC. Under such a situation, the
Court is left with no option but to withdraw from its usual reticence in declaring a
provision of law unconstitutional.
9. ID.; ID.; ID.; PROVISION REQUIRING REVIEW AND APPROVAL BY
JOINT CONGRESSIONAL OVERSIGHT COMMITTEE OF VOTING BY MAIL IN
ANY COUNTRY AFTER THE 2004 ELECTIONS DECLARED
UNCONSTITUTIONAL; SAID POWER UNDERMINES THE INDEPENDENCE OF
THE COMMISSION ON ELECTIONS. — Similarly, the phrase, "subject to the
approval of the Congressional Oversight Committee" in the first sentence of Section 17.1
which empowers the Commission to authorize voting by mail in not more than three
countries for the May, 2004 elections; and the phrase, "only upon review and approval of
the Joint Congressional Oversight Committee" found in the second paragraph of the same
section are unconstitutional as they require review and approval of voting by mail in any
country after the 2004 elections. Congress may not confer upon itself the authority to
approve or disapprove the countries wherein voting by mail shall be allowed, as
determined by the COMELEC pursuant to the conditions provided for in Section 17.1 of
R.A. No. 9189. Otherwise, Congress would overstep the bounds of its constitutional
mandate and intrude into the independence of the COMELEC.
BELLOSILLO, J., separate concurring opinion:
1. POLITICAL LAW; ELECTION LAWS; OVERSEAS ABSENTEE VOTING
ACT OF 2003 (REPUBLIC ACT NO. 9189); MERE ACQUISITION OF AN
IMMIGRANT OR PERMANENT RESIDENT STATUS BY A FILIPINO CITIZEN IN
A FOREIGN COUNTRY DOES NOT IPSO JURE RESULT IN THE AUTOMATIC
SEVERANCE OF HIS DOMICILIARY LINK TO THE PHILIPPINES, NOR THE
ACQUISITION OF A NEW DOMICILE OF CHOICE. — It has been suggested by
certain quarters that all Filipino citizens who are immigrants and permanent residents
abroad are considered to have abandoned their Philippine domicile and therefore cannot
vote in Philippine elections, since they are not within the constitutional contemplation of
"qualified Filipinos abroad" who are eligible to vote. In this jurisdiction, it is well settled
that "domicile" and "residence" as used in election laws are synonymous terms which
import not only an intention to reside in a fixed place but also personal presence in that
place coupled with conduct indicative of that intention. Domicile is a question of
intention and circumstances. There are three (3) rules that must be observed in the
consideration of circumstances: first, that a man must have a residence or domicile
somewhere; second, domicile is not easily lost, once established it is retained until a new
one is acquired; and third, a man can have but one residence or domicile at a time. The
principal elements of domicile, i.e., physical presence in the locality involved and
intention to adopt it as a domicile, must concur in order to establish a new domicile. No
change of domicile will result if either of these elements is absent. Intention to acquire a
domicile without actual residence in the locality does not result in the acquisition of
domicile, nor does the fact of physical presence without intention. The mere acquisition
of an immigrant or permanent resident status by a Filipino citizen in a foreign country
does not ipso jure result in the automatic severance of his domiciliary link to the
Philippines, nor the acquisition of a new domicile of choice.
2. ID.; ID.; ID.; ACTUAL AND PHYSICAL RESIDENCE ABROAD SHOULD
NOT AUTOMATICALLY BE EQUATED WITH ABANDONMENT OF PHILIPPINE
DOMICILE. — The diaspora of Filipinos in foreign lands started in the wake of the
bludgeoning economic crisis in the 80's and its resulting acute shortage of employment
opportunities. This phenomenon has continued to the present day as the steadily rising
cost of living and intermittent economic crises — worldwide in their effects — weighed
most heavily on the ordinary Filipino. He does not have much choice: leave or starve.
The lure of the proverbial greener pastures in foreign lands is certainly a potent incentive
for an exodus. In most cases, the decision to migrate is borne out of the dire necessities of
life rather than a conscious desire to abandon the land of birth. Most immigrants and
permanent residents remain bound very strongly by intimate ties of filial, racial, cultural
and social relationships with the Philippines. They travel back periodically to be with
their friends and loved ones; some even own, maintain and manage their properties here;
and, they continue to show keen interest in, and keep themselves abreast with, political
and social developments in the country through the mass media. They make significant
contributions to the nation, through their regular dollar remittances that have
tremendously shored up our sagging national economy. In the face of these realities, I am
convinced more than ever that actual and physical residence abroad should not
automatically be equated with abandonment of Philippine domicile. The circumstances
enumerated in the immediately preceding paragraph are valid indicia of animus manendi
(intent to remain) and animus revertendi (intent to return), which should not simply be
brushed aside in determining whether the right to vote should be denied the immigrants
and permanent residents. Indeed, there is no rhyme nor reason to unduly marginalize this
class of Filipinos.
3. ID.; ID.; ID.; THE EXECUTION OF THE REQUIRED AFFIDAVIT IS AN
AFFIRMATION ON THE PART OF THE IMMIGRANT OR PERMANENT
RESIDENT THAT HIS STAY ABROAD SHOULD NOT BE CONSTRUED AS
RELINQUISHMENT OF HIS OLD DOMICILE. — It is significant to stress, however,
that Sec. 5, par. (d), of the Absentee Voting Law in fact disqualifies immigrants and
permanent residents from voting as a general rule. This is precisely in recognition of the
fact that their status as such may indeed be a badge of their intent to abandon their
Philippine domicile and settle permanently in their host country. But at the same time, the
legislature provided for a mechanism in the law for ascertaining real intent: an immigrant
or permanent resident who wishes to exercise his right of suffrage is required as a
condition sine qua non to execute an affidavit declaring that he shall resume actual,
physical and permanent residence in the Philippines not later than three (3) years from his
registration under the law; and that he has not applied for citizenship in another country.
The law in effect draws a distinction between two (2) classes of immigrants or permanent
residents — those who have renounced their old domicile in the Philippines, and those
who still consider the Philippines as their domicile of origin. The execution of the
affidavit is an affirmation on the part of the immigrant or permanent resident that his stay
abroad should not be construed as a relinquishment of his old domicile.
4. ID.; ID.; ID.; THE LAW CONTAINS PROPER AND ADEQUATE
SAFEGUARDS AGAINST MISUSE OR ABUSE OF THE PRIVILEGE; ABSOLUTE
DISQUALIFICATION OF FILIPINO IMMIGRANTS AND PERMANENT
RESIDENTS, WITHOUT DISTINCTION, FROM PARTICIPATING IN THE
PHILIPPINE ELECTORAL PROCESS WOULD RESULT, AS IN THE PAST, IN A
MASSIVE DISENFRANCHISEMENT OF QUALIFIED VOTERS. — I am not unaware
of the possibility that the immigrant or permanent resident may renege or his undertaking
in the affidavit to resume actual, physical and permanent residence in the Philippines. But
the law contains proper and adequate safeguards against the misuse or abuse of this
privilege, i.e., his name will be purged from the National Registry of Absentee Voters
and he will be permanently disqualified from voting in absentia. As a closing
observation, I wish to emphasize that the absolute disqualification of Filipino immigrants
and permanent residents, without distinction, from participating in the Philippine
electoral process would invariably result, as in the past, in a massive disenfranchisement
of qualified voters. It would be self-defeating in the extreme if the Absentee Voting Law
would founder on the rock by reason of an unduly restrictive and decidedly unrealistic
interpretation given by the minority on the residency requirement in the Constitution.
VITUG, J., separate opinion:
1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE
VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189); THE INDICATORS USED BY
THE LEGISLATURE ARE REASONABLE GAUGES TO ESTABLISH THE
INTENTION OF THE IMMIGRANT NOT TO ABANDON HIS PHILIPPINE
DOMICILE; THE FACT THAT IMMIGRANT HAS NOT RELINQUISHED HIS
PHILIPPINE CITIZENSHIP SHOULD HELP REMOVE ANY LINGERING DOUBT
ON HIS PREFERRED STATUS. — The law must have recognized that animus manendi
and animus non revertendi, being processes of the mind and incapable of a definitive
determination, could only be discerned from perceivable circumstances. So also,
Republic Act No. 9189 or the "Overseas Absentee Voting Act of 2003," disqualifies an
"immigrant or a permanent resident who is recognized as such in the host country" to
vote under the Act on the premise that such a circumstance can be a cogent indication of
the holder's intention to abandon his old domicile and establish a new one. But, in much
the same vein, the law acknowledges that the immigrant or permanent resident may still
be qualified to vote, provided "he executes, upon registration, an affidavit prepared for
the purpose by the Commission on Elections declaring that he shall resume actual
physical permanent residence in the Philippines not later than three (3) years from
approval of his registration under (the) Act." The affidavit shall additionally confirm that
he has not applied for citizenship in another country. I am convinced that these indicators
used by the legislature are reasonable gauges to establish the intention of the immigrant
not to abandon his Philippine domicile. The fact that he has not relinquished his
Philippine citizenship should help remove any lingering doubt on his preferred status.
After all, the right of suffrage, now widely considered to be an innate right of every
national, is a basic and perhaps the most outstanding mark of citizenship.
2. ID.; ID.; ID.; THE POWER GIVEN TO THE COMMISSION ON ELECTIONS
BY SECTION 18.5 OF THE REPUBLIC ACT NO. 9189 SHOULD BE UNDERSTOOD
TO BE LIMITED ONLY TO THE PROCLAMATION OF WINNING CANDIDATES
FOR THE POSITIONS OF SENATORS AND PARTY-LIST REPRESENTATIVES. —
Section 4 of the Act allows all qualified Filipinos abroad to vote for President, Vice-
President, Senators and party-list representatives. In relation to this, Section 18.5
empowers the Commission on Election to order the proclamation of winning candidates.
Since it is Congress which has been granted by the Constitution the authority and duty to
canvass the votes and proclaim the winning candidates for president and vice-president, I
echo the sentiment of my colleagues that the power given to COMELEC by Section 18.5
of R.A. 9189 should be understood to be limited only to the proclamation of winning
candidates for the positions of senators and party-list representatives. The election returns
for the positions of president and vice-president should then be certified by the Board of
Canvassers to Congress and not to COMELEC as provided for in Section 18.4 of the Act.
3. ID.; ID.; ID.; THE ROLE OF THE JOINT CONGRESSIONAL OVERSIGHT
COMMITTEE MUST BE UNDERSTOOD AS BEING LIMITED ONLY TO THE
MONITORING AND EVALUATION OF THE IMPLEMENTATION OF THE ACT
PURSUANT TO THE POWER OF CONGRESS TO CONDUCT INQUIRIES IN AID
OF LEGISLATION. — R.A. 9189 creates a Joint Congressional Oversight Committee
(JCOC) composed of Senators and Members of the House of Representatives,
empowered to "review, revise, amend and approve the Implementing Rules and
Regulations (IRR) promulgated by the COMELEC," and to approve the voting by mail in
not more than three (3) countries for the May 2004 elections and in any country
determined by COMELEC. The Court here finds unanimity in holding that Congress, by
vesting itself with the aforesaid powers, has gone beyond the scope of its constitutional
authority. It is a pronouncement that, in my view, can hardly be susceptible to challenge.
The Constitution ordains that constitutional commissions such as the COMELEC shall be
independent. The COMELEC has the constitutional authority to "enforce and administer
all laws and regulations relative to the conduct of an election" and to promulgate its rules
of procedure. The role therefore of the JCOC must be understood as being limited only to
the monitoring and evaluation of the implementation of the Act pursuant to the power of
Congress to conduct inquiries in aid of legislation.
PANGANIBAN, J., separate opinion:
1. CONSTITUTIONAL LAW; SUFFRAGE; REASON FOR RESIDENCE
REQUIREMENT. — I believe that, traditionally, the law requires residence because
presence in a certain locality enables a person to know the needs and the problems of that
area. Equally important, it also makes one become acquainted with the candidates —
their qualifications, suitability for a particular office and platform of government. Thus,
the fundamental law requires, not just that there be a minimum of one-year residence in
the country, but also that six months of that period be spent in the place where the ballot
is to be cast. Such detailed requirement will hopefully give the voters sufficient
knowledge about a specific town as to help them choose its local officials wisely, quite
apart from understanding enough of the entire country so as to prepare to vote
sagaciously for national leaders. Although the foregoing discussions were used to justify
the residence requirement vis-a-vis candidates for elective public offices, I believe that
their rationale can easily and analogically fit the needs of voters as well.
2. ID.; ID.; ACTUAL PRESENCE IN THE PHILIPPINES IS NO LONGER
INDISPENSABLE TO MAKE DISCERNING FILIPINOS KNOW THE PROBLEMS
OF THEIR COUNTRY AND TO DECIDE WHO AMONG THE CANDIDATES FOR
NATIONAL POSITIONS DESERVE THEIR MANDATE. — The defining essence of
my position is this: in the midst of the now available e-age communications facilities,
actual presence in the Philippines is no longer indispensable to make discerning Filipinos
know the problems of their country and to decide who among candidates for national
positions deserve their mandate. Indeed, the Information Age has given overseas
Filipinos convenient means to inform themselves of our country's needs, as well as of the
suitability of candidates for national offices. After all, many of them live abroad, not
because they want to abandon their land of birth, but because they have been constrained
to do so by economic, professional, livelihood and other pressing pursuits. Ineluctably,
they remit their hard-earned money to help their relatives here and their country as a
whole. Verily, their easy access to Philippine mass media keep them constantly aware of
happenings in their native country. National dailies and other periodicals are sold
regularly in Filipino enclaves in foreign shores. Several local and community
publications in these areas cater mainly to Filipino expatriates, publishing news and
opinions not only about their alien neighborhoods, but also quite extensively about their
homeland.
3. ID.; ID.; IT WOULD BE THOROUGHLY UNREASONABLE TO EXPECT
FOREIGN-BASED FILIPINOS TO COME BACK TO THE PHILIPPINES FOR ONE
YEAR EVERY THREE YEARS AND ABANDON THEIR JOBS JUST TO BE ABLE
TO COMPLY LITERALLY WITH THE RESIDENTIAL REQUIREMENT OF
SUFFRAGE. — The e-age has opened windows to the Philippines in a pervasive and
thorough manner, such that actual presence in the country is no longer needed to make an
intelligent assessment of whom to vote for as our national leaders. I make this emphasis
on national officials, because the Absentee Voting Law allows overseas voting only for
President, Vice President, senators and party-list representatives. This distinction is
important, because the information available through websites and other modern media
outlets is addressed mainly to national concerns. To insist that only those who can
demonstrate actual physical residence in the country for one year — or only those who
have complied with the more difficult-to-understand concept of domicile — would be
entitled to vote would be to cling adamantly and unreasonably to a literal interpretation of
the Constitution without regard for its more liberating spirit or rationale. Such insistence
would result in rendering inutile any meaningful effort to accord suffrage to Filipinos
abroad. Such proposition would make the constitutional interpretation anachronous in the
face of the refreshing and pulsating realities of the world. In my view, it would be
thoroughly unreasonable to expect foreign-based Filipinos to come back here for one year
every three years and abandon their jobs just to be able to comply literally with the
residential requirement of suffrage.
CARPIO, J., concurring opinion:
1. CONSTITUTIONAL LAW; SUFFRAGE; TO REQUIRE ABSENTEE VOTERS
TO COMPLY WITH THE DOUBLE RESIDENCY REQUIREMENT IS TO IMPOSE
AN IMPRACTICAL AND EVEN IMPOSSIBLE CONDITION TO THE EXERCISE
OF THE CONSTITUTIONAL RIGHT TO VOTE. — To require absentee voters to
comply with the double residency requirement is to impose an impractical and even an
impossible condition to the exercise of the constitutional right to vote. In the first place,
the second residency requirement of establishing residence in a locality in the Philippines
where the voters propose to vote is impossible to comply since overseas Filipinos will
obviously not vote in any locality in the Philippines. Imposing the double residency
requirement makes the absentee voting an empty right of overseas Filipinos. Certainly,
the wise framers of the Constitution were incapable of such absurd scheme.
2. ID.; ID.; THE CONCEPT OF ABSENTEE VOTING NEGATES A
RESIDENCY REQUIREMENT IN THE COUNTRY OF CITIZENSHIP OF THE
VOTER; BY DEFINITION AN ABSENTEE VOTER IS A NON-RESIDENT VOTER.
— The concept of absentee voting negates a residency requirement in the country of
citizenship of the voter. By definition, an absentee voter is a non-resident voter.
Obviously, the double residency requirement in Section 1 of Article V applies only to
resident or non-absentee Filipino voters. To impose the double residency requirement on
absentee Filipino voters is an egregious anomaly for it will require absentee Filipino
voters to comply with the same residency requirement imposed on resident or non-
absentee Filipino voters. If absentee Filipino voters are required to reside in the
Philippines just like resident or non-absentee Filipino voters, why create an absentee
voting system for overseas Filipinos in the first place? Applying the double residency
requirement on absentee voters will render the provision on absentee voting in Section 2
a surplusage, a constitutional mandate devoid of meaning. Even without the absentee
voting provision in Section 1, Congress can validly enact a law allowing resident or non-
absentee Filipino voters — those who comply with the double residency requirement —
to vote abroad in Philippine embassies or consulates. There is no constitutional
prohibition on registered Filipino voters who comply with the double residency
requirement to cast their ballots at a Philippine embassy or consulate abroad where they
happen to be on election day. If the absentee voting system in Section 2 were for the
benefit only of resident or non-absentee Filipinos, then there would be no need to provide
for it in the Constitution.
3. ID.; ID.; THE FRAMERS OF THE 1987 CONSTITUTION INTENDED THE
ABSENTEE VOTING PROVISION AS AN EXCEPTION TO THE DOUBLE
RESIDENCY REQUIREMENT. — The framers of the 1987 Constitution specifically
introduced the absentee voting provision in Section 2 precisely to enfranchise overseas
Filipinos who do not comply with the double residency requirement in Section 1. Without
the absentee voting provision in Section 2, Congress could not validly enact a law
enfranchising overseas Filipinos who do not comply with the double residency
requirement. As succinctly explained by Commissioner Christian Monsod during the
deliberations in the Constitutional Commission. The framers of the Constitution intended
the absentee voting provision as an exception to the double residency requirement.
4. ID.; ID.; THERE IS NO CONSTITUTIONAL PROVISION AGAINST THE
ENACTMENT OF LEGISLATION PRESCRIBING THE REACQUISITION OF
DOMICILE OR RESIDENCE IN THE PHILIPPINES, JUST AS THERE IS NO
CONSTITUTIONAL PROVISION AGAINST THE ENACTMENT OF LEGISLATION
PRESCRIBING THE REACQUISITION OF PHILIPPINE CITIZENSHIP. — The
question of how a Filipino, who has become a permanent resident or immigrant in a
foreign country, may reacquire his domicile or residence in the Philippines is a matter for
ordinary legislation. The reacquisition of the Philippine domicile or residence that a
Filipino had lost is within the power of Congress to legislate. The Constitution does not
define what domicile or residence means. There is also no constitutional prohibition
against the enactment of legislation prescribing the reacquisition of domicile or residence
in the Philippines, just as there is no constitutional prohibition against the enactment of
legislation prescribing the reacquisition of Philippine citizenship. Thus, RA No. 8171
allows a former natural-born Filipino who became a foreigner to reacquire Philippine
citizenship by filing a simplified administrative petition and taking an oath of allegiance
to the Philippines. Section 5(d) of RA No. 9189, which prescribes the reacquisition of
residence by a Filipino through the execution of an affidavit stating he is resuming
residence in the Philippines, is similarly well within the power of Congress to enact and
is thus constitutional. cdasiajur
5. ID.; ID.; THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL
RIGHTS REQUIRES THE PHILIPPINES TO RESPECT THE PEOPLE'S RIGHT OF
SUFFRAGE "WITHOUT UNREASONABLE RESTRICTIONS"; TO REQUIRE
OVERSEAS FILIPINOS TO RETURN WITHIN 12 MONTHS SO THEY MAY VOTE
ABROAD AS ABSENTEE VOTERS IS PLAINLY AN UNREASONABLE
RESTRICTION OUTLAWED BY THE COVENANT. — The right of suffrage is the
cornerstone of a representative government like that established in the 1987 Constitution.
A representative government is legitimate when those represented elect their
representatives in government. The consent of the governed is what stamps legitimacy on
those who govern. This consent is expressed through the right of suffrage. It is a precious
right for which many have fought and died so that others may freely exercise it. A
government that denies such right on flimsy or meaningless grounds does so at its peril.
The International Covenant on Civil and Political Rights, to which the Philippines is a
signatory, requires the Philippines to respect the people's right of suffrage "without
unreasonable restrictions." The Philippines is duty bound under international law to
comply in good faith with its treaty obligations under the Covenant. To require overseas
Filipinos to return to the Philippines twice within 12 months so they may vote abroad as
absentee voters is plainly an unreasonable restriction outlawed by the Covenant. When
the framers of the Constitution introduced absentee voting in Section 2 of Article V, they
were aware of the country's obligations under the Covenant. In their discussions on the
death penalty, human rights and the Bill of Rights, the framers of the Constitution often
referred to the country's obligations under the Covenant. It is inconceivable that the
framers intended overseas Filipinos to comply with the double residency requirement, an
unreasonable restriction that would patently violate Article 25 of the Covenant and
practically negate the overseas Filipinos' right of suffrage.
CARPIO-MORALES, J., separate opinion:
1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE
VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189); THE REQUIRED AFFIDAVIT
EXECUTED IN ACCORDANCE WITH THE LAW BY A FILIPINO IMMIGRANT
OR PERMANENT RESIDENT OF ANOTHER COUNTRY EXPRESSING HIS
INTENT TO RESUME PHYSICAL PERMANENT RESIDENCE IN THE
PHILIPPINES IS AN ELOQUENT PROOF OF HIS INTENTION NOT TO ABANDON
HIS DOMICILE OF ORIGIN IN THE PHILIPPINES. — It is my view that the affidavit
executed in accordance with Section 5(d) of R.A. 9189 by a Filipino immigrant or
permanent resident of another country expressing his intent to resume physical permanent
residence in the Philippines is an eloquent proof of his intention not to abandon his
domicile of origin in the Philippines. It is a statement under oath of what a Filipino seeks
to do for the future of his membership in a political community. Why should this affidavit
be discredited on the mere speculation that the immigrant might not fulfill his
undertaking to return to the Philippines for good? If Filipinos who are temporarily
residing in foreign countries are accorded full faith and credit as to their domiciliary ties
no matter how indefinite their absence from the Philippines, what more in the case of
Filipino immigrants who have formally declared their intent to settle in their homeland?
While he may have stayed on a more or less permanent basis in the host country which
conferred on him the status of an immigrant and may be animated with all the desire to
remain there, until and unless a Filipino immigrant had categorically expressed by words
or by deeds his intent to no longer return to his domicile of origin, no conclusion can be
reached as to a change in domicile from one of origin to one of choice, hence, the old
domicile subsists. For at the core of every Filipino immigrant's being is the fact of his
Philippine citizenship. He is, after all, still a Filipino.
2. ID.; ID.; ID.; UNTIL THE OPPORTUNITY TO EXECUTE THE REQUIRED
AFFIDAVIT HAS BEEN TOTALLY FOREGONE BY A FILIPINO IMMIGRANT, IN
THE ABSENCE OF ANY CONCLUSIVE EVIDENCE OF HIS ACQUISITION OF A
NEW DOMICILE, THE FILIPINO IMMIGRANT'S DOMICILE OF ORIGIN IS
INTACT, HIS PRESENCE ABROAD AND HIS DESIRE TO REMAIN THEREIN
NOTWITHSTANDING. — The acquisition of a new domicile must be completely
perfected by a concurrence of the factum of removal to a new locality, the animus to
remain there, and abandonment of and intent not to return to the former domicile, for if
there is a purpose to return, whether secret or open, no loss or change of domicile will
result. Two types of Filipino immigrants must then be distinguished. The first, a Filipino
who has opted not to execute the required affidavit under Section 5(d) of R.A. 9189, is
clearly disqualified to exercise suffrage for he has manifested the animus non revertendi
with respect to his domicile in the Philippines, thereby effectuating his acquisition of a
new domicile. The second, a Filipino who declares his wish to be reunited with his
homeland has, without doubt, shown that his residence of origin remained unchanged and
so he is entitled to vote under the Overseas Absentee Voting Law. Therefore, until that
opportunity to execute the affidavit has been totally foregone by a Filipino immigrant, in
the absence of any conclusive evidence of his acquisition of a new domicile, the Filipino
immigrant's domicile of origin is intact, his presence abroad and his desire to remain
therein notwithstanding.
AZCUNA, J., concurring opinion:
1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE
VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189); THE ABANDONMENT OF
THE PRESENT DOMICILE OF CHOICE, BY THE EXECUTION OF THE
AFFIDAVIT, OPERATES TO REVIVE THE DOMICILE OF ORIGIN TO REPLACE
IT BECAUSE OF THE PRINCIPLE THAT NO PERSON CAN BE WITHOUT A
DOMICILE AT ANYTIME. — Petitioner contends that Filipinos who establish
permanent residence abroad have thereby abandoned their Philippine domicile of origin
and replaced it with a domicile of choice in a foreign country. This may indeed be true,
but with the execution of the affidavit provided for under Section 5 (d) aforementioned,
the affiant expressly states an abandonment of said domicile of choice. The legal effect of
this expression is to revive the domicile of origin. For unlike a domicile of choice, which
requires both intention and physical presence to be established or maintained, the
domicile of origin can be revived by an intention properly expressed. Thus, the
abandonment of the present domicile of choice, by the execution of the affidavit, operates
to revive the domicile of origin to replace it, because of the principle that no person can
be without a domicile at any time.
2. ID.; ID.; ID.; THROUGH THE EXECUTION OF THE REQUIRED
AFFIDAVIT, THE AFFIANT DOES THE OPERATIVE ACT THAT MAKES HIM
ONCE MORE A PHILIPPINE DOMICILIARY; THE REQUIREMENT OF
RESUMING ACTUAL PHYSICAL PRESENCE WITHIN THREE (3) YEARS IS
ONLY TEST OF SUCH INTENTION, BUT IS NOT NEEDED TO EFFECT CHANGE
OR REVERSION OF DOMICILE. — The moment a foreign domicile is abandoned, the
native domicile is reacquired. When a person abandons his domicile of choice, his
domicile of origin immediately reverts and remains until a new domicile of choice is
established. On the abandonment of a domicile of choice, the domicile of origin
immediately reverts, without regard to any definite intent to return to such original
domicile, provided there is a definite intent finally to abandon the acquired domicile of
choice. Through the execution of the affidavit, the affiant does the operative act that
makes said affiant once more a Philippine domiciliary. The requirement of resuming
actual physical presence within three (3) years is only a test of such intention, but is not
needed to effect the change or reversion of domicile. If the affiant does not resume the
residence physically within said period, then the intent expressed in the affidavit is
defective and the law will deem it inoperative, thereby allowing removal of affiant's name
from the National Registry of Absentee Voters.
PUNO, J., concurring and dissenting opinion:
1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE
VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189); THE MAJORITY ERRED IN
RULING THAT SECTION 2 OF ARTICLE V OF THE CONSTITUTION DISPENSED
WITH THE RESIDENCE REQUIREMENT'S PROVIDED UNDER SECTION 1 OF
THE SAME ARTICLE. — The intent of the members of the Constitutional Commission
to apply the residence requirements to absentee voters is evident from its deliberations.
They precisely used the phrase "QUALIFIED FILIPINOS ABROAD" to stress that the
absentee voter must have all the qualifications in Section 1, Article VI of the
Constitution. In the course of the deliberations, Fr. Bernas perceived a problem that may
arise from the meaning of the second residence requirement on the place of registration
and voting. As noted, a qualified voter normally registers and votes in the place where he
is domiciled or has resided for six months. Fr. Bernas feared that the second residence
requirement may pose a constitutional obstacle to absentee voting "unless the vote of the
person who is absent is a vote which will be considered as cast in the place of his
domicile." Following the observation of Father Bernas and to obviate the constitutional
problem, the members of the Constitutional Commission then discussed the system of
registration of qualified Filipinos abroad who will be allowed to vote. It was agreed that
their registration abroad would be considered as registration in a particular locality in the
Philippines where he is domiciled, and the vote cast abroad would be considered cast in
that particular locality. It is crystal clear from the deliberations, that the majority erred in
ruling that Section 2 of Article V of the Constitution dispensed with the residence
requirements provided under Section 1 of the same Article.
2. ID.; ID.; ID.; AN "IMMIGRANT" OR A "PERMANENT RESIDENT" OF A
FOREIGN COUNTRY IS DEEMED TO HAVE ABANDONED HIS DOMICILE IN
THE PHILIPPINES. — In Romualdez-Marcos v. COMELEC, we ruled that domicile of
origin is not easily lost. To successfully effect a change of domicile, one must
demonstrate an actual removal or an actual change of domicile; a bona fide intention of
abandoning the former place of residence and establishing a new one; and acts which
correspond with purpose. This change of domicile is effected by a Filipino who becomes
an "immigrant" or a "permanent resident" of a foreign country. Thus, we held in Caasi v.
Court of Appeals, viz: Miguel's application for immigrant status and permanent residence
in the U.S. and his possession of a green card attesting to such status are conclusive proof
that he is a permanent resident of the U.S. despite his occasional visits to the Philippines.
The waiver of such immigrant status should be as indubitable as his application for it.
Absent clear evidence that he made an irrevocable waiver of that status or that he
surrendered his green card to the appropriate U.S. authorities before he ran for mayor. . .
The doctrine in Caasi is by no means new. Our election laws have continuously regarded
"immigrants" or "permanent residents" of a foreign country to have lost their domiciles in
the Philippines and hence are not qualified to run for public office. There is no reason not
to apply the Caasi ruling in disputes involving the qualification of voters. In essence, both
cases concern fulfillment of the residence requirements. Section 5(d) of Rep. Act No.
9189 itself reinforces the applicability of the Caasi doctrine. As observed by the majority,
Rep. Act No. 9189 disqualifies an immigrant or a permanent resident who is recognized
as such in another country "because immigration or permanent residence in another
country implies renunciation of one's residence in his country of origin."
3. ID.; ID.; ID.; THE MAJORITY RULING ON THE NATURE OF THE
AFFIDAVIT TO BE EXECUTED BY AN "IMMIGRANT" OR A "PERMANENT
RESIDENT" IS INCONSISTENT. — I submit that the majority ruling on the nature of
the affidavit to be executed by an "immigrant" or a "permanent resident" is inconsistent.
On one hand, it theorizes that the act "serves as an explicit expression that he had not in
fact abandoned his domicile of origin." This concedes that while an "immigrant" or a
"permanent resident" has acquired a new domicile in a foreign country by virtue of his
status as such, Rep. Act No. 9189 would consider him not to have abandoned his
domicile in the Philippines. On the other hand, the majority also theorizes that the
affidavit constitutes an "express waiver of his status as an immigrant or permanent
resident," and upon fulfillment of the requirements of registration, "he may still be
considered as a 'qualified citizen of the Philippines abroad' for purposes of exercising his
right of suffrage." This presupposes that the "immigrant" or "permanent resident"
abandoned his domicile in the Philippines, but seeks to reacquire this domicile by the
execution of the affidavit. The first theory is untenable. Its inevitable result would be the
establishment of two domiciles, i.e., domicile in the Philippines and domicile in a foreign
country where he is considered an "immigrant" or a "permanent resident." This ruling
will contravene the principle in private international law that a person can be domiciled
only in one place at a given time. The second theory is equally untenable. A person who
has abandoned his domicile of origin by establishing a domicile of choice cannot just
revert back to his domicile of origin. He must satisfy the same requisites for acquiring a
new domicile, i.e., an actual removal or an actual change of domicile; a bona fide
intention of abandoning the former place of residence and establishing a new one; and
acts which correspond with the purpose. An existing domicile cannot be lost by
abandonment alone, even if there is an intent to acquire a new one; the existing domicile
continues until a new one is in fact gained. To abandon domicile, a person must choose a
new domicile, actually reside in the place chosen, and intend that it be the principal and
permanent residence. That is, there can be no change of domicile without the concurrence
of act and intent.
4. ID.; ID.; ID.; THE REQUIRED AFFIDAVIT MERELY PROVES THE INTENT
TO RETURN BUT NOT THE OTHER REQUISITES FOR RE-ACQUIRING THE
DOMICILE OF ORIGIN; WHAT MAKES THE INTENT EXPRESSED IN THE
AFFIDAVIT EFFECTIVE AND OPERATIVE IS THE FULFILLMENT OF THE
PROMISE TO RETURN TO THE PHILIPPINES AND UNTIL THEN, THE
ABSENTEE DOES NOT POSSESS THE NECESSARY REQUISITES AND
THEREFORE, CANNOT BE CONSIDERED A QUALIFIED VOTER. — With due
respect, I submit that the affidavit merely proves the intent to return but not the other
requisites for reacquiring the domicile of origin. Intent, which is not coupled with actual
physical transfer, is not sufficient either to abandon the former domicile or to establish a
new domicile. Thus, the view that domicile could be established as soon as the old is
abandoned even though the person has not yet arrived at the new domicile, has not been
accepted. To stress, the burden of establishing a change in domicile is upon the party who
asserts it. A person's declarations as to what he considers his home, residence, or
domicile are generally admissible "as evidence of his attitude of mind." However,
whatever the context, "their accuracy is suspect because of their self-serving nature,
particularly when they are made to achieve some legal objective." In the case at bar, the
burden rests on an "immigrant" or a "permanent resident" to prove that he has abandoned
his domicile in the foreign country and reestablished his domicile in the Philippines. A
self-serving affidavit will not suffice, especially when what is at stake is a very important
privilege as the right of suffrage. I respectfully submit that what makes the intent
expressed in the affidavit effective and operative is the fulfillment of the promise to
return to the Philippines. Physical presence is not a mere test of intent but the "principal
confirming evidence of the intention of the person." Until such promise is fulfilled, he
continues to be a domiciliary of another country. Until then, he does not possess the
necessary requisites and therefore, cannot be considered a qualified voter.
5. ID.; ID.; ID.; COUNTING THE VOTES OF IMMIGRANTS OR PERMANENT
RESIDENTS WHO FAIL TO RETURN TO THE PHILIPPINES WILL DILUTE THE
VALID VOTES OF FULLY QUALIFIED ELECTORS; MAY RESULT IN THE
ANOMALY WHERE THE HIGHEST PUBLIC OFFICIALS OF THE LAND WILL
OWE THEIR ELECTION TO "IMMIGRANTS" OR "PERMANENT RESIDENTS"
WHO FAILED TO FULFILL THEIR PROMISE TO RETURN TO THE COUNTRY
OR WHO REPUDIATED THEIR DOMICILE HERE. — The only consequence
imposed by Rep. Act No. 9189 to an "immigrant" or a "permanent resident" who does not
fulfill his promise to return to the Philippines is the removal of his name from the
National Registry of Absentee Voters and his permanent disqualification to vote in
absentia. But his vote would be counted and accorded the same weight as that cast by
bona fide qualified Filipino voters. I respectfully submit that this scheme diminishes the
value of the right of suffrage as it dilutes the right of qualified voters to the proportionate
value of their votes. The one person, one vote principle is sacrosanct in a republican form
of government. The challenged provision which allows the value of the valid votes of
qualified voters to be diminished by the invalid votes of disqualified voters violates the
sovereignty of our people. The validation by the majority of this unconstitutional
provision may result in the anomaly where the highest public officials of our land will
owe their election to "immigrants" or "permanent residents" who failed to fulfill their
promise to return to our country or who repudiated their domicile here.
6. ID.; ID.; ID.; SECTION 18.5 OF REPUBLIC ACT NO. 9189 EMPOWERING
THE COMMISSION ON ELECTIONS TO PROCLAIM THE WINNING
CANDIDATES SHOULD BE CONSTRUED AS LIMITED TO THE POSITIONS OF
SENATORS AND PARTY LIST REPRESENTATIVES. — On its face, Section 18.5 of
Rep. Act No. 9189 appears to be repugnant to Section 4, Article VII of the 1987
Constitution. It gives the impression that Congress abdicated to COMELEC its
constitutional duty to canvass and proclaim the winning candidates for President and
Vice-President. I agree with the majority that the impugned provision should be given a
reasonable interpretation that would save it from a constitutional infirmity. To be sure,
Congress could have not allowed the COMELEC to exercise a power exclusively
bestowed upon it by the Constitution. Thus, Section 18.5 of Rep. Act No. 9189
empowering the COMELEC to proclaim the winning candidates should be construed as
limited to the positions of Senators and party-list representatives.
7. ID.; ID.; ID.; THE LEGISLATIVE VETO POWER OR CONGRESSIONAL
OVERSIGHT POWER OVER THE AUTHORITY OF THE COMMISSION ON
ELECTIONS TO ISSUE RULES AND REGULATIONS IN ORDER TO ENFORCE
ELECTION LAWS IS UNCONSTITUTIONAL; THE POWER TO PROMULGATE
RULES AND REGULATIONS IN ORDER TO ADMINISTER ELECTION LAWS
HAS BEEN VESTED EXCLUSIVELY BY THE 1987 CONSTITUTION TO THE
COMMISSION AND IT CANNOT BE TRENCHED UPON BY CONGRESS IN THE
EXERCISE OF ITS OVERSIGHT POWERS. — The Constitution divided the powers of
our government into three categories, legislative, executive, and judicial. Although not
"hermetically sealed" from one another, the powers of the three branches are functionally
identifiable. In this respect, legislative power is generally exercised in the enactment of
the law; executive power, in its execution; and judicial power, in its interpretation. In the
absence of specific provision in the Constitution, it is fundamental under the principle of
separation of powers that one branch cannot exercise or share the power of the other. In
addition, our Constitution created other offices aside from the executive, the legislative
and the judiciary and defined their powers and prerogatives. Among these bodies
especially created by the Constitution itself is the COMELEC. The COMELEC occupies
a distinct place in our scheme of government. As the constitutional body charged with the
administration of our election laws, it is endowed with independence in the exercise of
some of its powers and the discharge of its responsibilities. The power to promulgate
rules and regulations in order to administer our election laws belongs to this category of
powers as this has been vested exclusively by the 1987 Constitution to the COMELEC. It
cannot be trenched upon by Congress in the exercise of its oversight powers.
8. ID.; ID.; ID.; SECTION 17.1 OF REPUBLIC ACT NO. 9189 IS
UNCONSTITUTIONAL FOR IT ALLOWS CONGRESS TO NEGATE THE
EXCLUSIVE POWER OF THE COMMISSION ON ELECTIONS TO ADMINISTER
AND ENFORCE ELECTION LAWS AND REGULATIONS GRANTED BY THE
CONSTITUTION ITSELF; SAID POWER IS EXCLUSIVE AND IS NOT MEANT TO
BE SHARED BY ANY OTHER BRANCH OR AGENCY OF THE GOVERNMENT.
— I join the majority in holding that Section 17.1 of Rep. Act No. 9189 is
unconstitutional for it allows Congress to negate the exclusive power of the COMELEC
to administer and enforce election laws and regulations granted by the Constitution itself.
This is not to maintain that the Implementing Rules and Regulations promulgated by the
COMELEC, or the system it devised to implement voting by mail cannot be challenged.
If they are illegal or constitute grave abuse of discretion, the courts can strike them down
in an appropriate case. This power is vested to the courts under Section 1, Article VIII of
the Constitution defining the scope of judicial power, and more specifically under Section
5, Article VIII empowering this Court to review, revise, reverse, modify or affirm on
appeal or certiorari, "all cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question." Again, this power is exclusive and is
not meant to be shared by any other branch or agency of the government.
YNARES-SANTIAGO, J., concurring and dissenting opinion:
1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE
VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189); GRANTS THE RIGHT OF
SUFFRAGE TO A CATEGORY OF VOTERS WHO DO NOT POSSESS THE
CONSTITUTIONAL REQUIREMENT OF RESIDENCE; THE MAJORITY OPINION
OVERLOOKED THE FACT THAT WHILE SECTION 2, ARTICLE V OF THE
CONSTITUTION PROVIDES A SYSTEM FOR ABSENTEE VOTING, ANY
ABSENTEE WHO VOTES MUST FIRST MEET THE QUALIFICATIONS FOUND IN
SECTION 1 OF THE SAME ARTICLE. — I am constrained to dissent from the majority
opinion because R.A. 9189 grants the right of suffrage to a category of voters who do not
possess the constitutional requirement of residence. These are men and women who are
still Filipino citizens but who have voluntarily and unambiguously chosen actual,
physical, and permanent residence in a foreign country. In other words, the questioned
law allows non-residents to vote. As phrased, Section 5 (d) of R.A. 9189 grants to
Filipinos who are immigrants or permanent residents of another country, and who are
considered as such by their host country, the option to exercise their right of suffrage.
Proponents of R.A. 9189 are trying to construe Section 2 of Article V of the Constitution
as a proviso which expands and enlarges the scope of the preceding section. They
overlook the fact that while Section 2 provides a system for absentee voting, any absentee
who votes must first meet the qualifications found in Section 1 of the same article.
2. ID.; ID.; ID.; SINCE THE PROVISION ON ABSENTEE VOTING IN
REPUBLIC ACT NO. 9189 NEITHER LIMITS NOR ENLARGES A PROVISION OF
WHICH IT IS A PART, THE PHRASE "QUALIFIED FILIPINOS ABROAD" CAN BE
INTERPRETED ONLY TO MEAN THAT THOSE WHO ARE QUALIFIED TO VOTE
UNDER SECTION 1, ARTICLE 4 OF THE CONSTITUTION MAY BECOME THE
ABSENTEE VOTERS AND MUST, THEREFORE, POSSESS ON ELECTION DAY
THE CONSTITUTIONAL REQUIREMENTS AS TO CITIZENSHIP, AGE AND
RESIDENCE. — As stated by the petitioner, if the framers of the Constitution intended
to make Section 2 of Article V a proviso or exception to its first section, they should have
added it to the latter. The Constitution does not make the absentee voting provision a
mere proviso of the first section on residence qualifications. Together with the system
which secures the secrecy and sanctity of the ballot, the provision on absentee voting is
an entirely distinct and separate section which allows only those qualified under Section
1 to take advantage of the privilege under Section 2. The office of a proviso is to limit the
application of a section or provision or to qualify or restrain its generality. However, a
proviso may also enlarge what otherwise is a phrase of limited import had there been no
proviso qualifying it. Since the provision on absentee voting in R.A. 9189 neither limits
nor enlarges a provision of which it is a part, the phrase "qualified Filipinos abroad" can
be interpreted only to mean that those who are qualified to vote under the preceding
section may become absentee voters. They must possess on election day the
constitutional requirements as to citizenship, age and residence.
3. ID.; ID.; ID.; MADAM JUSTICE YNARES-SANTIAGO DOES NOT AGREE
WITH THE MAJORITY'S BELIEF THAT THE POSITION OF ARTICLE V,
SECTION 2 OF THE CONSTITUTION IS INDICATIVE OF AN INTENT TO MAKE
IT APPEAR TO BE AN EXCEPTION TO THE RESIDENCE REQUIREMENT
PROVIDED IN SECTION 1 OF THE SAME ARTICLE. — It is submitted that a valid
and very real distinction exists between either of these two groups of Filipinos, on the one
hand, and those Filipinos who are permanent residents or immigrants in their host
countries, on the other. The key difference lies in the change of permanent residence or
lack thereof, for the framers of our Constitution clearly intended that Filipinos who had
taken up permanent residence in their host countries would be excluded from the benefits
of absentee voting. No other interpretation can be supported by the records at hand. It is
clear that the Constitutional Commission did not intend to make absentee voters an
exception to the general rule on residence in the exercise of the right of suffrage. We do
not agree with the majority's belief that the position of Article V, Section 2 of the
Constitution is indicative of an intent to make it appear to be an exception to the
residence requirement provided for in the section immediately preceding it. As earlier
stated, Section 2 is not a proviso of Section 1. It is patent from the excerpts of the
deliberations by members of the constitutional commissions that the Commissioners took
pains to ensure that the reasoning behind Article V, Section 2 of the Constitution would
not be misunderstood. They never intended to accord a special status nor give special
consideration to Filipinos who have become permanent residents of their host countries.
These necessarily include immigrants.
4. ID.; ID.; ID.; "ABSENTEE" REFERS TO THOSE PEOPLE WHOSE INTENT
TO RETURN HOME AND FORSAKE THE FOREIGN COUNTRY IS CLEAR; IT
CANNOT REFER TO IMMIGRANTS AND A MERE PROMISE TO RETURN HOME
WITHIN THREE YEARS FROM VOTING IS NO PROOF OF INTENT TO RETURN
TO A PERMANENT RESIDENCE. — I beg to differ from the conclusion in the
majority opinion which states that an absentee remains attached to his residence in the
Philippines because "residence" is synonymous with "domicile." "Absentee" has to be
qualified. It refers only to those people residing abroad whose intent to return home and
forsake the foreign country is clear. It cannot refer to immigrants. A mere promise to
return home within three years from voting is no proof of intent to return to a permanent
residence. The sanction for its enforcement is so feeble that the promise will be an empty
one. As earlier stated, an immigrant gives up many things, including the right or
opportunity of voting in the Philippines, when he moves with his family abroad. A
sanction of future disenfranchisement would not bother him in the least bit. In the
meantime, the immigrant vote in closely contested cases may have elected the President,
a Senator or a Congressman. Unqualified voters will have swung the elections. In the
same way that a counterfeit coin drives away or results in the hoarding of genuine or
good coins, the votes of non-qualified persons will not only weaken or nullify the value
of the good votes but may make an election itself sham and meaningless.
SANDOVAL-GUTIERREZ, J., concurring and dissenting opinion:
1. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE
VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189); RESIDENCE FOR VOTING IS
NOT WHOLLY A QUESTION OF INTENTION, BUT IS A QUESTION OF FACT
AND INTENTION. — No person has more than one domicile at a time. A Filipino
immigrant, by his permanent residency in the host country, loses the Philippines as his
domicile. He cannot reacquire it by the mere act of executing an affidavit expressing his
intention to return to the Philippines at some future time. Residence for voting is not
wholly a question of intention, but it is a question of fact and intention. Unless his
intention is fortified by the concurrent act of reestablishing the Philippines as his
domicile, he cannot be considered a qualified voter under the Philippine Constitution.
2. ID.; ID.; ID.; THE INTENTION OF THE FRAMERS TO LIMIT THE PHRASE
"QUALIFIED FILIPINOS ABROAD" TO FILIPINOS TEMPORARILY RESIDING
ABROAD IS CLEAR AND UNMISTAKABLE; A LAW, SUCH AS REPUBLIC ACT
NO. 9189 WHICH EXPANDS THE MEANING AS TO INCLUDE THOSE
OTHERWISE NOT COVERED THROUGH THE MERE IMPOSITION OF CERTAIN
REQUIREMENTS, "RISKS A DECLARATION OF UNCONSTITUTIONALITY". —
There is no dispute that the 1987 Constitution denies to Filipino immigrants the right of
suffrage. The Framers had no choice, they had to maintain consistency among the
provisions of the Constitution. Section 1, Article V prescribes residency in the
Philippines as one of the qualifications for the exercise of the right of suffrage. Initially,
this was perceived as an obstacle to the incorporation of the constitutional provision
requiring Congress to provide for a system of absentee voting by "qualified Filipinos
abroad." However, the Framers resorted to the legal connotation of the term "residence."
They emphasized that "residence" is to be understood not in its common acceptance as
referring to "dwelling" or "habitation," but rather to "domicile" or "legal residence," that
is, the "place where a party actually or constructively has his permanent home, where he,
no matter where he may be found at any given time, eventually intends to return and
remain." Thus, as long as the Filipino abroad maintains his domicile in the Philippines, he
is considered a qualified voter under the Constitution. Significantly, at the early stage of
the deliberation, the Framers made it clear that the term "qualified Filipinos abroad"
refers only to those whose presence in the foreign country is only "temporary" and whose
domicile is still the Philippines — thus, definitely excluding immigrants or permanent
residents of a foreign country. Let me quote the Records of the Constitutional
Commission. The intention of the Framers to limit the phrase "qualified Filipinos abroad"
to Filipinos temporarily residing abroad is clear and unmistakable. Therefore, a law, such
as R.A. No. 9189, which expands the meaning as to include those otherwise not covered
(such as Filipino immigrants or permanent residents of foreign countries), through the
mere imposition of certain requirements, "risks a declaration of unconstitutionality."
cdtai
3. ID.; ID.; ID.; TO RULE THAT A SWORN DECLARATION OF INTENTION
IS SUFFICIENT TO ACQUIRE A VOTING RESIDENCE IS TO ESTABLISH A BAD
PRECEDENT CONSIDERING THAT THE VOTERS CAN CHOOSE THE PLACE
WHERE THEY WANT TO VOTE BY SIMPLY SWEARING THAT THEY INTEND
TO PERMANENTLY RESIDE THEREIN. — Mere declaration that he intends to
resume actual physical permanent residence in the Philippines does not have the effect of
conferring upon the immigrant the necessary qualification of "residency" here. To
reiterate, residence for voting is not wholly a question of intention, it is a question of fact
and intention. A voter's statements, declarations, or testimony with respect to his
intention is not controlling, but must be taken in connection with his acts and conduct.
Hence, the right to vote in a certain place or precinct requires the occurrence of two
things, the act of residing coupled with the intention to do so. In order to constitute a
residence for voting purposes, there must be the intention to reside there for voting
purposes, and that intention must be accompanied by acts of living, dwelling, lodging, or
residing reasonably sufficient to establish that it is the real and actual residence of the
voter. To rule that a sworn declaration of intention is sufficient to acquire a voting
residence is to establish a bad precedent considering that voters can choose the place
where they want to vote simply by swearing that they intend to permanently reside
therein.
4. ID.; ID.; ID.; AN IMMIGRANT'S PLAIN DECLARATION OF HIS
INTENTION CANNOT PREVAIL OVER THE ACTUAL FACTS SURROUNDING
HIS RESIDENCE. — The majority rules that the affidavit required in Section 5 (d)
"serves as an explicit expression that the immigrant had not in fact abandoned his
domicile of origin." Again, I cannot subscribe to this view. An immigrant's plain
declaration of his intention cannot prevail over the actual facts surrounding his residency.
Conduct has greater evidential value than a declaration. The fact that a person obtains an
immigrant's visa, and not a visitor's or tourist's visa, plainly shows that his entrance in the
foreign country is for a permanent purpose. Indeed, declarations are always subject to the
infirmity of any self-serving declaration and may be contradicted by inconsistent acts.
When in conflict with the facts, a declared intention to acquire a domicile (or to maintain
the domicile of origin) has little weight. Besides, to admit the immigrant's representation
that he has not abandoned his Philippine domicile despite his immigrant status is to
tolerate what we proscribed in Caasi vs. Court of Appeals, thus: "In other words, he
would have this Court believe that he applied for immigration to the U.S. under false
pretenses; that all this time he only had one foot in the United States but kept his other
foot in the Philippines. Even if that were true, this Court will not allow itself to be a party
to his duplicity by permitting him to benefit from it and giving him the best of both
worlds so to speak." Honoring our countrymen's sworn declarations to resume permanent
residency in the Philippines, notwithstanding their immigrant status and the host
country's continuous recognition of them as such, does not speak well of Filipino values.
In effect, it encourages duplicitous or deceptive conduct among our countrymen. We
should not allow such acts to be done behind the host country's back.
5. ID.; ID.; ID.; ASSAILED PROVISION MAY ONLY BE AN AVENUE FOR
FRAUD. — Another ground why I cannot join the majority is the great probability that
the assailed provision may only be an avenue for election fraud. Reality wise, our country
is yet to achieve a truly clean and honest election. To grant the right of suffrage to the
vast number of immigrants in foreign countries where we cannot enforce our laws with
the same efficacy as within our territory, is to endanger our citizens' constitutional right
to an undefiled suffrage. Paramount in the preservation of the principles of democratic
government is the observance of precautionary requirements designed to insure the
sanctity of the ballot. Consequently, it is imperative that our elections are not tainted with
fraud. This cannot be achieved unless we impose stricter terms on the grant of the right of
suffrage to absentee citizens. Significantly, the only sanction imposed by Section 5(d)
upon an immigrant who fails to perform his promise to resume permanent residency in
the Philippines within the prescribed period is that his name will be stricken from the
National Registry of Absentee Voters and he will be permanently disqualified to vote in
absentia. What a punishment for someone who made a mockery of the election process!
This punitive measure is virtually meaningless. It cannot undo the result of an election
nor can it discipline or daunt immigrant voters.
6. ID.; ID.; ID.; SECTION 5 (d) OF REPUBLIC ACT NO. 9189 IS
UNCONSTITUTIONAL FOR IT DIMINISHES THE "RESIDENCY REQUIREMENT"
OF THE CONSTITUTION BY INCLUDING WITHIN THE PHRASE "QUALIFIED
FILIPINOS ABROAD" IMMIGRANTS AND PERMANENT RESIDENTS OF
FOREIGN COUNTRIES; SAID PROVISION DEFIES THE CLEAR INTENTION OF
THE CONSTITUTION TO LIMIT THE APPLICATION OF THE ABSENTEE
VOTING LAW TO FILIPINOS WHO ARE "TEMPORARILY ABROAD." — Let it be
stressed that where the Constitution fixes the qualifications of voters, these qualifications
cannot be increased, diminished or changed by legislative enactment, unless the power to
do so is expressly granted, or necessarily implied. The inclusion of the residency
requirement in the Constitution is not without reason. It constitutes an invaluable
protection against fraud and further affords some surety that the elector has in fact
become a member of the community and that, as such, he has a common interest in all
matters pertaining to its government, and is therefore more likely to exercise his right
intelligently. The specification in the Constitution is an implied prohibition against
interference. It is not competent for Congress to diminish or alter such qualification.
Section 5(d) of R.A. No. 9189 is unconstitutional for it diminishes the "residency
requirement" of the Constitution by including within the phrase "qualified Filipinos
abroad" immigrants and permanent residents of foreign countries. It defies the clear intent
of the Constitution to limit the application of the absentee voting law to Filipinos who are
"temporarily abroad." Thus, as statutes which purport to modify constitutionally fixed
qualifications are void, so must Section 5(d) of R.A. No. 9189 suffer the same fate.
CALLEJO, SR., J., concurring and dissenting opinion:
1. CONSTITUTIONAL LAW; SUFFRAGE; MR. JUSTICE CALLEJO DOES
NOT SUBSCRIBE TO THE VIEW THAT SECTION 2 OF ARTICLE V OF THE
CONSTITUTION WAS INTENDED BY THE FRAMERS TO BE AN EXCEPTION
TO THE RESIDENCE QUALIFICATION REQUIREMENT PRESCRIBED IN THE
SECTION 1 OF THE SAME ARTICLE. — Section 1, Article V which prescribes the
qualifications of voters as to citizenship, age and residence is clear and unambiguous. On
the other hand, Section 2 of the same article authorizes Congress to provide a system to
facilitate absentee voting by qualified Filipinos abroad. I do not subscribe to the view that
Section 2 was intended by the framers to be an exception to the residence qualification
requirement prescribed in the section immediately preceding it. Basic is the rule in
statutory construction that the Constitution should be construed in such a manner as to
give effect to each and every part of the entire instrument. Courts should lean in favor of
a construction that will harmonize every provision of the Constitution rather than one
which raises conflict between its provisions, or render inutile any portion thereof. Section
2 can and must be construed to contemplate within its terms the enfranchisement only of
Filipinos who possess all the prerequisite qualifications specified under Section 1, but
who are abroad and cannot exercise their right to vote in the Philippines on the day of the
election. Even from a cursory examination of the proceedings of the Constitutional
Commission which drafted the 1987 Constitution, the foregoing intendment is made
crystal clear. IDcTEA
2. ID.; ID.; DISTINCTION BETWEEN "RESIDENCE" AND "DOMICILE." —
For many legal purposes, there is a clear distinction between "residence" and "domicile."
"Residence" means living in a particular locality, and simply requires bodily presence as
an inhabitant in a given place, while, "domicile" means living in that locality with intent
to make it a fixed and permanent home. "Residence" denotes that a person dwells in a
given place but "domicile" is a person's legal home, or a place where the law presumes a
person has the intention of permanently residing although he may be absent from it.
"Domicile" then is a matter of intention while "residence" is a physical fact. Hence, a
person may have two places of "residence" but only one "domicile." "Residence,"
however, for the purpose of voting, is to be understood not in its common acceptation as
referring to "dwelling" or "habitation," but rather to "domicile" or legal residence, that is,
"the place where a party actually or constructively has his permanent home, where he, no
matter where he may be found at any given time, eventually intends to return and remain
(animus manendi)." In determining a person's "residence" for voting purposes, the
following rules are well-established: (a) A person must have a residence or domicile
somewhere; (b) Where once established, it remains until a new one is acquired; and (c) A
person can have but one domicile at a time.
3. ID.; ID.; A FILIPINO "IMMIGRANT" OR "PERMANENT RESIDENT," AS
THE VERY DESIGNATION OF THE STATUS CLEARLY IMPLIES, IS A FILIPINO
WHO HAS ABANDONED HIS PHILIPPINE RESIDENCE OR DOMICILE, WITH
THE INTENTION OF RESIDING PERMANENTLY IN HIS HOST COUNTRY. —
Clearly, for voting purposes, one cannot have a residence or be domiciled in two places at
the same time, for the right to vote in a certain place or precinct requires the concurrence
of two things: the act of residing coupled with the intention to do so. Accordingly, in
order to work a change residence for voting, there must be an actual removal, an actual
change of domicile, corresponding with a bona fide intention of abandoning the former
place of residence and establishing a new one. Hence, an absence for months or even
years, if all the while the party intended it as a mere temporary arrangement, to be
followed by a resumption of his former residence, will not be an abandonment of such
residence or deprive him of his right to vote thereat, the test being the presence or
absence of the animus revertendi. Such is the case overseas Filipino workers who, on
account of the nature or exigencies of their work, fail to be physically present for some
time in the Philippines but are not deemed to have abandoned their Philippine domicile
by virtue of their intent to resume residency in the Philippines upon the termination their
employment contracts. However, the same cannot be said of Filipinos who, while
maintaining their Filipino citizenship, have in the meantime acquired the status of
immigrants or permanent residents of their respective host countries. An immigrant, as
defined in law, is a person who removes into a country for the purpose of permanent
residence. Therefore, a Filipino "immigrant" or "permanent resident," as the very
designation of his status clearly implies, is a Filipino who has abandoned his Philippine
residence or domicile, with the intention of residing permanently in his host country.
Thenceforward, he acquires a new residence in his host country and is deemed to have
abandoned his Philippine domicile. It has been held that where a voter abandons his
residence in a state and acquires one in another state, although he afterward changes his
intention and returns, he cannot again vote in the state of his former residence or domicile
until he has regained his residence by remaining in the jurisdiction for the statutory
period.
4. ID.; ID.; WHILE INTENTION IS AN IMPORTANT FACTOR TO BE
CONSIDERED IN DETERMINING WHETHER OR NOT A RESIDENCE HAS BEEN
ACQUIRED, INTENTION ALONE IS INSUFFICIENT TO ESTABLISH A
RESIDENCE FOR VOTING PURPOSES. — With due respect to the majority, I do not
subscribe to the view that the execution of the affidavit required under Section 5 (d) is
eloquent proof of the fact that the Filipino immigrant has not abandoned his Philippine
domicile, as evinced by his intention to go back and resume residency in the Philippines,
which thus entitles him to exercise the right of suffrage pursuant to the constitutional
intent expressed in Section 2, in relation to Section 1, Article V of our Constitution. The
majority view, I humbly submit, is non-sequitur for it is well-entrenched that while
intention is an important factor to be considered in determining whether or not a
residence has been acquired, intention alone is insufficient to establish a residence for
voting purposes. Hence, a mere intention to remove, not consummated, can neither forfeit
the party's old domicile nor enable him to acquire a new one. And the fact that a person
intends to remove at a future time does not of itself defeat his residence before the
actually does remove.
5. POLITICAL LAW; ELECTION LAWS; THE OVERSEAS ABSENTEE
VOTING ACT OF 2003 (REPUBLIC ACT NO. 9189); SECTION 5 (d) THEREOF IS
VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE CONSTITUTION.
— I believe that the provision is violative of the "equal protection" clause of the
Constitution. While it allows a Filipino permanently residing in a foreign country to vote
on the mere pledge that he will again permanently reside in this country within three
years from his voting in the elections, a Filipino permanently residing in the Philippines
but for less than one year or, in the place where he proposes to vote, for less than six
months is not allowed to vote. The voter classification sought to be effected by Section
5(d) does not rest on substantial distinctions for it unduly favors and extends the privilege
of the elective franchise to Filipino citizens who do not in any way comply with the
residency requirement prescribed by our Constitution, while withholding the same
privilege to those who are and have been permanent residents of the Philippines, albeit
not in the locality or precinct where they intend to vote.
6. ID.; ID.; ID.; SECTION 18.5 THEREOF DOES NOT PASS THE TEST OF
CONSTITUTIONALITY. — It is clear from the Article VII, Section 4, paragraph 4 of
the 1987 Constitution that the power to canvass the votes of the electorate for president
and vice-president is lodged with Congress. This includes, by express mandate of the
Constitution, the duty to proclaim the winning candidates in such election. As pointed out
in the majority opinion the phrase proclamation of winning candidates used in the
assailed statute is a sweeping statement, which thus includes even the winning candidates
for the presidency and vice-presidency. Following a basic principle in statutory
construction, generali dictum genaliter est interpretandum (a general statement is
understood in a general sense), the said phrase cannot be construed otherwise. To uphold
the assailed provision of Rep. Act No. 9189 would in effect be sanctioning the grant of a
power to the COMELEC, which under the Constitution, is expressly vested in Congress;
it would validate a course of conduct that the fundamental law of the land expressly
forbids.
DECISION
AUSTRIA-MARTINEZ, J p:
Before the Court is a petition for certiorari and prohibition filed by Romulo B.
Macalintal, a member of the Philippine Bar, seeking a declaration that certain provisions
of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003) 1 suffer from
constitutional infirmity. Claiming that he has actual and material legal interest in the
subject matter of this case in seeing to it that public funds are properly and lawfully used
and appropriated, petitioner filed the instant petition as a taxpayer and as a lawyer.
HaTISE
The Court upholds the right of petitioner to file the present petition.
R.A. No. 9189, entitled, "An Act Providing for A System of Overseas Absentee Voting
by Qualified Citizens of the Philippines Abroad, Appropriating Funds Therefor, and for
Other Purposes," appropriates funds under Section 29 thereof which provides that a
supplemental budget on the General Appropriations Act of the year of its enactment into
law shall provide for the necessary amount to carry out its provisions. Taxpayers, such as
herein petitioner, have the right to restrain officials from wasting public funds through the
enforcement of an unconstitutional statute. 2 The Court has held that they may assail the
validity of a law appropriating public funds 3 because expenditure of public funds by an
officer of the State for the purpose of executing an unconstitutional act constitutes a
misapplication of such funds. 4
The challenged provision of law involves a public right that affects a great number of
citizens. The Court has adopted the policy of taking jurisdiction over cases whenever the
petitioner has seriously and convincingly presented an issue of transcendental
significance to the Filipino people. This has been explicitly pronounced in Kapatiran ng
mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan, 5 where the Court held:
Objections to taxpayers' suit for lack of sufficient personality standing, or interest are,
however, in the main procedural matters. Considering the importance to the public of the
cases at bar, and in keeping with the Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of government have kept themselves within
the limits of the Constitution and the laws and that they have not abused the discretion
given to them, the Court has brushed aside technicalities of procedure and has taken
cognizance of these petitions. 6
Indeed, in this case, the Court may set aside procedural rules as the constitutional right of
suffrage of a considerable number of Filipinos is involved.
The question of propriety of the instant petition which may appear to be visited by the
vice of prematurity as there are no ongoing proceedings in any tribunal, board or before a
government official exercising judicial, quasi-judicial or ministerial functions as required
by Rule 65 of the Rules of Court, dims in light of the importance of the constitutional
issues raised by the petitioner. In Tañada vs. Angara, 7 the Court held:
In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the
Constitution, the petition no doubt raises a justiciable controversy. Where an action of the
legislative branch is seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute. "The question thus
posed is judicial rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld." Once a "controversy as to the application or
interpretation of constitutional provision is raised before this Court (as in the instant
case), it becomes a legal issue which the Court is bound by constitutional mandate to
decide."
In another case of paramount impact to the Filipino people, it has been expressed that it is
illogical to await the adverse consequences of the law in order to consider the controversy
actual and ripe for judicial resolution. 8 In yet another case, the Court said that:
. . . despite the inhibitions pressing upon the Court when confronted with constitutional
issues, it will not hesitate to declare a law or act invalid when it is convinced that this
must be done. In arriving at this conclusion, its only criterion will be the Constitution and
God as its conscience gives it in the light to probe its meaning and discover its purpose.
Personal motives and political considerations are irrelevancies that cannot influence its
decisions. Blandishment is as ineffectual as intimidation, for all the awesome power of
the Congress and Executive, the Court will not hesitate "to make the hammer fall
heavily," where the acts of these departments, or of any official, betray the people's will
as expressed in the Constitution . . . 9
The need to consider the constitutional issues raised before the Court is further buttressed
by the fact that it is now more than fifteen years since the ratification of the 1987
Constitution requiring Congress to provide a system for absentee voting by qualified
Filipinos abroad. Thus, strong reasons of public policy demand that the Court resolves
the instant petition 10 and determine whether Congress has acted within the limits of the
Constitution or if it had gravely abused the discretion entrusted to it. 11
The petitioner raises three principal questions:
A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who
are immigrants or permanent residents in other countries by their mere act of executing
an affidavit expressing their intention to return to the Philippines, violate the residency
requirement in Section 1 of Article V of the Constitution?
B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the
winning candidates for national offices and party list representatives including the
President and the Vice-President violate the constitutional mandate under Section 4,
Article VII of the Constitution that the winning candidates for President and the Vice-
President shall be proclaimed as winners by Congress?
C. May Congress, through the Joint Congressional Oversight Committee created in
Section 25 of Rep. Act No. 9189, exercise the power to review, revise, amend, and
approve the Implementing Rules and Regulations that the Commission on Elections shall
promulgate without violating the independence of the COMELEC under Section 1,
Article IX-A of the Constitution?
The Court will resolve the questions in seriatim.
A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987
Constitution of the Republic of the Philippines?
Section 5(d) provides:
Sec. 5. Disqualifications. — The following shall be disqualified from voting under this
Act:
xxx xxx xxx
d) An immigrant or a permanent resident who is recognized as such in the host
country, unless he/she executes, upon registration, an affidavit prepared for the purpose
by the Commission declaring that he/she shall resume actual physical permanent
residence in the Philippines not later than three (3) years from approval of his/her
registration under this Act. Such affidavit shall also state that he/she has not applied for
citizenship in another country. Failure to return shall be cause for the removal of the
name of the immigrant or permanent resident from the National Registry of Absentee
Voters and his/her permanent disqualification to vote in absentia.
Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article
V of the 1987 Constitution which requires that the voter must be a resident in the
Philippines for at least one year and in the place where he proposes to vote for at least six
months immediately preceding an election. Petitioner cites the ruling of the Court in
Caasi vs. Court of Appeals 12 to support his claim. In that case, the Court held that a
"green card" holder immigrant to the United States is deemed to have abandoned his
domicile and residence in the Philippines.
Petitioner further argues that Section 1, Article V of the Constitution does not allow
provisional registration or a promise by a voter to perform a condition to be qualified to
vote in a political exercise; 13 that the legislature should not be allowed to circumvent the
requirement of the Constitution on the right of suffrage by providing a condition thereon
which in effect amends or alters the aforesaid residence requirement to qualify a Filipino
abroad to vote. 14 He claims that the right of suffrage should not be granted to anyone
who, on the date of the election, does not possess the qualifications provided for by
Section 1, Article V of the Constitution.
Respondent COMELEC refrained from commenting on this issue. 15
In compliance with the Resolution of the Court, the Solicitor General filed his comment
for all public respondents. He contraposes that the constitutional challenge to Section
5(d) must fail because of the absence of clear and unmistakable showing that said
provision of law is repugnant to the Constitution. He stresses: All laws are presumed to
be constitutional; by the doctrine of separation of powers, a department of government
owes a becoming respect for the acts of the other two departments; all laws are presumed
to have adhered to constitutional limitations; the legislature intended to enact a valid,
sensible, and just law.
In addition, the Solicitor General points out that Section 1, Article V of the Constitution
is a verbatim reproduction of those provided for in the 1935 and the 1973 Constitutions.
Thus, he cites Co vs. Electoral Tribunal of the House of Representatives 16 wherein the
Court held that the term "residence" has been understood to be synonymous with
"domicile" under both Constitutions. He further argues that a person can have only one
"domicile" but he can have two residences, one permanent (the domicile) and the other
temporary; 17 and that the definition and meaning given to the term residence likewise
applies to absentee voters. Invoking Romualdez-Marcos vs. COMELEC 18 which
reiterates the Court's ruling in Faypon vs. Quirino, 19 the Solicitor General maintains that
Filipinos who are immigrants or permanent residents abroad may have in fact never
abandoned their Philippine domicile. 20
Taking issue with the petitioner's contention that "green card" holders are considered to
have abandoned their Philippine domicile, the Solicitor General suggests that the Court
may have to discard its ruling in Caasi vs. Court of Appeals 21 in so far as it relates to
immigrants and permanent residents in foreign countries who have executed and
submitted their affidavits conformably with Section 5(d) of R.A. No. 9189. He maintains
that through the execution of the requisite affidavits, the Congress of the Philippines with
the concurrence of the President of the Republic had in fact given these immigrants and
permanent residents the opportunity, pursuant to Section 2, Article V of the Constitution,
to manifest that they had in fact never abandoned their Philippine domicile; that
indubitably, they would have formally and categorically expressed the requisite
intentions, i.e., "animus manendi" and "animus revertendi"; that Filipino immigrants and
permanent residents abroad possess the unquestionable right to exercise the right of
suffrage under Section 1, Article V of the Constitution upon approval of their
registration, conformably with R.A. No. 9189. 22
The seed of the present controversy is the interpretation that is given to the phrase,
"qualified citizens of the Philippines abroad" as it appears in R.A. No. 9189, to wit:
SEC. 2. Declaration of Policy. — It is the prime duty of the State to provide a system of
honest and orderly overseas absentee voting that upholds the secrecy and sanctity of the
ballot. Towards this end, the State ensures equal opportunity to all qualified citizens of
the Philippines abroad in the exercise of this fundamental right.
SEC. 3. Definition of Terms. — For purposes of this Act:
a) "Absentee Voting" refers to the process by which qualified citizens of the
Philippines abroad, exercise their right to vote;
. . . (Italics supplied)
f) "Overseas Absentee Voter" refers to a citizen of the Philippines who is qualified
to register and vote under this Act, not otherwise disqualified by law, who is abroad on
the day of elections. (Italics supplied)
SEC. 4. Coverage. — All citizens of the Philippines abroad, who are not otherwise
disqualified by law, at least eighteen (18) years of age on the day of elections, may vote
for president, vice-president, senators and party-list representatives. (Italics supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for at
least six months immediately preceding the election. No literacy, property, or other
substantive requirement shall be imposed on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the
ballot as well as a system for absentee voting by qualified Filipinos abroad.
. . . (Italics supplied)
Section 1, Article V of the Constitution specifically provides that suffrage may be
exercised by (1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3)
at least eighteen years of age, (4) who are residents in the Philippines for at least one year
and in the place where they propose to vote for at least six months immediately preceding
the election. Under Section 5(d) of R.A. No. 9189, one of those disqualified from voting
is an immigrant or permanent resident who is recognized as such in the host country
unless he/she executes an affidavit declaring that he/she shall resume actual physical
permanent residence in the Philippines not later than three years from approval of his/her
registration under said Act.
Petitioner questions the rightness of the mere act of execution of an affidavit to qualify
the Filipinos abroad who are immigrants or permanent residents, to vote. He focuses
solely on Section 1, Article V of the Constitution in ascribing constitutional infirmity to
Section 5(d) of R.A. No. 9189, totally ignoring the provisions of Section 2 empowering
Congress to provide a system for absentee voting by qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the
impression that it contravenes Section 1, Article V of the Constitution. Filipino
immigrants and permanent residents overseas are perceived as having left and abandoned
the Philippines to live permanently in their host countries and therefore, a provision in the
law enfranchising those who do not possess the residency requirement of the Constitution
by the mere act of executing an affidavit expressing their intent to return to the
Philippines within a given period, risks a declaration of unconstitutionality. However, the
risk is more apparent than real.
The Constitution is the fundamental and paramount law of the nation to which all other
laws must conform and in accordance with which all private rights must be determined
and all public authority administered. 23 Laws that do not conform to the Constitution
shall be stricken down for being unconstitutional. HcTEaA
Generally, however, all laws are presumed to be constitutional. In Peralta vs.
COMELEC, the Court said:
. . . An act of the legislature, approved by the executive, is presumed to be within
constitutional limitations. The responsibility of upholding the Constitution rests not on
the courts alone but on the legislature as well. The question of the validity of every
statute is first determined by the legislative department of the government itself. 24
Thus, presumption of constitutionality of a law must be overcome convincingly:
. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must
be clear and unequivocal, for even if a law is aimed at the attainment of some public
good, no infringement of constitutional rights is allowed. To strike down a law there must
be a clear showing that what the fundamental law condemns or prohibits, the statute
allows it to be done. 25
As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it
behooves the Court to take a holistic view of the pertinent provisions of both the
Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that the
Constitution should be construed as a whole. In Chiongbian vs. De Leon, 26 the Court
held that a constitutional provision should function to the full extent of its substance and
its terms, not by itself alone, but in conjunction with all other provisions of that great
document. Constitutional provisions are mandatory in character unless, either by express
statement or by necessary implication, a different intention is manifest. 27 The intent of
the Constitution may be drawn primarily from the language of the document itself.
Should it be ambiguous, the Court may consider the intent of its framers through their
debates in the constitutional convention. 28
R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section
2, Article V of the Constitution that Congress shall provide a system for voting by
qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the
parameters of the exercise of legislative authority in enacting said law. Hence, in the
absence of restrictions, Congress is presumed to have duly exercised its function as
defined in Article VI (The Legislative Department) of the Constitution.
To put matters in their right perspective, it is necessary to dwell first on the significance
of absentee voting. The concept of absentee voting is relatively new. It is viewed thus:
The method of absentee voting has been said to be completely separable and distinct from
the regular system of voting, and to be a new and different manner of voting from that
previously known, and an exception to the customary and usual manner of voting. The
right of absentee and disabled voters to cast their ballots at an election is purely statutory;
absentee voting was unknown to, and not recognized at, the common law.
Absentee voting is an outgrowth of modern social and economic conditions devised to
accommodate those engaged in military or civil life whose duties make it impracticable
for them to attend their polling places on the day of election, and the privilege of absentee
voting may flow from constitutional provisions or be conferred by statutes, existing in
some jurisdictions, which provide in varying terms for the casting and reception of ballots
by soldiers and sailors or other qualified voters absent on election day from the district or
precinct of their residence.
Such statutes are regarded as conferring a privilege and not a right, or an absolute right.
When the legislature chooses to grant the right by statute, it must operate with equality
among all the class to which it is granted; but statutes of this nature may be limited in
their application to particular types of elections. The statutes should be construed in the
light of any constitutional provisions affecting registration and elections, and with due
regard to their texts prior to amendment and to predecessor statutes and the decisions
thereunder; they should also be construed in the light of the circumstances under which
they were enacted; and so as to carry out the objects thereof, if this can be done without
doing violence to their provisions and mandates. Further, in passing on statutes regulating
absentee voting, the court should look to the whole and every part of the election laws,
the intent of the entire plan, and reasons and spirit of their adoption, and try to give effect
to every portion thereof. 29 (Italics supplied)
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same
time, both a resident and an absentee. 30 However, under our election laws and the
countless pronouncements of the Court pertaining to elections, an absentee remains
attached to his residence in the Philippines as residence is considered synonymous with
domicile.
In Romualdez-Marcos, 31 the Court enunciated:
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the
fulfillment of civil obligations, the domicile of natural persons is their place of habitual
residence." In Ong vs. Republic, this court took the concept of domicile to mean an
individual's "permanent home," "a place to which, whenever absent for business or for
pleasure, one intends to return, and depends on facts and circumstances in the sense that
they disclose intent." Based on the foregoing, domicile includes the twin elements of "the
fact of residing or physical presence in a fixed place" and animus manendi, or the
intention of returning there permanently.
Residence, in its ordinary conception, implies the factual relationship of an individual to
a certain place. It is the physical presence of a person in a given area, community or
country. The essential distinction between residence and domicile in law is that residence
involves the intent to leave when the purpose for which the resident has taken up his
abode ends. One may seek a place for purposes such as pleasure, business, or health. If a
person's intent be to remain, it becomes his domicile; if his intent is to leave as soon as
his purpose is established it is residence. It is thus, quite perfectly normal for an
individual to have different residences in various places. However, a person can only
have a single domicile, unless, for various reasons, he successfully abandons his domicile
in favor of another domicile of choice. In Uytengsu vs. Republic, we laid this distinction
quite clearly:
"There is a difference between domicile and residence. 'Residence' is used to indicate a
place of abode, whether permanent or temporary; 'domicile' denotes a fixed permanent
residence to which, when absent, one has the intention of returning. A man may have a
residence in one place and a domicile in another. Residence is not domicile, but domicile
is residence coupled with the intention to remain for an unlimited time. A man can have
but one domicile for the same purpose at any time, but he may have numerous places of
residence. His place of residence is generally his place of domicile, but it is not by any
means necessarily so since no length of residence without intention of remaining will
constitute domicile."
For political purposes the concepts of residence and domicile are dictated by the peculiar
criteria of political laws. As these concepts have evolved in our election law, what has
clearly and unequivocally emerged is the fact that residence for election purposes is used
synonymously with domicile. 32 (Emphasis and italics supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this
country, the framers of the Constitution considered the circumstances that impelled them
to require Congress to establish a system for overseas absentee voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which
here has a residential restriction, is not denied to citizens temporarily residing or working
abroad. Based on the statistics of several government agencies, there ought to be about
two million such Filipinos at this time. Commissioner Bernas had earlier pointed out that
these provisions are really lifted from the two previous Constitutions of 1935 and 1973,
with the exception of the last paragraph. They could not therefore have foreseen at that
time the phenomenon now described as the Filipino labor force explosion overseas.
According to government data, there are now about 600,000 contract workers and
employees, and although the major portions of these expatriate communities of workers
are to be found in the Middle East, they are scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional Commissions and Agencies, the
Chairman of the Commission on Elections, Ramon Felipe, said that there was no
insuperable obstacle to making effective the right of suffrage for Filipinos overseas.
Those who have adhered to their Filipino citizenship notwithstanding strong temptations
are exposed to embrace a more convenient foreign citizenship. And those who on their
own or under pressure of economic necessity here, find that they have to detach
themselves from their families to work in other countries with definite tenures of
employment. Many of them are on contract employment for one, two, or three years.
They have no intention of changing their residence on a permanent basis, but are
technically disqualified from exercising the right of suffrage in their countries of
destination by the residential requirement in Section 1 which says:
Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by
law, who are eighteen years of age or over, and who shall have resided in the Philippines
for at least one year and in the place wherein they propose to vote for at least six months
preceding the election.
I, therefore, ask the Committee whether at the proper time they might entertain an
amendment that will make this exercise of the right to vote abroad for Filipino citizens an
effective, rather than merely a nominal right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more than just saying
that, I would like to make a comment on the meaning of "residence" in the Constitution
because I think it is a concept that has been discussed in various decisions of the Supreme
Court, particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely
with the meaning of "residence" in the Election Law. Allow me to quote:
A citizen may leave the place of his birth to look for greener pastures, as the saying goes,
to improve his lot and that, of course, includes study in other places, practice of his
avocation, reengaging in business. When an election is to be held, the citizen who left his
birthplace to improve his lot may decide to return to his native town, to cast his ballot,
but for professional or business reasons, or for any other reason, he may not absent
himself from the place of his professional or business activities.
So, they are here registered as voters as he has the qualifications to be one, and is not
willing to give up or lose the opportunity to choose the officials who are to run the
government especially in national elections. Despite such registration, the animus
revertendi to his home, to his domicile or residence of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place other than his
residence of origin has not been deemed sufficient to consider abandonment or loss of
such residence of origin.
In other words, "residence" in this provision refers to two residence qualifications:
"residence" in the Philippines and "residence" in the place where he will vote. As far as
residence in the Philippines is concerned, the word "residence" means domicile, but as far
as residence in the place where he will actually cast his ballot is concerned, the meaning
seems to be different. He could have a domicile somewhere else and yet he is a resident
of a place for six months and he is allowed to vote there. So that there may be serious
constitutional obstacles to absentee voting, unless the vote of the person who is absent is
a vote which will be considered as cast in the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who should enjoy the
right of suffrage, at least a substantial segment of these overseas Filipino communities.
The Committee, of course, is aware that when this Article of the Constitution explicitly
and unequivocally extends the right of effective suffrage to Filipinos abroad, this will call
for a logistical exercise of global proportions. In effect, this will require budgetary and
administrative commitments on the part of the Philippine government, mainly through the
COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive
elaboration of this mechanism that will be put in place to make effective the right to vote.
Therefore, seeking shelter in some wise jurisprudence of the past may not be sufficient to
meet the demands of the right of suffrage for Filipinos abroad that I have mentioned. But
I want to thank the Committee for saying that an amendment to this effect may be
entertained at the proper time. . . . 33 (Emphasis and Italics Supplied)
Thus, the Constitutional Commission recognized the fact that while millions of Filipinos
reside abroad principally for economic reasons and hence they contribute in no small
measure to the economic uplift of this country, their voices are marginal insofar as the
choice of this country's leaders is concerned.
The Constitutional Commission realized that under the laws then existing and
considering the novelty of the system of absentee voting in this jurisdiction, vesting
overseas Filipinos with the right to vote would spawn constitutional problems especially
because the Constitution itself provides for the residency requirement of voters:
MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the
term "absentee voting" also includes transient voting; meaning, those who are, let us say,
studying in Manila need not go back to their places of registration, for instance, in
Mindanao, to cast their votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.
MR. REGALADO. How about those people who cannot go back to the places where they
are registered?
MR. MONSOD. Under the present Election Code, there are provisions for allowing
students and military people who are temporarily in another place to register and vote. I
believe that those situations can be covered by the Omnibus Election Code. The reason
we want absentee voting to be in the Constitution as a mandate to the legislature is that
there could be inconsistency on the residence rule if it is just a question of legislation by
Congress. So, by allowing it and saying that this is possible, then legislation can take care
of the rest. 34 (Emphasis and Italics supplied)
Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to
the inapplicability of the residency requirement in Section 1. It is precisely to avoid any
problems that could impede the implementation of its pursuit to enfranchise the largest
number of qualified Filipinos who are not in the Philippines that the Constitutional
Commission explicitly mandated Congress to provide a system for overseas absentee
voting.
The discussion of the Constitutional Commission on the effect of the residency
requirement prescribed by Section 1, Article V of the Constitution on the proposed
system of absentee voting for qualified Filipinos abroad is enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are certain
qualifications for the exercise of the right of suffrage like having resided in the
Philippines for at least one year and in the place where they propose to vote for at least
six months preceding the elections. What is the effect of these mandatory requirements
on the matter of the exercise of the right of suffrage by the absentee voters like Filipinos
abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that
the domicile requirements as well as the qualifications and disqualifications would be the
same.
THE PRESIDENT. Are we leaving it to the legislature to devise the system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS. But I think it should be further clarified with regard to the residence
requirement or the place where they vote in practice; the understanding is that it is
flexible. For instance, one might be a resident of Naga or domiciled therein, but he
satisfies the requirement of residence in Manila, so he is able to vote in Manila.
MR. TINGSON. Madam President, may I then suggest to the Committee to change the
word "Filipinos" to QUALIFIED FILIPINO VOTERS. Instead of "VOTING BY
FILIPINOS ABROAD," it should be QUALIFIED FILIPINO VOTERS. If the
Committee wants QUALIFIED VOTERS LIVING ABROAD, would that not satisfy the
requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase "QUALIFIED
FILIPINOS ABROAD" because "QUALIFIED" would assume that he has the
qualifications and none of the disqualifications to vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.
MR. REGALADO. When Commissioner Bengzon asked me to read my proposed
amendment, I specifically stated that the National Assembly shall prescribe a system
which will enable qualified citizens, temporarily absent from the Philippines, to vote.
According to Commissioner Monsod, the use of the phrase "absentee voting" already
took that into account as its meaning. That is referring to qualified Filipino citizens
temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with respect to
registration we will leave it up to the legislative assembly, for example, to require where
the registration is. If it is, say, members of the diplomatic corps who may be continuously
abroad for a long time, perhaps, there can be a system of registration in the embassies.
However, we do not like to preempt the legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsod's amendment is only to
provide a system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants new
qualifications for these absentee voters.
MR. MONSOD. That is right. They must have the qualifications and none of the
disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President. 35 (Italics supplied)
Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress
the responsibility of devising a system of absentee voting. The qualifications of voters as
stated in Section 1 shall remain except for the residency requirement. This is in fact the
reason why the Constitutional Commission opted for the term qualified Filipinos abroad
with respect to the system of absentee voting that Congress should draw up. As stressed
by Commissioner Monsod, by the use of the adjective qualified with respect to Filipinos
abroad, the assumption is that they have the "qualifications and none of the
disqualifications to vote." In fine-tuning the provision on absentee voting, the
Constitutional Commission discussed how the system should work:
MR. SUAREZ. For clarification purposes, we just want to state for the record that in the
case of qualified Filipino citizens residing abroad and exercising their right of suffrage,
they can cast their votes for the candidates in the place where they were registered to vote
in the Philippines. So as to avoid any complications, for example, if they are registered in
Angeles City, they could not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then he can vote only
for the local and national candidates in Angeles City. I just want to make that clear for the
record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez
that this envisions Filipinos residing abroad. The understanding in the amendment is that
the Filipino is temporarily abroad. He may not be actually residing abroad; he may just be
there on a business trip. It just so happens that the day before the elections he has to fly to
the United States, so he could not cast his vote. He is temporarily abroad, but not residing
there. He stays in a hotel for two days and comes back. This is not limited only to
Filipinos temporarily residing abroad. But as long as he is temporarily abroad on the date
of the elections, then he can fall within the prescription of Congress in that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need
this clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by "temporarily abroad," it
need not be on very short trips. One can be abroad on a treaty traders visa. Therefore,
when we talk about registration, it is possible that his residence is in Angeles and he
would be able to vote for the candidates in Angeles, but Congress or the Assembly may
provide the procedure for registration, like listing one's name, in a registry list in the
embassy abroad. That is still possible under the system.
FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees
with this.
Suppose we have a situation of a child of a diplomatic officer who reaches the voting age
while living abroad and he has never registered here. Where will he register? Will he be a
registered voter of a certain locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child to comply with
the registration requirements in an embassy in the United States and his name is then
entered in the official registration book in Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a
registered voter of a locality here.
MR. MONSOD. That is right. He does not have to come home to the Philippines to
comply with the registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more
clarifications needed from the body.
Also, the Floor Leader is happy to announce that there are no more registered
Commissioners to propose amendments. So I move that we close the period of
amendments. 36 (Emphasis and Italics supplied)
It is clear from these discussions of the members of the Constitutional Commission that
they intended to enfranchise as much as possible all Filipino citizens abroad who have
not abandoned their domicile of origin. The Commission even intended to extend to
young Filipinos who reach voting age abroad whose parents' domicile of origin is in the
Philippines, and consider them qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for Section 2
immediately after the residency requirement of Section 1. By the doctrine of necessary
implication in statutory construction, which may be applied in construing constitutional
provisions, 37 the strategic location of Section 2 indicates that the Constitutional
Commission provided for an exception to the actual residency requirement of Section 1
with respect to qualified Filipinos abroad. The same Commission has in effect declared
that qualified Filipinos who are not in the Philippines may be allowed to vote even
though they do not satisfy the residency requirement in Section 1, Article V of the
Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency
requirement found in Section 1 of the same Article was in fact the subject of debate when
Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate
floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the
constitutional provisions. I think the sponsor and I would agree that the Constitution is
supreme in any statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, "Suffrage." It says:
Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for at
least six months immediately preceding the election.
Now, Mr. President, the Constitution says, "who shall have resided in the Philippines."
They are permanent immigrants. They have changed residence so they are barred under
the Constitution. This is why I asked whether this committee amendment which in fact
does not alter the original text of the bill will have any effect on this?
Senator Angara. Good question, Mr. President. And this has been asked in various fora.
This is in compliance with the Constitution. One, the interpretation here of "residence" is
synonymous with "domicile."
As the gentleman and I know, Mr. President, "domicile" is the intent to return to one's
home. And the fact that a Filipino may have been physically absent from the Philippines
and may be physically a resident of the United States, for example, but has a clear intent
to return to the Philippines, will make him qualified as a resident of the Philippines under
this law.
This is consistent, Mr. President, with the constitutional mandate that we – that Congress
– must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as demanding physical
presence, then there is no way we can provide for offshore voting to our offshore
kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it
reads: "The Congress shall provide a system for securing the secrecy and sanctity of the
ballot as well as a system for absentee voting by qualified Filipinos abroad."
The key to this whole exercise, Mr. President, is "qualified." In other words, anything
that we may do or say in granting our compatriots abroad must be anchored on the
proposition that they are qualified. Absent the qualification, they cannot vote. And
"residents" (sic) is a qualification.
I will lose votes here from permanent residents so-called "green-card holders," but the
Constitution is the Constitution. We cannot compromise on this. The Senate cannot be a
party to something that would affect or impair the Constitution.
Look at what the Constitution says — "In the place wherein they propose to vote for at
least six months immediately preceding the election."
Mr. President, all of us here have run (sic) for office.
I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated
only by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in
Pateros for six months. That is how restrictive our Constitution is. I am not talking even
about the Election Code. I am talking about the Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But
he must do so, make the transfer six months before the election, otherwise, he is not
qualified to vote.
That is why I am raising this point because I think we have a fundamental difference
here.
Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-
debated even in the constitutional commission of 1986. And the reason Section 2 of
Article V was placed immediately after the six-month/one-year residency requirement is
to demonstrate unmistakably that Section 2 which authorizes absentee voting is an
exception to the six-month/one-year residency requirement. That is the first principle, Mr.
President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence — and I think this is so
well-entrenched that one need not argue about it — "residency" has been interpreted as
synonymous with "domicile."
But the third more practical reason, Mr. President, is, if we follow the interpretation of
the gentleman, then it is legally and constitutionally impossible to give a franchise to vote
to overseas Filipinos who do not physically live in the country, which is quite ridiculous
because that is exactly the whole point of this exercise — to enfranchise them and
empower them to vote. 38 (Emphasis and italics supplied)
Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting
process, to wit:
SEC. 4. Coverage. — All citizens of the Philippines abroad, who are not otherwise
disqualified by law, at least eighteen (18) years of age on the day of elections, may vote
for president, vice-president, senators and party-list representatives.
which does not require physical residency in the Philippines; and Section 5 of the assailed
law which enumerates those who are disqualified, to wit:
SEC. 5. Disqualifications. — The following shall be disqualified from voting under this
Act:
a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
b) Those who have expressly renounced their Philippine citizenship and who have
pledged allegiance to a foreign country;
c) Those who have committed and are convicted in a final judgment by a court or
tribunal of an offense punishable by imprisonment of not less than one (1) year, including
those who have committed and been found guilty of Disloyalty as defined under Article
137 of the Revised Penal Code, such disability not having been removed by plenary
pardon or amnesty: Provided, however, That any person disqualified to vote under this
subsection shall automatically acquire the right to vote upon expiration of five (5) years
after service of sentence; Provided, further, That the Commission may take cognizance of
final judgments issued by foreign courts or tribunals only on the basis of reciprocity and
subject to the formalities and processes prescribed by the Rules of Court on execution of
judgments;
d) An immigrant or a permanent resident who is recognized as such in the host
country, unless he/she executes, upon registration, an affidavit prepared for the purpose
by the Commission declaring that he/she shall resume actual physical permanent
residence in the Philippines not later than three (3) years from approval of his/her
registration under this Act. Such affidavit shall also state that he/she has not applied for
citizenship in another country. Failure to return shall be cause for the removal of the
name of the immigrant or permanent resident from the National Registry of Absentee
Voters and his/her permanent disqualification to vote in absentia.
e) Any citizen of the Philippines abroad previously declared insane or incompetent
by competent authority in the Philippines or abroad, as verified by the Philippine
embassies, consulates or foreign service establishments concerned, unless such
competent authority subsequently certifies that such person is no longer insane or
incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an
immigrant or permanent resident who is "recognized as such in the host country" because
immigration or permanent residence in another country implies renunciation of one's
residence in his country of origin. However, same Section allows an immigrant and
permanent resident abroad to register as voter for as long as he/she executes an affidavit
to show that he/she has not abandoned his domicile in pursuance of the constitutional
intent expressed in Sections 1 and 2 of Article V that "all citizens of the Philippines not
otherwise disqualified by law" must be entitled to exercise the right of suffrage and, that
Congress must establish a system for absentee voting; for otherwise, if actual, physical
residence in the Philippines is required, there is no sense for the framers of the
Constitution to mandate Congress to establish a system for absentee voting. AISHcD
Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling
or enfranchising act. The affidavit required in Section 5(d) is not only proof of the
intention of the immigrant or permanent resident to go back and resume residency in the
Philippines, but more significantly, it serves as an explicit expression that he had not in
fact abandoned his domicile of origin. Thus, it is not correct to say that the execution of
the affidavit under Section 5(d) violates the Constitution that proscribes "provisional
registration or a promise by a voter to perform a condition to be qualified to vote in a
political exercise."
To repeat, the affidavit is required of immigrants and permanent residents abroad because
by their status in their host countries, they are presumed to have relinquished their intent
to return to this country; thus, without the affidavit, the presumption of abandonment of
Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses another reason why
the Senate required the execution of said affidavit. It wanted the affiant to exercise the
option to return or to express his intention to return to his domicile of origin and not to
preempt that choice by legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: "For Filipino immigrants and those who have acquired permanent resident
status abroad," a requirement for the registration is the submission of "a Sworn
Declaration of Intent to Return duly sworn before any Philippine embassy or consulate
official authorized to administer oath. . . "
Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn
Declaration to include only those who have the intention of returning to be qualified to
exercise the right of suffrage? What if the Filipino immigrant has no purpose of
returning? Is he automatically disbarred from exercising this right to suffrage?
Senator Angara. The rationale for this, Mr. President, is that we want to be expansive and
all-inclusive in this law. That as long as he is a Filipino, no matter whether he is a green-
card holder in the U.S. or not, he will be authorized to vote. But if he is already a green-
card holder, that means he has acquired permanent residency in the United States, then he
must indicate an intention to return. This is what makes for the definition of "domicile."
And to acquire the vote, we thought that we would require the immigrants and the green-
card holders . . . Mr. President, the three administration senators are leaving, maybe we
may ask for a vote [Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the business at hand. The rationale for the
requirement that an immigrant or a green-card holder should file an affidavit that he will
go back to the Philippines is that, if he is already an immigrant or a green-card holder,
that means he may not return to the country any more and that contradicts the definition
of "domicile" under the law.
But what we are trying to do here, Mr. President, is really provide the choice to the voter.
The voter, after consulting his lawyer or after deliberation within the family, may decide
“No, I think we are risking our permanent status in the United States if we file an
affidavit that we want to go back." But we want to give him the opportunity to make that
decision. We do not want to make that decision for him. 39 (Emphasis and italics
supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are
disqualified to run for any elective office finds no application to the present case because
the Caasi case did not, for obvious reasons, consider the absentee voting rights of
Filipinos who are immigrants and permanent residents in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still
be considered as a "qualified citizen of the Philippines abroad" upon fulfillment of the
requirements of registration under the new law for the purpose of exercising their right of
suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit or a promise to
"resume actual physical permanent residence in the Philippines not later than three years
from approval of his/her registration," the Filipinos abroad must also declare that they
have not applied for citizenship in another country. Thus, they must return to the
Philippines; otherwise, their failure to return "shall be cause for the removal" of their
names "from the National Registry of Absentee Voters and his/her permanent
disqualification to vote in absentia."
Thus, Congress crafted a process of registration by which a Filipino voter permanently
residing abroad who is at least eighteen years old, not otherwise disqualified by law, who
has not relinquished Philippine citizenship and who has not actually abandoned his/her
intentions to return to his/her domicile of origin, the Philippines, is allowed to register
and vote in the Philippine embassy, consulate or other foreign service establishments of
the place which has jurisdiction over the country where he/she has indicated his/her
address for purposes of the elections, while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia. —
11.1. Every qualified citizen of the Philippines abroad whose application for registration
has been approved, including those previously registered under Republic Act No. 8189,
shall, in every national election, file with the officer of the embassy, consulate or other
foreign service establishment authorized by the Commission, a sworn written application
to vote in a form prescribed by the Commission. The authorized officer of such embassy,
consulate or other foreign service establishment shall transmit to the Commission the said
application to vote within five (5) days from receipt thereof. The application form shall
be accomplished in triplicate and submitted together with the photocopy of his/her
overseas absentee voter certificate of registration.
11.2. Every application to vote in absentia may be done personally at, or by mail to, the
embassy, consulate or foreign service establishment, which has jurisdiction over the
country where he/she has indicated his/her address for purposes of the elections.
11.3. Consular and diplomatic services rendered in connection with the overseas absentee
voting processes shall be made available at no cost to the overseas absentee voter.
Contrary to petitioner's claim that Section 5(d) circumvents the Constitution, Congress
enacted the law prescribing a system of overseas absentee voting in compliance with the
constitutional mandate. Such mandate expressly requires that Congress provide a system
of absentee voting that necessarily presupposes that the "qualified citizen of the
Philippines abroad" is not physically present in the country. The provisions of Sections
5(d) and 11 are components of the system of overseas absentee voting established by
R.A. No. 9189. The qualified Filipino abroad who executed the affidavit is deemed to
have retained his domicile in the Philippines. He is presumed not to have lost his
domicile by his physical absence from this country. His having become an immigrant or
permanent resident of his host country does not necessarily imply an abandonment of his
intention to return to his domicile of origin, the Philippines. Therefore, under the law, he
must be given the opportunity to express that he has not actually abandoned his domicile
in the Philippines by executing the affidavit required by Sections 5(d) and 8(c) of the law.
Petitioner's speculative apprehension that the implementation of Section 5(d) would
affect the credibility of the elections is insignificant as what is important is to ensure that
all those who possess the qualifications to vote on the date of the election are given the
opportunity and permitted to freely do so. The COMELEC and the Department of
Foreign Affairs have enough resources and talents to ensure the integrity and credibility
of any election conducted pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his undertaking to return to
the Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d)
would suffice to serve as deterrence to non-compliance with his/her undertaking under
the affidavit.
Petitioner argues that should a sizable number of "immigrants" renege on their promise to
return, the result of the elections would be affected and could even be a ground to contest
the proclamation of the winning candidates and cause further confusion and doubt on the
integrity of the results of the election. Indeed, the probability that after an immigrant has
exercised the right to vote, he shall opt to remain in his host country beyond the third year
from the execution of the affidavit, is not farfetched. However, it is not for this Court to
determine the wisdom of a legislative exercise. As expressed in Tañada vs. Tuvera, 40
the Court is not called upon to rule on the wisdom of the law or to repeal it or modify it if
we find it impractical.
Congress itself was conscious of said probability and in fact, it has addressed the
expected problem. Section 5(d) itself provides for a deterrence which is that the Filipino
who fails to return as promised stands to lose his right of suffrage. Under Section 9,
should a registered overseas absentee voter fail to vote for two consecutive national
elections, his name may be ordered removed from the National Registry of Overseas
Absentee Voters.
Other serious legal questions that may be raised would be: what happens to the votes cast
by the qualified voters abroad who were not able to return within three years as
promised? What is the effect on the votes cast by the non-returnees in favor of the
winning candidates? The votes cast by qualified Filipinos abroad who failed to return
within three years shall not be invalidated because they were qualified to vote on the date
of the elections, but their failure to return shall be cause for the removal of the names of
the immigrants or permanent residents from the National Registry of Absentee Voters
and their permanent disqualification to vote in absentia.
In fine, considering the underlying intent of the Constitution, the Court does not find
Section 5(d) of R.A. No. 9189 as constitutionally defective.
B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in
contravention of Section 4, Article VII of the Constitution?
Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for
president, vice-president, senators and party-list representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing. —
xxx xxx xxx
18.5 The canvass of votes shall not cause the delay of the proclamation of a winning
candidate if the outcome of the election will not be affected by the results thereof.
Notwithstanding the foregoing, the Commission is empowered to order the proclamation
of winning candidates despite the fact that the scheduled election has not taken place in a
particular country or countries, if the holding of elections therein has been rendered
impossible by events, factors and circumstances peculiar to such country or countries, in
which events, factors and circumstances are beyond the control or influence of the
Commission. (Italics supplied)
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the
COMELEC to order the proclamation of winning candidates insofar as it affects the
canvass of votes and proclamation of winning candidates for president and vice-
president, is unconstitutional because it violates the following provisions of paragraph 4,
Section 4 of Article VII of the Constitution:
SEC. 4. . . .
The returns of every election for President and Vice-President, duly certified by the board
of canvassers of each province or city, shall be transmitted to the Congress, directed to
the President of the Senate. Upon receipt of the certificates of canvass, the President of
the Senate shall, not later than thirty days after the day of the election, open all the
certificates in the presence of the Senate and the House of Representatives in joint public
session, and the Congress, upon determination of the authenticity and due execution
thereof in the manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed elected, but in case
two or more shall have an equal and highest number of votes, one of them shall forthwith
be chosen by the vote of a majority of all the Members of both Houses of the Congress,
voting separately.
The Congress shall promulgate its rules for the canvassing of the certificates.
xxx xxx xxx
which gives to Congress the duty to canvass the votes and proclaim the winning
candidates for president and vice-president.
The Solicitor General asserts that this provision must be harmonized with paragraph 4,
Section 4, Article VII of the Constitution and should be taken to mean that COMELEC
can only proclaim the winning Senators and party-list representatives but not the
President and Vice-President. 41
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189
is far too sweeping that it necessarily includes the proclamation of the winning candidates
for the presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the
Constitution only insofar as said Section totally disregarded the authority given to
Congress by the Constitution to proclaim the winning candidates for the positions of
president and vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special
Board of Canvassers shall transmit via facsimile, electronic mail, or any other means of
transmission equally safe and reliable the Certificates of Canvass and the Statements of
Votes to the Commission, . . . [Italics supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that
the returns of every election for President and Vice-President shall be certified by the
board of canvassers to Congress. EcDATH
Congress could not have allowed the COMELEC to usurp a power that constitutionally
belongs to it or, as aptly stated by petitioner, to encroach "on the power of Congress to
canvass the votes for president and vice-president and the power to proclaim the winners
for the said positions." The provisions of the Constitution as the fundamental law of the
land should be read as part of The Overseas Absentee Voting Act of 2003 and hence, the
canvassing of the votes and the proclamation of the winning candidates for president and
vice-president for the entire nation must remain in the hands of Congress.
C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A
of the Constitution?
Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common
Provisions) of the Constitution, to wit:
Section 1. The Constitutional Commissions, which shall be independent, are the Civil
Service Commission, the Commission on Elections, and the Commission on Audit.
(Italics supplied)
He submits that the creation of the Joint Congressional Oversight Committee with the
power to review, revise, amend and approve the Implementing Rules and Regulations
promulgated by the COMELEC, R.A. No. 9189 intrudes into the independence of the
COMELEC which, as a constitutional body, is not under the control of either the
executive or legislative departments of government; that only the COMELEC itself can
promulgate rules and regulations which may be changed or revised only by the majority
of its members; and that should the rules promulgated by the COMELEC violate any law,
it is the Court that has the power to review the same via the petition of any interested
party, including the legislators.
It is only on this question that respondent COMELEC submitted its Comment. It agrees
with the petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like
the petitioner, respondent COMELEC anchors its claim of unconstitutionality of said
Sections upon Section 1, Article IX-A of the Constitution providing for the independence
of the constitutional commissions such as the COMELEC. It asserts that its power to
formulate rules and regulations has been upheld in Gallardo vs. Tabamo, Jr. 42 where this
Court held that the power of the COMELEC to formulate rules and regulations is implicit
in its power to implement regulations under Section 2(1) of Article IX-C 43 of the
Constitution. COMELEC joins the petitioner in asserting that as an independent
constitutional body, it may not be subject to interference by any government
instrumentality and that only this Court may review COMELEC rules and only in cases
of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis-à-vis its rule-making power,
to wit:
SEC. 17. Voting by Mail. —
17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not
more than three (3) countries, subject to the approval of the Congressional Oversight
Committee. Voting by mail may be allowed in countries that satisfy the following
conditions:
a) Where the mailing system is fairly well-developed and secure to prevent occasion
for fraud;
b) Where there exists a technically established identification system that would
preclude multiple or proxy voting; and
c) Where the system of reception and custody of mailed ballots in the embassies,
consulates and other foreign service establishments concerned are adequate and well-
secured.
Thereafter, voting by mail in any country shall be allowed only upon review and approval
of the Joint Congressional Oversight Committee.
xxx xxx xxx (Italics supplied)
is likewise unconstitutional as it violates Section 1, Article IX-A mandating the
independence of constitutional commissions.
The Solicitor General takes exception to his prefatory statement that the constitutional
challenge must fail and agrees with the petitioner that Sections 19 and 25 are invalid and
unconstitutional on the ground that there is nothing in Article VI of the Constitution on
Legislative Department that would as much as imply that Congress has concurrent power
to enforce and administer election laws with the COMELEC; and by the principles of
exclusio unius est exclusio alterius and expressum facit cessare tacitum, the
constitutionally enumerated powers of Congress circumscribe its authority to the
exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1
are unconstitutional. Thus, there is no actual issue forged on this question raised by
petitioner.
However, the Court finds it expedient to expound on the role of Congress through the
Joint Congressional Oversight Committee (JCOC) vis-à-vis the independence of the
COMELEC, as a constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. — A Joint Congressional Oversight
Committee is hereby created, composed of the Chairman of the Senate Committee on
Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators
designated by the Senate President, and the Chairman of the House Committee on
Suffrage and Electoral Reforms, and seven (7) other Members of the House of
Representatives designated by the Speaker of the House of Representatives: Provided,
That, of the seven (7) members to be designated by each House of Congress, four (4)
should come from the majority and the remaining three (3) from the minority.
The Joint Congressional Oversight Committee shall have the power to monitor and
evaluate the implementation of this Act. It shall review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the Commission. (Italics supplied)
SEC. 19. Authority of the Commission to Promulgate Rules. — The Commission shall
issue the necessary rules and regulations to effectively implement the provisions of this
Act within sixty (60) days from the effectivity of this Act. The Implementing Rules and
Regulations shall be submitted to the Joint Congressional Oversight Committee created
by virtue of this Act for prior approval.
xxx xxx xxx (Italics supplied)
Composed of Senators and Members of the House of Representatives, the Joint
Congressional Oversight Committee (JCOC) is a purely legislative body. There is no
question that the authority of Congress to "monitor and evaluate the implementation" of
R.A. No. 9189 is geared towards possible amendments or revision of the law itself and
thus, may be performed in aid of its legislation.
However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the
JCOC the following functions: (a) to "review, revise, amend and approve the
Implementing Rules and Regulations" (IRR) promulgated by the COMELEC [Sections
25 and 19]; and (b) subject to the approval of the JCOC [Section 17.1], the voting by mail
in not more than three countries for the May 2004 elections and in any country
determined by COMELEC.
The ambit of legislative power under Article VI of the Constitution is circumscribed by
other constitutional provisions. One such provision is Section 1 of Article IX-A of the
1987 Constitution ordaining that constitutional commissions such as the COMELEC shall
be "independent."
Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an
independent COMELEC, the Court has held that "[w]hatever may be the nature of the
functions of the Commission on Elections, the fact is that the framers of the Constitution
wanted it to be independent from the other departments of the Government." 44 In an
earlier case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to play a distinct and
important part in our scheme of government. In the discharge of its functions, it should
not be hampered with restrictions that would be fully warranted in the case of a less
responsible organization. The Commission may err, so may this court also. It should be
allowed considerable latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was created — free, orderly and
honest elections. We may not agree fully with its choice of means, but unless these are
clearly illegal or constitute gross abuse of discretion, this court should not interfere.
Politics is a practical matter, and political questions must be dealt with realistically – not
from the standpoint of pure theory. The Commission on Elections, because of its fact-
finding facilities, its contacts with political strategists, and its knowledge derived from
actual experience in dealing with political controversies, is in a peculiarly advantageous
position to decide complex political questions. 45 (Italics supplied)
The Court has no general powers of supervision over COMELEC which is an
independent body "except those specifically granted by the Constitution," that is, to
review its decisions, orders and rulings. 46 In the same vein, it is not correct to hold that
because of its recognized extensive legislative power to enact election laws, Congress
may intrude into the independence of the COMELEC by exercising supervisory powers
over its rule-making authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to
"issue the necessary rules and regulations to effectively implement the provisions of this
Act within sixty days from the effectivity of this Act." This provision of law follows the
usual procedure in drafting rules and regulations to implement a law – the legislature
grants an administrative agency the authority to craft the rules and regulations
implementing the law it has enacted, in recognition of the administrative expertise of that
agency in its particular field of operation. 47 Once a law is enacted and approved, the
legislative function is deemed accomplished and complete. The legislative function may
spring back to Congress relative to the same law only if that body deems it proper to
review, amend and revise the law, but certainly not to approve, review, revise and amend
the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the IRR for The
Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its
constitutional authority. Congress trampled upon the constitutional mandate of
independence of the COMELEC. Under such a situation, the Court is left with no option
but to withdraw from its usual reticence in declaring a provision of law unconstitutional.
The second sentence of the first paragraph of Section 19 stating that "[t]he Implementing
Rules and Regulations shall be submitted to the Joint Congressional Oversight
Committee created by virtue of this Act for prior approval," and the second sentence of
the second paragraph of Section 25 stating that "[i]t shall review, revise, amend and
approve the Implementing Rules and Regulations promulgated by the Commission,"
whereby Congress, in both provisions, arrogates unto itself a function not specifically
vested by the Constitution, should be stricken out of the subject statute for constitutional
infirmity. Both provisions brazenly violate the mandate on the independence of the
COMELEC.
Similarly, the phrase, "subject to the approval of the Congressional Oversight
Committee" in the first sentence of Section 17.1 which empowers the Commission to
authorize voting by mail in not more than three countries for the May, 2004 elections;
and the phrase, "only upon review and approval of the Joint Congressional Oversight
Committee" found in the second paragraph of the same section are unconstitutional as
they require review and approval of voting by mail in any country after the 2004
elections. Congress may not confer upon itself the authority to approve or disapprove the
countries wherein voting by mail shall be allowed, as determined by the COMELEC
pursuant to the conditions provided for in Section 17.1 of R.A. No. 9189. 48 Otherwise,
Congress would overstep the bounds of its constitutional mandate and intrude into the
independence of the COMELEC.
During the deliberations, all the members of the Court agreed to adopt the separate
opinion of Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of
Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the
powers given to the Joint Congressional Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No.
9189 are declared VOID for being UNCONSTITUTIONAL:
a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit:
"subject to the approval of the Joint Congressional Oversight Committee;"
b) The portion of the last paragraph of Section 17.1, to wit: "only upon review and
approval of the Joint Congressional Oversight Committee;"
c) The second sentence of the first paragraph of Section 19, to wit: "The
Implementing Rules and Regulations shall be submitted to the Joint Congressional
Oversight Committee created by virtue of this Act for prior approval;" and
d) The second sentence in the second paragraph of Section 25, to wit: "It shall
review, revise, amend and approve the Implementing Rules and Regulations promulgated
by the Commission" of the same law;
for being repugnant to Section 1, Article IX-A of the Constitution mandating the
independence of constitutional commission, such as COMELEC.
The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to
the authority given to the COMELEC to proclaim the winning candidates for the Senators
and party-list representatives but not as to the power to canvass the votes and proclaim
the winning candidates for President and Vice-President which is lodged with Congress
under Section 4, Article VII of the Constitution.
The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues
to be in full force and effect. IcESaA
SO ORDERED.

[G.R. No. 114783. December 8, 1994.]

ROBERT V. TOBIAS, RAMON M. GUZMAN, TERRY T. LIM, GREGORIO D.
GABRIEL, and ROBERTO R. TOBIAS, JR. petitioners, vs. HON. CITY MAYOR
BENJAMIN S. ABALOS, CITY TREASURER WILLIAM MARCELINO, and THE
SANGGUNIANG PANLUNGSOD, all of the City of Mandaluyong, Metro Manila,
respondents.
DECISION
BIDIN, J p:
Invoking their rights as taxpayers and as residents of Mandaluyong, herein petitioners
assail the constitutionality of Republic Act No. 7675, otherwise known as "An Act
Converting the Municipality of Mandaluyong into a Highly Urbanized City to be known
as the City of Mandaluyong."
Prior to the enactment of the assailed statute, the municipalities of Mandaluyong and San
Juan belonged to only one legislative district. Hon. Ronaldo Zamora, the incumbent
congressional representative of this legislative district, sponsored the bill which
eventually became R.A. No. 7675. President Ramos signed R.A. No. 7675 into law on
February 9, 1994.
Pursuant to the Local Government Code of 1991, a plebiscite was held on April 10, 1994.
The people of Mandaluyong were asked whether they approved of the conversion of the
Municipality of Mandaluyong into a highly urbanized city as provided under R.A. No.
7675. The turnout at the plebiscite was only 14.41% of the voting population.
Nevertheless, 18,621 voted "yes" whereas 7,911 voted "no." By virtue of these results,
R.A. No. 7675 was deemed ratified and in effect.
Petitioners now come before this Court, contending that R.A. No. 7675, specifically
Article VIII, Section 49 thereof, is unconstitutional for being violative of three specific
provisions of the Constitution.
Article VIII, Section 49 of R.A. No. 7675 provides:
"As a highly-urbanized city, the City of Mandaluyong shall have its own legislative
district with the first representative to be elected in the next national elections after the
passage of this Act. The remainder of the former legislative district of San
Juan/Mandaluyong shall become the new legislative district of San Juan with its first
representative to be elected at the same election."
Petitioner's first objection to the aforequoted provision of R.A. No. 7675 is that it
contravenes the "one subject-one bill" rule, as enunciated in Article VI, Section 26 (1) of
the Constitution, to wit:
"Sec. 26 (1). Every bill passed by the Congress shall embrace only one subject which
shall be expressed in the title thereof."
Petitioners allege that the inclusion of the assailed Section 49 in the subject law resulted
in the latter embracing two principal subjects, namely: (1) the conversion of
Mandaluyong into a highly urbanized city; and (2) the division of the congressional
district of San Juan/Mandaluyong into two separate districts.
Petitioners contend that the second aforestated subject is not germane to the subject
matter of R.A. No. 7675 since the said law treats of the conversion of Mandaluyong into
a highly urbanized city, as expressed in the title of the law. Therefore, since Section 49
treats of a subject distinct from that stated in the title of the law, the "one subject-one bill"
rule has not been complied with.
Petitioners' second and third objections involve Article VI, Sections 5 (1) and (4) of the
Constitution, which provide, to wit:
"Sec. 5 (1). The House of Representatives shall be composed of not more than two
hundred and fifty members, unless otherwise fixed by law, who shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan Manila
area in accordance with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall be elected
through a party list system of registered national, regional and sectoral parties or
organizations."
"Sec. 5(4). Within three years following the return of every census, the Congress shall
make a reapportionment of legislative districts based on the standard provided in this
section."
Petitioners argue that the division of San Juan and Mandaluyong into separate
congressional districts under Section 49 of the assailed law has resulted in an increase in
the composition of the House of Representatives beyond that provided in Article VI, Sec.
5 (1) of the Constitution. Furthermore, petitioners contend that said division was not
made pursuant to any census showing that the subject municipalities have attained the
minimum population requirements. And finally, petitioners assert that Section 49 has the
effect of preempting the right of Congress to reapportion legislative districts pursuant to
Sec. 5 (4) as aforecited.
The contentions are devoid of merit.
Anent the first issue, we agree with the observation of the Solicitor General that the
statutory conversion of Mandaluyong into a highly urbanized city with a population of
not less than two hundred fifty thousand indubitably ordains compliance with the "one
city-one representative" proviso in the Constitution:
". . . Each city with a population of at least two hundred fifty thousand, or each province,
shall have at least one representative" (Article VI, Section 5 (3), Constitution).
Hence, it is in compliance with the aforestated constitutional mandate that the creation of
a separate congressional district for the City of Mandaluyong is decreed under Article
VIII, Section 49 of R.A. No. 7675.
Contrary to petitioners' assertion, the creation of a separate congressional district for
Mandaluyong is not a subject separate and distinct from the subject of its conversion into
a highly urbanized city but is a natural and logical consequence of its conversion into a
highly urbanized city. Verily, the title of R.A. No. 7675. "An Act Converting the
Municipality of Mandaluyong Into a Highly Urbanized City of Mandaluyong"
necessarily includes and contemplates the subject treated under Section 49 regarding the
creation of a separate congressional district for Mandaluyong.
Moreover, a liberal construction of the "one title-one subject" rule has been invariably
adopted by this court so as not to cripple or impede legislation. Thus, in Sumulong v.
Comelec (73 Phil. 288 [1941]), we ruled that the constitutional requirement as now
expressed in Article VI, Section 26(1) "should be given a practical rather than a technical
construction. It should be sufficient compliance with such requirement if the title
expresses the general subject and all the provisions are germane to that general subject."
The liberal construction of the "one title-one subject" rule had been further elucidated in
Lidasan v. Comelec (21 SCRA 496 [1967]), to wit:
"Of course, the Constitution does not require Congress to employ in the title of an
enactment, language of such precision as to mirror, fully index or catalogue all the
contents and the minute details therein. It suffices if the title should serve the purpose of
the constitutional demand that it inform the legislators, the persons interested in the
subject of the bill and the public, of the nature, scope and consequences of the proposed
law and its operation" (emphasis supplied).
Proceeding now to the other constitutional issues raised by petitioners to the effect that
there is no mention in the assailed law of any census to show that Mandaluyong and San
Juan had each attained the minimum requirement of 250,000 inhabitants to justify their
separation into two legislative districts, the same does not suffice to strike down the
validity of R.A. No. 7675. The said Act enjoys the presumption of having passed through
the regular congressional processes, including due consideration by the members of
Congress of the minimum requirements for the establishment of separate legislative
districts. At any rate, it is not required that all laws emanating from the legislature must
contain all relevant data considered by Congress in the enactment of said laws.
As to the contention that the assailed law violates the present limit on the number of
representatives as set forth in the Constitution, a reading of the applicable provision,
Article VI, Section 5 (1), as aforequoted, shows that the present limit of 250 members is
not absolute. The Constitution clearly provides that the House of Representatives shall be
composed of not more than 250 members, "unless otherwise provided by law." The
inescapable import of the latter clause is that the present composition of Congress may be
increased, if Congress itself so mandates through a legislative enactment. Therefore, the
increase in congressional representation mandated by R.A. No. 7675 is not
unconstitutional.
Thus, in the absence of proof that Mandaluyong and San Juan do not qualify to have
separate legislative districts, the assailed Section 49 of R.A. No. 7675 must be allowed to
stand.
As to the contention that Section 49 of R.A. No. 7675 in effect preempts the right of
Congress to reapportion legislative districts, the said argument borders on the absurd
since petitioners overlook the glaring fact that it was Congress itself which drafted,
deliberated upon and enacted the assailed law, including Section 49 thereof. Congress
cannot possibly preempt itself on a right which pertains to itself.
Aside from the constitutional objections to R.A. No. 7675, petitioners present further
arguments against the validity thereof.
Petitioners contend that the people of San Juan should have been made to participate in
the plebiscite on R.A. No. 7675 as the same involved a change in their legislative district.
The contention is bereft of merit since the principal subject involved in the plebiscite was
the conversion of Mandaluyong into a highly urbanized city. The matter of separate
district representation was only ancillary thereto. Thus, the inhabitants of San Juan were
properly excluded from the said plebiscite as they had nothing to do with the change of
status of neighboring Mandaluyong.
Similarly, petitioners' additional argument that the subject law has resulted in
"gerrymandering," which is the practice of creating legislative districts to favor a
particular candidate or party, is not worthy of credence. As correctly observed by the
Solicitor General, it should be noted that Rep. Ronaldo Zamora, the author of the assailed
law, is the incumbent representative of the former San Juan/Mandaluyong district, having
consistently won in both localities. By dividing San Juan/Mandaluyong, Rep. Zamora's
constituency has in fact been diminished, which development could hardly be considered
as favorable to him.
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.

[G.R. No. 106971. March 1, 1993.]

TEOFISTO T. GUINGONA, JR., and LAKAS-NATIONAL UNION OF CHRISTIAN
DEMOCRATS (LAKAS-NUCD), petitioners, vs. NEPTALI A. GONZALES,
ALBERTO ROMULO and WIGBERTO E. TAÑADA, respondents. NATIONALIST
PEOPLE'S COALITION, petitioner-in-intervention.
Ricardo G. Nepomuceno for petitioners.
Gonzales, Batiller, Bilog & Associates for respondents.
SYLLABUS
1. POLITICAL LAW; THE OLDER TAÑADA'S MEMBERSHIP IN THE
COMMISSION ON APPOINTMENTS CANNOT BE CONSIDERED BY
RESPONDENT SENATOR TAÑADA AS A PRECEDENT SUFFICIENT TO
OVERRULE THE CLEAR MANDATE OF ARTICLE VI, SECTION 18 OF THE
CONSTITUTION. — It is a matter of record that in the political ventures of the late
Senator Lorenzo Tañada, he had his Citizens Party coalesce with the Nacionalista Party
and got himself elected as Senator under the banner of the latter party. His election to the
Commission was principally due to the alliance of his Citizens Party with the
Nacionalista Party and not because he was elected thereto on the strength of his being the
lone representative of the Citizens' Party. . . . During this period, his membership in the
Commission was acquiesced to by the other members of the Senate, including the
Nacionalista Party which had a fractional vote. His membership in the Commission was
never contested nor disputed by any party nor member of the Senate so that the question
of whether his sitting as member of the Commission was constitutionally valid or not
never reached the Court. . . . The election of the late Senator Lorenzo Tañada to the
Commission on Appointments does not reflect any practice or tradition in the Senate
which can be considered as a precedent in the interpretation of the constitutional
provision on proportional representation in the Commission on Appointments. No
practice or tradition, established by mere tolerance, can, without judicial acquiescence,
ripen into a doctrine of practical construction of the fundamental law. In the absence of
judicial confirmation of the constitutionality of the challenged legislative practice the
repeated erroneous legislative interpretation of a constitutional provision, does not vest
power on the legislature.
2. ID.; THE MERE PRESENCE OF ONE SENATOR BELONGING TO A
POLITICAL PARTY DOES NOT IPSO FACTO ENTITLE SUCH A PARTY TO
MEMBERSHIP IN THE COMMISSION ON APPOINTMENTS. — This Court has
ruled that, under Article VI, Section 18 of the Constitution providing for a multi-party
system, entitlement to proportional representation in the Commission on Appointments
requires a minimum membership in each house. The statement of this Court in Daza vs.
Singson (180 SCRA 496 [1989]) to the effect that "under the Constitutional provision on
membership of the Commission on Appointments, the members thereof are NOT limited
to the majority and minority parties therein but extends to all the political parties
represented in each house of Congress," does not and should not be construed to mean
that all political parties, irrespective of numerical representation in the Senate, are entitled
by Constitutional fiat to at least one representation in the Commission. The Supreme
Court in the subsequent case of Coseteng vs. Mitra, Jr. (187 SCRA 377 [1990]) made this
clear where it ruled that proportional representation in the Commission on Appointments
requires a minimum membership of a party in each house.
3. ID.; IN CASE OF CONFLICT BETWEEN THE INTERPRETATION THAT
THE ELECTION OF A SPECIFIED NUMBER OF SENATORS TO THE
COMMISSION ON APPOINTMENTS IS MANDATORY, AND THE
INTERPRETATION THAT THEY SHOULD BE ELECTED ON THE BASIS OF
PROPORTIONAL REPRESENTATION OF POLITICAL PARTIES, THE LATTER
PREVAILS. — The respondents' contention that the use of the word "shall" in Section 18
indicating the composition of the Commission on Appointments makes the election of the
Senators mandatory, omitting that part of Section 18 which provides that (they shall be)
elected by each house on the basis of proportional representation. This interpretation
finds support in the case of Tañada vs. Cuenco (103 Phil. 1051 [1957]), where this Court
held that the constitutional provision makes mandatory the election of the specified
number of Senators to the Commission on Appointments but also ruled that they should
be elected on the basis of proportional representation of the political parties. In case of
conflict in interpretation, the latter mandate requiring proportional representation must
prevail. Such interpretation is the only correct and rational interpretation which the court
can adopt in consonance with its solemn duty to uphold the Constitution and give effect
the meaning intended by its framers to every clause and word thereof. The Constitution
does not require the election and presence of twelve Senators and twelve Representatives
in order that the Commission may function. . . . Even if the composition of the
Commission is fixed by the Constitution, it can perform its functions even if not fully
constituted, so long as it has the required quorum, which is less than the full complement
fixed by the Constitution. And the Commission can validly perform its functions and
transact its business even if only ten (10) Senators are elected thereto.
4. ID.; TO BREAK THE IMPASSE IN THE MEMBERSHIP OF THE SENATE IN
THE COMMISSION ON APPOINTMENTS, THOSE ENTITLED TO FRACTIONAL
MEMBERSHIPS MAY JOIN THEIR HALF-MEMBERSHIPS TO FORM A FULL
MEMBERSHIP AND TOGETHER NOMINATE ONE FROM THEIR COALITION TO
THE COMMISSION ON APPOINTMENTS. — The NPC and the LAKAS-NUCD may
join their half-memberships and jointly nominate one of their own Senators to the
Commission. In the same way the LDP and the LP-PDP-LABAN may nominate Senator
Wigberto Tañada to fill up the other slot to complete the membership to twelve. But the
latter, as a coalition, may not insist in electing both Senator Tañada and Senator Romulo
to fill up two slots because this is certainly a violation of the rule on proportional
representation.
5. ID.; THE QUESTION OF WHO INTERPRETS WHAT IS MEANT BY
PROPORTIONAL REPRESENTATION UNDER ARTICLE VI, SECTION 18 OF THE
CONSTITUTION BELONGS TO THE SUPREME COURT. — Who decides the
question of proportionality? The power to choose who among them will sit as members
of the Commission on Appointments belongs to the Senate. The number of senators is
fixed by the Constitution to twelve, but the number of senators to be chosen must comply
with the rule on proportional representation. The question of who interprets what is meant
by proportional representation has been a settled rule - that it belongs to this Court. The
acceptance by the Senate of Senator Tolentino's formula to settle temporarily the impasse
concerning the membership in the Commission on Appointments by leaving the final
decision to the Supreme Court is a Senate recognition that the determination of
proportional representation under Article VI, Section 18 of the Constitution is a function
of this Court. Once a controversy as to the application or interpretation of a constitutional
provision is raised before this Court, it becomes a legal issue which the Court is bound by
Constitutional mandate to decide.
DECISION
CAMPOS, JR., J p:
In motions separately filed by respondent Senator Wigberto E. Tañada on October 27,
1992 and respondents Senate President Neptali A. Gonzales and Senator Alberto Romulo
on October 30, 1992, said respondents moved for a reconsideration of our decision dated
October 20, 1992, on the following grounds:
Senator Tañada alleges that:
1) The decision was premised on an erroneous appreciation of relevant factual
precedents;
2) The decision ignored the reality of the multi-party system recognized both by the
letter and spirit of the 1935 and 1987 Constitutions;
3) It is mandatory to fill up twelve (12) seats in the Commission on Appointments;
4) The Senate did not act with grave abuse of discretion when it elected respondent
Tañada to the Commission on Appointments.
In their Motion for Reconsideration/Clarification, Senators Gonzales and Romulo allege:
1) That the decision is inconsistent with the Supreme Court's ruling in the two cases
of Coseteng vs. Mitra, Jr. 1 and Daza vs. Singson 2
2) It is mandatory to have twelve (12) members of the Commission on Appointments
to enable it to function as a constitutional body.
3) The Tolentino Compromise formula was adopted by the Senate and accepted by
all political parties and must govern the selection of respondent Senators to the
Commission on Appointments.
4) The election of the respondents Senators is in compliance with the multi-party
system which contemplates a realignment of political parties to remove fractional
membership of any party in the Commission.
On December 16, 1992, the petitioner-in-intervention Nationalist People's Coalition
(NPC) filed its separate Comments to the Motions of respondents Senators while the
petitioners filed on January 7, 1993 their separate Comments on the Motions of the
respondents.
Considering the grounds set forth in the Motions of the respondents and in the light of the
reasons/arguments submitted in refutation thereof, We deny both Motions for
Reconsideration on the following grounds:
(1) The decision is based on a simple interpretation and application of Article VI,
Section 18 of the 1987 Constitution and We quote pertinent portions thereof.
"It is an established fact to which all the parties agree that the mathematical
representation of each of the political parties represented in the Senate is as follows:
LDP 7.5
LP-PDP-LABAN .5
NPC 2.5
LAKAS-NUCD 1.5
It is also a fact accepted by all such parties that each of them is entitled to a fractional
membership on the basis of the rule on proportional representation of each of the political
parties. A literal interpretation of Section 18 of Article VI of the Constitution leads to no
other manner of application than as above. The problem is what to do with the fraction
of .5 or 1/2 to which each of the parties is entitled. The LDP majority in the Senate
converted a fractional half membership into a whole membership of one senator by
adding one half or .5 to 7.5 to be able to elect Senator Romulo. In so doing one other
party's fractional membership was correspondingly reduced leaving the latter's
representation in the Commission on Appointments to less than their proportional
representation in the Senate. This is clearly a violation of Section 18 because it is no
longer in compliance with its mandate that membership in the Commission be based on
the proportional representation of the political parties. The election of Senator Romulo
gave more representation to the LDP and reduced the representation of one political party
— either the LAKAS-NUCD or the NPC.
xxx xxx xxx
We find the respondents' claim to membership in the Commission on Appointments by
nomination and election of the LDP majority in the Senate as not in accordance with
Section 18 of Article VI of the 1987 Constitution and therefore violative of the same
because it is not in compliance with the requirement that twelve senators shall be elected
on the basis of proportional representation of the political parties represented therein. To
disturb the resulting fractional membership of the political parties in the Commission on
Appointments by adding together two halves to make a whole is a breach of the rule on
proportional representation because it will give the LDP an added member in the
Commission by utilizing the fractional membership of the minority political party, who is
deprived of half a representation.
The provision of Section 18 on proportional representation is mandatory in character and
does not leave any discretion to the majority party in the Senate to disobey or disregard
the rule on proportional representation; otherwise, the party with a majority
representation in the Senate or the house of Representatives can by sheer force of
numbers impose its will on the hapless minority. By requiring a proportional
representation in the Commission on Appointments, Section 18 in effect works as a check
on the majority party in the Senate and helps to maintain the balance of power. No party
can claim more than what it is entitled to under such rule. To allow it to elect more than
its proportional share of members is to confer upon such a party a greater share in the
membership in the Commission on Appointments and more power to impose its will on
the minority, who by the same token, suffers a diminution of its rightful membership in
the Commission." 3
The membership of the late Senator Lorenzo Tañada in the Commission on
Appointments for the year alluded to by respondents is not disputed. The questioned
decision however refers to the former Senator's membership in the Commission during
his first election as Senator in 1953-1954. 4 In the following years the composition of the
Commission on Appointments showed varying membership from the Nacionalista Party
and Liberal Party, not discounting the various coalitions of the rival groups within their
own ranks. During this period, his membership in the Commission was acquiesced to by
the other members of the Senate, including the Nacionalista Party which had a fractional
vote. His membership in the Commission was never contested nor disputed by any party
nor member of the Senate so that the question of whether his sitting as member of the
Commission was constitutionally valid or not never reached the Court. The older
Tañada's membership in the Commission on Appointments cannot thus be considered by
respondent Senator Tañada as a precedent sufficient to overrule the clear mandate of
Article VI, Section 18 of the Constitution.
It is a matter of record that in the political ventures of the late Senator Lorenzo Tañada,
he had his Citizens Party coalesce with the Nacionalista Party and got himself elected as
Senator under the banner of the latter party. His election to the Commission was
principally due to the alliance of his Citizens Party with the Nacionalista Party and not
because he was elected thereto on the strength of his being the lone representative of the
Citizens' Party. 5 Senator Tañada was included in the Nacionalista Party ticket in 1953
until he parted ways temporarily with the same before the end of 1955. In 1959 he ran as
a guest candidate of the Nacionalista Party for a term of 6 years and again got re-elected
in 1965 for another 6-year term under the Nacionalista Party. The Nacionalista-Citizens
Party coalition of 12 Senators in the Senate from 1965-1967 gave the coalition 6
members in the Commission on Appointments, including the late Senator Lorenzo
Tañada. As early as those years, the Senate recognized the rule on proportional
representation in the Commission by resorting to a coalition of political parties in order to
resolve and avoid fractional membership in the Commission. This practice was repeated
in 1968-1970 where the lone elected Senator of the Citizens Party was nominated and
elected to the Commission on Appointments as the Senator to complete a whole number
in the proportional representation to the Commission, with the late Senator Tañada
becoming the 16th Senator of the Coalition, enabling it to put 8 members in the
Commission. Likewise in 1970, the late Senator Tañada filled up the 18th membership of
the Coalition to become the 9th member representing the Coalition in the Commission.
The election of the late Senator Lorenzo Tañada to the Commission on Appointments
does not reflect any practice or tradition in the Senate which can be considered as a
precedent in the interpretation of the constitutional provision on proportional
representation in the Commission on Appointments. No practice or tradition, established
by mere tolerance, can, without judicial acquiescence, ripen into a doctrine of practical
construction of the fundamental law. In the absence of judicial confirmation of the
constitutionality of the challenged legislative practice the repeated erroneous legislative
interpretation of a constitutional provision, does not vest power on the legislature. 6
2) We take note of an erroneous reference in our decision to the listing of the party
affiliation of the Senators based on the result of the election on May 11, 1992, giving the
LDP only 15 members and including Senator Teofisto Guingona as a member of the
Lakas-NUCDP. Respondents, however, accepted the fact that for purposes of
determining the proportional representatives of each political party to the Commission on
Appointments, the basis thereof is the actual number of members of each political party
at the time of election of the members of the Commission on Appointments in the Senate.
7 In fact, respondents affirmed that the affiliation of Senator Guingona with the Lakas-
NUCDP upheld the doctrine enunciated in Daza vs. Singson, 8 recognizing changes in
alignments of membership in the Commission based on changing political alignments at
the time of the organization of the Commission on Appointments. This issue therefore
has no significance as an argument to set aside our decision.
3) Senator Tañada was actually nominated by the LP because the house rules require
that the party must make the nomination. In fact he nominated himself as representative
of the LP-LDP-LABAN. It was the Majority Leader, an LDP Senator, (Senator Romulo)
who presented the motion to elect respondent Senator Tañada (along with the Senators
belonging to the other Minority parties — NPC and LAKAS-NUCD) as part of his
function or duty to present for election and votation those previously nominated by the
various political parties. In nominating the twelve (12) Senators to the membership in the
Commission on Appointments, Senator Romulo moved:.
"Mr. President, pursuant to the Motion just approved, I have the honor to submit for
election to the Commission on Appointments the 12 Senators to compose its
membership: Senators Angara, Herrera, Alvarez, Aquino, Mercado, Ople, Sotto and
Romulo for the LDP; Senators Tolentino and Osmeña for NPC; Senator Rasul, for Lakas-
NUCD, and Senator Tañada for LP-PDP, Mr. President." 9
4) This Court has ruled that, under Article VI, Section 18 of the Constitution
providing for a multi-party system, entitlement to proportional representation in the
Commission on Appointments requires a minimum membership in each house. 10 The
statement of this Court in Daza vs. Singson 11 to the effect that "under the Constitutional
provision on membership of the Commission on Appointments, the members thereof are
NOT limited to the majority and minority parties therein but extends to all the political
parties represented in each house of Congress", does not and should not be construed to
mean that all political parties, irrespective of numerical representation in the Senate, are
entitled by Constitutional fiat to at least one representation in the Commission. The
Supreme Court in the subsequent case of Coseteng vs. Mitra, Jr. 12 made this clear where
it ruled that proportional representation in the Commission on Appointments requires a
minimum membership of a party in each house. The mere presence of one Senator
belonging to a political party does not ipso facto entitle such a party to membership in the
Commission on Appointments.
5) We have declared that the Constitution does not require that the full complement
of 12 Senators be elected to the membership in the Commission on Appointments before
it can discharge its functions and that it is not mandatory to elect 12 Senators to the
Commission. The overriding directive of Article VI, Section 18 is that there must be a
proportional representation of the political parties in the membership of the Commission
on Appointments and that the specification of 12 members to constitute its membership is
merely an indication of the maximum complement allowable under the Constitution. The
act of filing up the membership thereof cannot disregard the mandate of proportional
representation of the parties even if it results in fractional membership in unusual
situations like the case at bar.
Section 18 provides, in part, as follows:
"There shall be a Commission on Appointments consisting of the President of the Senate
as ex-officio Chairman, twelve Senators, and . . ., elected by each house on the basis of
proportional representation . . . ."
The respondents' contention that the use of the word "shall" in Section 18 indicating the
composition of the Commission on Appointments makes the election of the Senators
mandatory, omitting that part of Section 18 which provides that (they shall be) elected by
each house on the basis of proportional representation. This interpretation finds support
in the case of Tañada vs. Cuenco, 13 where this Court held that the constitutional
provision makes mandatory the election of the specified number of Senators to the
Commission on Appointments but also ruled that they should be elected on the basis of
proportional representation of the political parties. In case of conflict in interpretation, the
latter mandate requiring proportional representation must prevail. Such interpretation is
the only correct and rational interpretation which the court can adopt in consonance with
its solemn duty to uphold the Constitution and give effect the meaning intended by its
framers to every clause and word thereof.
The Constitution does not require the election and presence of twelve Senators and
twelve Representatives in order that the Commission may function. Article VI, Section
18 which deals with the Commission on Appointments, provides that "the Commission
shall rule by majority vote of all the members", and in Section 19 of the same Article, it
is provided that the Commission "shall meet only while Congress is in session, at the call
of its Chairman or a majority of all its Members, to discharge such powers and functions
as are herein conferred upon it". In implementing these provisions, the Rules of the
Commission on Appointments provide that the presence of at least thirteen (13) members
is necessary to constitute a quorum, "Provided however, that at least four (4) of the
members constituting the quorum should come from either house". 14 Even if the
composition of the Commission is fixed by the Constitution, it can perform its functions
even if not fully constituted, so long as it has the required quorum, which is less than the
full complement fixed by the Constitution. And the Commission can validly perform its
functions and transact its business even if only ten (10) Senators are elected thereto. Even
if respondent Senator Tañada is excluded from the Commission on Appointments for
violation of the rule on proportional representation, the party he represents still has
representation in the Commission in the presence of house members from the LP-LDP-
LABAN such as Congressman Juan Ponce Enrile.
Respondents ask for a clarification of our statement which suggested a practical solution
to break the impasse in the membership of the Senate in the Commission on
Appointments, which we quote:
" . . . On the other hand, there is nothing to stop any of the political parties from forming
a coalition with another political party in order to fill up the two vacancies resulting from
this decision." 15
The statement is merely a suggestion but not an exclusive solution. It is not part of the
disposition of the case. It does not contemplate a realignment of political parties, as
otherwise this Court would have explicitly said so. What we intimated is merely this:
That those entitled to fractional memberships may join their half memberships to form a
full membership and together nominate one from their coalition to the Commission on
Appointments. For example, the NPC and the LAKAS-NUCD may join their half-
memberships and jointly nominate one of their own Senators to the Commission. In the
same way the LDP and the LP-PDP-LABAN may nominate Senator Wigberto Tañada to
fill up the other slot to complete the membership to twelve. But the latter, as a coalition,
may not insist in electing both Senator Tañada and Senator Romulo to fill up two slots
because this is certainly a violation of the rule on proportional representation.
Who decides the question of proportionality? The power to choose who among them will
sit as members of the Commission on Appointments belongs to the Senate. The number
of senators is fixed by the Constitution to twelve, but the number of senators to be chosen
must comply with the rule on proportional representation. The question of who interprets
what is meant by proportional representation has been a settled rule — that it belongs to
this Court.
The acceptance by the Senate of Senator Tolentino's formula to settle temporarily the
impasse concerning the membership in the Commission on Appointments by leaving the
final decision to the Supreme Court is a Senate recognition that the determination of
proportional representation under Article VI, Section 18 of the Constitution is a function
of this Court.
Once a controversy as to the application or interpretation of a constitutional provision is
raised before this Court, it becomes a legal issue which the Court is bound by
Constitutional mandate to decide. The framers of our Constitution in borrowing from
constitutions of other states, thought it wise to vest in the Supreme Court the role of final
arbiter in cases of conflicts in the interpretation of the fundamental law. In this role, the
Court serves as a check on the unbridled use of power by the legislative majority to
silence the minority. Democracy may breed but it will not sanction tyranny by force of
numbers.
The election of respondents Senators Tañada and Romulo is a clear disregard of the
constitutional provision and when done over the objections of their colleagues in the
Senate, constitutes a grave abuse of discretion. We quote from our decision:
" . . . The election of Senator Romulo and Senator Tañada as members of the
Commission on Appointments by the LDP Majority in the Senate was clearly a violation
of Section 18 of Article VI of the 1987 Constitution. Their nomination and election by
the LDP Majority by sheer force of superiority in numbers during the Senate organization
meeting of August 27, 1992 was done in grave abuse of discretion. Where power is
exercised in a manner inconsistent with the command of the Constitution, and by reason
of numerical strength, knowingly and not merely inadvertently, said exercise amounts to
abuse of authority granted by law and grave abuse of discretion is properly found to
exist." 16
For lack of merit, the Motions for Reconsideration are DENIED with FINALITY.
SO ORDERED.

[G.R. No. 153675. April 19, 2007.]

GOVERNMENT OF HONGKONG SPECIAL ADMINISTRATIVE REGION,
represented by the Philippine Department of Justice, petitioner, vs. HON. FELIXBERTO
T. OLALIA, JR. and JUAN ANTONIO MUÑOZ, respondents.
DECISION
SANDOVAL-GUTIERREZ, J p:
For our resolution is the instant Petition for Certiorari under Rule 65 of the 1997 Rules of
Civil Procedure, as amended, seeking to nullify the two Orders of the Regional Trial
Court (RTC), Branch 8, Manila (presided by respondent Judge Felixberto T. Olalia, Jr.)
issued in Civil Case No. 99-95773. These are: (1) the Order dated December 20, 2001
allowing Juan Antonio Muñoz, private respondent, to post bail; and (2) the Order dated
April 10, 2002 denying the motion to vacate the said Order of December 20, 2001 filed
by the Government of Hong Kong Special Administrative Region, represented by the
Philippine Department of Justice (DOJ), petitioner. The petition alleges that both Orders
were issued by respondent judge with grave abuse of discretion amounting to lack or
excess of jurisdiction as there is no provision in the Constitution granting bail to a
potential extraditee. HTCIcE
The facts are:
On January 30, 1995, the Republic of the Philippines and the then British Crown Colony
of Hong Kong signed an "Agreement for the Surrender of Accused and Convicted
Persons." It took effect on June 20, 1997. HESAIT
On July 1, 1997, Hong Kong reverted back to the People's Republic of China and became
the Hong Kong Special Administrative Region.
Private respondent Muñoz was charged before the Hong Kong Court with three (3)
counts of the offense of "accepting an advantage as agent," in violation of Section 9 (1)
(a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong. He also faces seven
(7) counts of the offense of conspiracy to defraud, penalized by the common law of Hong
Kong. On August 23, 1997 and October 25, 1999, warrants of arrest were issued against
him. If convicted, he faces a jail term of seven (7) to fourteen (14) years for each charge.
On September 13, 1999, the DOJ received from the Hong Kong Department of Justice a
request for the provisional arrest of private respondent. The DOJ then forwarded the
request to the National Bureau of Investigation (NBI) which, in turn, filed with the RTC
of Manila, Branch 19 an application for the provisional arrest of private respondent.
On September 23, 1999, the RTC, Branch 19, Manila issued an Order of Arrest against
private respondent. That same day, the NBI agents arrested and detained him.
On October 14, 1999, private respondent filed with the Court of Appeals a petition for
certiorari, prohibition and mandamus with application for preliminary mandatory
injunction and/or writ of habeas corpus questioning the validity of the Order of Arrest.

On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of
Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari,
docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be
reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ
and sustaining the validity of the Order of Arrest against private respondent. The
Decision became final and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special
Administrative Region filed with the RTC of Manila a petition for the extradition of
private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10,
presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed in the same
case a petition for bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the
petition for bail, holding that there is no Philippine law granting bail in extradition cases
and that private respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil
Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge.
aITECD
On October 30, 2001, private respondent filed a motion for reconsideration of the Order
denying his application for bail. This was granted by respondent judge in an Order dated
December 20, 2001 allowing private respondent to post bail, thus: CaDATc
In conclusion, this Court will not contribute to accused's further erosion of civil liberties.
The petition for bail is granted subject to the following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused hereby
undertakes that he will appear and answer the issues raised in these proceedings and will
at all times hold himself amenable to orders and processes of this Court, will further
appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited
in favor of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion of filing its
own motion for hold departure order before this Court even in extradition proceeding;
and
4. Accused is required to report to the government prosecutors handling this case or
if they so desire to the nearest office, at any time and day of the week; and if they further
desire, manifest before this Court to require that all the assets of accused, real and
personal, be filed with this Court soonest, with the condition that if the accused flees
from his undertaking, said assets be forfeited in favor of the government and that the
corresponding lien/annotation be noted therein accordingly.
SO ORDERED. HScDIC
On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it
was denied by respondent judge in his Order dated April 10, 2002. EHaASD
Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse
of discretion amounting to lack or excess of jurisdiction in admitting private respondent
to bail; that there is nothing in the Constitution or statutory law providing that a potential
extraditee has a right to bail, the right being limited solely to criminal proceedings.
In his comment on the petition, private respondent maintained that the right to bail
guaranteed under the Bill of Rights extends to a prospective extraditee; and that
extradition is a harsh process resulting in a prolonged deprivation of one's liberty.
HCaIDS
Section 13, Article III of the Constitution provides that the right to bail shall not be
impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The right
to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is
not the first time that this Court has an occasion to resolve the question of whether a
prospective extraditee may be granted bail. aHADTC
In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding
Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo, 1
this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief
Justice, held that the constitutional provision on bail does not apply to extradition
proceedings. It is "available only in criminal proceedings," thus:
. . . . As suggested by the use of the word "conviction," the constitutional provision on
bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only
when a person has been arrested and detained for violation of Philippine criminal laws. It
does not apply to extradition proceedings because extradition courts do not render
judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in
favor of every accused who should not be subjected to the loss of freedom as thereafter
he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De
la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It
follows that the constitutional provision on bail will not apply to a case like extradition,
where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended" does not detract from the
rule that the constitutional right to bail is available only in criminal proceedings. It must
be noted that the suspension of the privilege of the writ of habeas corpus finds application
"only to persons judicially charged for rebellion or offenses inherent in or directly
connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence
in the constitutional provision on bail merely emphasizes the right to bail in criminal
proceedings for the aforementioned offenses. It cannot be taken to mean that the right is
available even in extradition proceedings that are not criminal in nature. ScTIAH
At first glance, the above ruling applies squarely to private respondent's case. However,
this Court cannot ignore the following trends in international law: (1) the growing
importance of the individual person in public international law who, in the 20th century,
has gradually attained global recognition; (2) the higher value now being given to human
rights in the international sphere; (3) the corresponding duty of countries to observe these
universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court
to balance the rights of the individual under our fundamental law, on one hand, and the
law on extradition, on the other. ADSTCa
The modern trend in public international law is the primacy placed on the worth of the
individual person and the sanctity of human rights. Slowly, the recognition that the
individual person may properly be a subject of international law is now taking root. The
vulnerable doctrine that the subjects of international law are limited only to states was
dramatically eroded towards the second half of the past century. For one, the Nuremberg
and Tokyo trials after World War II resulted in the unprecedented spectacle of individual
defendants for acts characterized as violations of the laws of war, crimes against peace,
and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders
have been persecuted for war crimes and crimes against humanity committed in the
former Yugoslavia. These significant events show that the individual person is now a
valid subject of international law.
On a more positive note, also after World War II, both international organizations and
states gave recognition and importance to human rights. Thus, on December 10, 1948, the
United Nations General Assembly adopted the Universal Declaration of Human Rights in
which the right to life, liberty and all the other fundamental rights of every person were
proclaimed. While not a treaty, the principles contained in the said Declaration are now
recognized as customarily binding upon the members of the international community.
Thus, in Mejoff v. Director of Prisons, 2 this Court, in granting bail to a prospective
deportee, held that under the Constitution, 3 the principles set forth in that Declaration are
part of the law of the land. In 1966, the UN General Assembly also adopted the
International Covenant on Civil and Political Rights which the Philippines signed and
ratified. Fundamental among the rights enshrined therein are the rights of every person to
life, liberty, and due process.
The Philippines, along with the other members of the family of nations, committed to
uphold the fundamental human rights as well as value the worth and dignity of every
person. This commitment is enshrined in Section II, Article II of our Constitution which
provides: "The State values the dignity of every human person and guarantees full respect
for human rights." The Philippines, therefore, has the responsibility of protecting and
promoting the right of every person to liberty and due process, ensuring that those
detained or arrested can participate in the proceedings before a court, to enable it to
decide without delay on the legality of the detention and order their release if justified. In
other words, the Philippine authorities are under obligation to make available to every
person under detention such remedies which safeguard their fundamental right to liberty.
These remedies include the right to be admitted to bail. While this Court in Purganan
limited the exercise of the right to bail to criminal proceedings, however, in light of the
various international treaties giving recognition and protection to human rights,
particularly the right to life and liberty, a reexamination of this Court's ruling in Purganan
is in order. caADSE
First, we note that the exercise of the State's power to deprive an individual of his liberty
is not necessarily limited to criminal proceedings. Respondents in administrative
proceedings, such as deportation and quarantine, 4 have likewise been detained.
cCTIaS
Second, to limit bail to criminal proceedings would be to close our eyes to our
jurisprudential history. Philippine jurisprudence has not limited the exercise of the right
to bail to criminal proceedings only. This Court has admitted to bail persons who are not
involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to
persons in detention during the pendency of administrative proceedings, taking into
cognizance the obligation of the Philippines under international conventions to uphold
human rights. HDAaIc
The 1909 case of US v. Go-Sioco 5 is illustrative. In this case, a Chinese facing
deportation for failure to secure the necessary certificate of registration was granted bail
pending his appeal. After noting that the prospective deportee had committed no crime,
the Court opined that "To refuse him bail is to treat him as a person who has committed
the most serious crime known to law;" and that while deportation is not a criminal
proceeding, some of the machinery used "is the machinery of criminal law." Thus, the
provisions relating to bail was applied to deportation proceedings. aEcADH
In Mejoff v. Director of Prisons 6 and Chirskoff v. Commission of Immigration, 7 this
Court ruled that foreign nationals against whom no formal criminal charges have been
filed may be released on bail pending the finality of an order of deportation. As
previously stated, the Court in Mejoff relied upon the Universal declaration of Human
Rights in sustaining the detainee's right to bail.
If bail can be granted in deportation cases, we see no justification why it should not also
be allowed in extradition cases. Likewise, considering that the Universal Declaration of
Human Rights applies to deportation cases, there is no reason why it cannot be invoked in
extradition cases. After all, both are administrative proceedings where the innocence or
guilt of the person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be
viewed in the light of the various treaty obligations of the Philippines concerning respect
for the promotion and protection of human rights. Under these treaties, the presumption
lies in favor of human liberty. Thus, the Philippines should see to it that the right to
liberty of every individual is not impaired. CcHDaA
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law)
defines "extradition" as "the removal of an accused from the Philippines with the object
of placing him at the disposal of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal investigation directed against
him or the execution of a penalty imposed on him under the penal or criminal law of the
requesting state or government." aSATHE
Extradition has thus been characterized as the right of a foreign power, created by treaty,
to demand the surrender of one accused or convicted of a crime within its territorial
jurisdiction, and the correlative duty of the other state to surrender him to the demanding
state. 8 It is not a criminal proceeding. 9 Even if the potential extraditee is a criminal, an
extradition proceeding is not by its nature criminal, for it is not punishment for a crime,
even though such punishment may follow extradition. 10 It is sui generis, tracing its
existence wholly to treaty obligations between different nations. 11 It is not a trial to
determine the guilt or innocence of the potential extraditee. 12 Nor is it a full-blown civil
action, but one that is merely administrative in character. 13 Its object is to prevent the
escape of a person accused or convicted of a crime and to secure his return to the state
from which he fled, for the purpose of trial or punishment. 14
But while extradition is not a criminal proceeding, it is characterized by the following: (a)
it entails a deprivation of liberty on the part of the potential extraditee and (b) the means
employed to attain the purpose of extradition is also "the machinery of criminal law."
This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which
mandates the "immediate arrest and temporary detention of the accused" if such "will
best serve the interest of justice." We further note that Section 20 allows the requesting
state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt
of the request for extradition;" and that release from provisional arrest "shall not
prejudice re-arrest and extradition of the accused if a request for extradition is received
subsequently." DTAaCE
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks
of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged
restraint of liberty, and forced to transfer to the demanding state following the
proceedings. "Temporary detention" may be a necessary step in the process of
extradition, but the length of time of the detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999, and remained
incarcerated until December 20, 2001, when the trial court ordered his admission to bail.
In other words, he had been detained for over two (2) years without having been
convicted of any crime. By any standard, such an extended period of detention is a
serious deprivation of his fundamental right to liberty. In fact, it was this prolonged
deprivation of liberty which prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an extraditee, however,
there is no provision prohibiting him or her from filing a motion for bail, a right to due
process under the Constitution. ICTHDE
The applicable standard of due process, however, should not be the same as that in
criminal proceedings. In the latter, the standard of due process is premised on the
presumption of innocence of the accused. As Purganan correctly points out, it is from this
major premise that the ancillary presumption in favor of admitting to bail arises. Bearing
in mind the purpose of extradition proceedings, the premise behind the issuance of the
arrest warrant and the "temporary detention" is the possibility of flight of the potential
extraditee. This is based on the assumption that such extraditee is a fugitive from justice.
15 Given the foregoing, the prospective extraditee thus bears the onus probandi of
showing that he or she is not a flight risk and should be granted bail. AcDaEH
The time-honored principle of pacta sunt servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered into with the Hong Kong Special
Administrative Region. Failure to comply with these obligations is a setback in our
foreign relations and defeats the purpose of extradition. However, it does not necessarily
mean that in keeping with its treaty obligations, the Philippines should diminish a
potential extraditee's rights to life, liberty, and due process. More so, where these rights
are guaranteed, not only by our Constitution, but also by international conventions, to
which the Philippines is a party. We should not, therefore, deprive an extraditee of his
right to apply for bail, provided that a certain standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof required in granting or
denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the
standard of proof of preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in administrative cases cannot
likewise apply given the object of extradition law which is to prevent the prospective
extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard
which he termed "clear and convincing evidence" should be used in granting bail in
extradition cases. According to him, this standard should be lower than proof beyond
reasonable doubt but higher than preponderance of evidence. The potential extraditee
must prove by "clear and convincing evidence" that he is not a flight risk and will abide
with all the orders and processes of the extradition court. cITCAa
In this case, there is no showing that private respondent presented evidence to show that
he is not a flight risk. Consequently, this case should be remanded to the trial court to
determine whether private respondent may be granted bail on the basis of "clear and
convincing evidence." EAcTDH
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to
determine whether private respondent is entitled to bail on the basis of "clear and
convincing evidence." If not, the trial court should order the cancellation of his bail bond
and his immediate detention; and thereafter, conduct the extradition proceedings with
dispatch.
SO ORDERED. CSDTac

[G.R. No. 191002. March 17, 2010.]

ARTURO M. DE CASTRO, petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC) and
PRESIDENT GLORIA MACAPAGAL-ARROYO, respondents.
[G.R. No. 191032. March 17, 2010.]
JAIME N. SORIANO, petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC),
respondent.
[G.R. No. 191057. March 17, 2010.]
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), petitioner, vs.
JUDICIAL AND BAR COUNCIL (JBC), respondent.
[A.M. No. 10-2-5-SC. March 17, 2010.]
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE CONSTITUTION
TO APPOINTMENTS TO THE JUDICIARY, ESTELITO P. MENDOZA, petitioner,
[G.R. No. 191149. March 17, 2010.]
JOHN G. PERALTA, petitioner, vs. JUDICIAL AND BAR COUNCIL (JBC),
respondent.
PETER IRVING CORVERA;
CHRISTIAN ROBERT S. LIM;
ALFONSO V. TAN, JR.;
NATIONAL UNION OF PEOPLE'S LAWYERS;
MARLOU B. UBANO;
INTEGRATED BAR OF THE PHILIPPINES-DAVAO DEL SUR CHAPTER,
represented by its Immediate Past President, ATTY. ISRAELITO P. TORREON, and the
latter in his own personal capacity as a MEMBER of the PHILIPPINE BAR;
MITCHELL JOHN L. BOISER;
BAGONG ALYANSANG BAYAN (BAYAN) CHAIRMAN DR. CAROLINA P.
ARAULLO; BAYAN SECRETARY GENERAL RENATO M. REYES, JR.;
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND GAITE;
KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY) SECRETARY
GENERAL GLORIA ARELLANO; ALYANSA NG NAGKAKAISANG KABATAAN
NG SAMBAYANAN PARA SA KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN
LEONARD RAMOS; TAYO ANG PAG-ASA CONVENOR ALVIN PETERS;
LEAGUE OF FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY
LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE PHILIPPINES
(NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE EDITORS GUILD OF THE
PHILIPPINES (CEGP) CHAIRMAN VIJAE ALQUISOLA; and STUDENT
CHRISTIAN MOVEMENT OF THE PHILIPPINES (SCMP) CHAIRMAN MA.
CRISTINA ANGELA GUEVARRA;
WALDEN F. BELLO and LORETTA ANN P. ROSALES;
WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES, represented
by YOLANDA QUISUMBING-JAVELLANA; BELLEZA ALOJADO DEMAISIP;
TERESITA GANDIONCO-OLEDAN; MA. VERENA KASILAG-VILLANUEVA;
MARILYN STA. ROMANA; LEONILA DE JESUS; and GUINEVERE DE LEON,
intervenors.
[G.R. No. 191342. March 17, 2010.]
ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern Luzon), and ATTY.
ROLAND B. INTING (IBP Governor-Eastern Visayas), petitioners, vs. JUDICIAL AND
BAR COUNCIL (JBC), respondent.
[G.R. No. 191420. March 17, 2010.]
PHILIPPINE BAR ASSOCIATION, INC., petitioner, vs. JUDICIAL AND BAR
COUNCIL and HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, respondents.
DECISION
BERSAMIN, J p:
The compulsory retirement of Chief Justice Reynato S. Puno by May 17, 2010 occurs just
days after the coming presidential elections on May 10, 2010. Even before the event
actually happens, it is giving rise to many legal dilemmas. May the incumbent President
appoint his successor, considering that Section 15, Article VII (Executive Department) of
the Constitution prohibits the President or Acting President from making appointments
within two months immediately before the next presidential elections and up to the end of
his term, except temporary appointments to executive positions when continued
vacancies therein will prejudice public service or endanger public safety? What is the
relevance of Section 4 (1), Article VIII (Judicial Department) of the Constitution, which
provides that any vacancy in the Supreme Court shall be filled within 90 days from the
occurrence thereof, to the matter of the appointment of his successor? May the Judicial
and Bar Council (JBC) resume the process of screening the candidates nominated or
being considered to succeed Chief Justice Puno, and submit the list of nominees to the
incumbent President even during the period of the prohibition under Section 15, Article
VII? Does mandamus lie to compel the submission of the shortlist of nominees by the
JBC? CDcaSA
Precís of the Consolidated Cases
Petitioners Arturo M. De Castro and John G. Peralta respectively commenced G.R. No.
191002 1 and G.R. No. 191149 2 as special civil actions for certiorari and mandamus,
praying that the JBC be compelled to submit to the incumbent President the list of at least
three nominees for the position of the next Chief Justice.
In G.R. No. 191032, 3 Jaime N. Soriano, via his petition for prohibition, proposes to
prevent the JBC from conducting its search, selection and nomination proceedings for the
position of Chief Justice.
In G.R. No. 191057, a special civil action for mandamus, 4 the Philippine Constitution
Association (PHILCONSA) wants the JBC to submit its list of nominees for the position
of Chief Justice to be vacated by Chief Justice Puno upon his retirement on May 17,
2010, because the incumbent President is not covered by the prohibition that applies only
to appointments in the Executive Department.
In Administrative Matter No. 10-2-5-SC, 5 petitioner Estelito M. Mendoza, a former
Solicitor General, seeks a ruling from the Court for the guidance of the JBC on whether
Section 15, Article VII applies to appointments to the Judiciary.
In G.R. No. 191342, 6 which the Court consolidated on March 9, 2010 with the petitions
earlier filed, petitioners Amador Z. Tolentino, Jr. and Roland B. Inting, Integrated Bar of
the Philippines (IBP) Governors for Southern Luzon and Eastern Visayas, respectively,
want to enjoin and restrain the JBC from submitting a list of nominees for the position of
Chief Justice to the President for appointment during the period provided for in Section
15, Article VII.
All the petitions now before the Court pose as the principal legal question whether the
incumbent President can appoint the successor of Chief Justice Puno upon his retirement.
That question is undoubtedly impressed with transcendental importance to the Nation,
because the appointment of the Chief Justice is any President's most important
appointment.
A precedent frequently cited is In Re Appointments Dated March 30, 1998 of Hon.
Mateo A. Valenzuela and Hon. Placido B. Vallarta as Judges of the Regional Trial Court
of Branch 62, Bago City and of Branch 24, Cabanatuan City, respectively (Valenzuela), 7
by which the Court held that Section 15, Article VII prohibited the exercise by the
President of the power to appoint to judicial positions during the period therein fixed.
SETaHC
In G.R. No. 191002, De Castro submits that the conflicting opinions on the issue
expressed by legal luminaries — one side holds that the incumbent President is
prohibited from making appointments within two months immediately before the coming
presidential elections and until the end of her term of office as President on June 30,
2010, while the other insists that the prohibition applies only to appointments to
executive positions that may influence the election and, anyway, paramount national
interest justifies the appointment of a Chief Justice during the election ban — has
impelled the JBC to defer the decision to whom to send its list of at least three nominees,
whether to the incumbent President or to her successor. 8 He opines that the JBC is
thereby arrogating unto itself "the judicial function that is not conferred upon it by the
Constitution," which has limited it to the task of recommending appointees to the
Judiciary, but has not empowered it to "finally resolve constitutional questions, which is
the power vested only in the Supreme Court under the Constitution." As such, he
contends that the JBC acted with grave abuse of discretion in deferring the submission of
the list of nominees to the President; and that a "final and definitive resolution of the
constitutional questions raised above would diffuse (sic) the tension in the legal
community that would go a long way to keep and maintain stability in the judiciary and
the political system." 9
In G.R. No. 191032, Soriano offers the view that the JBC committed a grave abuse of
discretion amounting to lack or excess of its jurisdiction when it resolved unanimously on
January 18, 2010 to open the search, nomination, and selection process for the position of
Chief Justice to succeed Chief Justice Puno, because the appointing authority for the
position of Chief Justice is the Supreme Court itself, the President's authority being
limited to the appointment of the Members of the Supreme Court. Hence, the JBC should
not intervene in the process, unless a nominee is not yet a Member of the Supreme Court.
10
For its part, PHILCONSA observes in its petition in G.R. No. 191057 that "unorthodox
and exceptional circumstances spawned by the discordant interpretations, due perhaps to
a perfunctory understanding, of Sec. 15, Art. VII in relation to Secs. 4 (1), 8 (5) and 9,
Art. VIII of the Constitution" have bred "a frenzied inflammatory legal debate on the
constitutional provisions mentioned that has divided the bench and the bar and the
general public as well, because of its dimensional impact to the nation and the people,"
thereby fashioning "transcendental questions or issues affecting the JBC's proper exercise
of its "principal function of recommending appointees to the Judiciary" by submitting
only to the President (not to the next President) "a list of at least three nominees prepared
by the Judicial and Bar Council for every vacancy" from which the members of the
Supreme Court and judges of the lower courts may be appointed." 11 PHILCONSA
further believes and submits that now is the time to revisit and review Valenzuela, the
"strange and exotic Decision of the Court en banc." 12 ACEIac
Peralta states in his petition in G.R. No. 191149 that mandamus can compel the JBC "to
immediately transmit to the President, within a reasonable time, its nomination list for the
position of chief justice upon the mandatory retirement of Chief Justice Reynato S. Puno,
in compliance with its mandated duty under the Constitution" in the event that the Court
resolves that the President can appoint a Chief Justice even during the election ban under
Section 15, Article VII of the Constitution. 13
The petitioners in G.R. No. 191342 insist that there is an actual controversy, considering
that the "JBC has initiated the process of receiving applications for the position of Chief
Justice and has in fact begun the evaluation process for the applications to the position,"
and "is perilously near completing the nomination process and coming up with a list of
nominees for submission to the President, entering into the period of the ban on midnight
appointments on March 10, 2010," which "only highlights the pressing and compelling
need for a writ of prohibition to enjoin such alleged ministerial function of submitting the
list, especially if it will be cone within the period of the ban on midnight appointments."
14
Antecedents
These cases trace their genesis to the controversy that has arisen from the forthcoming
compulsory retirement of Chief Justice Puno on May 17, 2010, or seven days after the
presidential election. Under Section 4 (1), in relation to Section 9, Article VIII, that
"vacancy shall be filled within ninety days from the occurrence thereof" from a "list of at
least three nominees prepared by the Judicial and Bar Council for every vacancy."
On December 22, 2009, Congressman Matias V. Defensor, an ex officio member of the
JBC, addressed a letter to the JBC, requesting that the process for nominations to the
office of the Chief Justice be commenced immediately.
In its January 18, 2010 meeting en banc, therefore, the JBC passed a resolution, 15 which
reads:
The JBC, in its en banc meeting of January 18, 2010, unanimously agreed to start the
process of filling up the position of Chief Justice to be vacated on May 17, 2010 upon the
retirement of the incumbent Chief Justice Honorable Reynato S. Puno.
It will publish the opening of the position for applications or recommendations; deliberate
on the list of candidates; publish the names of candidates; accept comments on or
opposition to the applications; conduct public interviews of candidates; and prepare the
shortlist of candidates.
As to the time to submit this shortlist to the proper appointing authority, in the light of the
Constitution, existing laws and jurisprudence, the JBC welcomes and will consider all
views on the matter.
18 January 2010. DaACIH
(sgd.)
MA. LUISA D. VILLARAMA
Clerk of Court &
Ex-Officio Secretary
Judicial and Bar Council
As a result, the JBC opened the position of Chief Justice for application or
recommendation, and published for that purpose its announcement dated January 20,
2010, 16 viz.:
The Judicial and Bar Council (JBC) announces the opening for application or
recommendation, of the position of CHIEF JUSTICE OF THE SUPREME COURT,
which will be vacated on 17 May 2010 upon the retirement of the incumbent Chief
Justice, HON. REYNATO S. PUNO.
Applications or recommendations for this position must be submitted not later than 4
February 2010 (Thursday) to the JBC Secretariat . . . :
The announcement was published on January 20, 2010 in the Philippine Daily Inquirer
and The Philippine Star. 17
Conformably with its existing practice, the JBC "automatically considered" for the
position of Chief Justice the five most senior of the Associate Justices of the Court,
namely: Associate Justice Antonio T. Carpio; Associate Justice Renato C. Corona;
Associate Justice Conchita Carpio Morales; Associate Justice Presbitero J. Velasco, Jr.;
and Associate Justice Antonio Eduardo B. Nachura. However, the last two declined their
nomination through letters dated January 18, 2010 and January 25, 2010, respectively. 18
Others either applied or were nominated. Victor Fernandez, the retired Deputy
Ombudsman for Luzon, applied, but later formally withdrew his name from consideration
through his letter dated February 8, 2010. Candidates who accepted their nominations
without conditions were Associate Justice Renato C. Corona; Associate Justice Teresita J.
Leonardo-de Castro; Associate Justice Arturo D. Brion; and Associate Justice Edilberto
G. Sandoval (Sandiganbayan). Candidates who accepted their nominations with
conditions were Associate Justice Antonio T. Carpio and Associate Justice Conchita
Carpio Morales. 19 Declining their nominations were Atty. Henry Villarica (via
telephone conversation with the Executive Officer of the JBC on February 5, 2010) and
Atty. Gregorio M. Batiller, Jr. (via telephone conversation with the Executive Officer of
the JBC on February 8, 2010). 20 aHTEIA
The JBC excluded from consideration former RTC Judge Florentino Floro (for failure to
meet the standards set by the JBC rules); and Special Prosecutor Dennis Villa-Ignacio of
the Office of the Ombudsman (due to cases pending in the Office of the Ombudsman). 21
In its meeting of February 8, 2010, the JBC resolved to proceed to the next step of
announcing the names of the following candidates to invite the public to file their sworn
complaint, written report, or opposition, if any, not later than February 22, 2010, to wit:
Associate Justice Carpio, Associate Justice Corona, Associate Justice Carpio Morales,
Associate Justice Leonardo-de Castro, Associate Justice Brion, and Associate Justice
Sandoval. The announcement came out in the Philippine Daily Inquirer and The
Philippine Star issues of February 13, 2010. 22
Issues
Although it has already begun the process for the filling of the position of Chief Justice
Puno in accordance with its rules, the JBC is not yet decided on when to submit to the
President its list of nominees for the position due to the controversy now before us being
yet unresolved. In the meanwhile, time is marching in quick step towards May 17, 2010
when the vacancy occurs upon the retirement of Chief Justice Puno.
The actions of the JBC have sparked a vigorous debate not only among legal luminaries,
but also among non-legal quarters, and brought out highly disparate opinions on whether
the incumbent President can appoint the next Chief Justice or not. Petitioner Mendoza
notes that in Valenzuela, which involved the appointments of two judges of the Regional
Trial Court, the Court addressed this issue now before us as an administrative matter "to
avoid any possible polemics concerning the matter," but he opines that the polemics
leading to Valenzuela "would be miniscule [sic] compared to the "polemics" that have
now erupted in regard to the current controversy," and that unless "put to a halt, and this
may only be achieved by a ruling from the Court, the integrity of the process and the
credibility of whoever is appointed to the position of Chief Justice, may irreparably be
impaired." 23
Accordingly, we reframe the issues as submitted by each petitioner in the order of the
chronological filing of their petitions.
G.R. No. 191002
a. Does the JBC have the power and authority to resolve the constitutional question
of whether the incumbent President can appoint a Chief Justice during the election ban
period?
b. Does the incumbent President have the power and authority to appoint during the
election ban the successor of Chief Justice Puno when he vacates the position of Chief
Justice on his retirement on May 17, 2010?
G.R. No. 191032
a. Is the power to appoint the Chief Justice vested in the Supreme Court en banc?
aESIHT
G.R. No. 191057
a. Is the constitutional prohibition against appointment under Section 15, Article VII
of the Constitution applicable only to positions in the Executive Department?
b. Assuming that the prohibition under Section 15, Article VII of the Constitution
also applies to members of the Judiciary, may such appointments be excepted because
they are impressed with public interest or are demanded by the exigencies of public
service, thereby justifying these appointments during the period of prohibition?
c. Does the JBC have the authority to decide whether or not to include and submit
the names of nominees who manifested interest to be nominated for the position of Chief
Justice on the understanding that his/her nomination will be submitted to the next
President in view of the prohibition against presidential appointments from March 11,
2010 until June 30, 2010?
A.M. No. 10-2-5-SC
a. Does Section 15, Article VII of the Constitution apply to appointments to
positions in the Judiciary under Section 9, Article VIII of the Constitution?
b. May President Gloria Macapagal-Arroyo make appointments to the Judiciary
after March 10, 2010, including that for the position of Chief Justice after Chief Justice
Puno retires on May 17, 2010?
G.R. No. 191149
a. Does the JBC have the discretion to withhold the submission of the short list to
President Gloria Macapagal-Arroyo?
G.R. No. 191342
a. Does the JBC have the authority to submit the list of nominees to the incumbent
President without committing a grave violation of the Constitution and jurisprudence
prohibiting the incumbent President from making midnight appointments two months
immediately preceding the next presidential elections until the end of her term?
b. Is any act performed by the JBC, including the vetting of the candidates for the
position of Chief Justice, constitutionally invalid in view of the JBC's illegal composition
allowing each member from the Senate and the House of Representatives to have one
vote each? ESDHCa
On February 16, 2010, the Court directed the JBC and the Office of the Solicitor General
(OSG) to comment on the consolidated petitions, except that filed in G.R. No. 191342.
On February 26, 2010, the JBC submitted its comment, reporting therein that the next
stage of the process for the selection of the nominees for the position of Chief Justice
would be the public interview of the candidates and the preparation of the short list of
candidates, "including the interview of the constitutional experts, as may be needed." 24
It stated: 25
Likewise, the JBC has yet to take a position on when to submit the shortlist to the
proper appointing authority, in light of Section 4 (1), Article VIII of the Constitution,
which provides that vacancy in the Supreme Court shall be filled within ninety (90) days
from the occurrence thereof, Section 15, Article VII of the Constitution concerning the
ban on Presidential appointments "two (2) months immediately before the next
presidential elections and up to the end of his term" and Section 261 (g), Article XXII of
the Omnibus Election Code of the Philippines.
12. Since the Honorable Supreme Court is the final interpreter of the Constitution, the
JBC will be guided by its decision in these consolidated Petitions and Administrative
Matter.
On February 26, 2010, the OSG also submitted its comment, essentially stating that the
incumbent President can appoint the successor of Chief Justice Puno upon his retirement
by May 17, 2010.
The OSG insists that: (a) a writ of prohibition cannot issue to prevent the JBC from
performing its principal function under the Constitution to recommend appointees in the
Judiciary; (b) the JBC's function to recommend is a "continuing process," which does not
begin with each vacancy or end with each nomination, because the goal is "to submit the
list of nominees to Malacañang on the very day the vacancy arises"; 26 the JBC was thus
acting within its jurisdiction when it commenced and set in motion the process of
selecting the nominees to be submitted to the President for the position of Chief Justice to
be vacated by Chief Justice Puno; 27 (c) petitioner Soriano's theory that it is the Supreme
Court, not the President, who has the power to appoint the Chief Justice, is incorrect, and
proceeds from his misinterpretation of the phrase "members of the Supreme Court" found
in Section 9, Article VIII of the Constitution as referring only to the Associate Justices, to
the exclusion of the Chief Justice; 28 (d) a writ of mandamus can issue to compel the
JBC to submit the list of nominees to the President, considering that its duty to prepare
the list of at least three nominees is unqualified, and the submission of the list is a
ministerial act that the JBC is mandated to perform under the Constitution; as such, the
JBC, the nature of whose principal function is executive, is not vested with the power to
resolve who has the authority to appoint the next Chief Justice and, therefore, has no
discretion to withhold the list from the President; 29 and (e) a writ of mandamus cannot
issue to compel the JBC to include or exclude particular candidates as nominees,
considering that there is no imperative duty on its part to include in or exclude from the
list particular individuals, but, on the contrary, the JBC's determination of who it
nominates to the President is an exercise of a discretionary duty. 30 SETaHC
The OSG contends that the incumbent President may appoint the next Chief Justice,
because the prohibition under Section 15, Article VII of the Constitution does not apply
to appointments in the Supreme Court. It argues that any vacancy in the Supreme Court
must be filled within 90 days from its occurrence, pursuant to Section 4 (1), Article VIII
of the Constitution; 31 that in their deliberations on the mandatory period for the
appointment of Supreme Court Justices, the framers neither mentioned nor referred to the
ban against midnight appointments, or its effects on such period, or vice versa; 32 that
had the framers intended the prohibition to apply to Supreme Court appointments, they
could have easily expressly stated so in the Constitution, which explains why the
prohibition found in Article VII (Executive Department) was not written in Article VIII
(Judicial Department); and that the framers also incorporated in Article VIII ample
restrictions or limitations on the President's power to appoint members of the Supreme
Court to ensure its independence from "political vicissitudes" and its "insulation from
political pressures," 33 such as stringent qualifications for the positions, the establishment
of the JBC, the specified period within which the President shall appoint a Supreme
Court Justice.
The OSG posits that although Valenzuela involved the appointment of RTC Judges, the
situation now refers to the appointment of the next Chief Justice to which the prohibition
does not apply; that, at any rate, Valenzuela even recognized that there might be "the
imperative need for an appointment during the period of the ban," like when the
membership of the Supreme Court should be "so reduced that it will have no quorum, or
should the voting on a particular important question requiring expeditious resolution be
divided"; 34 and that Valenzuela also recognized that the filling of vacancies in the
Judiciary is undoubtedly in the public interest, most especially if there is any compelling
reason to justify the making of the appointments during the period of the prohibition. 35
Lastly, the OSG urges that there are now undeniably compelling reasons for the
incumbent President to appoint the next Chief Justice, to wit: (a) a deluge of cases
involving sensitive political issues is "quite expected"; 36 (b) the Court acts as the
Presidential Electoral Tribunal (PET), which, sitting en banc, is the sole judge of all
contests relating to the election, returns, and qualifications of the President and Vice
President and, as such, has "the power to correct manifest errors on the statement of votes
(SOV) and certificates of canvass (COC)"; 37 (c) if history has shown that during
ordinary times the Chief Justice was appointed immediately upon the occurrence of the
vacancy, from the time of the effectivity of the Constitution, there is now even more
reason to appoint the next Chief Justice immediately upon the retirement of Chief Justice
Puno; 38 and (d) should the next Chief Justice come from among the incumbent
Associate Justices of the Supreme Court, thereby causing a vacancy, it also becomes
incumbent upon the JBC to start the selection process for the filling up of the vacancy in
accordance with the constitutional mandate. 39 IaEACT
On March 9, 2010, the Court admitted the following comments/oppositions-in-
intervention, to wit:
(a) The opposition-in-intervention dated February 22, 2010 of Atty. Peter Irving
Corvera (Corvera); 40
(b) The opposition-in-intervention dated February 22, 2010 of Atty. Christian Robert
S. Lim (Lim);
(c) The opposition-in-intervention dated February 23, 2010 of Atty. Alfonso V. Tan,
Jr. (Tan);
(d) The comment/opposition-in-intervention dated March 1, 2010 of the National
Union of People's Lawyers (NUPL);
(e) The opposition-in-intervention dated February 25, 2010 of Atty. Marlou B. Ubano
(Ubano);
(f) The opposition-in-intervention dated February 25, 2010 of Integrated Bar of the
Philippines-Davao del Sur Chapter and its Immediate Past President, Atty. Israelito P.
Torreon (IBP-Davao del Sur);
(g) The opposition-in-intervention dated February 26, 2010 of Atty. Mitchell John L.
Boiser (Boiser);
(h) The consolidated comment/opposition-in-intervention dated February 26, 2010 of
BAYAN Chairman Dr. Carolina P. Araullo; BAYAN Secretary General Renato M.
Reyes, Jr.; Confederation for Unity, Recognition and Advancement of Government
Employees (COURAGE) Chairman Ferdinand Gaite; Kalipunan ng Damayang
Mahihirap (KADAMAY) Secretary General Gloria Arellano; Alyansa ng Nagkakaisang
Kabataan ng Samayanan Para sa Kaunlaran (ANAKBAYAN) Chairman Ken Leonard
Ramos; Tayo ang Pag-asa Convenor Alvin Peters; League of Filipino Students (LFS)
Chairman James Mark Terry Lacuanan Ridon; National Union of Students of the
Philippines (NUSP) Chairman Einstein Recedes, College Editors Guild of the Philippines
(CEGP) Chairman Vijae Alquisola; and Student Christian Movement of the Philippines
(SCMP) Chairman Ma. Cristina Angela Guevarra (BAYAN et al.);
(i) The opposition-in-intervention dated March 3, 2010 of Walden F. Bello and
Loretta Ann P. Rosales (Bello et al.); and
(j) The consolidated comment/opposition-in-intervention dated March 4, 2010 of the
Women Trial Lawyers Organization of the Philippines (WTLOP), represented by Atty.
Yolanda Quisumbing-Javellana; Atty. Belleza Alojado Demaisip; Atty. Teresita
Gandionco-Oledan; Atty. Ma. Verena Kasilag-Villanueva; Atty. Marilyn Sta. Romana;
Atty. Leonila de Jesus; and Atty. Guinevere de Leon (WTLOP). aCSTDc
Intervenors Tan, WTLOP, BAYAN et al., Corvera, IBP Davao del Sur, and NUPL take
the position that De Castro's petition was bereft of any basis, because under Section 15,
Article VII, the outgoing President is constitutionally banned from making any
appointments from March 10, 2010 until June 30, 2010, including the appointment of the
successor of Chief Justice Puno. Hence, mandamus does not lie to compel the JBC to
submit the list of nominees to the outgoing President if the constitutional prohibition is
already in effect. Tan adds that the prohibition against midnight appointments was
applied by the Court to the appointments to the Judiciary made by then President Ramos,
with the Court holding that the duty of the President to fill the vacancies within 90 days
from occurrence of the vacancies (for the Supreme Court) or from the submission of the
list (for all other courts) was not an excuse to violate the constitutional prohibition.
Intervenors Tan, Ubano, Boiser, Corvera, NULP, BAYAN et al., and Bello et al., oppose
the insistence that Valenzuela recognizes the possibility that the President may appoint
the next Chief Justice if exigent circumstances warrant the appointment, because that
recognition is obiter dictum; and aver that the absence of a Chief Justice or even an
Associate Justice does not cause epic damage or absolute disruption or paralysis in the
operations of the Judiciary. They insist that even without the successor of Chief Justice
Puno being appointed by the incumbent President, the Court is allowed to sit and adjudge
en banc or in divisions of three, five or seven members at its discretion; that a full
membership of the Court is not necessary; that petitioner De Castro's fears are unfounded
and baseless, being based on a mere possibility, the occurrence of which is entirely
unsure; that it is not in the national interest to have a Chief Justice whose appointment is
unconstitutional and, therefore, void; and that such a situation will create a crisis in the
judicial system and will worsen an already vulnerable political situation.
Intervenors Tan, Ubano, WTLOP, Bello et al., IBP Davao del Sur, Corvera, and Boiser
regard De Castro's argument that a permanent Chief Justice is imperative for the stability
of the judicial system and the political situation in the country when the election-related
questions reach the Court as false, because there is an existing law on filling the void
brought about by a vacancy in the office of Chief Justice; that the law is Section 12 of the
Judiciary Act of 1948, which has not been repealed by Batas Pambansa Blg. 129 or any
other law; that a temporary or an acting Chief Justice is not anathema to judicial
independence; that the designation of an acting Chief Justice is not only provided for by
law, but is also dictated by practical necessity; that the practice was intended to be
enshrined in the 1987 Constitution, but the Commissioners decided not to write it in the
Constitution on account of the settled practice; that the practice was followed under the
1987 Constitution, when, in 1992, at the end of the term of Chief Justice Marcelo B.
Fernan, Associate Justice Andres Narvasa assumed the position as Acting Chief Justice
prior to his official appointment as Chief Justice; that said filling up of a vacancy in the
office of the Chief Justice was acknowledged and even used by analogy in the case of the
vacancy of the Chairman of the Commission on Elections, per Brillantes v. Yorac, 192
SCRA 358; and that the history of the Supreme Court has shown that this rule of
succession has been repeatedly observed and has become a part of its tradition. aCSDIc
Intervenors Ubano, Boiser, NUPL, Corvera, and Lim maintain that the Omnibus Election
Code penalizes as an election offense the act of any government official who appoints,
promotes, or gives any increase in salary or remuneration or privilege to any government
official or employee during the period of 45 days before a regular election; that the
provision covers all appointing heads, officials, and officers of a government office,
agency or instrumentality, including the President; that for the incumbent President to
appoint the next Chief Justice upon the retirement of Chief Justice Puno, or during the
period of the ban under the Omnibus Election Code, constitutes an election offense; that
even an appointment of the next Chief Justice prior to the election ban is fundamentally
invalid and without effect because there can be no appointment until a vacancy occurs;
and that the vacancy for the position can occur only by May 17, 2010.
Intervenor Boiser adds that De Castro's prayer to compel the submission of nominees by
the JBC to the incumbent President is off-tangent because the position of Chief Justice is
still not vacant; that to speak of a list, much more a submission of such list, before a
vacancy occurs is glaringly premature; that the proposed advance appointment by the
incumbent President of the next Chief Justice will be unconstitutional; and that no list of
nominees can be submitted by the JBC if there is no vacancy.
All the intervenors-oppositors submit that Section 15, Article VII makes no distinction
between the kinds of appointments made by the President; and that the Court, in
Valenzuela, ruled that the appointments by the President of the two judges during the
prohibition period were void.
Intervenor WTLOP posits that Section 15, Article VII of the 1987 Constitution does not
apply only to the appointments in the Executive Department, but also to judicial
appointments, contrary to the submission of PHILCONSA; that Section 15 does not
distinguish; and that Valenzuela already interpreted the prohibition as applicable to
judicial appointments.
Intervenor WTLOP further posits that petitioner Soriano's contention that the power to
appoint the Chief Justice is vested, not in the President, but in the Supreme Court, is
utterly baseless, because the Chief Justice is also a Member of the Supreme Court as
contemplated under Section 9, Article VIII; and that, at any rate, the term "members" was
interpreted in Vargas v. Rillaroza (G.R. No. L-1612, February 26, 1948) to refer to the
Chief Justice and the Associate Justices of the Supreme Court; that PHILCONSA's
prayer that the Court pass a resolution declaring that persons who manifest their interest
as nominees, but with conditions, shall not be considered nominees by the JBC is
diametrically opposed to the arguments in the body of its petition; that such glaring
inconsistency between the allegations in the body and the relief prayed for highlights the
lack of merit of PHILCONSA's petition; that the role of the JBC cannot be separated
from the constitutional prohibition on the President; and that the Court must direct the
JBC to follow the rule of law, that is, to submit the list of nominees only to the next duly
elected President after the period of the constitutional ban against midnight appointments
has expired. TDcHCa
Oppositor IBP Davao del Sur opines that the JBC — because it is neither a judicial nor a
quasi-judicial body — has no duty under the Constitution to resolve the question of
whether the incumbent President can appoint a Chief Justice during the period of
prohibition; that even if the JBC has already come up with a short list, it still has to bow
to the strict limitations under Section 15, Article VII; that should the JBC defer
submission of the list, it is not arrogating unto itself a judicial function, but simply
respecting the clear mandate of the Constitution; and that the application of the general
rule in Section 15, Article VII to the Judiciary does not violate the principle of separation
of powers, because said provision is an exception.
Oppositors NUPL, Corvera, Lim and BAYAN et al., state that the JBC's act of
nominating appointees to the Supreme Court is purely ministerial and does not involve
the exercise of judgment; that there can be no default on the part of the JBC in submitting
the list of nominees to the President, considering that the call for applications only begins
from the occurrence of the vacancy in the Supreme Court; and that the commencement of
the process of screening of applicants to fill the vacancy in the office of the Chief Justice
only begins from the retirement on May 17, 2010, for, prior to this date, there is no
definite legal basis for any party to claim that the submission or non-submission of the
list of nominees to the President by the JBC is a matter of right under law.
The main question presented in all the filings herein — because it involves two
seemingly conflicting provisions of the Constitution — imperatively demands the
attention and resolution of this Court, the only authority that can resolve the question
definitively and finally. The imperative demand rests on the ever-present need, first, to
safeguard the independence, reputation, and integrity of the entire Judiciary, particularly
this Court, an institution that has been unnecessarily dragged into the harsh polemics
brought on by the controversy; second, to settle once and for all the doubt about an
outgoing President's power to appoint to the Judiciary within the long period starting two
months before the presidential elections until the end of the presidential term; and third,
to set a definite guideline for the JBC to follow in the discharge of its primary office of
screening and nominating qualified persons for appointment to the Judiciary. EaDATc
Thus, we resolve.
Ruling of the Court
Locus Standi of Petitioners
The preliminary issue to be settled is whether or not the petitioners have locus standi.
Black defines locus standi as "a right of appearance in a court of justice on a given
question." 41 In public or constitutional litigations, the Court is often burdened with the
determination of the locus standi of the petitioners due to the ever-present need to
regulate the invocation of the intervention of the Court to correct any official action or
policy in order to avoid obstructing the efficient functioning of public officials and
offices involved in public service. It is required, therefore, that the petitioner must have a
personal stake in the outcome of the controversy, for, as indicated in Agan, Jr. v.
Philippine International Air Terminals Co., Inc.: 42
The question on legal standing is whether such parties have "alleged such a personal
stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions." 43 Accordingly, it has been held that
the interest of a person assailing the constitutionality of a statute must be direct and
personal. He must be able to show, not only that the law or any government act is invalid,
but also that he sustained or is in imminent danger of sustaining some direct injury as a
result of its enforcement, and not merely that he suffers thereby in some indefinite way. It
must appear that the person complaining has been or is about to be denied some right or
privilege to which he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained of. 44
It is true that as early as in 1937, in People v. Vera, 45 the Court adopted the direct injury
test for determining whether a petitioner in a public action had locus standi. There, the
Court held that the person who would assail the validity of a statute must have "a
personal and substantial interest in the case such that he has sustained, or will sustain
direct injury as a result." Vera was followed in Custodio v. President of the Senate, 46
Manila Race Horse Trainers' Association v. De la Fuente, 47 Anti-Chinese League of the
Philippines v. Felix, 48 and Pascual v. Secretary of Public Works. 49
Yet, the Court has also held that the requirement of locus standi, being a mere procedural
technicality, can be waived by the Court in the exercise of its discretion. For instance, in
1949, in Araneta v. Dinglasan, 50 the Court liberalized the approach when the cases had
"transcendental importance." Some notable controversies whose petitioners did not pass
the direct injury test were allowed to be treated in the same way as in Araneta v.
Dinglasan. 51 In the 1975 decision in Aquino v. Commission on Elections, 52 this Court
decided to resolve the issues raised by the petition due to their "far-reaching
implications," even if the petitioner had no personality to file the suit. The liberal
approach of Aquino v. Commission on Elections has been adopted in several notable
cases, permitting ordinary citizens, legislators, and civic organizations to bring their suits
involving the constitutionality or validity of laws, regulations, and rulings. 53 aTcSID
However, the assertion of a public right as a predicate for challenging a supposedly
illegal or unconstitutional executive or legislative action rests on the theory that the
petitioner represents the public in general. Although such petitioner may not be as
adversely affected by the action complained against as are others, it is enough that he
sufficiently demonstrates in his petition that he is entitled to protection or relief from the
Court in the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a citizen or taxpayer to gain
locus standi. That is not surprising, for even if the issue may appear to concern only the
public in general, such capacities nonetheless equip the petitioner with adequate interest
to sue. In David v. Macapagal-Arroyo, 54 the Court aptly explains why:
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in
public actions. The distinction was first laid down in Beauchamp v. Silk, 55 where it was
held that the plaintiff in a taxpayer's suit is in a different category from the plaintiff in a
citizen's suit. In the former, the plaintiff is affected by the expenditure of public funds,
while in the latter, he is but the mere instrument of the public concern. As held by the
New York Supreme Court in People ex rel Case v. Collins: 56 "In matter of mere public
right, however . . . the people are the real parties . . . It is at least the right, if not the duty,
of every citizen to interfere and see that a public offence be properly pursued and
punished, and that a public grievance be remedied." With respect to taxpayer's suits, Terr
v. Jordan 57 held that "the right of a citizen and a taxpayer to maintain an action in courts
to restrain the unlawful use of public funds to his injury cannot be denied." 58
Petitioners De Castro (G.R. No. 191002), Soriano (G.R. No. 191032) and Peralta (G.R.
No. 191149) all assert their right as citizens filing their petitions on behalf of the public
who are directly affected by the issue of the appointment of the next Chief Justice. De
Castro and Soriano further claim standing as taxpayers, with Soriano averring that he is
affected by the continuing proceedings in the JBC, which involve "unnecessary, if not,
illegal disbursement of public funds." 59
PHILCONSA alleges itself to be a non-stock, non-profit organization existing under the
law for the purpose of defending, protecting, and preserving the Constitution and
promoting its growth and flowering. It also alleges that the Court has recognized its legal
standing to file cases on constitutional issues in several cases. 60 ECDaTI
In A.M. No. 10-2-5-SC, Mendoza states that he is a citizen of the Philippines, a member
of the Philippine Bar engaged in the active practice of law, and a former Solicitor
General, former Minister of Justice, former Member of the Interim Batasang Pambansa
and the Regular Batasang Pambansa, and former member of the Faculty of the College of
Law of the University of the Philippines.
The petitioners in G.R. No. 191342 are the Governors of the Integrated Bar of the
Philippines (IBP) for Southern Luzon and Eastern Visayas. They allege that they have the
legal standing to enjoin the submission of the list of nominees by the JBC to the
President, for "[a]n adjudication of the proper interpretation and application of the
constitutional ban on midnight appointments with regard to respondent JBC's function in
submitting the list of nominees is well within the concern of petitioners, who are duty
bound to ensure that obedience and respect for the Constitution is upheld, most especially
by government offices, such as respondent JBC, who are specifically tasked to perform
crucial functions in the whole scheme of our democratic institution." They further allege
that, reposed in them as members of the Bar, is a clear legal interest in the process of
selecting the members of the Supreme Court, and in the selection of the Chief Justice,
considering that the person appointed becomes a member of the body that has
constitutional supervision and authority over them and other members of the legal
profession. 61
The Court rules that the petitioners have each demonstrated adequate interest in the
outcome of the controversy as to vest them with the requisite locus standi. The issues
before us are of transcendental importance to the people as a whole, and to the petitioners
in particular. Indeed, the issues affect everyone (including the petitioners), regardless of
one's personal interest in life, because they concern that great doubt about the authority of
the incumbent President to appoint not only the successor of the retiring incumbent Chief
Justice, but also others who may serve in the Judiciary, which already suffers from a far
too great number of vacancies in the ranks of trial judges throughout the country.
In any event, the Court retains the broad discretion to waive the requirement of legal
standing in favor of any petitioner when the matter involved has transcendental
importance, or otherwise requires a liberalization of the requirement. 62
Yet, if any doubt still lingers about the locus standi of any petitioner, we dispel the doubt
now in order to remove any obstacle or obstruction to the resolution of the essential issue
squarely presented herein. We are not to shirk from discharging our solemn duty by
reason alone of an obstacle more technical than otherwise. In Agan, Jr. v. Philippine
International Air Terminals Co., Inc., 63 we pointed out: "Standing is a peculiar concept
in constitutional law because in some cases, suits are not brought by parties who have
been personally injured by the operation of a law or any other government act but by
concerned citizens, taxpayers or voters who actually sue in the public interest." But even
if, strictly speaking, the petitioners "are not covered by the definition, it is still within the
wide discretion of the Court to waive the requirement and so remove the impediment to
its addressing and resolving the serious constitutional questions raised." 64 HAaDTE
Justiciability
Intervenor NUPL maintains that there is no actual case or controversy that is appropriate
or ripe for adjudication, considering that although the selection process commenced by
the JBC is going on, there is yet no final list of nominees; hence, there is no imminent
controversy as to whether such list must be submitted to the incumbent President, or
reserved for submission to the incoming President.
Intervenor Tan raises the lack of any actual justiciable controversy that is ripe for judicial
determination, pointing out that petitioner De Castro has not even shown that the JBC has
already completed its selection process and is now ready to submit the list to the
incumbent President; and that petitioner De Castro is merely presenting a hypothetical
scenario that is clearly not sufficient for the Court to exercise its power of judicial review.
Intervenors Corvera and Lim separately opine that De Castro's petition rests on an
overbroad and vague allegation of political tension, which is insufficient basis for the
Court to exercise its power of judicial review.
Intervenor BAYAN et al., contend that the petitioners are seeking a mere advisory
opinion on what the JBC and the President should do, and are not invoking any issues
that are justiciable in nature.
Intervenors Bello et al., submit that there exist no conflict of legal rights and no assertion
of opposite legal claims in any of the petitions; that PHILCONSA does not allege any
action taken by the JBC, but simply avers that the conditional manifestations of two
Members of the Court, accented by the divided opinions and interpretations of legal
experts, or associations of lawyers and law students on the issues published in the daily
newspapers are "matters of paramount and transcendental importance to the bench, bar
and general public"; that PHILCONSA fails not only to cite any legal duty or allege any
failure to perform the duty, but also to indicate what specific action should be done by the
JBC; that Mendoza does not even attempt to portray the matter as a controversy or
conflict of rights, but, instead, prays that the Court should "rule for the guidance of" the
JBC; that the fact that the Court supervises the JBC does not automatically imply that the
Court can rule on the issues presented in the Mendoza petition, because supervision
involves oversight, which means that the subordinate officer or body must first act, and if
such action is not in accordance with prescribed rules, then, and only then, may the
person exercising oversight order the action to be redone to conform to the prescribed
rules; that the Mendoza petition does not allege that the JBC has performed a specific act
susceptible to correction for being illegal or unconstitutional; and that the Mendoza
petition asks the Court to issue an advisory ruling, not to exercise its power of
supervision to correct a wrong act by the JBC, but to declare the state of the law in the
absence of an actual case or controversy. AEaSTC
We hold that the petitions set forth an actual case or controversy that is ripe for judicial
determination. The reality is that the JBC already commenced the proceedings for the
selection of the nominees to be included in a short list to be submitted to the President for
consideration of which of them will succeed Chief Justice Puno as the next Chief Justice.
Although the position is not yet vacant, the fact that the JBC began the process of
nomination pursuant to its rules and practices, although it has yet to decide whether to
submit the list of nominees to the incumbent outgoing President or to the next President,
makes the situation ripe for judicial determination, because the next steps are the public
interview of the candidates, the preparation of the short list of candidates, and the
"interview of constitutional experts, as may be needed."
A part of the question to be reviewed by the Court is whether the JBC properly initiated
the process, there being an insistence from some of the oppositors-intervenors that the
JBC could only do so once the vacancy has occurred (that is, after May 17, 2010).
Another part is, of course, whether the JBC may resume its process until the short list is
prepared, in view of the provision of Section 4 (1), Article VIII, which unqualifiedly
requires the President to appoint one from the short list to fill the vacancy in the Supreme
Court (be it the Chief Justice or an Associate Justice) within 90 days from the occurrence
of the vacancy.
The ripeness of the controversy for judicial determination may not be doubted. The
challenges to the authority of the JBC to open the process of nomination and to continue
the process until the submission of the list of nominees; the insistence of some of the
petitioners to compel the JBC through mandamus to submit the short list to the incumbent
President; the counter-insistence of the intervenors to prohibit the JBC from submitting
the short list to the incumbent President on the ground that said list should be submitted
instead to the next President; the strong position that the incumbent President is already
prohibited under Section 15, Article VII from making any appointments, including those
to the Judiciary, starting on May 10, 2010 until June 30, 2010; and the contrary position
that the incumbent President is not so prohibited are only some of the real issues for
determination. All such issues establish the ripeness of the controversy, considering that
for some the short list must be submitted before the vacancy actually occurs by May 17,
2010. The outcome will not be an abstraction, or a merely hypothetical exercise. The
resolution of the controversy will surely settle — with finality — the nagging questions
that are preventing the JBC from moving on with the process that it already began, or that
are reasons persuading the JBC to desist from the rest of the process.
We need not await the occurrence of the vacancy by May 17, 2010 in order for the
principal issue to ripe for judicial determination by the Court. It is enough that one
alleges conduct arguably affected with a constitutional interest, but seemingly proscribed
by the Constitution. A reasonable certainty of the occurrence of the perceived threat to a
constitutional interest is sufficient to afford a basis for bringing a challenge, provided the
Court has sufficient facts before it to enable it to intelligently adjudicate the issues. 65
Herein, the facts are not in doubt, for only legal issues remain. aDHCAE
Substantive Merits
I
Prohibition under Section 15, Article VII does not apply
to appointments to fill a vacancy in the Supreme Court
or to other appointments to the Judiciary
Two constitutional provisions are seemingly in conflict.
The first, Section 15, Article VII (Executive Department), provides:
Section 15. Two months immediately before the next presidential elections and up to
the end of his term, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety.
The other, Section 4 (1), Article VIII (Judicial Department), states:
Section 4. (1). The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its discretion, in division of three, five, or
seven Members. Any vacancy shall be filled within ninety days from the occurrence
thereof.
In the consolidated petitions, the petitioners, with the exception of Soriano, Tolentino and
Inting, submit that the incumbent President can appoint the successor of Chief Justice
Puno upon his retirement on May 17, 2010, on the ground that the prohibition against
presidential appointments under Section 15, Article VII does not extend to appointments
in the Judiciary.
The Court agrees with the submission.
First. The records of the deliberations of the Constitutional Commission reveal that the
framers devoted time to meticulously drafting, styling, and arranging the Constitution.
Such meticulousness indicates that the organization and arrangement of the provisions of
the Constitution were not arbitrarily or whimsically done by the framers, but purposely
made to reflect their intention and manifest their vision of what the Constitution should
contain.
The Constitution consists of 18 Articles, three of which embody the allocation of the
awesome powers of government among the three great departments, the Legislative
(Article VI), the Executive (Article VII), and the Judicial Departments (Article VIII). The
arrangement was a true recognition of the principle of separation of powers that underlies
the political structure, as Constitutional Commissioner Adolfo S. Azcuna (later a worthy
member of the Court) explained in his sponsorship speech: EaISDC
We have in the political part of this Constitution opted for the separation of powers in
government because we believe that the only way to protect freedom and liberty is to
separate and divide the awesome powers of government. Hence, we return to the
separation of powers doctrine and the legislative, executive and judicial departments. 66
As can be seen, Article VII is devoted to the Executive Department, and, among others, it
lists the powers vested by the Constitution in the President. The presidential power of
appointment is dealt with in Sections 14, 15 and 16 of the Article.
Article VIII is dedicated to the Judicial Department and defines the duties and
qualifications of Members of the Supreme Court, among others. Section 4 (1) and Section
9 of this Article are the provisions specifically providing for the appointment of Supreme
Court Justices. In particular, Section 9 states that the appointment of Supreme Court
Justices can only be made by the President upon the submission of a list of at least three
nominees by the JBC; Section 4 (1) of the Article mandates the President to fill the
vacancy within 90 days from the occurrence of the vacancy.
Had the framers intended to extend the prohibition contained in Section 15, Article VII to
the appointment of Members of the Supreme Court, they could have explicitly done so.
They could not have ignored the meticulous ordering of the provisions. They would have
easily and surely written the prohibition made explicit in Section 15, Article VII as being
equally applicable to the appointment of Members of the Supreme Court in Article VIII
itself, most likely in Section 4 (1), Article VIII. That such specification was not done only
reveals that the prohibition against the President or Acting President making
appointments within two months before the next presidential elections and up to the end
of the President's or Acting President's term does not refer to the Members of the
Supreme Court.
Although Valenzuela 67 came to hold that the prohibition covered even judicial
appointments, it cannot be disputed that the Valenzuela dictum did not firmly rest on the
deliberations of the Constitutional Commission. Thereby, the confirmation made to the
JBC by then Senior Associate Justice Florenz D. Regalado of this Court, a former
member of the Constitutional Commission, about the prohibition not being intended to
apply to the appointments to the Judiciary, which confirmation Valenzuela even
expressly mentioned, should prevail.
Relevantly, Valenzuela adverted to the intent of the framers in the genesis of Section 4
(1), Article VIII, viz.: HCacDE
V. Intent of the Constitutional Commission
The journal of the Commission which drew up the present Constitution discloses that the
original proposal was to have an eleven-member Supreme Court. Commissioner Eulogio
Lerum wanted to increase the number of Justices to fifteen. He also wished to ensure that
that number would not be reduced for any appreciable length of time (even only
temporarily), and to this end proposed that any vacancy "must be filled within two
months from the date that the vacancy occurs." His proposal to have a 15-member Court
was not initially adopted. Persisting however in his desire to make certain that the size of
the Court would not be decreased for any substantial period as a result of vacancies,
Lerum proposed the insertion in the provision (anent the Court's membership) of the
same mandate that "IN CASE OF ANY VACANCY, THE SAME SHALL BE FILLED
WITHIN TWO MONTHS FROM OCCURRENCE THEREOF." He later agreed to
suggestions to make the period three, instead of two, months. As thus amended, the
proposal was approved. As it turned out, however, the Commission ultimately agreed on
a fifteen-member Court. Thus it was that the section fixing the composition of the
Supreme Court came to include a command to fill up any vacancy therein within 90 days
from its occurrence.
In this connection, it may be pointed out that that instruction that any "vacancy shall be
filled within ninety days" (in the last sentence of Section 4 (1) of Article VIII) contrasts
with the prohibition in Section 15, Article VII, which is couched in stronger negative
language — that "a President or Acting President shall not make appointments . . ."
The commission later approved a proposal of Commissioner Hilario G. Davide, Jr. (now
a Member of this Court) to add to what is now Section 9 of Article VIII, the following
paragraph: "WITH RESPECT TO LOWER COURTS, THE PRESIDENT SHALL
ISSUE THE APPOINTMENT WITHIN NINETY DAYS FROM THE SUBMISSION
OF THE LIST" (of nominees by the Judicial and Bar Council to the President). Davide
stated that his purpose was to provide a "uniform rule" for lower courts. According to
him, the 90-day period should be counted from submission of the list of nominees to the
President in view of the possibility that the President might reject the list submitted to
him and the JBC thus need more time to submit a new one.
On the other hand, Section 15, Article VII — which in effect deprives the President of his
appointing power "two months immediately before the next presidential elections up to
the end of his term" — was approved without discussion. 68
However, the reference to the records of the Constitutional Commission did not advance
or support the result in Valenzuela. Far to the contrary, the records disclosed the express
intent of the framers to enshrine in the Constitution, upon the initiative of Commissioner
Eulogio Lerum, "a command [to the President] to fill up any vacancy therein within 90
days from its occurrence," which even Valenzuela conceded. 69 The exchanges during
deliberations of the Constitutional Commission on October 8, 1986 further show that the
filling of a vacancy in the Supreme Court within the 90-day period was a true mandate
for the President, viz.: EITcaD
MR. DE CASTRO.
I understand that our justices now in the Supreme Court, together with the Chief
Justice, are only 11.
MR. CONCEPCION.
Yes.
MR. DE CASTRO.
And the second sentence of this subsection reads: "Any vacancy shall be filled
within ninety days from the occurrence thereof."
MR. CONCEPCION.
That is right.
MR. DE CASTRO.
Is this now a mandate to the executive to fill the vacancy?
MR. CONCEPCION.
That is right. That is borne out of the fact that in the past 30 years, seldom has the
Court had a complete complement. 70
Moreover, the usage in Section 4 (1), Article VIII of the word shall — an imperative,
operating to impose a duty that may be enforced 71 — should not be disregarded.
Thereby, Sections 4 (1) imposes on the President the imperative duty to make an
appointment of a Member of the Supreme Court within 90 days from the occurrence of
the vacancy. The failure by the President to do so will be a clear disobedience to the
Constitution.
The 90-day limitation fixed in Section 4 (1), Article VIII for the President to fill the
vacancy in the Supreme Court was undoubtedly a special provision to establish a definite
mandate for the President as the appointing power, and cannot be defeated by mere
judicial interpretation in Valenzuela to the effect that Section 15, Article VII prevailed
because it was "couched in stronger negative language." Such interpretation even turned
out to be conjectural, in light of the records of the Constitutional Commission's
deliberations on Section 4 (1), Article VIII.
How Valenzuela justified its pronouncement and result is hardly warranted. According to
an authority on statutory construction: 72
. . . the court should seek to avoid any conflict in the provisions of the statute by
endeavoring to harmonize and reconcile every part so that each shall be effective. It is not
easy to draft a statute, or any other writing for that matter, which may not in some
manner contain conflicting provisions. But what appears to the reader to be a conflict
may not have seemed so to the drafter. Undoubtedly, each provision was inserted for a
definite reason. Often by considering the enactment in its entirety, what appears to be on
its face a conflict may be cleared up and the provisions reconciled. HIaTDS
Consequently, that construction which will leave every word operative will be favored
over one which leaves some word or provision meaningless because of inconsistency.
But a word should not be given effect, if to do so gives the statute a meaning contrary to
the intent of the legislature. On the other hand, if full effect cannot be given to the words
of a statute, they must be made effective as far as possible. Nor should the provisions of a
statute which are inconsistent be harmonized at a sacrifice of the legislative intention. It
may be that two provisions are irreconcilable; if so, the one which expresses the intent of
the law-makers should control. And the arbitrary rule has been frequently announced that
where there is an irreconcilable conflict between the different provisions of a statute, the
provision last in order of position will prevail, since it is the latest expression of the
legislative will. Obviously, the rule is subject to deserved criticism. It is seldom applied,
and probably then only where an irreconcilable conflict exists between different sections
of the same act, and after all other means of ascertaining the meaning of the legislature
have been exhausted. Where the conflict is between two statutes, more may be said in
favor of the rule's application, largely because of the principle of implied repeal.
In this connection, PHILCONSA's urging of a revisit and a review of Valenzuela is
timely and appropriate. Valenzuela arbitrarily ignored the express intent of the
Constitutional Commission to have Section 4 (1), Article VIII stand independently of any
other provision, least of all one found in Article VII. It further ignored that the two
provisions had no irreconcilable conflict, regardless of Section 15, Article VII being
couched in the negative. As judges, we are not to unduly interpret, and should not accept
an interpretation that defeats the intent of the framers. 73 CTSDAI
Consequently, prohibiting the incumbent President from appointing a Chief Justice on the
premise that Section 15, Article VII extends to appointments in the Judiciary cannot be
sustained. A misinterpretation like Valenzuela should not be allowed to last after its false
premises have been exposed. 74 It will not do to merely distinguish Valenzuela from
these cases, for the result to be reached herein is entirely incompatible with what
Valenzuela decreed. Consequently, Valenzuela now deserves to be quickly sent to the
dustbin of the unworthy and forgettable.
We reverse Valenzuela.
Second. Section 15, Article VII does not apply as well to all other appointments in the
Judiciary.
There is no question that one of the reasons underlying the adoption of Section 15 as part
of Article VII was to eliminate midnight appointments from being made by an outgoing
Chief Executive in the mold of the appointments dealt with in the leading case of Aytona
v. Castillo. 75 In fact, in Valenzuela, the Court so observed, stating that:
. . . it appears that Section 15, Article VII is directed against two types of appointments:
(1) those made for buying votes and (2) those made for partisan considerations. The first
refers to those appointments made within the two months preceding a Presidential
election and are similar to those which are declared election offenses in the Omnibus
Election Code, viz.:
xxx xxx xxx
The second type of appointments prohibited by Section 15, Article VII consists of the so-
called "midnight" appointments. In Aytona v. Castillo, it was held that after the
proclamation of Diosdado Macapagal as duly elected President, President Carlos P.
Garcia, who was defeated in his bid for reelection, became no more than a "caretaker"
administrator whose duty was to "prepare for the orderly transfer of authority to the
incoming President." Said the Court:
"The filling up of vacancies in important positions, if few, and so spaced as to afford
some assurance of deliberate action and careful consideration of the need for the
appointment and appointee's qualifications may undoubtedly be permitted. But the
issuance of 350 appointments in one night and the planned induction of almost all of
them in a few hours before the inauguration of the new President may, with some reason,
be regarded by the latter as an abuse of Presidential prerogatives, the steps taken being
apparently a mere partisan effort to fill all vacant positions irrespective of fitness and
other conditions, and thereby to deprive the new administration of an opportunity to make
the corresponding appointments." cSCTID
As indicated, the Court recognized that there may well be appointments to important
positions which have to be made even after the proclamation of the new President. Such
appointments, so long as they are "few and so spaced as to afford some assurance of
deliberate action and careful consideration of the need for the appointment and the
appointee's qualifications," can be made by the outgoing President. Accordingly, several
appointments made by President Garcia, which were shown to have been well
considered, were upheld.
Section 15, Article VII has a broader scope than the Aytona ruling. It may not
unreasonably be deemed to contemplate not only "midnight" appointments — those made
obviously for partisan reasons as shown by their number and the time of their making —
but also appointments presumed made for the purpose of influencing the outcome of the
Presidential election.
On the other hand, the exception in the same Section 15 of Article VII — allowing
appointments to be made during the period of the ban therein provided — is much
narrower than that recognized in Aytona. The exception allows only the making of
temporary appointments to executive positions when continued vacancies will prejudice
public service or endanger public safety. Obviously, the article greatly restricts the
appointing power of the President during the period of the ban.
Considering the respective reasons for the time frames for filling vacancies in the courts
and the restriction on the President's power of appointment, it is this Court's view that, as
a general proposition, in case of conflict, the former should yield to the latter. Surely, the
prevention of vote-buying and similar evils outweighs the need for avoiding delays in
filling up of court vacancies or the disposition of some cases. Temporary vacancies can
abide the period of the ban which, incidentally and as earlier pointed out, comes to exist
only once in every six years. Moreover, those occurring in the lower courts can be filled
temporarily by designation. But prohibited appointments are long-lasting and permanent
in their effects. They may, as earlier pointed out, in fact influence the results of elections
and, for that reason, their making is considered an election offense. 76
Given the background and rationale for the prohibition in Section 15, Article VII, we
have no doubt that the Constitutional Commission confined the prohibition to
appointments made in the Executive Department. The framers did not need to extend the
prohibition to appointments in the Judiciary, because their establishment of the JBC and
their subjecting the nomination and screening of candidates for judicial positions to the
unhurried and deliberate prior process of the JBC ensured that there would no longer be
midnight appointments to the Judiciary. If midnight appointments in the mold of Aytona
were made in haste and with irregularities, or made by an outgoing Chief Executive in the
last days of his administration out of a desire to subvert the policies of the incoming
President or for partisanship, 77 the appointments to the Judiciary made after the
establishment of the JBC would not be suffering from such defects because of the JBC's
prior processing of candidates. Indeed, it is axiomatic in statutory construction that the
ascertainment of the purpose of the enactment is a step in the process of ascertaining the
intent or meaning of the enactment, because the reason for the enactment must
necessarily shed considerable light on "the law of the statute," i.e., the intent; hence, the
enactment should be construed with reference to its intended scope and purpose, and the
court should seek to carry out this purpose rather than to defeat it. 78 SIaHTD
Also, the intervention of the JBC eliminates the danger that appointments to the Judiciary
can be made for the purpose of buying votes in a coming presidential election, or of
satisfying partisan considerations. The experience from the time of the establishment of
the JBC shows that even candidates for judicial positions at any level backed by people
influential with the President could not always be assured of being recommended for the
consideration of the President, because they first had to undergo the vetting of the JBC
and pass muster there. Indeed, the creation of the JBC was precisely intended to de-
politicize the Judiciary by doing away with the intervention of the Commission on
Appointments. This insulating process was absent from the Aytona midnight
appointment.
Third. As earlier stated, the non-applicability of Section 15, Article VII to appointments
in the Judiciary was confirmed by then Senior Associate Justice Regalado to the JBC
itself when it met on March 9, 1998 to discuss the question raised by some sectors about
the "constitutionality of . . . appointments" to the Court of Appeals in light of the
forthcoming presidential elections. He assured that "on the basis of the (Constitutional)
Commission's records, the election ban had no application to appointments to the Court
of Appeals." 79 This confirmation was accepted by the JBC, which then submitted to the
President for consideration the nominations for the eight vacancies in the Court of
Appeals. 80
The fault of Valenzuela was that it accorded no weight and due consideration to the
confirmation of Justice Regalado. Valenzuela was weak, because it relied on
interpretation to determine the intent of the framers rather than on the deliberations of the
Constitutional Commission. Much of the unfounded doubt about the President's power to
appoint during the period of prohibition in Section 15, Article VII could have been
dispelled since its promulgation on November 9, 1998, had Valenzuela properly
acknowledged and relied on the confirmation of a distinguished member of the
Constitutional Commission like Justice Regalado. THEDCA
Fourth. Of the 23 sections in Article VII, three (i.e., Section 14, Section 15, and Section
16) concern the appointing powers of the President.
Section 14 speaks of the power of the succeeding President to revoke appointments made
by an Acting President, 81 and evidently refers only to appointments in the Executive
Department. It has no application to appointments in the Judiciary, because temporary or
acting appointments can only undermine the independence of the Judiciary due to their
being revocable at will. 82 The letter and spirit of the Constitution safeguard that
independence. Also, there is no law in the books that authorizes the revocation of
appointments in the Judiciary. Prior to their mandatory retirement or resignation, judges
of the first and second level courts and the Justices of the third level courts may only be
removed for cause, but the Members of the Supreme Court may be removed only by
impeachment.
Section 16 covers only the presidential appointments that require confirmation by the
Commission on Appointments. Thereby, the Constitutional Commission restored the
requirement of confirmation by the Commission on Appointments after the requirement
was removed from the 1973 Constitution. Yet, because of Section 9 of Article VIII, the
restored requirement did not include appointments to the Judiciary. 83
Section 14, Section 15, and Section 16 are obviously of the same character, in that they
affect the power of the President to appoint. The fact that Section 14 and Section 16 refer
only to appointments within the Executive Department renders conclusive that Section 15
also applies only to the Executive Department. This conclusion is consistent with the rule
that every part of the statute must be interpreted with reference to the context, i.e., that
every part must be considered together with the other parts, and kept subservient to the
general intent of the whole enactment. 84 It is absurd to assume that the framers
deliberately situated Section 15 between Section 14 and Section 16, if they intended
Section 15 to cover all kinds of presidential appointments. If that was their intention in
respect of appointments to the Judiciary, the framers, if only to be clear, would have
easily and surely inserted a similar prohibition in Article VIII, most likely within Section
4 (1) thereof.
Fifth. To hold like the Court did in Valenzuela that Section 15 extends to appointments to
the Judiciary further undermines the intent of the Constitution of ensuring the
independence of the Judicial Department from the Executive and Legislative
Departments. Such a holding will tie the Judiciary and the Supreme Court to the fortunes
or misfortunes of political leaders vying for the Presidency in a presidential election.
Consequently, the wisdom of having the new President, instead of the current incumbent
President, appoint the next Chief Justice is itself suspect, and cannot ensure judicial
independence, because the appointee can also become beholden to the appointing
authority. In contrast, the appointment by the incumbent President does not run the same
risk of compromising judicial independence, precisely because her term will end by June
30, 2010. ICTacD
Sixth. The argument has been raised to the effect that there will be no need for the
incumbent President to appoint during the prohibition period the successor of Chief
Justice Puno within the context of Section 4 (1), Article VIII, because anyway there will
still be about 45 days of the 90 days mandated in Section 4 (1), Article VIII remaining.
The argument is flawed, because it is focused only on the coming vacancy occurring
from Chief Justice Puno's retirement by May 17, 2010. It ignores the need to apply
Section 4 (1) to every situation of a vacancy in the Supreme Court.
The argument also rests on the fallacious assumption that there will still be time
remaining in the 90-day period under Section 4 (1), Article VIII. The fallacy is easily
demonstrable, as the OSG has shown in its comment.
Section 4 (3), Article VII requires the regular elections to be held on the second Monday
of May, letting the elections fall on May 8, at the earliest, or May 14, at the latest. If the
regular presidential elections are held on May 8, the period of the prohibition is 115 days.
If such elections are held on May 14, the period of the prohibition is 109 days. Either
period of the prohibition is longer than the full mandatory 90-day period to fill the
vacancy in the Supreme Court. The result is that there are at least 19 occasions (i.e., the
difference between the shortest possible period of the ban of 109 days and the 90-day
mandatory period for appointments) in which the outgoing President would be in no
position to comply with the constitutional duty to fill up a vacancy in the Supreme Court.
It is safe to assume that the framers of the Constitution could not have intended such an
absurdity. In fact, in their deliberations on the mandatory period for the appointment of
Supreme Court Justices under Section 4 (1), Article VIII, the framers neither discussed,
nor mentioned, nor referred to the ban against midnight appointments under Section 15,
Article VII, or its effects on the 90-day period, or vice versa. They did not need to,
because they never intended Section 15, Article VII to apply to a vacancy in the Supreme
Court, or in any of the lower courts. TCaSAH
Seventh. As a matter of fact, in an extreme case, we can even raise a doubt on whether a
JBC list is necessary at all for the President — any President — to appoint a Chief Justice
if the appointee is to come from the ranks of the sitting justices of the Supreme Court.
Sec. 9, Article VIII says:
. . . . The Members of the Supreme Court . . . shall be appointed by the President from a
list of at least three nominees prepared by the Judicial and Bar Council for any vacancy.
Such appointments need no confirmation.
xxx xxx xxx
The provision clearly refers to an appointee coming into the Supreme Court from the
outside, that is, a non-member of the Court aspiring to become one. It speaks of
candidates for the Supreme Court, not of those who are already members or sitting
justices of the Court, all of whom have previously been vetted by the JBC.
Can the President, therefore, appoint any of the incumbent Justices of the Court as Chief
Justice? AcSIDE
The question is not squarely before us at the moment, but it should lend itself to a deeper
analysis if and when circumstances permit. It should be a good issue for the proposed
Constitutional Convention to consider in the light of Senate President Juan Ponce Enrile's
statement that the President can appoint the Chief Justice from among the sitting justices
of the Court even without a JBC list.
II
The Judiciary Act of 1948
The posture has been taken that no urgency exists for the President to appoint the
successor of Chief Justice Puno, considering that the Judiciary Act of 1948 can still
address the situation of having the next President appoint the successor.
Section 12 of the Judiciary Act of 1948 states:
Section 12. Vacancy in Office of Chief Justice. — In case of a vacancy in the office of
Chief Justice of the Supreme Court or of his inability to perform the duties and powers of
his office, they shall devolve upon the Associate Justice who is first in precedence, until
such disability is removed, or another Chief Justice is appointed and duly qualified. This
provision shall apply to every Associate Justice who succeeds to the office of Chief
Justice.
The provision calls for an Acting Chief Justice in the event of a vacancy in the office of
the Chief Justice, or in the event that the Chief Justice is unable to perform his duties and
powers. In either of such circumstances, the duties and powers of the office of the Chief
Justice shall devolve upon the Associate Justice who is first in precedence until a new
Chief Justice is appointed or until the disability is removed.
Notwithstanding that there is no pressing need to dwell on this peripheral matter after the
Court has hereby resolved the question of consequence, we do not find it amiss to
confront the matter now.
We cannot agree with the posture.
A review of Sections 4 (1) and 9 of Article VIII shows that the Supreme Court is
composed of a Chief Justice and 14 Associate Justices, who all shall be appointed by the
President from a list of at least three nominees prepared by the JBC for every vacancy,
which appointments require no confirmation by the Commission on Appointments. With
reference to the Chief Justice, he or she is appointed by the President as Chief Justice,
and the appointment is never in an acting capacity. The express reference to a Chief
Justice abhors the idea that the framers contemplated an Acting Chief Justice to head the
membership of the Supreme Court. Otherwise, they would have simply written so in the
Constitution. Consequently, to rely on Section 12 of the Judiciary Act of 1948 in order to
forestall the imperative need to appoint the next Chief Justice soonest is to defy the plain
intent of the Constitution. SCHATc
For sure, the framers intended the position of Chief Justice to be permanent, not one to be
occupied in an acting or temporary capacity. In relation to the scheme of things under the
present Constitution, Section 12 of the Judiciary Act of 1948 only responds to a rare
situation in which the new Chief Justice is not yet appointed, or in which the incumbent
Chief Justice is unable to perform the duties and powers of the office. It ought to be
remembered, however, that it was enacted because the Chief Justice appointed under the
1935 Constitution was subject to the confirmation of the Commission on Appointments,
and the confirmation process might take longer than expected.
The appointment of the next Chief Justice by the incumbent President is preferable to
having the Associate Justice who is first in precedence take over. Under the Constitution,
the heads of the Legislative and Executive Departments are popularly elected, and
whoever are elected and proclaimed at once become the leaders of their respective
Departments. However, the lack of any appointed occupant of the office of Chief Justice
harms the independence of the Judiciary, because the Chief Justice is the head of the
entire Judiciary. The Chief Justice performs functions absolutely significant to the life of
the nation. With the entire Supreme Court being the Presidential Electoral Tribunal, the
Chief Justice is the Chairman of the Tribunal. There being no obstacle to the appointment
of the next Chief Justice, aside from its being mandatory for the incumbent President to
make within the 90-day period from May 17, 2010, there is no justification to insist that
the successor of Chief Justice Puno be appointed by the next President.
Historically, under the present Constitution, there has been no wide gap between the
retirement and the resignation of an incumbent Chief Justice, on one hand, and the
appointment to and assumption of office of his successor, on the other hand. As
summarized in the comment of the OSG, the chronology of succession is as follows:
1. When Chief Justice Claudio Teehankee retired on April 18, 1988, Chief Justice
Pedro Yap was appointed on the same day;
2. When Chief Justice Yap retired on July 1, 1988, Chief Justice Marcelo Fernan
was appointed on the same day;
3. When Chief Justice Fernan resigned on December 7, 1991, Chief Justice Andres
Narvasa was appointed the following day, December 8, 1991;
4. When Chief Justice Narvasa retired on November 29, 1998, Chief Justice Hilario
Davide, Jr. was sworn into office the following early morning of November 30, 1998;
5. When Chief Justice Davide retired on December 19, 2005, Chief Justice Artemio
Panganiban was appointed the next day, December 20, 2005; and
6. When Chief Justice Panganiban retired on December 6, 2006, Chief Justice
Reynato S. Puno took his oath as Chief Justice at midnight of December 6, 2006. 85
ATcaID
III
Writ of mandamus does not lie against the JBC
May the JBC be compelled to submit the list of nominees to the President?
Mandamus shall issue when any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act that the law specifically enjoins as a duty resulting
from an office, trust, or station. 86 It is proper when the act against which it is directed is
one addressed to the discretion of the tribunal or officer. Mandamus is not available to
direct the exercise of a judgment or discretion in a particular way. 87
For mandamus to lie, the following requisites must be complied with: (a) the plaintiff has
a clear legal right to the act demanded; (b) it must be the duty of the defendant to perform
the act, because it is mandated by law; (c) the defendant unlawfully neglects the
performance of the duty enjoined by law; (d) the act to be performed is ministerial, not
discretionary; and (e) there is no appeal or any other plain, speedy and adequate remedy
in the ordinary course of law.
Section 8 (5) and Section 9, Article VIII, mandate the JBC to submit a list of at least three
nominees to the President for every vacancy in the Judiciary:
Section 8. ...
(5) The Council shall have the principal function of recommending appointees to the
Judiciary. . . .
Section 9. The Members of the Supreme Court and judges of lower courts shall be
appointed by the President from a list of at least three nominees prepared by the Judicial
and Bar Council for every vacancy. Such appointments need no confirmation.
For the lower courts, the President shall issue the appointments within ninety days from
the submission of the list.
However, Section 4 (1) and Section 9, Article VIII, mandate the President to fill the
vacancy in the Supreme Court within 90 days from the occurrence of the vacancy, and
within 90 days from the submission of the list, in the case of the lower courts. The 90-day
period is directed at the President, not at the JBC. Thus, the JBC should start the process
of selecting the candidates to fill the vacancy in the Supreme Court before the occurrence
of the vacancy. AaCTID
Under the Constitution, it is mandatory for the JBC to submit to the President the list of
nominees to fill a vacancy in the Supreme Court in order to enable the President to
appoint one of them within the 90-day period from the occurrence of the vacancy. The
JBC has no discretion to submit the list to the President after the vacancy occurs, because
that shortens the 90-day period allowed by the Constitution for the President to make the
appointment. For the JBC to do so will be unconscionable on its part, considering that it
will thereby effectively and illegally deprive the President of the ample time granted
under the Constitution to reflect on the qualifications of the nominees named in the list of
the JBC before making the appointment.
The duty of the JBC to submit a list of nominees before the start of the President's
mandatory 90-day period to appoint is ministerial, but its selection of the candidates
whose names will be in the list to be submitted to the President lies within the discretion
of the JBC. The object of the petitions for mandamus herein should only refer to the duty
to submit to the President the list of nominees for every vacancy in the Judiciary, because
in order to constitute unlawful neglect of duty, there must be an unjustified delay in
performing that duty. 88 For mandamus to lie against the JBC, therefore, there should be
an unexplained delay on its part in recommending nominees to the Judiciary, that is, in
submitting the list to the President.
The distinction between a ministerial act and a discretionary one has been delineated in
the following manner:
The distinction between a ministerial and discretionary act is well delineated. A purely
ministerial act or duty is one which an officer or tribunal performs in a given state of
facts, in a prescribed manner, in obedience to the mandate of a legal authority, without
regard to or the exercise of his own judgment upon the propriety or impropriety of the act
done. If the law imposes a duty upon a public officer and gives him the right to decide
how or when the duty shall be performed, such duty is discretionary and not ministerial.
The duty is ministerial only when the discharge of the same requires neither the exercise
of official discretion or judgment. 89
Accordingly, we find no sufficient grounds to grant the petitions for mandamus and to
issue a writ of mandamus against the JBC. The actions for that purpose are premature,
because it is clear that the JBC still has until May 17, 2010, at the latest, within which to
submit the list of nominees to the President to fill the vacancy created by the compulsory
retirement of Chief Justice Puno.
IV
Writ of prohibition does not lie against the JBC
In light of the foregoing disquisitions, the conclusion is ineluctable that only the President
can appoint the Chief Justice. Hence, Soriano's petition for prohibition in G.R. No.
191032, which proposes to prevent the JBC from intervening in the process of
nominating the successor of Chief Justice Puno, lacks merit. IEHScT
On the other hand, the petition for prohibition in G.R. No. 191342 is similarly devoid of
merit. The challenge mounted against the composition of the JBC based on the allegedly
unconstitutional allocation of a vote each to the ex officio members from the Senate and
the House of Representatives, thereby prejudicing the chances of some candidates for
nomination by raising the minimum number of votes required in accordance with the
rules of the JBC, is not based on the petitioners' actual interest, because they have not
alleged in their petition that they were nominated to the JBC to fill some vacancies in the
Judiciary. Thus, the petitioners lack locus standi on that issue.
WHEREFORE, the Court:
1. Dismisses the petitions for certiorari and mandamus in G.R. No. 191002 and G.R.
No. 191149, and the petition for mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032 and G.R. No. 191342
for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly, directs the Judicial
and Bar Council:
(a) To resume its proceedings for the nomination of candidates to fill the vacancy to
be created by the compulsory retirement of Chief Justice Reynato S. Puno by May 17,
2010;
(b) To prepare the short list of nominees for the position of Chief Justice;
(c) To submit to the incumbent President the short list of nominees for the position of
Chief Justice on or before May 17, 2010; and
(d) To continue its proceedings for the nomination of candidates to fill other
vacancies in the Judiciary and submit to the President the short list of nominees
corresponding thereto in accordance with this decision.
SO ORDERED.

EXECUTIVE DEPARTMENT

[G.R. No. 189698. December 1, 2009.]

ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., petitioners, vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
NACHURA, J p:
"In our predisposition to discover the 'original intent' of a statute, courts become the
unfeeling pillars of the status quo. Little do we realize that statutes or even constitutions
are bundles of compromises thrown our way by their framers. Unless we exercise
vigilance, the statute may already be out of tune and irrelevant to our day". 1 It is in this
light that we should address the instant case. IcTEAD
Before the Court is a petition for prohibition and certiorari, with prayer for the issuance
of a temporary restraining order and a writ of preliminary injunction, assailing Section 4
(a) of Resolution No. 8678 of the Commission on Elections (COMELEC). In view of
pressing contemporary events, the petition begs for immediate resolution.
The Antecedents
This controversy actually stems from the law authorizing the COMELEC to use an
automated election system (AES).
On December 22, 1997, Congress enacted Republic Act (R.A.) No. 8436, entitled "AN
ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO USE AN
AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR
LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL
ELECTORAL EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER
PURPOSES". Section 11 thereof reads:
SEC. 11. Official Ballot. — The Commission shall prescribe the size and form of
the official ballot which shall contain the titles of the positions to be filled and/or the
propositions to be voted upon in an initiative, referendum or plebiscite. Under each
position, the names of candidates shall be arranged alphabetically by surname and
uniformly printed using the same type size. A fixed space where the chairman of the
Board of Election inspectors shall affix his/her signature to authenticate the official ballot
shall be provided. cHCSDa
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election shall not be later than one hundred
twenty (120) days before the elections: Provided, That, any elective official, whether
national or local, running for any office other than the one which he/she is holding in a
permanent capacity, except for president and vice president, shall be deemed resigned
only upon the start of the campaign period corresponding to the position for which he/she
is running: Provided, further, That, unlawful acts or omissions applicable to a candidate
shall take effect upon the start of the aforesaid campaign period: Provided, finally, That,
for purposes of the May 11, 1998 elections, the deadline for filing of the certificate of
candidacy for the positions of President, Vice President, Senators and candidates under
the Party-List System as well as petitions for registration and/or manifestation to
participate in the Party-List System shall be on February 9, 1998 while the deadline for
the filing of certificate of candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko
Sentral ng Pilipinas at the price comparable with that of private printers under proper
security measures which the Commission shall adopt. The Commission may contract the
services of private printers upon certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing requirements. Accredited political
parties and deputized citizens' arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots. IATSHE
To prevent the use of fake ballots, the Commission through the Committee shall ensure
that the serial number on the ballot stub shall be printed in magnetic ink that shall be
easily detectable by inexpensive hardware and shall be impossible to reproduce on a
photocopying machine and that identification marks, magnetic strips, bar codes and other
technical and security markings, are provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of
one (1) ballot for every registered voter with a provision of additional four (4) ballots per
precinct. 2
Almost a decade thereafter, Congress amended the law on January 23, 2007 by enacting
R.A. No. 9369, entitled "AN ACT AMENDING REPUBLIC ACT NO. 8436,
ENTITLED 'AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO
USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL
OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL
ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY,
FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE
BATAS PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND
OTHER RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR
OTHER PURPOSES'". Section 13 of the amendatory law modified Section 11 of R.A.
No. 8436, thus: cSaATC
SEC. 13. Section 11 of Republic Act No. 8436 is hereby amended to read as
follows:
"Section 15. Official Ballot. — The Commission shall prescribe the format of the
electronic display and/or the size and form of the official ballot, which shall contain the
titles of the position to be filled and/or the propositions to be voted upon in an initiative,
referendum or plebiscite. Where practicable, electronic displays must be constructed to
present the names of all candidates for the same position in the same page or screen,
otherwise, the electronic displays must be constructed to present the entire ballot to the
voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot
options on all pages before completing his or her vote and to allow the voter to review
and change all ballot choices prior to completing and casting his or her ballot. Under each
position to be filled, the names of candidates shall be arranged alphabetically by surname
and uniformly indicated using the same type size. The maiden or married name shall be
listed in the official ballot, as preferred by the female candidate. Under each proposition
to be vote upon, the choices should be uniformly indicated using the same font and size.
"A fixed space where the chairman of the board of election inspectors shall affix his/her
signature to authenticate the official ballot shall be provided. IcDHaT
"For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition of registration/manifestation to participate in the election. Any person
who files his certificate of candidacy within this period shall only be considered as a
candidate at the start of the campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period: Provided, finally, That any
person holding a public appointive office or position, including active members of the
armed forces, and officers and employees in government-owned or -controlled
corporations, shall be considered ipso facto resigned from his/her office and must vacate
the same at the start of the day of the filing of his/her certificate of candidacy.
"Political parties may hold political conventions to nominate their official candidates
within thirty (30) days before the start of the period for filing a certificate of candidacy.
"With respect to a paper-based election system, the official ballots shall be printed by the
National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable
with that of private printers under proper security measures which the Commission shall
adopt. The Commission may contract the services of private printers upon certification by
the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and deputized citizens' arms of the Commission
shall assign watchers in the printing, storage and distribution of official ballots.
HEITAD
"To prevent the use of fake ballots, the Commission through the Committee shall ensure
that the necessary safeguards, such as, but not limited to, bar codes, holograms, color
shifting ink, microprinting, are provided on the ballot.
"The official ballots shall be printed and distributed to each city/municipality at the rate
of one ballot for every registered voter with a provision of additional three ballots per
precinct." 3
Pursuant to its constitutional mandate to enforce and administer election laws,
COMELEC issued Resolution No. 8678, 4 the Guidelines on the Filing of Certificates of
Candidacy (CoC) and Nomination of Official Candidates of Registered Political Parties
in Connection with the May 10, 2010 National and Local Elections. Sections 4 and 5 of
Resolution No. 8678 provide:
SEC. 4. Effects of Filing Certificates of Candidacy. — a) Any person holding a
public appointive office or position including active members of the Armed Forces of the
Philippines, and other officers and employees in government-owned or controlled
corporations, shall be considered ipso facto resigned from his office upon the filing of his
certificate of candidacy.
b) Any person holding an elective office or position shall not be considered resigned
upon the filing of his certificate of candidacy for the same or any other elective office or
position. TECIaH
SEC. 5. Period for filing Certificate of Candidacy. — The certificate of candidacy
shall be filed on regular days, from November 20 to 30, 2009, during office hours, except
on the last day, which shall be until midnight.
Alarmed that they will be deemed ipso facto resigned from their offices the moment they
file their CoCs, petitioners Eleazar P. Quinto and Gerino A. Tolentino, Jr., who hold
appointive positions in the government and who intend to run in the coming elections, 5
filed the instant petition for prohibition and certiorari, seeking the declaration of the
afore-quoted Section 4 (a) of Resolution No. 8678 as null and void.
The Petitioners' Contention
Petitioners contend that the COMELEC gravely abused its discretion when it issued the
assailed Resolution. They aver that the advance filing of CoCs for the 2010 elections is
intended merely for the purpose of early printing of the official ballots in order to cope
with time limitations. Such advance filing does not automatically make the person who
filed the CoC a candidate at the moment of filing. In fact, the law considers him a
candidate only at the start of the campaign period. Petitioners then assert that this being
so, they should not be deemed ipso facto resigned from their government offices when
they file their CoCs, because at such time they are not yet treated by law as candidates.
They should be considered resigned from their respective offices only at the start of the
campaign period when they are, by law, already considered as candidates. 6 ECaHSI
Petitioners also contend that Section 13 of R.A. No. 9369, the basis of the assailed
COMELEC resolution, contains two conflicting provisions. These must be harmonized or
reconciled to give effect to both and to arrive at a declaration that they are not ipso facto
resigned from their positions upon the filing of their CoCs. 7
Petitioners further posit that the provision considering them as ipso facto resigned from
office upon the filing of their CoCs is discriminatory and violates the equal protection
clause in the Constitution. 8
The Respondent's Arguments
On the procedural aspect of the petition, the Office of the Solicitor General (OSG),
representing respondent COMELEC, argues that petitioners have no legal standing to
institute the suit. Petitioners have not yet filed their CoCs, hence, they are not yet affected
by the assailed provision in the COMELEC resolution. The OSG further claims that the
petition is premature or unripe for judicial determination. Petitioners have admitted that
they are merely planning to file their CoCs for the coming 2010 elections. Their interest
in the present controversy is thus merely speculative and contingent upon the filing of the
same. The OSG likewise contends that petitioners availed of the wrong remedy. They are
questioning an issuance of the COMELEC made in the exercise of the latter's rule-
making power. Certiorari under Rule 65 is then an improper remedy. 9 ADScCE
On the substantive aspect, the OSG maintains that the COMELEC did not gravely abuse
its discretion in phrasing Section 4 (a) of Resolution No. 8678 for it merely copied what
is in the law. The OSG, however, agrees with petitioners that there is a conflict in Section
13 of R.A. No. 9369 that should be resolved. According to the OSG, there seems to be no
basis to consider appointive officials as ipso facto resigned and to require them to vacate
their positions on the same day that they file their CoCs, because they are not yet
considered as candidates at that time. Further, this "deemed resigned" provision existed in
Batas Pambansa Bilang (B.P. Blg.) 881, and no longer finds a place in our present
election laws with the innovations brought about by the automated system. 10
Our Ruling
I.
At first glance, the petition suffers from an incipient procedural defect. What petitioners
assail in their petition is a resolution issued by the COMELEC in the exercise of its quasi-
legislative power. Certiorari under Rule 65, in relation to Rule 64, cannot be availed of,
because it is a remedy to question decisions, resolutions and issuances made in the
exercise of a judicial or quasi-judicial function. 11 Prohibition is also an inappropriate
remedy, because what petitioners actually seek from the Court is a determination of the
proper construction of a statute and a declaration of their rights thereunder. Obviously,
their petition is one for declaratory relief, 12 over which this Court does not exercise
original jurisdiction. 13 aTICAc
However, petitioners raise a challenge on the constitutionality of the questioned
provisions of both the COMELEC resolution and the law. Given this scenario, the Court
may step in and resolve the instant petition.
The transcendental nature and paramount importance of the issues raised and the
compelling state interest involved in their early resolution — the period for the filing of
CoCs for the 2010 elections has already started and hundreds of civil servants intending
to run for elective offices are to lose their employment, thereby causing imminent and
irreparable damage to their means of livelihood and, at the same time, crippling the
government's manpower — further dictate that the Court must, for propriety, if only from
a sense of obligation, entertain the petition so as to expedite the adjudication of all,
especially the constitutional, issues.
In any event, the Court has ample authority to set aside errors of practice or technicalities
of procedure and resolve the merits of a case. Repeatedly stressed in our prior decisions is
the principle that the Rules were promulgated to provide guidelines for the orderly
administration of justice, not to shackle the hand that dispenses it. Otherwise, the courts
would be consigned to being mere slaves to technical rules, deprived of their judicial
discretion. 14
II.
To put things in their proper perspective, it is imperative that we trace the brief history of
the assailed provision. Section 4 (a) of COMELEC Resolution No. 8678 is a reproduction
of the second proviso in the third paragraph of Section 13 of R.A. No. 9369, which for
ready reference is quoted as follows: HacADE
For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to participate in the election. Any person
who files his certificate of candidacy within this period shall only be considered as a
candidate at the start of the campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions applicable to a candidate shall take
effect only upon the start of the aforesaid campaign period: Provided, finally, That any
person holding a public appointive office or position, including active members of the
armed forces, and officers and employees in government-owned or -controlled
corporations, shall be considered ipso facto resigned from his/her office and must vacate
the same at the start of the day of the filing of his/her certificate of candidacy. 15
Notably, this proviso is not present in Section 11 of R.A. No. 8436, the law amended by
R.A. No. 9369. The proviso was lifted from Section 66 of B.P. Blg. 881 or the Omnibus
Election Code (OEC) of the Philippines, which reads:
Sec. 66. Candidates holding appointive office or position. — Any person holding a
public appointive office or position, including active members of the Armed Forces of the
Philippines, and officers and employees in government-owned or controlled corporations,
shall be considered ipso facto resigned from his office upon the filing of his certificate of
candidacy. acCTSE
It may be recalled — in inverse chronology — that earlier, Presidential Decree No. 1296,
or the 1978 Election Code, contained a similar provision, thus —
SECTION 29. Candidates holding appointive office or position. — Every person holding
a public appointive office or position, including active members of the Armed Forces of
the Philippines, and officers and employees in government-owned or controlled
corporations, shall ipso facto cease in his office or position on the date he files his
certificate of candidacy. Members of the Cabinet shall continue in the offices they
presently hold notwithstanding the filing of certificate of candidacy, subject to the
pleasure of the President of the Philippines.
Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise stated in its Section
23 the following:
SECTION 23. Candidates Holding Appointive Office or Position. — Every person
holding a public appointive office or position, including active members of the Armed
Forces of the Philippines and every officer or employee in government-owned or
controlled corporations, shall ipso facto cease in his office or position on the date he files
his certificate of candidacy: Provided, That the filing of a certificate of candidacy shall
not affect whatever civil, criminal or administrative liabilities which he may have
incurred. DHACES
Going further back in history, R.A. No. 180, or the Revised Election Code approved on
June 21, 1947, also provided that —
SECTION 26. Automatic cessation of appointive officers and employees who are
candidates. — Every person holding a public appointive office or position shall ipso facto
cease in his office or position on the date he files his certificate of candidacy.
During the Commonwealth era, Commonwealth Act (C.A.) No. 725, entitled "AN ACT
TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND VICE-
PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE HOUSE
OF REPRESENTATIVES, AND APPROPRIATING THE NECESSARY FUNDS
THEREFOR", approved on January 5, 1946, contained, in the last paragraph of its
Section 2, the following:
A person occupying any civil office by appointment in the government or any of its
political subdivisions or agencies or government-owned or controlled corporations,
whether such office by appointive or elective, shall be considered to have resigned from
such office from the moment of the filing of such certificate of candidacy.
Significantly, however, C.A. No. 666, entitled "AN ACT TO PROVIDE FOR THE
FIRST ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE
PHILIPPINES, SENATORS, AND MEMBERS OF THE HOUSE OF
REPRESENTATIVES, UNDER THE CONSTITUTION AND THE AMENDMENTS
THEREOF", enacted without executive approval on June 22, 1941, the precursor of C.A.
No. 725, only provided for automatic resignation of elective, but not appointive, officials.
cCaDSA
Nevertheless, C.A. No. 357, or the Election Code approved on August 22, 1938, had, in
its Section 22, the same verbatim provision as Section 26 of R.A. No. 180.
The earliest recorded Philippine law on the subject is Act No. 1582, or the Election Law
enacted by the Philippine Commission in 1907, the last paragraph of Section 29 of which
reads:
Sec. 29. Penalties upon officers. — . . . .
No public officer shall offer himself as a candidate for election, nor shall he be eligible
during the time that he holds said public office to election, at any municipal, provincial or
Assembly election, except for reelection to the position which he may be holding, and no
judge of the Court of First Instance, justice of the peace, provincial fiscal, or officer or
employee of the Bureau of Constabulary or of the Bureau of Education shall aid any
candidate or influence in any manner or take any part in any municipal, provincial, or
Assembly election under penalty of being deprived of his office and being disqualified to
hold any public office whatever for a term of five years: Provided, however, That the
foregoing provisions shall not be construed to deprive any person otherwise qualified of
the right to vote at any election.
From this brief historical excursion, it may be gleaned that the second proviso in the third
paragraph of Section 13 of R.A. No. 9369 — that any person holding a public appointive
office or position, including active members of the armed forces, and officers, and
employees in government-owned or controlled corporations, shall be considered ipso
facto resigned from his/her office and must vacate the same at the start of the day of the
filing of his/her certificate of candidacy — traces its roots to the period of the American
occupation. ETHIDa
In fact, during the deliberations of Senate Bill No. 2231, the bill later to be consolidated
with House Bill No. 5352 and enacted as R.A. No. 9369, Senator Richard Gordon, the
principal author of the bill, acknowledged that the said proviso in the proposed legislative
measure is an old provision which was merely copied from earlier existing legislation,
thus —
Senator Osmeña.
May I just opine here and perhaps obtain the opinion of the good Sponsor. This
reads like, "ANY PERSON HOLDING [means currently] A PUBLIC APPOINTIVE
POSITION. . . SHALL BE CONSIDERED IPSO FACTO RESIGNED" [which means
that the prohibition extends only to appointive officials] "INCLUDING ACTIVE
MEMBERS OF THE ARMED FORCES, OFFICERS AND EMPLOYEES". . . This is a
prohibition, Mr. President. This means if one is chairman of SSS or PDIC, he is deemed
ipso facto resigned when he files his certificate of candidacy. Is that the intention?
Senator Gordon.
This is really an old provision, Mr. President.
Senator Osmeña.
It is in bold letters, so I think it was a Committee amendment. DAcSIC
Senator Gordon.
No, it has always been there.
Senator Osmeña.
I see.
Senator Gordon.
I guess the intention is not to give them undue advantage, especially certain
people.
Senator Osmeña.
All right. 16
In that Senate deliberation, however, Senator Miriam Defensor-Santiago expressed her
concern over the inclusion of the said provision in the new law, given that the same
would be disadvantageous and unfair to potential candidates holding appointive
positions, while it grants a consequent preferential treatment to elective officials, thus —
Senator Santiago. On page 15, line 31, I know that this is a losing cause, so I make this
point more as a matter of record than of any feasible hope that it can possibly be either
accepted or if we come to a division of the House, it will be upheld by the majority.
CAcIES
I am referring to page 15, line 21. The proviso begins: "PROVIDED FINALLY, THAT
ANY PERSON HOLDING A PUBLIC APPOINTIVE OFFICE. . .SHALL BE
CONSIDERED IPSO FACTO RESIGNED FROM HIS/HER OFFICE".
The point that I made during the appropriate debate in the past in this Hall is that there is,
for me, no valid reason for exempting elective officials from this inhibition or
disqualification imposed by the law. If we are going to consider appointive officers of the
government, including AFP members and officers of government-owned and controlled
corporations, or any other member of the appointive sector of the civil service, why
should it not apply to the elective sector for, after all, even senators and congressmen are
members of the civil service as well?
Further, it is self-serving for the Senate, or for the Congress in general, to give an
exception to itself which is not available to other similarly situated officials of
government. Of course, the answer is, the reason why we are special is that we are
elected. Since we are imposing a disqualification on all other government officials except
ourselves, I think, it is the better part of delicadeza to inhibit ourselves as well, so that if
we want to stay as senators, we wait until our term expires. But if we want to run for
some other elective office during our term, then we have to be considered resigned just
like everybody else. That is my proposed amendment. But if it is unacceptable to the
distinguished Sponsor, because of sensitivity to the convictions of the rest of our
colleagues, I will understand. DHSACT
Senator Gordon. Mr. President, I think the suggestion is well-thought of. It is a good
policy. However, this is something that is already in the old law which was upheld by the
Supreme court in a recent case that the rider was not upheld and that it was valid. 17
The obvious inequality brought about by the provision on automatic resignation of
appointive civil servants must have been the reason why Senator Recto proposed the
inclusion of the following during the period of amendments: "ANY PERSON WHO
FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD SHALL ONLY
BE CONSIDERED AS A CANDIDATE AT THE START OF THE CAMPAIGN
PERIOD FOR WHICH HE FILED HIS COC". 18 The said proviso seems to mitigate the
situation of disadvantage afflicting appointive officials by considering persons who filed
their CoCs as candidates only at the start of the campaign period, thereby, conveying the
tacit intent that persons holding appointive positions will only be considered as resigned
at the start of the campaign period when they are already treated by law as candidates.
Parenthetically, it may be remembered that Section 67 of the OEC and Section 11 of R.A.
No. 8436 contained a similar provision on automatic resignation of elective officials upon
the filing of their CoCs for any office other than that which they hold in a permanent
capacity or for President or Vice-President. However, with the enactment of R.A. No.
9006, or the Fair Election Act, 19 in 2001, this provision was repealed by Section 14 20
of the said act. There was, thus, created a situation of obvious discrimination against
appointive officials who were deemed ipso facto resigned from their offices upon the
filing of their CoCs, while elective officials were not. EcAHDT
This situation was incidentally addressed by the Court in Fariñas v. The Executive
Secretary 21 when it ruled that —
Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
Protection Clause of the Constitution
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code
pertaining to elective officials gives undue benefit to such officials as against the
appointive ones and violates the equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to
reasonable classification. If the groupings are characterized by substantial distinctions
that make real differences, one class may be treated and regulated differently from the
other. The Court has explained the nature of the equal protection guarantee in this
manner:
The equal protection of the law clause is against undue favor and individual or class
privilege, as well as hostile discrimination or the oppression of inequality. It is not
intended to prohibit legislation which is limited either in the object to which it is directed
or by territory within which it is to operate. It does not demand absolute equality among
residents; it merely requires that all persons shall be treated alike, under like
circumstances and conditions both as to privileges conferred and liabilities enforced. The
equal protection clause is not infringed by legislation which applies only to those persons
falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between those who fall within such
class and those who do not. aEHAIS
Substantial distinctions clearly exist between elective officials and appointive officials.
The former occupy their office by virtue of the mandate of the electorate. They are
elected to an office for a definite term and may be removed therefrom only upon stringent
conditions. On the other hand, appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some appointive officials hold their office
in a permanent capacity and are entitled to security of tenure while others serve at the
pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55,
Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the
Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers
and employees in the civil service, are strictly prohibited from engaging in any partisan
political activity or take part in any election except to vote. Under the same provision,
elective officials, or officers or employees holding political offices, are obviously
expressly allowed to take part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the
legislators deemed it proper to treat these two classes of officials differently with respect
to the effect on their tenure in the office of the filing of the certificates of candidacy for
any position other than those occupied by them. Again, it is not within the power of the
Court to pass upon or look into the wisdom of this classification. TEHIaA
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials
vis-a-vis appointive officials, is anchored upon material and significant distinctions and
all the persons belonging under the same classification are similarly treated, the equal
protection clause of the Constitution is, thus, not infringed. 22
However, it must be remembered that the Court, in Fariñas, was intently focused on the
main issue of whether the repealing clause in the Fair Election Act was a constitutionally
proscribed rider, in that it unwittingly failed to ascertain with stricter scrutiny the impact
of the retention of the provision on automatic resignation of persons holding appointive
positions (Section 66) in the OEC, vis-à-vis the equal protection clause. Moreover, the
Court's vision in Fariñas was shrouded by the fact that petitioners therein, Fariñas et al.,
never posed a direct challenge to the constitutionality of Section 66 of the OEC. Fariñas
et al. rather merely questioned, on constitutional grounds, the repealing clause, or Section
14 of the Fair Election Act. The Court's afore-quoted declaration in Fariñas may then
very well be considered as an obiter dictum.
III.
The instant case presents a rare opportunity for the Court, in view of the constitutional
challenge advanced by petitioners, once and for all, to settle the issue of whether the
second proviso in the third paragraph of Section 13 of R.A. No. 9369, a reproduction of
Section 66 of the OEC, which, as shown above, was based on provisions dating back to
the American occupation, is violative of the equal protection clause. TECIHD
But before delving into the constitutional issue, we shall first address the issues on legal
standing and on the existence of an actual controversy.
Central to the determination of locus standi is the question of whether a party has alleged
such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions. 23 In this case, petitioners
allege that they will be directly affected by COMELEC Resolution No. 8678 for they
intend, and they all have the qualifications, to run in the 2010 elections. The OSG, for its
part, contends that since petitioners have not yet filed their CoCs, they are not yet
candidates; hence, they are not yet directly affected by the assailed provision in the
COMELEC resolution.
The Court, nevertheless, finds that, while petitioners are not yet candidates, they have the
standing to raise the constitutional challenge, simply because they are qualified voters. A
restriction on candidacy, such as the challenged measure herein, affects the rights of
voters to choose their public officials. The rights of voters and the rights of candidates do
not lend themselves to neat separation; laws that affect candidates always have at least
some theoretical, correlative effect on voters. 24 The Court believes that both candidates
and voters may challenge, on grounds of equal protection, the assailed measure because
of its impact on voting rights. 25 DcHSEa
In any event, in recent cases, this Court has relaxed the stringent direct injury test and has
observed a liberal policy allowing ordinary citizens, members of Congress, and civil
organizations to prosecute actions involving the constitutionality or validity of laws,
regulations and rulings. 26
We have also stressed in our prior decisions that the exercise by this Court of judicial
power is limited to the determination and resolution of actual cases and controversies. 27
The Court, in this case, finds that an actual case or controversy exists between the
petitioners and the COMELEC, the body charged with the enforcement and
administration of all election laws. Petitioners have alleged in a precise manner that they
would engage in the very acts that would trigger the enforcement of the provision — they
would file their CoCs and run in the 2010 elections. Given that the assailed provision
provides for ipso facto resignation upon the filing of the CoC, it cannot be said that it
presents only a speculative or hypothetical obstacle to petitioners' candidacy. 28
IV.
Having hurdled what the OSG posed as obstacles to judicial review, the Court now
delves into the constitutional challenge.
It is noteworthy to point out that the right to run for public office touches on two
fundamental freedoms, those of expression and of association. This premise is best
explained in Mancuso v. Taft, 29 viz.: EASIHa
Freedom of expression guarantees to the individual the opportunity to write a letter to the
local newspaper, speak out in a public park, distribute handbills advocating radical
reform, or picket an official building to seek redress of grievances. All of these activities
are protected by the First Amendment if done in a manner consistent with a narrowly
defined concept of public order and safety. The choice of means will likely depend on the
amount of time and energy the individual wishes to expend and on his perception as to
the most effective method of projecting his message to the public. But interest and
commitment are evolving phenomena. What is an effective means for protest at one point
in time may not seem so effective at a later date. The dilettante who participates in a
picket line may decide to devote additional time and resources to his expressive activity.
As his commitment increases, the means of effective expression changes, but the
expressive quality remains constant. He may decide to lead the picket line, or to publish
the newspaper. At one point in time he may decide that the most effective way to give
expression to his views and to get the attention of an appropriate audience is to become a
candidate for public office-means generally considered among the most appropriate for
those desiring to effect change in our governmental systems. He may seek to become a
candidate by filing in a general election as an independent or by seeking the nomination
of a political party. And in the latter instance, the individual's expressive activity has two
dimensions: besides urging that his views be the views of the elected public official, he is
also attempting to become a spokesman for a political party whose substantive program
extends beyond the particular office in question. But Cranston has said that a certain type
of its citizenry, the public employee, may not become a candidate and may not engage in
any campaign activity that promotes himself as a candidate for public office. Thus the
city has stifled what may be the most important expression an individual can summon,
namely that which he would be willing to effectuate, by means of concrete public action,
were he to be selected by the voters. aEAcHI
It is impossible to ignore the additional fact that the right to run for office also affects the
freedom to associate. In Williams v. Rhodes, supra, the Court used strict review to
invalidate an Ohio election system that made it virtually impossible for third parties to
secure a place on the ballot. The Court found that the First Amendment protected the
freedom to associate by forming and promoting a political party and that that freedom
was infringed when the state effectively denied a party access to its electoral machinery.
The Cranston charter provision before us also affects associational rights, albeit in a
slightly different way. An individual may decide to join or participate in an organization
or political party that shares his beliefs. He may even form a new group to forward his
ideas. And at some juncture his supporters and fellow party members may decide that he
is the ideal person to carry the group's standard into the electoral fray. To thus restrict the
options available to political organization as the Cranston charter provision has done is to
limit the effectiveness of association; and the freedom to associate is intimately related
with the concept of making expression effective. Party access to the ballot becomes less
meaningful if some of those selected by party machinery to carry the party's programs to
the people are precluded from doing so because those nominees are civil servants.
Whether the right to run for office is looked at from the point of view of individual
expression or associational effectiveness, wide opportunities exist for the individual who
seeks public office. The fact of candidacy alone may open previously closed doors of the
media. The candidate may be invited to discuss his views on radio talk shows; he may be
able to secure equal time on television to elaborate his campaign program; the
newspapers may cover his candidacy; he may be invited to debate before various groups
that had theretofore never heard of him or his views. In short, the fact of candidacy opens
up a variety of communicative possibilities that are not available to even the most diligent
of picketers or the most loyal of party followers. A view today, that running for public
office is not an interest protected by the First Amendment, seems to us an outlook
stemming from an earlier era when public office was the preserve of the professional and
the wealthy. Consequently we hold that candidacy is both a protected First Amendment
right and a fundamental interest. Hence any legislative classification that significantly
burdens that interest must be subjected to strict equal protection review. 30 EAISDH
Here, petitioners' interest in running for public office, an interest protected by Sections 4
and 8 of Article III of the Constitution, is breached by the proviso in Section 13 of R.A.
No. 9369. It is now the opportune time for the Court to strike down the said proviso for
being violative of the equal protection clause and for being overbroad.
In considering persons holding appointive positions as ipso facto resigned from their
posts upon the filing of their CoCs, but not considering as resigned all other civil
servants, specifically the elective ones, the law unduly discriminates against the first
class. The fact alone that there is substantial distinction between those who hold
appointive positions and those occupying elective posts, does not justify such differential
treatment.
In order that there can be valid classification so that a discriminatory governmental act
may pass the constitutional norm of equal protection, it is necessary that the four (4)
requisites of valid classification be complied with, namely:
(1) It must be based upon substantial distinctions;
(2) It must be germane to the purposes of the law;
(3) It must not be limited to existing conditions only; and
(4) It must apply equally to all members of the class. CTEaDc
The first requirement means that there must be real and substantial differences between
the classes treated differently. As illustrated in the fairly recent Mirasol v. Department of
Public Works and Highways, 31 a real and substantial distinction exists between a
motorcycle and other motor vehicles sufficient to justify its classification among those
prohibited from plying the toll ways. Not all motorized vehicles are created equal — a
two-wheeled vehicle is less stable and more easily overturned than a four-wheel vehicle.
Nevertheless, the classification would still be invalid if it does not comply with the
second requirement — if it is not germane to the purpose of the law. Justice Isagani A.
Cruz (Ret.), in his treatise on constitutional law, explains,
The classification, even if based on substantial distinctions, will still be invalid if it is not
germane to the purpose of the law. To illustrate, the accepted difference in physical
stamina between men and women will justify the prohibition of the latter from
employment as miners or stevedores or in other heavy and strenuous work. On the basis
of this same classification, however, the law cannot provide for a lower passing average
for women in the bar examinations because physical strength is not the test for admission
to the legal profession. Imported cars may be taxed at a higher rate than locally
assembled automobiles for the protection of the national economy, but their difference in
origin is no justification for treating them differently when it comes to punishing
violations of traffic regulations. The source of the vehicle has no relation to the
observance of these rules. 32 DHIaTS
The third requirement means that the classification must be enforced not only for the
present but as long as the problem sought to be corrected continues to exist. And, under
the last requirement, the classification would be regarded as invalid if all the members of
the class are not treated similarly, both as to rights conferred and obligations imposed. 33
Applying the four requisites to the instant case, the Court finds that the differential
treatment of persons holding appointive offices as opposed to those holding elective ones
is not germane to the purposes of the law.
The obvious reason for the challenged provision is to prevent the use of a governmental
position to promote one's candidacy, or even to wield a dangerous or coercive influence
on the electorate. The measure is further aimed at promoting the efficiency, integrity, and
discipline of the public service by eliminating the danger that the discharge of official
duty would be motivated by political considerations rather than the welfare of the public.
34 The restriction is also justified by the proposition that the entry of civil servants to the
electoral arena, while still in office, could result in neglect or inefficiency in the
performance of duty because they would be attending to their campaign rather than to
their office work.
If we accept these as the underlying objectives of the law, then the assailed provision
cannot be constitutionally rescued on the ground of valid classification. Glaringly absent
is the requisite that the classification must be germane to the purposes of the law. Indeed,
whether one holds an appointive office or an elective one, the evils sought to be
prevented by the measure remain. For example, the Executive Secretary, or any Member
of the Cabinet for that matter, could wield the same influence as the Vice-President who
at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents
were appointed to take charge of national housing, social welfare development, interior
and local government, and foreign affairs). With the fact that they both head executive
offices, there is no valid justification to treat them differently when both file their CoCs
for the elections. Under the present state of our law, the Vice-President, in the example,
running this time, let us say, for President, retains his position during the entire election
period and can still use the resources of his office to support his campaign. SITCEA
As to the danger of neglect, inefficiency or partisanship in the discharge of the functions
of his appointive office, the inverse could be just as true and compelling. The public
officer who files his certificate of candidacy would be driven by a greater impetus for
excellent performance to show his fitness for the position aspired for.
Mancuso v. Taft, 35 cited above, explains that the measure on automatic resignation,
which restricts the rights of civil servants to run for office — a right inextricably linked to
their freedom of expression and association, is not reasonably necessary to the
satisfaction of the state interest. Thus, in striking down a similar measure in the United
States, Mancuso succinctly declares —
In proceeding to the second stage of active equal protection review, however, we do see
some contemporary relevance of the Mitchell decision. National Ass'n of Letter Carriers,
supra. In order for the Cranston charter provision to withstand strict scrutiny, the city
must show that the exclusion of all government employees from candidacy is necessary
to achieve a compelling state interest. And, as stated in Mitchell and other cases dealing
with similar statutes, see Wisconsin State Employees, supra; Broadrick, supra,
government at all levels has a substantial interest in protecting the integrity of its civil
service. It is obviously conceivable that the impartial character of the civil service would
be seriously jeopardized if people in positions of authority used their discretion to
forward their electoral ambitions rather than the public welfare. Similarly if a public
employee pressured other fellow employees to engage in corrupt practices in return for
promises of post-election reward, or if an employee invoked the power of the office he
was seeking to extract special favors from his superiors, the civil service would be done
irreparable injury. Conversely, members of the public, fellow-employees, or supervisors
might themselves request favors from the candidate or might improperly adjust their own
official behavior towards him. Even if none of these abuses actually materialize, the
possibility of their occurrence might seriously erode the public's confidence in its public
employees. For the reputation of impartiality is probably as crucial as the impartiality
itself; the knowledge that a clerk in the assessor's office who is running for the local
zoning board has access to confidential files which could provide "pressure" points for
furthering his campaign is destructive regardless of whether the clerk actually takes
advantage of his opportunities. For all of these reasons we find that the state indeed has a
compelling interest in maintaining the honesty and impartiality of its public work force.
HTaSEA
We do not, however, consider the exclusionary measure taken by Cranston-a flat
prohibition on office-seeking of all kinds by all kinds of public employees-as even
reasonably necessary to satisfaction of this state interest. As Justice Marshall pointed out
in Dunn v. Blumstein, "[s]tatutes affecting constitutional rights must be drawn with
'precision'". For three sets of reasons we conclude that the Cranston charter provision
pursues its objective in a far too heavy-handed manner and hence must fall under the
equal protection clause. First, we think the nature of the regulation-a broad prophylactic
rule-may be unnecessary to fulfillment of the city's objective. Second, even granting
some sort of prophylactic rule may be required, the provision here prohibits candidacies
for all types of public office, including many which would pose none of the problems at
which the law is aimed. Third, the provision excludes the candidacies of all types of
public employees, without any attempt to limit exclusion to those employees whose
positions make them vulnerable to corruption and conflicts of interest.
There is thus no valid justification to treat appointive officials differently from the
elective ones. The classification simply fails to meet the test that it should be germane to
the purposes of the law. The measure encapsulated in the second proviso of the third
paragraph of Section 13 of R.A. No. 9369 and in Section 66 of the OEC violates the
equal protection clause. cHAaCE
V.
The challenged provision also suffers from the infirmity of being overbroad.
First, the provision pertains to all civil servants holding appointive posts without
distinction as to whether they occupy high positions in government or not. Certainly, a
utility worker in the government will also be considered as ipso facto resigned once he
files his CoC for the 2010 elections. This scenario is absurd for, indeed, it is
unimaginable how he can use his position in the government to wield influence in the
political world.
While it may be admitted that most appointive officials who seek public elective office
are those who occupy relatively high positions in government, laws cannot be legislated
for them alone, or with them alone in mind. For the right to seek public elective office is
universal, open and unrestrained, subject only to the qualification standards prescribed in
the Constitution and in the laws. These qualifications are, as we all know, general and
basic so as to allow the widest participation of the citizenry and to give free rein for the
pursuit of one's highest aspirations to public office. Such is the essence of democracy.
Second, the provision is directed to the activity of seeking any and all public offices,
whether they be partisan or nonpartisan in character, whether they be in the national,
municipal or barangay level. Congress has not shown a compelling state interest to
restrict the fundamental right involved on such a sweeping scale. 36 cCAaHD
Specific evils require specific treatments, not through overly broad measures that unduly
restrict guaranteed freedoms of the citizenry. After all, sovereignty resides in the people,
and all governmental power emanates from them.
Mancuso v. Taft, 37 on this point, instructs —
As to approaches less restrictive than a prophylactic rule, there exists the device of the
leave of absence. Some system of leaves of absence would permit the public employee to
take time off to pursue his candidacy while assuring him his old job should his candidacy
be unsuccessful. Moreover, a leave of absence policy would eliminate many of the
opportunities for engaging in the questionable practices that the statute is designed to
prevent. While campaigning, the candidate would feel no conflict between his desire for
election and his publicly entrusted discretion, nor any conflict between his efforts to
persuade the public and his access to confidential documents. But instead of adopting a
reasonable leave of absence policy, Cranston has chosen a provision that makes the
public employee cast off the security of hard-won public employment should he desire to
compete for elected office.
The city might also promote its interest in the integrity of the civil service by enforcing,
through dismissal, discipline, or criminal prosecution, rules or statutes that treat conflict
of interests, bribery, or other forms of official corruption. By thus attacking the problem
directly, instead of using a broad prophylactic rule, the city could pursue its objective
without unduly burdening the First Amendment rights of its employees and the voting
rights of its citizens. Last term in Dunn v. Blumstein, the Supreme Court faced an
analogous question when the State of Tennessee asserted that the interest of "ballot box
purity" justified its imposition of one year and three month residency requirements before
a citizen could vote. Justice Marshall stated, inter alia, that Tennessee had available a
number of criminal statutes that could be used to punish voter fraud without unnecessary
infringement on the newcomer's right to vote. Similarly, it appears from the record in this
case that the Cranston charter contains some provisions that might be used against
opportunistic public employees. IcaHCS
Even if some sort of prophylactic rule is necessary, we cannot say that Cranston has put
much effort into tailoring a narrow provision that attempts to match the prohibition with
the problem. The charter forbids a Cranston public employee from running for any office,
anywhere. The prohibition is not limited to the local offices of Cranston, but rather
extends to statewide offices and even to national offices. It is difficult for us to see that a
public employee running for the United States Congress poses quite the same threat to the
civil service as would the same employee if he were running for a local office where the
contacts and information provided by his job related directly to the position he was
seeking, and hence where the potential for various abuses was greater. Nor does the
Cranston charter except the public employee who works in Cranston but aspires to office
in another local jurisdiction, most probably his town of residence. Here again the charter
precludes candidacies which can pose only a remote threat to the civil service. Finally,
the charter does not limit its prohibition to partisan office-seeking, but sterilizes also
those public employees who would seek nonpartisan elective office. The statute reviewed
in Mitchell was limited to partisan political activity, and since that time other courts have
found the partisan-nonpartisan distinction a material one. See Kinnear, supra; Wisconsin
State Employees, supra; Gray v. Toledo, supra. While the line between nonpartisan and
partisan can often be blurred by systems whose true characters are disguised by the
names given them by their architects, it seems clear that the concerns of a truly partisan
office and the temptations it fosters are sufficiently different from those involved in an
office removed from regular party politics to warrant distinctive treatment in a charter of
this sort. ScEaAD
The third and last area of excessive and overinclusive coverage of the Cranston charter
relates not to the type of office sought, but to the type of employee seeking the office. As
Justice Douglas pointed out in his dissent in Mitchell, 330 U.S. at 120-126, 67 S.Ct. 556,
restrictions on administrative employees who either participate in decision-making or at
least have some access to information concerning policy matters are much more
justifiable than restrictions on industrial employees, who, but for the fact that the
government owns the plant they work in, are, for purposes of access to official
information, identically situated to all other industrial workers. Thus, a worker in the
Philadelphia mint could be distinguished from a secretary in an office of the Department
of Agriculture; so also could a janitor in the public schools of Cranston be distinguished
from an assistant comptroller of the same city. A second line of distinction that focuses
on the type of employee is illustrated by the cases of Kinnear and Minielly, supra. In
both of these cases a civil service deputy decided to run for the elected office of sheriff.
The courts in both cases felt that the no-candidacy laws in question were much too broad
and indicated that perhaps the only situation sensitive enough to justify a flat rule was
one in which an inferior in a public office electorally challenged his immediate superior.
Given all these considerations, we think Cranston has not given adequate attention to the
problem of narrowing the terms of its charter to deal with the specific kinds of conflict-
of-interest problems it seeks to avoid. IEAacT
We also do not find convincing the arguments that after-hours campaigning will drain the
energy of the public employee to the extent that he is incapable of performing his job
effectively and that inevitable on-the-job campaigning and discussion of his candidacy
will disrupt the work of others. Although it is indisputable that the city has a compelling
interest in the performance of official work, the exclusion is not well-tailored to
effectuate that interest. Presumably the city could fire the individual if he clearly shirks
his employment responsibilities or disrupts the work of others. Also, the efficiency
rationale common to both arguments is significantly underinclusive. It applies equally
well to a number of non-political, extracurricular activities that are not prohibited by the
Cranston charter. Finally, the connection between after-hours campaigning and the state
interest seems tenuous; in many cases a public employee would be able to campaign
aggressively and still continue to do his job well. 38
Incidentally, Clements v. Fashing 39 sustained as constitutional a provision on the
automatic resignation of District Clerks, County Clerks, County Judges, County
Treasurers, Criminal District Attorneys, County Surveyors, Inspectors of Hides and
Animals, County Commissioners, Justices of the Peace, Sheriffs, Assessors and
Collectors of Taxes, District Attorneys, County Attorneys, Public Weighers, and
Constables if they announce their candidacy or if they become candidates in any general,
special or primary election. TCHcAE
In Clements, it may be readily observed that a provision treating differently particular
officials, as distinguished from all others, under a classification that is germane to the
purposes of the law, merits the stamp of approval from American courts. Not, however, a
general and sweeping provision, and more so one violative of the second requisite for a
valid classification, which is on its face unconstitutional.
On a final note, it may not be amiss to state that the Americans, from whom we copied
the provision in question, had already stricken down a similar measure for being
unconstitutional. It is high-time that we, too, should follow suit and, thus, uphold
fundamental liberties over age-old, but barren, restrictions to such freedoms.
WHEREFORE, premises considered, the petition is GRANTED. The second proviso in
the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus
Election Code and Section 4 (a) of COMELEC Resolution No. 8678 are declared as
UNCONSTITUTIONAL.
SO ORDERED.

[G.R. No. 159835. January 21, 2010.]

THE BOARD OF COMMISSIONERS OF THE BUREAU OF IMMIGRATION AND
DEPORTATION, petitioner, vs. JUNG KEUN PARK @ JUNG GEUN PARK @
CHUNG KEUN PARK, respondent.
DECISION
BRION, J p:
Before the Court is the Petition for Review on Certiorari 1 filed by the petitioner Board of
Commissioners of the Bureau of Immigration and Deportation (BID) assailing the June
13, 2002 Decision 2 of the Court of Appeals (CA) in CA-G.R. SP No. 67614, which
reversed the deportation orders issued by the BID. The petition also assails the CA's
September 4, 2003 Resolution 3 which denied the BID's motion for reconsideration.
cAaDCE
THE FACTS
Respondent Jung Keun Park (Park) is a national of the Republic of Korea who came to
the Philippines with his family in the early 1990s to invest in various businesses in the
country.
Sometime in 2000, the BID received a letter dated July 6, 2000 4 (July 6, 2000 letter)
from Gyung Taek Cha, Consul/Police Attaché of the Embassy of the Republic of Korea
in Manila, requesting the BID's assistance and cooperation in deporting Park as he was
purportedly facing charges of fraud in Korea for which a warrant for his arrest had been
issued by the Korean Police. The letter also stated that Park's Korean Passport No.
NW0057145 had been cancelled on March 8, 2000 and no other passport had been issued
to him since. Acting on this July 6, 2000 letter, the BID officials arrested Park and
deported him to Korea on July 24, 2000.
On October 28, 2000, Park returned to the Philippines, entering via Zamboanga City from
Malaysia, aboard the Sampaguita Ferry 2. Believing that Park re-entered the country
without a valid passport, the BID again arrested Park on December 11, 2000 and, through
a Charge Sheet 5 dated December 22, 2000, indicted him for violating Section 37 (a) (7)
6 of Commonwealth Act No. 613 or the Philippine Immigration Act of 1940, as amended
(Immigration Act). cIECTH
On the very same date that Park was indicted, the BID issued a Summary Deportation
Order (SDO) against Park after finding that he had indeed violated the Immigration Act.
Accordingly, the BID ordered Park to be deported, imposed upon him administrative
fines and fees, and included him in its Blacklist.
To secure his provisional release pending deportation, Park filed on January 19, 2001 a
Petition for Bail 7 with the BID, stating that he had already paid the administrative fines
and fees imposed on him in the SDO. Park also claimed that he should no longer be
considered an undocumented alien because (a) he had been issued a Travel Certificate by
the Embassy of the Republic of Korea in Manila that was valid from January 16, 2001 up
to June 19, 2001, and (b) he was a holder of a Special Investor's Resident Visa (SIRV).
The BID, however, did not act on his petition, prompting Park to move for its early
resolution on February 19, 2001. 8 Apart from reiterating his plea for his provisional
liberty, Park pointed out that there was no longer any basis for the execution of the SDO.
Apparently, Park learned, after communicating with the Korean Embassy, that it did not
issue the July 6, 2000 letter that declared his Passport No. NW0057145 as cancelled. Park
argued that since the SDO was issued solely on the basis of the July 6, 2000 letter, the
Korean Embassy's disavowal of the letter should result in the nullification of the SDO
against him. In an Order dated February 27, 2001, the BID granted Park's petition for bail
but did not resolve his claim against the validity of the SDO. 9 EDcICT
About six months after the BID issued the SDO, Park filed a motion to have it set aside.
10 He insisted that he should not be considered as an undocumented alien since his
Passport No. NW0057145 had not really been cancelled as falsely stated in the July 6,
2000 letter — a letter which he claimed was later disavowed by the Korean Embassy.
Even assuming that this passport was actually cancelled, Park argues that the Korean
Embassy had already issued him a new passport (Passport No. PH0003486) on April 5,
2001, with validity up to April 5, 2006. Moreover, he was a holder of a SIRV and a travel
certificate. Without, however, going into the merits of Park's claims, the BID denied his
motion to set aside the SDO in a Resolution dated October 15, 2001 (October 15, 2001
Resolution); it ruled that the motion was belatedly filed, since the SDO had already
become final and executory for Park's failure to appeal it within the reglementary period
provided in the Rules of Procedure to Govern Deportation Proceedings (Deportation
Rules).
Park assailed the BID's SDO and October 15, 2001 Resolution, through a certiorari
petition filed before the CA. 11 He reiterated his arguments why he should no longer be
considered as an undocumented alien and submitted the following in support of his claim:
CAaEDH
a. the February 16, 2001 letter 12 from the Embassy of the Republic of Korea in
Manila written by Young Chai Kim, Consul for Passport Affairs, stating that he did not
write the July 6, 2000 letter and that a travel certificate had been issued in Park's favour;
and
b. the May 28, 2001 letter 13 from the Embassy of the Republic of Korea in Manila
written by Consul/Police Attaché Gyung Taek Cha (the same person who wrote the July
6, 2000 letter), stating that Park had no pending criminal cases in Korea.
Park also claimed that he had been denied of his right to due process, since no hearing of
his case was conducted before the BID's Board of Special Inquiry or the Board of
Commissioners; the SDO was in fact issued on the same day that the Charge Sheet was
filed.
In its Decision dated June 13, 2002, 14 the CA found Park's certiorari petition
meritorious. It considered material the February 16, 2001 and May 28, 2001 letters of the
Korean Embassy officials that effectively negated the July 6, 2000 letter. The appellate
court also relied on Park's travel certificate and SIRV as documents supporting his
claims. As a result, it set aside the SDO and the October 15, 2001 Resolution of the BID.
15 As the BID's motion for reconsideration of the CA decision had been denied in a
resolution dated September 4, 2003, it filed before this Court the present petition for
review on certiorari. ASTIED
THE ISSUE and THE PARTIES' ARGUMENTS
At the core of the present controversy is the validity of the two issuances by the BID: the
SDO dated December 22, 2000 and the October 15, 2001 Resolution denying Park's
motion to set aside the SDO. The CA declared that the BID's issuance of the SDO and the
October 15, 2001 Resolution was characterized by grave abuse of discretion and,
accordingly, nullified them. The BID contests this ruling as legally erroneous and invokes
the Court's appellate jurisdiction via a Rule 45 petition.
In its petition, the BID insists that it had sufficient basis for ordering Park's deportation
— Park did not have with him a valid passport when he returned to the Philippines on
October 28, 2000, and was therefore not lawfully admitted. At the time Park was
indicted, the July 6, 2000 letter reporting the cancellation of Park's Passport No.
NW0057145 stood uncontroverted. The BID thus claims that its reliance on the July 6,
2000 letter cannot be considered an abuse of its discretion.
Although Park was able to present letters 16 from the Korean Embassy that apparently
repudiated the July 6, 2000 letter, the BID alleges that these letters were submitted when
the SDO had already become final and executory, since Park failed to appeal the SDO
with the Office of the President within the 30-day period provided under Rule XIII of the
Deportation Rules; 17 the BID, therefore, found it unnecessary to consider the February
16, 2001 and May 28, 2001 letters. As the SDO had already lapsed into finality, the BID
posits that it could not be faulted for denying Park's motion to set aside the SDO in its
October 15, 2001 Resolution. cEaCTS
Park counters the BID's allegations by insisting that he had a valid and existing passport
when he returned to the Philippines on October 28, 2000. He claims that his Passport No.
NW0057145 was never cancelled; otherwise, he would not be able to use the same on a
trip to Malaysia days prior to his return to the Philippines. As proof, he appends to his
Comment and Memorandum a photocopy of this passport bearing stamp marks showing
the date of his arrival in and departure from Malaysia on October 20, 2000 and October
27, 2000, 18 respectively, and of his arrival in the Philippines on October 28, 2000. 19
Moreover, he contends that the Korean Embassy's February 16, 2001 and May 28, 2001
letters constituted a repudiation of the July 6, 2000 letter upon which the SDO was based.
With this repudiation, Park insists there was no more basis for upholding the SDO. Park
also relies on the travel certificate and SIRV issued to him by the Korean Embassy and
the Philippine government (through the Bureau of Investments), respectively, as
documents that further evidenced his authority to enter and remain in the country.
While Park concedes that his motion to set aside the SDO was filed beyond the 30-day
period, he nevertheless contends that the SDO could never achieve finality because it
was, in the first place, null and void. He attacks the SDO by claiming it was issued in
violation of his right to due process, under Section 37 (c) of the Immigration Act, which
reads: HDICSa
No alien shall be deported without being informed of the specific grounds for deportation
nor without being given a hearing under rules of procedure to be prescribed by the
Commissioner of Immigration.
First, Park claims that the Charge Sheet indicting him for violation of the Immigration
Act failed to sufficiently inform him of the specific grounds for his deportation. He was
accused of violating Section 37 (a) (7) of the Immigration Act 20 for remaining in the
Philippines in violation of any limitation or condition under which he was admitted as a
non-immigrant. A charge for violation of Section 37 (a) (7), he alleges, is contrary to the
BID's claim that he was not lawfully admitted when he returned to the Philippines on
October 28, 2000 because he did not have a valid passport then. If he was not lawfully
admitted in the first place, he could not have violated any limitation or condition of his
admission into the country.
Second, he posits that his case should have been heard under the regular deportation
proceedings, not the summary deportation proceedings. Rule X of the Deportation Rules
states that summary deportation shall be observed in cases where the charge is either
overstaying or expiration of passport. Since he had been charged for allegedly violating
the conditions of his admission, Park contends his case is not among those covered by
summary deportation proceedings. SDAcaT
THE COURT'S RULING
We resolve to grant the petition.
A review of the records compels us to rule that the BID had sufficient factual and legal
basis for the SDO and the October 15, 2001 Resolution. The CA committed legal error in
finding that the BID acted with grave abuse of discretion when it issued the SDO and the
October 15, 2001 Resolution.
Non-immigrants are required by law
to present valid passports and visas
upon entry into the Philippines
All non-immigrants are required to present unexpired passports and valid visas prior to
their admission into the Philippines under Section 10 of the Immigration Act: ScaAET
Section 10. Non-immigrants must present for admission into the Philippines unexpired
passports or official documents in the nature of passports issued by the governments of
the countries to which they owe allegiance or other travel documents showing their
origins and identity as prescribed by regulations, and valid passport visas granted by
diplomatic or consular officers, except that such document shall not be required of the
following aliens: (a) a child qualifying as a non-immigrant, born subsequent to the
issuance of the passport visa of the accompanying parent, the visa not having expired;
and (b) a seaman qualifying as such under section (9) of this Act. [Emphasis supplied.]
Park was indicted for violating this requirement because when he returned to the
Philippines on October 28, 2000, he used his Passport No. NW0057145 — a passport that
had already been cancelled according to the Korean Embassy's July 6, 2000 letter. At the
time Park was indicted, there was no official document repudiating the July 6, 2000
letter. Park did not present other competent proofs that his Passport No. NW0057145 had
not been cancelled. In deportation proceedings, the alien bears the burden of proving that
he entered the Philippines lawfully. 21 We do not believe that Park was able to discharge
this burden by belatedly presenting a photocopy of his Passport No. NW0057145 that
bore stamp marks of the date of his arrival in and departure from Malaysia, just days
before his return to the country. In all his pleadings before the BID and the CA, he never
mentioned this prior Malaysian trip, and he conveniently excused the presentation of his
Passport No. NW0057145 by claiming he had misplaced/lost it. Since the authenticity of
the arrival and departure stamp marks in Park's Passport No. NW0057145 had not been
passed upon by either the BID or the CA, we cannot accord it weight and credence.
ITESAc
As things therefore stood on December 22, 2000 (when the SDO was issued), there was
no evidence that would negate the cancellation of Park's Passport No. NW0057145 that
was stated in the Korean Embassy's July 6, 2000 letter. The BID had sufficient ground to
believe that Park did not have with him a valid and existing passport upon his return to
the country. We thus cannot fault the BID for relying in good faith on the letter when it
issued the SDO; its act can hardly be classified as a capricious or whimsical exercise of
judgment equivalent to lack of jurisdiction, correctable by a writ of certiorari.
No due process violation when the
summary deportation proceedings
were held and when the SDO was
issued
Were the documents that Park subsequently presented sufficient to set aside the SDO?
The BID posits that these documents should not even be considered because the SDO had
already lapsed into finality (for which reason, the BID denied Park's motion in its
October 15, 2001 Resolution). Park disagrees and claims that the SDO cannot be final
because its issuance was tainted with due process violations by the BID. We, however,
fail to see the SDO the way Park does. CEASaT
The Charge Sheet 22 indicted Park for violating Section 37 (a) (7) of the Immigration
Act, which provision reads:
Section 37. (a) The following aliens shall be arrested upon the warrant of the
Commissioner of Immigration or of another officer designated by him for the purpose
and deported upon the warrant of the Commissioner of Immigration after a determination
by the Board of Commissioners of the existence of the ground for deportation as charged
against the alien:
xxx xxx xxx
(7) Any alien who remains in the Philippines in violation of any limitation or
condition under which he was admitted as a non-immigrant; [Emphasis supplied.]
However, the Charge Sheet contained not just a citation of the provision of law allegedly
violated by Park, but more importantly, a statement of the act constituting the offense,
i.e., Park's status as an undocumented alien whose passport had been cancelled by the
Korean Government. The pertinent portion of the Charge Sheet reads: EITcaH
The undersigned Special Prosecutor charges CHING GEUN PARK @ JUNG GEUN
PARK @ CHING KEUN PARK, Korean national, for deportation for violation of
Section 37 (a)(7) of the Philippine Immigration Act of 1940, as amended, committed as
follows:
That the respondent's passport was cancelled by the Korean Government, therefore, he is
now an undocumented alien in violation of Section 37(a)(7) of the Philippine
Immigration Act of 1940, as amended. [Emphasis supplied.]
The actual designation of the offense is not material so long as the act constituting the
offense was clearly alleged in the Charge Sheet and sufficient enough to inform Park of
the specific ground for his deportation. In this case, we think it was. Notably, in the
pleadings Park filed with the BID, he insisted that his Passport No. NW0057145 had not
been cancelled; that he possessed the requisite travel documents; and that he is not an
undocumented alien. Under these circumstances, we highly doubt Park's claim that he
had been denied of his right to be informed; otherwise, he would not have found the need
to raise such defenses against the charge. Our opinion is fortified by the fact that Park
never raised this particular objection to the charge when the case was still before the BID
and the CA. Thus, the allegations in the Charge Sheet were sufficient, and there was full
compliance by the BID with the requirement under Section 37 (c) that no alien shall be
deported without being informed of the specific grounds for his deportation. ICacDE
We likewise do not agree with Park's claim that his case should be heard under the
regular deportation proceedings where a full hearing is required before the BID's Board
of Special Inquiry. Section 1, Rule X of the Deportation Rules states that:
Summary deportation shall be observed in cases where the charge against the alien is
overstaying or expiration of his passport. In such case, the Board of Special Inquiry shall
merely require the presentation of the alien's valid passport and shall submit the
appropriate recommendation on the bases thereof. [Emphasis supplied.]
Park was charged for having a cancelled passport, which theoretically is equivalent to an
expired passport — in either case, the alien does not possess the valid passport required
under Section 10 of the Immigration Act. The July 6, 2000 letter in fact stated that "Park's
Korean Passport No. NW0057145 has been expired and cancelled." The BID Office
Memorandum Order No. 19 on Summary Deportation 23 lists aliens with cancelled
passports to be covered under Summary Deportation Proceedings. Thus, Park's case was
properly heard as one for summary deportation, and a full-blown deportation hearing was
not necessary. aTIEcA
After rejecting Park's legal objections against the SDO, we proceed to a determination of
whether there remains factual basis to uphold the SDO and affirm the October 15, 2001
Resolution.
Before anything else, we note that upon issuance of the SDO, Park immediately and
without any question or reservation paid the administrative fines and fee imposed on him
under the SDO. He supposedly paid the fees to support the petition for bail which he filed
with the BID. The payment of the administrative fines and fees, however, is not material
in considering a bail petition. In deportation proceedings, the decision to grant bail is
entirely at the discretion of the BID Commissioner. 24 While not material in the grant of
his bail petition, the payment of the fines and fee was nonetheless a significant indication
of Park's acceptance of and compliance with the SDO. Park's act of payment effectively
placed him in estoppel and now bars him from contesting the validity of the SDO.
Park mainly relies on the following documents that purportedly evidenced his authority to
enter and remain in the country: the February 16, 2001 and May 28, 2001 letters of the
Korean Embassy which, he claims, repudiated the July 6, 2000 letter on which the SDO
was based; the travel certificate dated January 16, 2001, also issued by the Korean
Embassy; the SIRV issued on January 8, 1997 by the Bureau of Investments; and the new
Passport No. PH0003486 issued on April 5, 2001. The CA considered the above
documents sufficient to overturn the SDO and the October 15, 2001 Resolution, and thus
faulted the BID for disregarding them. A closer inspection of these documents, however,
compels us to rule for the BID. cDSAEI
Contrary to Park's claims, the February 16, 2001 and May 28, 2001 letters did not
categorically repudiate the cancellation of Park's Passport No. NW0057145 that was
stated in the July 6, 2000 letter. The February 16, 2001 letter simply declared that its
author, Young Chai Kim, did not write any letter similar to the July 6, 2000 letter — an
immaterial allegation since it was Gyung Taek Cha who wrote it. Gyung Taek Cha's May
28, 2001 letter cannot be considered a repudiation of his July 6, 2000 letter, as it only
stated that Park, as of that date (May 28, 2001), did not have any pending criminal cases
in Korea. Not one of the letters definitely stated that Park's Passport No. NW0057145
was not cancelled on March 8, 2000. Gyung Taek Cha may have written a letter on
October 7, 2002 acknowledging error in making the July 6, 2000 letter, but this came in
too late and was vague in denying the cancellation of the passport. Besides, the fact that
Park had been previously deported on the strength of the July 6, 2000 letter renders the
October 7, 2002 letter suspect. Simply put, the Korean Embassy's letters never directly
repudiated the cancellation of Park's Passport No. NW0057145.
Park's SIRV and travel certificate cannot stand as substitutes for his cancelled passport.
As mentioned, Section 10 of the Immigration Act requires non-immigrants to have (1)
unexpired passports, and (2) valid passport visas. The grant of the SIRV only relieves the
alien from the necessity of securing a valid visa; it does not replace the requirement of a
valid passport. Section 2 (a) of Executive Order No. 63 declares that the SIRV entitles the
alien to enter and leave the Philippines without further documentary requirements other
than valid passports or other travel documents in the nature of passports. Neither can Park
rely on the travel certificate; it was issued on January 16, 2001 by the Korean Embassy
after Park had been charged and indicted, and served only as authority for Park to return
to Korea. ISADET
The issuance of a new passport to Park in no way obliterated the fact that he entered the
country on October 28, 2000 without the requisite valid passport. Park's Passport No.
PH0003486 was issued only on April 5, 2001, months after he had been charged and
indicted for violating our immigration laws.
While we ruled in the 2004 case of Domingo v. Scheer 25 that the subsequent issuance
of a new and regular passport to the alien rendered the SDO moot and academic, we
cannot adopt that principle in the present case because the Scheer ruling was arrived at
after considering a significantly different factual situation.
The cancellation of Scheer's passport resulted in the loss of his privilege to stay in the
country and for which reason, the BID ordered his deportation. The subsequent issuance
of a new passport to Scheer, however, remedied his undocumented status and authorized
his continued stay; thus, we declared the SDO against him moot and academic. On the
other hand, Park was ordered deported because his cancelled passport denied him of the
privilege to re-enter the country. The subsequent issuance of a new passport to Park, as
we said, did not erase the fact that he was not lawfully admitted into the country in the
first place, as he returned without a valid passport. When an alien has already physically
gained entry in the country, but such entry is later found unlawful or devoid of legal
basis, the alien can be excluded anytime after it is found that he was not lawfully
admissible at the time of his entry. 26 cCAIDS
Given these findings, we rule that the supporting documents presented by Park do not
provide sufficient factual basis for overturning the SDO that, at that point, had already
lapsed into finality for Park's failure to contest it on time. The BID thus correctly denied
Park's motion to set aside the SDO in its October 15, 2001 Resolution.
Deported aliens are generally barred
from re-entering the territory of the
deporting state
We conclude this case by recognizing and pointing out certain aspects that the BID may,
in its discretion, still want to look into. Section 29 (a) of the Immigration Act states:
Section 29. (a) The following classes of aliens shall be excluded from entry into the
Philippines: CEASaT
xxx xxx xxx
(15) Persons who have been excluded or deported from the Philippines, but this
provision may be waived in the discretion of the Commissioner of Immigration:
Provided, however, That the Commissioner of Immigration shall not exercise his
discretion in favor of aliens excluded or deported on the ground of conviction for any
crime involving moral turpitude or for any crime penalized under sections forty-five and
forty-six of this Act or on the ground of having engaged in hoarding, black-marketing of
profiteering unless such aliens have previously resided in the Philippine immediately
before his exclusion or deportation for a period of ten years or more or are married to a
native Filipino woman; [Emphasis supplied.]
As a rule, an alien is barred from re-entering the territory of the deporting State.
However, States may, upon proper application, waive previous deportation orders and
allow an alien to re-enter, provided, the re-entry and readmission of the alien do not pose
a risk to the general welfare. As stated in the quoted provision above, the Commissioner
of Immigration may exercise sound discretion in the readmission of previously excluded
aliens (subject to certain limitations). After Park was first deported back to Korea on July
24, 2000 on the strength of the July 6, 2000 letter, he returned to the Philippines
apparently without the requisite consent of the Commissioner of Immigration prior to his
re-entry. Whether the July 6, 2000 letter was actually repudiated by the Korean Embassy
does not figure into this equation, as Park's earlier deportation was already a fait
accompli. His failure to secure the Commissioner of Immigration's consent/waiver prior
to readmission into the deporting State leaves the Commissioner sufficient ground to
charge him with violation of Section 37 (a) (2) of the Immigration Act, which declares
that: ACcDEa
Section 37. (a) The following aliens shall be arrested upon the warrant of the
Commissioner of Immigration or of another officer designated by him for the purpose
and deported upon the warrant of the Commissioner of Immigration after a determination
by the Board of Commissioners of the existence of the ground for deportation as charged
against the alien:
xxx xxx xxx
(2) Any alien who enters the Philippines after the effective date of this Act, who was
not lawfully admissible at the time of entry; [Emphasis supplied.]
WHEREFORE, we GRANT the petition for review on certiorari and REVERSE the June
13, 2002 Decision and September 4, 2003 Resolution of the Court of Appeals in CA-G.R.
SP No. 67614. The Summary Deportation Order of December 22, 2000 and Resolution of
October 15, 2001 of the petition is AFFIRMED and REINSATED. This ruling is without
prejudice to such action the Bureau of Immigration and Deportation may undertake for
the commencement of the proper proceedings against respondent Jung Keun Park for his
re-entry into the Philippines on October 28, 2000, subsequent to his deportation.
IASEca
SO ORDERED.

[G.R. No. 166199. April 24, 2009.]

THE SECRETARY OF JUSTICE, THE EXECUTIVE SECRETARY and THE BOARD
OF COMMISSIONERS OF THE BUREAU OF IMMIGRATION, petitioners, vs.
CHRISTOPHER KORUGA, respondent.
DECISION
AUSTRIA-MARTINEZ, J p:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court assailing the Decision 1 dated September 14, 2004 and the Resolution 2 dated
November 24, 2004 of the Court of Appeals (CA) in CA-G.R. SP No. 76578. The
assailed Decision set aside the Resolution dated April 1, 2003 of the Secretary of the
Department of Justice (DOJ) and the Judgment dated February 11, 2002 of the Board of
Commissioners (BOC) of the Bureau of Immigration (BI), and dismissed the deportation
case filed against Christopher Koruga (respondent), an American national, for violation
of Section 37 (a) (4) of Commonwealth Act No. 613, as amended, otherwise known as
the Philippine Immigration Act of 1940; while the assailed Resolution denied petitioners'
Motion for Reconsideration. cSIACD
The factual background of the case is as follows:
Sometime in August 2001, then BI Commissioner Andrea Domingo received an
anonymous letter 3 requesting the deportation of respondent as an undesirable alien for
having been found guilty of Violation of the Uniform Controlled Substances Act in the
State of Washington, United States of America (USA) for attempted possession of
cocaine sometime in 1983.
On the basis of a Summary of Information, 4 the Commissioner issued Mission Order
No. ADD-01-162 5 on September 13, 2001 directing Police Superintendent (P/Supt.)
Lino G. Caligasan, Chief of the Intelligence Mission and any available BI Special
Operations Team Member to conduct verification/validation of the admission status and
activities of respondent and effect his immediate arrest if he is found to have violated the
Philippine Immigration Act of 1940, as amended.
On September 17, 2001, respondent was arrested and charged before the Board of Special
Inquiry (BSI) for violation of Section 37 (a) (4) of the Philippine Immigration Act of
1940, as amended. The case was docketed as BSI-D.C. No. ADD-01-126. The Charge
Sheet reads: IHCSTE
On September 17, 2001, at about 10:00 A.M., respondent was arrested by Intelligence
operatives at his residence, located at 1001 MARBELLA CONDOMINIUM II, Roxas
Boulevard, Malate, Manila, pursuant to Mission Order No. ADD-01-162;
That respondent was convicted and/or sentenced for Uniform Controlled Substance Act
in connection with his being Drug Trafficker and/or Courier of prohibited drugs in the
State of Washington, United States of America, thus, making him an undesirable alien
and/or a public burden in violation of Sec. 37(4) [sic] of the Philippine Immigration Act
of 1940, as amended.
CONTRARY TO LAW. 6
On September 28, 2001, after filing a Petition for Bail 7 and Supplemental Petition for
Bail, 8 respondent was granted bail and provisionally released from the custody of the BI.
9
Following the submission of respondent's Memorandum 10 and the BI Special
Prosecutor's Memorandum, 11 the BOC rendered a Judgment 12 dated February 11, 2002
ordering the deportation of respondent under Section 37 (a) (4) of the Philippine
Immigration Act of 1940, as amended. HAaECD
On February 26, 2002, respondent filed a Motion for Reconsideration, 13 but it was
denied by the BOC in a Resolution dated March 19, 2002.
Unaware that the BOC already rendered its Resolution dated March 19, 2002, respondent
filed on April 2, 2002, a Manifestation and Notice of Appeal Ex Abundanti Cautelam 14
with the Office of the President, which referred 15 the appeal to the DOJ.
On April 1, 2003, then DOJ Secretary Simeon A. Datumanong rendered a Resolution 16
dismissing the appeal. On April 15, 2003, respondent filed a Motion for Reconsideration
17 which he subsequently withdrew 18 on April 23, 2003.
On April 24, 2003, respondent filed a Petition for Certiorari and Prohibition 19 with the
CA, docketed as CA-G.R. SP No. 76578, seeking to set aside the Resolution dated April
1, 2003 of the DOJ Secretary and the Judgment dated February 11, 2002 of the BOC.
On September 14, 2004, the CA rendered a Decision 20 setting aside the Resolution
dated April 1, 2003 of the DOJ Secretary and the Judgment dated February 11, 2002 of
the BOC and dismissing the deportation case filed against respondent. The CA held that
there was no valid and legal ground for the deportation of respondent since there was no
violation of Section 37 (a) (4) of the Philippine Immigration Act of 1940, as amended,
because respondent was not convicted or sentenced for a violation of the law on
prohibited drugs since the U.S. Court dismissed the case for violation of the Uniform
Controlled Substances Act in the State of Washington, USA filed against respondent; that
petitioners further failed to present or attach to their pleadings any document which
would support their allegations that respondent entered into a plea bargain with the U.S.
Prosecutor for deferred sentence nor did they attach to the record the alleged order or
judgment of the U.S. Court which would show the conviction of respondent for violation
of the prohibited drugs law in the USA; that even if respondent was convicted and
sentenced for the alleged offense, his deportation under Section 37 (a) (4) is improper,
since the prohibited drugs law referred to therein refers not to a foreign drugs law but to
the Philippine drugs law, then Republic Act No. 6425 or the "Dangerous Drugs Act of
1972"; that although the BOC is clothed with exclusive authority to decide as to the right
of a foreigner to enter the country, still, such executive officers must act within the scope
of their authority or their decision is a nullity. IATSHE
Petitioners' Motion for Reconsideration 21 was denied by the CA in its presently assailed
Resolution 22 dated November 24, 2004.
Hence, the present petition on the following grounds:
I. THE COURT OF APPEALS GRAVELY ERRED IN TAKING COGNIZANCE
OF THE SUBJECT CASE WHICH FALLS UNDER THE EXCLUSIVE
PREROGATIVE OF THE EXECUTIVE BRANCH OF THE GOVERNMENT.
II. ASSUMING ARGUENDO THAT IT COULD TAKE COGNIZANCE OVER
THE CASE, THE COURT OF APPEALS GRAVELY ERRED IN FINDING AN
ABUSE OF DISCRETION ON THE PART OF HEREIN PETITIONERS.
III. THE COURT OF APPEALS ERRED IN FINDING THAT THE CHARGES
AGAINST THE HEREIN RESPONDENT WERE DROPPED.
IV. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIOR
CONVICTION IS REQUIRED BEFORE RESPONDENT COULD BE DEPORTED. 23
IEHScT
Petitioners contend that the BI has exclusive authority in deportation proceedings and no
other tribunal is at liberty to reexamine or to controvert the sufficiency of the evidence
presented therein; that there was no grave abuse of discretion on the part of petitioners
when they sought the deportation of respondent since he was convicted by the Supreme
Court of the State of Washington for attempted Violation of the Uniform Controlled
Substances Act and underwent probation in lieu of the imposition of sentence; that the
dismissal of the charge against respondent was only with respect to penalties and
liabilities, obtained after fulfilling the conditions for his probation, and was not an
acquittal from the criminal case charged against him; that there is a valid basis to declare
respondent's undesirability and effect his deportation since respondent has admitted guilt
of his involvement in a drug-related case.
On the other hand, respondent submits that the proceedings against him reek of
persecution; that the CA did not commit any error of law; that all the arguments raised in
the present petition are mere rehashes of arguments raised before and ruled upon by the
CA; and that, even assuming that Section 37 (a) (4) of the Philippine Immigration Act of
1940 does not apply, there is no reason, whether compelling or slight, to deport
respondent. STcEaI
There are two issues for resolution: (1) whether the exclusive authority of the BOC over
deportation proceedings bars judicial review, and (2) whether there is a valid and legal
ground for the deportation of respondent.
The Court resolves the first issue in the negative.
It is beyond cavil that the BI has the exclusive authority and jurisdiction to try and hear
cases against an alleged alien, and that the BOC has jurisdiction over deportation
proceedings. 24 Nonetheless, Article VIII, Section 1 25 of the Constitution has vested
power of judicial review in the Supreme Court and the lower courts such as the CA, as
established by law. Although the courts are without power to directly decide matters over
which full discretionary authority has been delegated to the legislative or executive
branch of the government and are not empowered to execute absolutely their own
judgment from that of Congress or of the President, 26 the Court may look into and
resolve questions of whether or not such judgment has been made with grave abuse of
discretion, when the act of the legislative or executive department is contrary to the
Constitution, the law or jurisprudence, or when executed whimsically, capriciously or
arbitrarily out of malice, ill will or personal bias. 27 TaCSAD
In Domingo v. Scheer, 28 the Court set aside the Summary Deportation Order of the
BOC over an alien for having been issued with grave abuse of discretion in violation of
the alien's constitutional and statutory rights to due process, since the BOC ordered the
deportation of the alien without conducting summary deportation proceedings and
without affording the alien the right to be heard on his motion for reconsideration and
adduce evidence thereon.
In House of Sara Lee v. Rey, 29 the Court held that while, as a general rule, the factual
findings of administrative agencies are not subject to review, it is equally established that
the Court will not uphold erroneous conclusions which are contrary to evidence, because
the agency a quo, for that reason, would be guilty of a grave abuse of discretion.
When acts or omissions of a quasi-judicial agency are involved, a petition for certiorari or
prohibition may be filed in the CA as provided by law or by the Rules of Court, as
amended. 30 Clearly, the filing by respondent of a petition for certiorari and prohibition
before the CA to assail the order of deportation on the ground of grave abuse of
discretion is permitted.
This brings us to the second issue. cCTESa
The settled rule is that the entry or stay of aliens in the Philippines is merely a privilege
and a matter of grace; such privilege is not absolute or permanent and may be revoked.
However, aliens may be expelled or deported from the Philippines only on grounds and
in the manner provided for by the Constitution, the Philippine Immigration Act of 1940,
as amended, and administrative issuances pursuant thereto. 31
Respondent was charged with violation of Section 37 (a) (4) of the Philippine
Immigration Act of 1940, as amended, which provides:
Sec. 37. (a) The following aliens shall be arrested upon the warrant of the
Commissioner of Immigration or of any other officer designated by him for the purpose
and deported upon the warrant of the Commissioner of Immigration after a determination
by the Board of Commissioners of the existence of the ground for deportation as charged
against the alien.
xxx xxx xxx
(4) Any alien who is convicted and sentenced for a violation of the law governing
prohibited drugs; CITcSH
xxx xxx xxx (Emphasis supplied)
Respondent contends that the use of the definite article "the" immediately preceding the
phrase "law on prohibited drugs" emphasizes not just any prohibited drugs law but the
law applicable in this jurisdiction, at that time, the Dangerous Drugs Act of 1972. 32
The Court disagrees.
The general rule in construing words and phrases used in a statute is that in the absence
of legislative intent to the contrary, they should be given their plain, ordinary, and
common usage meaning. 33 However, a literal interpretation of a statute is to be rejected
if it will operate unjustly, lead to absurd results, or contract the evident meaning of the
statute taken as a whole. 34 After all, statutes should receive a sensible construction, such
as will give effect to the legislative intention and so as to avoid an unjust or an absurd
conclusion. 35 Indeed, courts are not to give words meanings that would lead to absurd or
unreasonable consequences. 36 cDCSET
Were the Court to follow the letter of Section 37 (a) (4) and make it applicable only to
convictions under the Philippine prohibited drugs law, the Court will in effect be paving
the way to an absurd situation whereby aliens convicted of foreign prohibited drugs laws
may be allowed to enter the country to the detriment of the public health and safety of its
citizens. It suggests a double standard of treatment where only aliens convicted of
Philippine prohibited drugs law would be deported, while aliens convicted of foreign
prohibited drugs laws would be allowed entry in the country. The Court must
emphatically reject such interpretation of the law. Certainly, such a situation was not
envisioned by the framers of the law, for to do so would be contrary to reason and
therefore, absurd. Over time, courts have recognized with almost pedantic adherence that
what is contrary to reason is not allowed in law.
Indubitably, Section 37 (a) (4) should be given a reasonable interpretation, not one which
defeats the very purpose for which the law was passed. This Court has, in many cases
involving the construction of statutes, always cautioned against narrowly interpreting a
statute as to defeat the purpose of the legislator and stressed that it is of the essence of
judicial duty to construe statutes so as to avoid such a deplorable result of injustice or
absurdity, and that therefore a literal interpretation is to be rejected if it would be unjust
or lead to absurd results. 37 DHIaTS
Moreover, since Section 37 (a) (4) makes no distinction between a foreign prohibited
drugs law and the Philippine prohibited drugs law, neither should this Court. Ubi lex non
distinguit nec nos distinguere debemos. 38 Thus, Section 37 (a) (4) should apply to those
convicted of all prohibited drugs laws, whether local or foreign.
There is no dispute that respondent was convicted of Violation of the Uniform Controlled
Substances Act in the State of Washington, USA for attempted possession of cocaine, as
shown by the Order Deferring Imposition of Sentence (Probation). 39 While he may have
pleaded guilty to a lesser offense, and was not imprisoned but applied for and underwent
a one-year probation, still, there is no escaping the fact that he was convicted under a
prohibited drugs law, even though it may simply be called a "misdemeanor drug offense".
40 The BOC did not commit grave abuse of discretion in ordering the deportation of
respondent.
The Court quotes with approval the following acute pronouncements of the BOC:
ADaEIH
. . . We note that the respondent admitted in his Memorandum dated 8 October 2001 that
he pleaded guilty to the amended information where he allegedly attempted to have in his
possession a certain controlled substance, and a narcotic drug. Further, he filed a
"Petition for Leave to Withdraw Plea of Guilty and Enter Plea of Not Guilty" to obtain a
favorable release from all penalties and disabilities resulting from the filing of the said
charge.
Evidently, the U.S. Court issued the Order of Dismissal in exchange for the respondent's
plea of guilty to the lesser offense. Though legally allowed in the U.S. Law, We perceive
that this strategy afforded the respondent with a convenient vehicle to avoid conviction
and sentencing. Moreover, the plea of guilty is by itself crystal clear acknowledgment of
his involvement in a drug-related offense. Hence, respondent's discharge from conviction
and sentencing cannot hide the fact that he has a prior history of drug-related charge.
DcITaC
This country cannot countenance another alien with a history of a drug-related offense.
The crime may have been committed two decades ago but it cannot erase the fact that the
incident actually happened. This is the very core of his inadmissibility into the
Philippines. Apparently, respondent would like Us to believe that his involvement in this
drug case is a petty offense or a mere misdemeanor. However, the Philippine
Government views all drug-related cases with grave concern; hence, the enactment of
Republic Act No. 6425, otherwise known as "The Dangerous Drugs Act of 1972" and the
creation of various drug-enforcement agencies. While We empathize with the innocent
portrayal of the respondent as a man of irreproachable conduct, not to mention the
numerous written testimonies of good character submitted in his behalf, this incomplete
and sanitized representation cannot, however, outweigh our commitment and sworn duty
to safeguard public health and public safety. Moreover, while the U.S. Government may
not have any law enforcement interest on respondent, Philippine immigration authorities
certainly do in the able and competent exercise of its police powers. Thus, this case of the
respondent is no different from a convicted felon abroad, who argues that he cannot be
removed from the Philippines on the ground that the crime was committed abroad.
Otherwise, it would open the floodgates to other similarly situated aliens demanding their
admission into the country. Indeed, respondent may not be a menace to the U.S. as a
result of his being discharged from criminal liability, but that does not ipso facto mean
that the immigration authorities should unquestionably admit him into the country.
TcADCI
xxx xxx xxx 41 (Emphasis supplied)
It must be remembered that aliens seeking entry in the Philippines do not acquire the
right to be admitted into the country by the simple passage of time. When an alien, such
as respondent, has already physically gained entry in the country, but such entry is later
found unlawful or devoid of legal basis, the alien can be excluded anytime after it is
found that he was not lawfully admissible at the time of his entry. 42 Every sovereign
power has the inherent power to exclude aliens from its territory upon such grounds as it
may deem proper for its self-preservation or public interest. 43 The power to deport
aliens is an act of State, an act done by or under the authority of the sovereign power. 44
It is a police measure against undesirable aliens whose continued presence in the country
is found to be injurious to the public good and the domestic tranquility of the people. 45
WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the
Court of Appeals in CA-G.R. SP No. 76578 are REVERSED and SET ASIDE. The
Judgment dated February 11, 2002 of the Board of Commissioners of the Bureau of
Immigration ordering the deportation of respondent Christopher Koruga under Section 37
(a) (4) of the Philippine Immigration Act of 1940, as amended, is REINSTATED.
ESHcTD
SO ORDERED.

[G.R. No. 141284. August 15, 2000.]

INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON. RONALDO B.
ZAMORA, GEN. PANFILO M. LACSON, GEN. EDGAR B. AGLIPAY, and GEN.
ANGELO REYES, respondents.
Arthur D. Lim for petitioner.
The Solicitor General for respondents.
SYNOPSIS
The President of the Philippines, Joseph Ejercito Estrada, in a verbal directive, ordered
the PNP and the Marines to conduct joint visibility patrols for the purpose of crime
prevention and suppression. In compliance with the presidential mandate, the PNP Chief,
through Police Chief Superintendent Edgar B. Aglipay, formulated Letter of Instruction
02/2000 (the "LOI") which detailed the manner by which the joint visibility patrols,
called Task Force Tulungan, would be conducted. Task Force Tulungan was placed under
the leadership of the Police Chief of Metro Manila. Invoking his powers as Commander-
in-Chief under Section 18, Article VII of the Constitution, the President directed the AFP
Chief of Staff and PNP Chief to coordinate with each other for the proper deployment
and utilization of the Marines to assist the PNP in preventing or suppressing criminal or
lawless violence. The President also declared that the services of the Marines in the anti-
crime campaign are merely temporary in nature and for a reasonable period only, until
such time when the situation shall have improved. The Integrated Bar of the Philippines
(the "IBP") filed the instant petition to annul LOI 02/2000 and to declare the deployment
of the Philippine Marines null and void and unconstitutional, arguing that the deployment
of marines in Metro Manila is violative of the Constitution because no emergency
situation obtains in Metro Manila as would justify, even only remotely, the deployment
of soldiers for law enforcement work; hence, said deployment in derogation of Article II,
Section 3 of the Constitution. TCaADS
The Supreme Court found no merit in the petition. When the President calls the armed
forces to prevent or suppress lawless violence, invasion or rebellion, he necessarily
exercises a discretionary power solely vested in his wisdom. This is clear from the intent
of the framers and from the text of the Constitution itself. The Court, thus, cannot be
called upon to overrule the President's wisdom or substitute its own. It does not, however,
prevent an examination of whether such power was exercised within permissible
constitutional limits or whether it was exercised in a manner constituting grave abuse of
discretion. In view of the constitutional intent to give the President full discretionary
power to determine the necessity of calling out the armed forces, it is incumbent upon the
petitioner to show that the President's decision is totally bereft of factual basis. The
petition failed to discharge such heavy burden as there was no evidence to support the
assertion that there exists no justification for calling out the armed forces nor was grave
abuse committed because the power to call was exercised in such a manner as to violate
the constitutional provision on civilian supremacy over the military. In the performance
of the Court's duty of "purposeful hesitation" before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall the
Court interfere with the President's judgment and to doubt is to sustain. The Court also
ruled that the calling of the Marines in this case constitutes permissible use of military
assets for civilian law enforcement. The participation of the Marines in the conduct of
joint visibility patrols is appropriately circumscribed. The limited participation of the
Marines is evident in the provisions of the LOI itself, which sufficiently provides the
metes and bounds of the Marines' authority. It is noteworthy that the local police forces
are the ones in charge of the visibility patrols at all times, the real authority belonging to
the PNP. Under the LOI, the police forces are tasked to brief or orient the soldiers on
police patrol procedures. It is their responsibility to direct and manage the deployment of
the Marines. It is, likewise, their duty to provide the necessary equipment to the Marines
and render logistical support to these soldiers. It cannot be properly argued then that
military authority is supreme over civilian authority. Moreover, the deployment of the
Marines to assist the PNP does not unmake the civilian character of the police force.
Neither does it amount to an "insidious incursion" of the military in the task of law
enforcement in violation of Section 5(4), Article XVI of the Constitution.
SYLLABUS
1. POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL
REVIEW; PETITIONER INTEGRATED BAR OF THE PHILIPPINES HAS NOT
COMPLIED WITH THE REQUISITES OF LEGAL STANDING IN CASE AT BAR;
PETITIONER HAS NOT SUCCESSFULLY ESTABLISHED A DIRECT AND
PERSONAL INJURY AS A CONSEQUENCE OF THE QUESTIONED ACT. — The
IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law
and the Constitution. Apart from this declaration, however, the IBP asserts no other basis
in support of its locus standi. The mere invocation by the IBP of its duty to preserve the
rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is shared by other groups and
the whole citizenry. Based on the standards above-stated, the IBP has failed to present a
specific and substantial interest in the resolution of the case. Its fundamental purpose
which, under Section 2, Rule 139-A of the Rules of Court, is to elevate the standards of
the law profession and to improve the administration of justice is alien to, and cannot be
affected by the deployment of the Marines. It should also be noted that the interest of the
National President of the IBP who signed the petition, is his alone, absent a formal board
resolution authorizing him to file the present action. To be sure, members of the BAR,
those in the judiciary included, have varying opinions on the issue. Moreover, the IBP,
assuming that it has duly authorized the National President to file the petition, has not
shown any specific injury which it has suffered or may suffer by virtue of the questioned
governmental act. Indeed, none of its members, whom the IBP purportedly represents,
has sustained any form of injury as a result of the operation of the joint visibility patrols.
Neither is it alleged that any of its members has been arrested or that their civil liberties
have been violated by the deployment of the Marines. What the IBP projects as injurious
is the supposed "militarization" of law enforcement which might threaten Philippine
democratic institutions and may cause more harm than good in the long run. Not only is
the presumed "injury" not personal in character, it is likewise too vague, highly
speculative and uncertain to satisfy the requirement of standing. Since petitioner has not
successfully established a direct and personal injury as a consequence of the questioned
act, it does not possess the personality to assail the validity of the deployment of the
Marines. This Court, however, does not categorically rule that the IBP has absolutely no
standing to raise constitutional issues now or in the future. The IBP must, by way of
allegations and proof, satisfy this Court that it has sufficient stake to obtain judicial
resolution of the controversy.
2. ID.; EXECUTIVE DEPARTMENT; POWERS OF THE PRESIDENT; THE
PRESIDENT DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN CALLING
OUT THE MARINES. — When the President calls the armed forces to prevent or
suppress lawless violence, invasion or rebellion, he necessarily exercises a discretionary
power solely vested in his wisdom. This is clear from the intent of the framers and from
the text of the Constitution itself. The Court, thus, cannot be called upon to overrule the
President's wisdom or substitute its own. However, this does not prevent an examination
of whether such power was exercised within permissible constitutional limits or whether
it was exercised in a manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power to determine the
necessity of calling out the armed forces, it is incumbent upon the petitioner to show that
the President's decision is totally bereft of factual basis. The present petition fails to
discharge such heavy burden as there is no evidence to support the assertion that there
exist no justification for calling out the armed forces. There is, likewise, no evidence to
support the proposition that grave abuse was committed because the power to call was
exercised in such a manner as to violate the constitutional provision on civilian
supremacy over the military. In the performance of this Court's duty of purposeful
hesitation" before declaring an act of another branch as unconstitutional, only where such
grave abuse of discretion is clearly shown shall the Court interfere with the President's
judgment. To doubt is to sustain.
3. ID.; ID.; ID.; GROUNDS FOR THE DECLARATION OF MARTIAL LAW
AND SUSPENSION OF THE WRIT OF HABEAS CORPUS; SAID CONDITIONS
ARE NOT REQUIRED IN THE CASE OF THE POWER OF THE PRESIDENT TO
CALL OUT THE ARMED FORCES. — Under Section 18, Article VII of the
Constitution, in the exercise of the power to suspend the privilege of the writ of habeas
corpus or to impose martial law, two conditions must concur: (1) there must be an actual
invasion or rebellion and, (2) public safety must require it. These conditions are not
required in the case of the power to call out the Armed Forces. The only criterion is that
"whenever it becomes necessary," the President may call the armed forces "to prevent or
suppress lawless violence, invasion or rebellion." The implication is that the President is
given full discretion and wide latitude in the exercise of the power to call as compared to
the two other powers.
4. ID.; ID.; ID.; DETERMINATION OF NECESSITY FOR POWER TO CALL
OUT ARMED FORCES IF SUBJECTED TO UNFETTERED JUDICIAL SCRUTINY
COULD BE A VERITABLE PRESCRIPTION FOR DISASTER, AS SUCH POWER
MAY BE UNDULY STRAITJACKETED BY AN INJUNCTION OR TEMPORARY
RESTRAINING ORDER EVERY TIME IT IS EXERCISED. — The President as
Commander-in-Chief has a vast intelligence network to gather information, some of
which may be classified as highly confidential or affecting the security of the state. In the
exercise of the power to call, on-the-spot decisions may be imperatively necessary in
emergency situations to avert great loss of human lives and mass destruction of property.
Indeed, the decision to call out the military to prevent or suppress lawless violence must
be done swiftly and decisively if it were to have any effect at all. Such a scenario is not
farfetched when we consider the present situation in Mindanao, where the insurgency
problem could spill over the other parts of the country. The determination of the necessity
for the calling out power if subjected to unfettered judicial scrutiny could be a veritable
prescription for disaster, as such power may be unduly straitjacketed by an injunction or a
temporary restraining order every time it is exercised. Thus, it is the unclouded intent of
the Constitution to vest upon the President, as Commander-in-Chief of the Armed Forces,
full discretion to call forth the military when in his judgment it is necessary to do so in
order to prevent or suppress lawless violence, invasion or rebellion. Unless the petitioner
can show that the exercise of such discretion was gravely abused, the President's exercise
of judgment deserves to be accorded respect from this Court. cTCADI
5. ID.; ID.; ID.; THE DEPLOYMENT OF THE MARINES DOES NOT VIOLATE
THE CIVILIAN SUPREMACY CLAUSE NOR DOES IT INFRINGE THE CIVILIAN
CHARACTER OF THE POLICE FORCE. — The deployment of the Marines does not
constitute a breach of the civilian supremacy clause. The calling of the Marines in this
case constitutes permissible use of military assets for civilian law enforcement. The
participation of the Marines in the conduct of joint visibility patrols is appropriately
circumscribed. The limited participation of the Marines is evident in the provisions of the
LOI itself, which sufficiently provides the metes and bounds of the Marines' authority. It
is noteworthy that the local police forces are the ones in charge of the visibility patrols at
all times, the real authority belonging to the PNP. In fact, the Metro Manila Police Chief
is the overall leader of the PNP-Philippine Marines joint visibility patrols. Under the LOI,
the police forces are tasked to brief or orient the soldiers on police patrol procedures. It is
their responsibility to direct and manage the deployment of the Marines. It is, likewise,
their duty to provide the necessary equipment to the Marines and render logistical support
to these soldiers. In view of the foregoing, it cannot be properly argued that military
authority is supreme over civilian authority.
VITUG, J., separate opinion:
POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL REVIEW;
THE ACT OF THE PRESIDENT IN SIMPLY CALLING ON THE ARMED FORCES,
AN EXECUTIVE PREROGATIVE, TO ASSIST THE PHILIPPINE NATIONAL
POLICE IN "JOINT VISIBILITY PATROLS" DOES NOT CONSTITUTE GRAVE
ABUSE OF DISCRETION THAT WOULD WARRANT AN EXERCISE BY THE
COURT OF ITS EXTRAORDINARY POWER OF JUDICIAL REVIEW. — The term
grave abuse of discretion is long understood in our jurisprudence as being, and confined
to, a capricious and whimsical or despotic exercise of judgment amounting to lack or
excess of jurisdiction. Minus the not-so-unusual exaggerations often invoked by litigants
in the duel of views, the act of the President in simply calling on the Armed Forces of the
Philippines, an executive prerogative, to assist the Philippine National Police in "joint
visibility patrols" in the metropolis does not, I believe, constitute grave abuse of
discretion that would now warrant an exercise by the Supreme Court of its extraordinary
power as so envisioned by the fundamental law. HSTAcI
PUNO, J., separate opinion:
1. POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL
REVIEW; CONDITIONS THAT MUST BE MET BEFORE THE PRESIDENT, AS
COMMANDER-IN-CHIEF, MAY CALL OUT THE ARMED FORCES OF THE
PHILIPPINES; SAID CONDITIONS DEFINE THE PARAMETERS OF THE
CALLING OUT POWER AND WHETHER OR NOT THERE IS COMPLIANCE
WITH THE SAID PARAMETERS IS A JUSTIFIABLE ISSUE AND NOT A
POLITICAL QUESTION. — It is clear from Section 18, Article VII of the 1987
Constitution that the President, as Commander-in-Chief of the armed forces of the
Philippines, may call out the armed forces subject to two conditions: (1) whenever it
becomes necessary; and (2) to prevent or suppress lawless violence, invasion or rebellion.
Undeniably, these conditions lay down the sine qua requirement for the exercise of the
power and the objective sought to be attained by the exercise of the power. They define
the constitutional parameters of the calling out power. Whether or not there is compliance
with these parameters is a justiciable issue and is not a political question. I am not
unaware that in the deliberations of the Constitutional Commission, Commissioner
Bernas opined that the President's exercise of the "calling out power," unlike the
suspension of the privilege of the writ of habeas corpus and the declaration of martial
law, is not a justiciable issue but a political question and therefore not subject to judicial
review. It must be borne in mind, however, that while a member's opinion expressed on
the floor of the Constitutional Convention is valuable, it is not necessarily expressive of
the people's intent. The proceedings of the Convention are less conclusive on the proper
construction of the fundamental law than are legislative proceedings of the proper
construction of a statute, for in the latter case it is the intent of the legislature the courts
seek, while in the former, courts seek to arrive at the intent of the people through the
discussions and deliberations of their representatives. The conventional wisdom is that
the Constitution does not derive its force from the convention which framed it, but from
the people who ratified it, the intent to be arrived at is that of the people.
2. ID.; ID.; ID.; IT MAY BE CONCEDED THAT THE EXERCISE OF THE
CALLING OUT POWER MAY BE A "LESSER POWER" COMPARED TO THE
POWER TO SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS
AND THE POWER TO DECLARE MARTIAL LAW, STILL ITS EXERCISE
CANNOT BE LEFT TO ABSOLUTE DISCRETION OF THE CHIEF EXECUTIVE,
AS COMMANDER-IN-CHIEF OF THE ARMED FORCES, AS ITS IMPACT ON THE
RIGHTS OF THE PEOPLE PROTECTED BY THE CONSTITUTION CANNOT BE
DOWNGRADED. — It is true that the third paragraph of Section 18, Article VII of the
1987 Constitution expressly gives the Court the power to review the sufficiency of the
factual bases used by the President in the suspension of the privilege of the writ of habeas
corpus and the declaration of martial law. It does not follow, however, that just because
the same provision did not grant to this Court the power to review the exercise of the
calling out power by the President, ergo, this Court cannot pass upon the validity of its
exercise. Given the light of our constitutional history, this express grant of power merely
means that the Court cannot decline the exercise of its power because of the political
question doctrine as it did in the past. In fine, the express grant simply stresses the
mandatory duty of this Court to check the exercise of the commander-in-chief powers of
the President. It eliminated the discretion of the Court not to wield its power of review
thru the use of the political question doctrine. It may be conceded that the calling out
power may be a "lesser power" compared to the power to suspend the privilege of the
writ of habeas corpus and the power to declare martial law. Even then, its exercise cannot
be left to the absolute discretion of the Chief Executive as Commander-in-Chief of the
armed forces, as its impact on the rights of our people protected by the Constitution
cannot be downgraded. We cannot hold that acts of the commander-in-chief cannot be
reviewed on the ground that they have lesser impact on the civil and political rights of our
people. The exercise of the calling out power may be "benign" in the case at bar but may
not be so in future cases. THaCAI
MENDOZA, J., concurring and dissenting:
1. POLITICAL LAW; JUDICIAL DEPARTMENT; POWER OF JUDICIAL
REVIEW; JUDGMENT ON THE SUBSTANTIAL ISSUES RAISED BY PETITIONER
MUST AWAIT AN ACTUAL CASE INVOLVING REAL PARTIES WITH
"INJURIES" TO SHOW AS A RESULT OF THE OPERATION OF THE
CHALLENGED EXECUTIVE DECISION. — I submit that judgment on the substantive
constitutional issues raised by petitioner must await an actual case involving real parties
with "injuries" to show as a result of the operation of the challenged executive action.
While as an organization for the advancement of the rule of law petitioner has an interest
in upholding the Constitution, its interest is indistinguishable from the interest of the rest
of the citizenry and falls short of that which is necessary to give petitioner standing. As I
have indicated elsewhere, a citizens' suit challenging the constitutionality of
governmental action requires that (1) the petitioner must have suffered an "injury in fact"
of an actual or imminent nature; (2) there must be a causal connection between the injury
and the conduct complained of; and (3) the injury is likely to be redressed by a favorable
action by this Court. The "injury in fact" test requires more than injury to a cognizable
interest. It requires that the party seeking review be himself among those injured. My
insistence on compliance with the standing requirement is grounded in the conviction that
only a party injured by the operation of the governmental action challenged is in the best
position to aid the Court in determining the precise nature of the problem presented.
Many a time we have adverted to the power of judicial review as an awesome power not
to be exercised save in the most exigent situation. For, indeed, sound judgment on
momentous constitutional questions is not likely to be reached unless it is the result of a
clash of adversary arguments which only parties with direct and specific interest in the
outcome of the controversy can make. This is true not only when we strike down a law or
official action but also when we uphold it. ESTDIA
2. ID.; ID.; ID.; ID.; NO EVIDENCE ON THE EFFECT OF MILITARY
PRESENCE IN MALLS AND COMMERCIAL CENTERS, I.E., WHETHER SUCH
PRESENCE IS COERCIVE OR BENIGN. — In this case, because of the absence of
parties with real and substantial interest to protect, we do not have evidence on the effect
of military presence in malls and commercial centers, i.e., whether such presence is
coercive or benign. We do not know whether the presence of so many marines and
policemen scares shoppers, tourists, and peaceful civilians, or whether it is reassuring to
them. To be sure, the deployment of troops to such places is not like parading them at the
Luneta on Independence Day. Neither is it, however, like calling them out because of
actual fighting or the outbreak of violence. We need to have evidence on these questions
because, under the Constitution, the President's power to call out the armed forces in
order to suppress lawless violence, invasion or rebellion is subject to the limitation that
the exercise of this power is required in the interest of public safety.
DECISION
KAPUNAN, J p:
At bar is a special civil action for certiorari and prohibition with prayer for issuance of a
temporary restraining order seeking to nullity on constitutional grounds the order of
President Joseph Ejercito Estrada commanding the deployment of the Philippine Marines
(the Marines) to join the Philippine National Police (the "PNP") in visibility patrols
around the metropolis. IDATCE
In view of the alarming increase in violent crimes in Metro Manila, like robberies,
kidnappings and carnappings, the President, in a verbal directive, ordered the PNP and
the Marines to conduct joint visibility patrols for the purpose of crime prevention and
suppression. The Secretary of National Defense, the Chief of Staff of the Armed Forces
of the Philippines (the "AFP"), the Chief of the PNP and the Secretary of the Interior and
Local Government were tasked to execute and implement the said order. In compliance
with the presidential mandate, the PNP Chief, through Police Chief Superintendent Edgar
B. Aglipay, formulated Letter of Instruction 02/2000 1 (the "LOI") which detailed the
manner by which the joint visibility patrols, called Task Force Tulungan, would be
conducted. 2 Task Force Tulungan was placed under the leadership of the Police Chief of
Metro Manila.
Subsequently, the President confirmed his previous directive on the deployment of the
Marines in a Memorandum, dated 24 January 2000, addressed to the Chief of Staff of the
AFP and the PNP Chief. 3 In the Memorandum, the President expressed his desire to
improve the peace and order situation in Metro Manila through a more effective crime
prevention program including increased police patrols. 4 The President further stated that
to heighten police visibility in the metropolis, augmentation from the AFP is necessary. 5
Invoking his powers as Commander-in-Chief under Section 18, Article VII of the
Constitution, the President directed the AFP Chief of Staff and PNP Chief to coordinate
with each other for the proper deployment and utilization of the Marines to assist the PNP
in preventing or suppressing criminal or lawless violence. 6 Finally, the President
declared that the services of the Marines in the anti-crime campaign are merely
temporary in nature and for a reasonable period only, until such time when the situation
shall have improved. 7
The LOI explains the concept of the PNP-Philippine Marines joint visibility patrols as
follows:
xxx xxx xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP NCRPO and the
Philippine Marines partnership in the conduct of visibility patrols in Metro Manila for the
suppression of crime prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only by ordinary criminals
but also by organized syndicates whose members include active and former
police/military personnel whose training, skill, discipline and firepower prove well-above
the present capability of the local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility patrol in urban areas will
reduce the incidence of crimes specially those perpetrated by active or former
police/military personnel. aAHTDS
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct joint NCRPO-PM
visibility patrols to keep Metro Manila streets crime-free, through a sustained street
patrolling to minimize or eradicate all forms of high-profile crimes especially those
perpetrated by organized crime syndicates whose members include those that are well-
trained, disciplined and well-armed active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO [National Capital
Regional Police Office] and the Philippine Marines to curb criminality in Metro Manila
and to preserve the internal security of the state against insurgents and other serious threat
to national security, although the primary responsibility over Internal Security Operations
still rests upon the AFP.
b. The principle of integration of efforts shall be applied to eradicate all forms of
high-profile crimes perpetrated by organized crime syndicates operating in Metro Manila.
This concept requires the military and police to work cohesively and unify efforts to
ensure a focused, effective and holistic approach in addressing crime prevention. Along
this line, the role of the military and police aside from neutralizing crime syndicates is to
bring a wholesome atmosphere wherein delivery of basic services to the people and
development is achieved Hand-in-hand with this joint NCRPO-Philippine Marines
visibility patrols, local Police Units are responsible for the maintenance of peace and
order in their locality.
c. To ensure the effective implementation of this project, a provisional Task Force
"TULUNGAN" shall be organized to provide the mechanism, structure, and procedures
for the integrated planning, coordinating, monitoring and assessing the security situation.
xxx xxx xxx. 8
The selected areas of deployment under the LOI are: Monumento Circle, North Edsa (SM
City), Araneta Shopping Center, Greenhills, SM Megamall, Makati Commercial Center,
LRT/MRT Stations and the NAIA and Domestic Airport. 9
On 17 January 2000, the Integrated Bar of the Philippines (the "IBP") filed the instant
petition to annul LOI 02/2000 and to declare the deployment of the Philippine Marines,
null and void and unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO MANILA IS
VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS WOULD
JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF SOLDIERS FOR
LAW ENFORCEMENT WORK; HENCE, SAID DEPLOYMENT IS IN
DEROGATION OF ARTICLE II, SECTION 3 OF THE CONSTITUTION; ADTCaI
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION BY THE
MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT (LAW
ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION 5 (4), OF THE
CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO RELY
ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS OF THE
GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION. 10
Asserting itself as the official organization of Filipino lawyers tasked with the bounden
duty to uphold the rule of law and the Constitution, the IBP questions the validity of the
deployment and utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution, 11 dated 25
January 2000, required the Solicitor General to file his Comment on the petition. On 8
February 2000, the Solicitor General submitted his Comment. TADIHE
The Solicitor General vigorously defends the constitutionality of the act of the President
in deploying the Marines, contending, among others, that petitioner has no legal standing;
that the question of deployment of the Marines is not proper for judicial scrutiny since the
same involves a political question; that the organization and conduct of police visibility
patrols, which feature the team-up of one police officer and one Philippine Marine
soldier, does not violate the civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not petitioner has legal
standing; (2) Whether or not the President's factual determination of the necessity of
calling the armed forces is subject to judicial review, and, (3) Whether or not the calling
of the armed forces to assist the PNP in joint visibility patrols violates the constitutional
provisions on civilian supremacy over the military and the civilian character of the PNP.
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of the requisites of
standing to raise the issues in the petition. Second, the President did not commit grave
abuse of discretion amounting to lack or excess of jurisdiction nor did he commit a
violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the Constitution, to
wit:
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court can exercise its power
of judicial review only if the following requisites are complied with, namely: (1) the
existence of an actual and appropriate case; (2) a personal and substantial interest of the
party raising the constitutional question; (3) the exercise of judicial review is pleaded at
the earliest opportunity; and (4) the constitutional question is the lis mota of the case. 12
The IBP has not sufficiently complied with the requisites of standing in this case.
"Legal standing" or locus standi has been defined as a personal and substantial interest in
the case such that the party has sustained or will sustain direct injury as a result of the
governmental act that is being challenged. 13 The term "interest" means a material
interest, an interest in issue affected by the decree, as distinguished from mere interest in
the question involved, or a mere incidental interest. 14 The gist of the question of
standing is whether a party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions. 15
In the case at bar, the IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this declaration, however, the
IBP asserts no other basis in support of its locus standi. The mere invocation by the IBP
of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. Based on the standards above-stated, the
IBP has failed to present a specific and substantial interest in the resolution of the case.
Its fundamental purpose which, under Section 2, Rule 139-A of the Rules of Court, is to
elevate the standards of the law profession and to improve the administration of justice is
alien to, and cannot be affected by the deployment of the Marines. It should also be noted
that the interest of the National President of the IBP who signed the petition, is his alone,
absent a formal board resolution authorizing him to file the present action. To be sure,
members of the BAR, those in the judiciary included, have varying opinions on the issue.
Moreover, the IBP, assuming that it has duly authorized the National President to file the
petition, has not shown any specific injury which it has suffered or may suffer by virtue
of the questioned governmental act. Indeed, none of its members, whom the IBP
purportedly represents, has sustained any form of injury as a result of the operation of the
joint visibility patrols. Neither is it alleged that any of its members has been arrested or
that their civil liberties have been violated by the deployment of the Marines. What the
IBP projects as injurious is the supposed "militarization" of law enforcement which might
threaten Philippine democratic institutions and may cause more harm than good in the
long run. Not only is the presumed "injury" not personal in character, it is likewise too
vague, highly speculative and uncertain to satisfy the requirement of standing. Since
petitioner has not successfully established a direct and personal injury as a consequence
of the questioned act, it does not possess the personality to assail the validity of the
deployment of the Marines. This Court, however, does not categorically rule that the IBP
has absolutely no standing to raise constitutional issues now or in the future. The IBP
must, by way of allegations and proof, satisfy this Court that it has sufficient stake to
obtain judicial resolution of the controversy. ASDCaI
Having stated the foregoing, it must be emphasized that this Court has the discretion to
take cognizance of a suit which does not satisfy the requirement of legal standing when
paramount interest is involved. 16 In not a few cases, the Court has adopted a liberal
attitude on the locus standi of a petitioner where the petitioner is able to craft an issue of
transcendental significance to the people. 17 Thus, when the issues raised are of
paramount importance to the public, the Court may brush aside technicalities of
procedure. 18 In this case, a reading of the petition shows that the IBP has advanced
constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Moreover, because peace and order are
under constant threat and lawless violence occurs in increasing tempo, undoubtedly
aggravated by the Mindanao insurgency problem, the legal controversy raised in the
petition almost certainly will not go away. It will stare us in the face again. It, therefore,
behooves the Court to relax the rules on standing and to resolve the issue now, rather than
later.
The President did not commit grave abuse of discretion in calling out the Marines.
In the case at bar, the bone of contention concerns the factual determination of the
President of the necessity of calling the armed forces, particularly the Marines, to aid the
PNP in visibility patrols. In this regard, the IBP admits that the deployment of the
military personnel falls under the Commander-in-Chief powers of the President as stated
in Section 18, Article VII of the Constitution, specifically, the power to call out the armed
forces to prevent or suppress lawless violence, invasion or rebellion. What the IBP
questions, however, is the basis for the calling of the Marines under the aforestated
provision. According to the IBP, no emergency exists that would justify the need for the
calling of the military to assist the police force. It contends that no lawless violence,
invasion or rebellion exist to warrant the calling of the Marines. Thus, the IBP prays that
this Court "review the sufficiency of the factual basis for said troop [Marine]
deployment." 19
The Solicitor General, on the other hand, contends that the issue pertaining to the
necessity of calling the armed forces is not proper for judicial scrutiny since it involves a
political question and the resolution of factual issues which are beyond the review powers
of this Court. DTAESI
As framed by the parties, the underlying issues are the scope of presidential powers and
limits, and the extent of judicial review. But, while this Court gives considerable weight
to the parties' formulation of the issues, the resolution of the controversy may warrant a
creative approach that goes beyond the narrow confines of the issues raised. Thus, while
the parties are in agreement that the power exercised by the President is the power to call
out the armed forces, the Court is of the view that the power involved may be no more
than the maintenance of peace and order and promotion of the general welfare. 20 For
one, the realities on the ground do not show that there exist a state of warfare, widespread
civil unrest or anarchy. Secondly, the full brunt of the military is not brought upon the
citizenry, a point discussed in the latter part of this decision. In the words of the late
Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the President's powers as protector of
the peace. [Rossiter, The American Presidency]. The power of the President to keep the
peace is not limited merely to exercising the commander-in-chief powers in times of
emergency or to leading the State against external and internal threats to its existence.
The President is not only clothed with extraordinary powers in times of emergency, but is
also tasked with attending to the day-to-day problems of maintaining peace and order and
ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of peace is
not in any way diminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President commander-in-chief the
enumeration of powers that follow cannot be said to exclude the President's exercising as
Commander-in-Chief powers short of the calling of the armed forces, or suspending the
privilege of the writ of habeas corpus or declaring martial law, in order to keep the peace,
and maintain public order and security.
xxx xxx xxx 21
Nonetheless, even if it is conceded that the power involved is the President's power to
call out the armed forces to prevent or suppress lawless violence, invasion or rebellion,
the resolution of the controversy will reach a similar result.
We now address the Solicitor General's argument that the issue involved is not
susceptible to review by the judiciary because it involves a political question, and thus,
not justiciable.
As a general proposition, a controversy is justiciable if it refers to a matter which is
appropriate for court review. 22 It pertains to issues which are inherently susceptible of
being decided on grounds recognized by law. Nevertheless, the Court does not
automatically assume jurisdiction over actual constitutional cases brought before it even
in instances that are ripe for resolution. One class of cases wherein the Court hesitates to
rule on are ''political questions." The reason is that political questions are concerned with
issues dependent upon the wisdom, not the legality, of a particular act or measure being
assailed. Moreover, the political question being a function of the separation of powers,
the courts will not normally interfere with the workings of another co-equal branch unless
the case shows a clear need for the courts to step in to uphold the law and the
Constitution.
As Tañada v. Cuenco, 23 puts it, political questions refer "to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of government." Thus, if an issue is clearly identified by the text of the
Constitution as matters for discretionary action by a particular branch of government or
to the people themselves then it is held to be a political question. In the classic
formulation of Justice Brennan in Baker v. Carr, 24 [p]rominent on the surface of any
case held to involve a political question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for nonjudicial discretion; or the
impossibility of a court's undertaking independent resolution without expressing lack of
the respect due coordinate branches of government; or an unusual need for unquestioning
adherence to a political decision already made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on the one question. AaECSH
The 1987 Constitution expands the concept of judicial review by providing that "[T]he
Judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law. Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable, and
to determine whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of the Government."
25 Under this definition, the Court cannot agree with the Solicitor General that the issue
involved is a political question beyond the jurisdiction of this Court to review. When the
grant of power is qualified, conditional or subject to limitations, the issue of whether the
prescribed qualifications or conditions have been met or the limitations respected, is
justiciable — the problem being one of legality or validity, not its wisdom. 26 Moreover,
the jurisdiction to delimit constitutional boundaries has been given to this Court. 27
When political questions are involved, the Constitution limits the determination as to
whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being questioned. 28 DaTEIc
By grave abuse of discretion is meant simply capricious or whimsical exercise of
judgment that is patent and gross as to amount to an evasion of positive duty or a virtual
refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason of passion or
hostility. 29 Under this definition, a court is without power to directly decide matters over
which full discretionary authority has been delegated. But while this Court has no power
to substitute its judgment for that of Congress or of the President, it may look into the
question of whether such exercise has been made in grave abuse of discretion. 30 A
showing that plenary power is granted either department of government, may not be an
obstacle to judicial inquiry, for the improvident exercise or abuse thereof may give rise to
justiciable controversy. 31
When the President calls the armed forces to prevent or suppress lawless violence,
invasion or rebellion, he necessarily exercises a discretionary power solely vested in his
wisdom. This is clear from the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the President's wisdom or
substitute its own. However, this does not prevent an examination of whether such power
was exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion. In view of the constitutional intent to give
the President full discretionary power to determine the necessity of calling out the armed
forces, it is incumbent upon the petitioner to show that the President's decision is totally
bereft of factual basis. The present petition fails to discharge such heavy burden as there
is no evidence to support the assertion that there exist no justification for calling out the
armed forces. There is, likewise, no evidence to support the proposition that grave abuse
was committed because the power to call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the military. In the performance of
this Court's duty of purposeful hesitation" 32 before declaring an act of another branch as
unconstitutional, only where such grave abuse of discretion is clearly shown shall the
Court interfere with the President's judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to bestow on the President
full discretionary power to call out the armed forces and to determine the necessity for
the exercise of such power. Section 18, Article VII of the Constitution, which embodies
the powers of the President as Commander-in-Chief, provides in part: ETDaIC
The President shall be the Commander-in-Chief of all armed forces of the Philippines and
whenever it becomes necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus, or place the Philippines or any part thereof under martial law.
xxx xxx xxx
The full discretionary power of the President to determine the factual basis for the
exercise of the calling out power is also implied and further reinforced in the rest of
Section 18, Article VII which reads, thus:
xxx xxx xxx
Within forty-eight hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a report in person or in
writing to the Congress. The Congress, voting jointly, by a vote of at least a majority of
all its Members in regular or special session, may revoke such proclamation or
suspension, which revocation shall not be set aside by the President. Upon the initiative
of the President, the Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof, and must promulgate its decision thereon
within thirty days from its filing. EcICSA
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such proclamation or suspension
and the Court may review the sufficiency of the factual basis thereof. However, there is
no such equivalent provision dealing with the revocation or review of the President's
action to call out the armed forces. The distinction places the calling out power in a
different category from the power to declare martial law and the power to suspend the
privilege of the writ of habeas corpus, otherwise, the framers of the Constitution would
have simply lumped together the three powers and provided for their revocation and
review without any qualification. Expressio unius est exclusio alterius. Where the terms
are expressly limited to certain matters, it may not, by interpretation or construction, be
extended to other matters. 33 That the intent of the Constitution is exactly what its letter
says, i.e., that the power to call is fully discretionary to the President, is extant in the
deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there is a graduated power
of the President as Commander-in-Chief. First, he can call out such Armed Forces as may
be necessary to suppress lawless violence; then he can suspend the privilege of the writ of
habeas corpus, then he can impose martial law. This is a graduated sequence.
When he judges that it is necessary to impose martial law or suspend the privilege of the
writ of habeas corpus, his judgment is subject to review. We are making it subject to
review by the Supreme Court and subject to concurrence by the National Assembly. But
when he exercises this lesser power of calling on the Armed Forces, when he says it is
necessary, it is my opinion that his judgment cannot be reviewed by anybody.
xxx xxx xxx
FR. BERNAS. Let me just add that when we only have imminent danger, the matter can
be handled by the first sentence: "The President . . . may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion." So we feel that that is
sufficient for handling imminent danger. SAHITC
MR. DE LOS REYES. So actually, if a President feels that there is imminent danger, the
matter can be handled by the First Sentence: "The President . . . may call out such Armed
Forces to prevent or suppress lawless violence, invasion or rebellion." So we feel that that
is sufficient for handling imminent danger, of invasion or rebellion, instead of imposing
martial law or suspending the writ of habeas corpus, he must necessarily have to call the
Armed Forces of the Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the legislature nor is it
subject to judicial review. 34
The reason for the difference in the treatment of the aforementioned powers highlights
the intent to grant the President the widest leeway and broadest discretion in using the
power to call out because it is considered as the lesser and more benign power compared
to the power to suspend the privilege of the writ of habeas corpus and the power to
impose martial law, both of which involve the curtailment and suppression of certain
basic civil rights and individual freedoms, and thus necessitating safeguards by Congress
and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the exercise of the power
to suspend the privilege of the writ of habeas corpus or to impose martial law, two
conditions must concur: (1) there must be an actual invasion or rebellion and, (2) public
safety must require it. These conditions are not required in the case of the power to call
out the armed forces. The only criterion is that "whenever it becomes necessary," the
President may call the armed forces to prevent or suppress lawless violence, invasion or
rebellion." The implication is that the President is given full discretion and wide latitude
in the exercise of the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that the President acted
without factual basis, then this Court cannot undertake an independent investigation
beyond the pleadings. The factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters considered for satisfying
the same is a combination of several factors which are not always accessible to the courts.
Besides the absence of textual standards that the court may use to judge necessity,
information necessary to arrive at such judgment might also prove unmanageable for the
courts. Certain pertinent information might be difficult to verify, or wholly unavailable to
the courts. In many instances, the evidence upon which the President might decide that
there is a need to call out the armed forces may be of a nature not constituting technical
proof. CDHaET
On the other hand, the President as Commander-in-Chief has a vast intelligence network
to gather information, some of which may be classified as highly confidential or affecting
the security of the state. In the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of human lives and
mass destruction of property. Indeed, the decision to call out the military to prevent or
suppress lawless violence must be done swiftly and decisively if it were to have any
effect at all. Such a scenario is not farfetched when we consider the present situation in
Mindanao, where the insurgency problem could spill over the other parts of the country.
The determination of the necessity for the calling out power if subjected to unfettered
judicial scrutiny could be a veritable prescription for disaster, as such power may be
unduly straitjacketed by an injunction or a temporary restraining order every time it is
exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the President, as
Commander-in-Chief of the Armed Forces, full discretion to call forth the military when
in his judgment it is necessary to do so in order to prevent or suppress lawless violence,
invasion or rebellion. Unless the petitioner can show that the exercise of such discretion
was gravely abused, the President's exercise of judgment deserves to be accorded respect
from this Court.
The President has already determined the necessity and factual basis for calling the armed
forces. In his Memorandum, he categorically asserted that, [V]iolent crimes like
bank/store robberies, holdups, kidnappings and carnappings continue to occur in Metro
Manila . . ." 35 We do not doubt the veracity of the President's assessment of the
situation, especially in the light of present developments. The Court takes judicial notice
of the recent bombings perpetrated by lawless elements in the shopping malls, public
utilities, and other public places. These are among the areas of deployment described in
the LOI 2000. Considering all these facts, we hold that the President has sufficient factual
basis to call for military aid in law enforcement and in the exercise of this constitutional
power.
The deployment of the Marines does not violate the civilian supremacy clause nor does it
infringe the civilian character of the police force.
Prescinding from its argument that no emergency situation exists to justify the calling of
the Marines, the IBP asserts that by the deployment of the Marines, the civilian task of
law enforcement is "militarized" in violation of Section 3, Article II 36 of the
Constitution. TSacCH
We disagree. The deployment of the Marines does not constitute a breach of the civilian
supremacy clause. The calling of the Marines in this case constitutes permissible use of
military assets for civilian law enforcement. The participation of the Marines in the
conduct of joint visibility patrols is appropriately circumscribed. The limited participation
of the Marines is evident in the provisions of the LOI itself, which sufficiently provides
the metes and bounds of the Marines' authority. It is noteworthy that the local police
forces are the ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the overall leader of the
PNP-Philippine Marines joint visibility patrols. 37 Under the LOI, the police forces are
tasked to brief or orient the soldiers on police patrol procedures. 38 It is their
responsibility to direct and manage the deployment of the Marines. 39 It is, likewise,
their duty to provide the necessary equipment to the Marines and render logistical support
to these soldiers. 40 In view of the foregoing, it cannot be properly argued that military
authority is supreme over civilian authority.
Moreover, the deployment of the Marines to assist the PNP does not unmake the civilian
character of the police force. Neither does it amount to an "insidious incursion" of the
military in the task of law enforcement in violation of Section 5(4), Article XVI of the
Constitution. 41
In this regard, it is not correct to say that General Angelo Reyes, Chief of Staff of the
AFP, by his alleged involvement in civilian law enforcement, has been virtually
appointed to a civilian post in derogation of the aforecited provision. The real authority in
these operations, as stated in the LOI, is lodged with the head of a civilian institution, the
PNP, and not with the military. Such being the case, it does not matter whether the AFP
Chief actually participates in the Task Force Tulungan since he does not exercise any
authority or control over the same. Since none of the Marines was incorporated or
enlisted as members of the PNP, there can be no appointment to a civilian position to
speak of. Hence, the deployment of the Marines in the joint visibility patrols does not
destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing more than assistance
required in conducting the patrols. As such, there can be no "insidious incursion" of the
military in civilian affairs nor can there be a violation of the civilian supremacy clause in
the Constitution.
It is worth mentioning that military assistance to civilian authorities in various forms
persists in Philippine jurisdiction. The Philippine experience reveals that it is not averse
to requesting the assistance of the military in the implementation and execution of certain
traditionally "civil" functions. As correctly pointed out by the Solicitor General, some of
the multifarious activities wherein military aid has been rendered, exemplifying the
activities that bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections; 42
2. Administration of the Philippine National Red Cross; 43
3. Relief and rescue operations during calamities and disasters; 44
4. Amateur sports promotion and development; 45
5. Development of the culture and the arts; 46
6. Conservation of natural resources; 47
7. Implementation of the agrarian reform program; 48
8. Enforcement of customs laws; 49 DCIEac
9. Composite civilian-military law enforcement activities; 50
10. Conduct of licensure examinations; 51
11. Conduct of nationwide tests for elementary and high school students; 52
12. Anti-drug enforcement activities; 53
13. Sanitary inspections; 54
14. Conduct of census work; 55
15. Administration of the Civil Aeronautics Board; 56
16. Assistance in installation of weather forecasting devices; 57
17. Peace and order policy formulation in local government units. 58
This unquestionably constitutes a gloss on executive power resulting from a systematic,
unbroken, executive practice, long pursued to the knowledge of Congress and, yet, never
before questioned. 59 What we have here is mutual support and cooperation between the
military and civilian authorities, not derogation of civilian supremacy. EHaDIC
In the United States, where a long tradition of suspicion and hostility towards the use of
military force for domestic purposes has persisted, 60 and whose Constitution, unlike
ours, does not expressly provide for the power to call, the use of military personnel by
civilian law enforcement officers is allowed under circumstances similar to those
surrounding the present deployment of the Philippine Marines. Under the Posse
Comitatus Act 61 of the US, the use of the military in civilian law enforcement is
generally prohibited, except in certain allowable circumstances. A provision of the Act
states:
§ 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the
Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as
posse comitatus or otherwise to execute the laws shall be fined not more than $10,000 or
imprisoned not more than two years, or both. 62
To determine whether there is a violation of the Posse Comitatus Act in the use of
military personnel, the US courts 63 apply the following standards, to wit:
Were Army or Air Force personnel used by the civilian law enforcement officers at
Wounded Knee in such a manner that the military personnel subjected the citizens to the
exercise of military power which was regulatory, proscriptive, or compulsory 64 in
nature, either presently or prospectively?
xxx xxx xxx
When this concept is transplanted into the present legal context, we take it to mean that
military involvement, even when not expressly authorized by the Constitution or a
statute, does not violate the Posse Comitatus Act unless it actually regulates, forbids or
compels some conduct on the part of those claiming relief. A mere threat of some future
injury would be insufficient. (italics supplied)
Even if the Court were to apply the above rigid standards to the present case to determine
whether there is permissible use of the military in civilian law enforcement, the
conclusion is inevitable that no violation of the civilian supremacy clause in the
Constitution is committed. On this point, the Court agrees with the observation of the
Solicitor General:
3. The designation of tasks in Annex A 65 does not constitute the exercise of
regulatory, proscriptive, or compulsory military power. First, the soldiers do not control
or direct the operation. This is evident from Nos. 6, 66 8(k) 67 and 9(a) 68 of Annex A.
These soldiers, second, also have no power to prohibit or condemn. In No. 9(d) 69 of
Annex A, all arrested persons are brought to the nearest police stations for proper
disposition. And last, these soldiers apply no coercive force. The materials or equipment
issued to them, as shown in No. 8(c) 70 of Annex A, are all low impact and defensive in
character. The conclusion is that there being no exercise of regulatory, proscriptive or
compulsory military power, the deployment of a handful of Philippine Marines
constitutes no impermissible use of military power for civilian law enforcement. 71
It appears that the present petition is anchored on fear that once the armed forces are
deployed, the military will gain ascendancy, and thus place in peril our cherished
liberties. Such apprehensions, however, are unfounded. The power to call the armed
forces is just that — calling out the armed forces. Unless, petitioner IBP can show, which
it has not, that in the deployment of the Marines, the President has violated the
fundamental law, exceeded his authority or jeopardized the civil liberties of the people,
this Court is not inclined to overrule the President's determination of the factual basis for
the calling of the Marines to prevent or suppress lawless violence. EATcHD
One last point. Since the institution of the joint visibility patrol in January, 2000, not a
single citizen has complained that his political or civil rights have been violated as a
result of the deployment of the Marines. It was precisely to safeguard peace, tranquility
and the civil liberties of the people that the joint visibility patrol was conceived. Freedom
and democracy will be in full bloom only when people feel secure in their homes and in
the streets, not when the shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby DISMISSED.
SO ORDERED.

[G.R. No. 162230. April 28, 2010.]

ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA
MANIMBO, LEONOR H. SUMAWANG, CANDELARIA L. SOLIMAN, MARIA L.
QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M.
SAMPANG, ESTER M. PALACIO, MAXIMA R. DELA CRUZ, BELEN A. SAGUM,
FELICIDAD TURLA, FLORENCIA M. DELA PEÑA, EUGENIA M. LALU,
JULIANA G. MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P.
MALLARI, ROSARIO M. ALARCON, RUFINA C. GULAPA, ZOILA B. MANALUS,
CORAZON C. CALMA, MARTA A. GULAPA, TEODORA M. HERNANDEZ,
FERMIN B. DELA PEÑA, MARIA DELA PAZ B. CULALA, ESPERANZA
MANAPOL, JUANITA M. BRIONES, VERGINIA M. GUEVARRA, MAXIMA
ANGULO, EMILIA SANGIL, TEOFILA R. PUNZALAN, JANUARIA G. GARCIA,
PERLA B. BALINGIT, BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C.
BUCO, GAUDENCIA C. DELA PEÑA, RUFINA Q. CATACUTAN, FRANCIA A.
BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ, PETRONILA O.
DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA, EMERINCIANA A.
VINUYA, LYDIA A. SANCHEZ, ROSALINA M. BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA LIWAG, ESTER C. BALINGIT, JOVITA A.
DAVID, EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILLERMA S.
BALINGIT, TERECITA PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C.
GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA, LEONICIA G.
GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA T.
SAGUM, CARIDAD L. TURLA, et al. In their capacity and as members of the "Malaya
Lolas Organization", petitioners, vs. THE HONORABLE EXECUTIVE SECRETARY
ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF FOREIGN AFFAIRS
DELIA DOMINGO-ALBERT, THE HONORABLE SECRETARY OF JUSTICE
MERCEDITAS N. GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL
ALFREDO L. BENIPAYO, respondents.
DECISION
DEL CASTILLO, J p:
The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted
by plaintiffs in these actions, exchanged full compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that bargain. And while full compensation for
plaintiffs' hardships, in the purely economic sense, has been denied these former
prisoners and countless other survivors of the war, the immeasurable bounty of life for
themselves and their posterity in a free society and in a more peaceful world services the
debt. 1 AacCHD
There is a broad range of vitally important areas that must be regularly decided by the
Executive Department without either challenge or interference by the Judiciary. One such
area involves the delicate arena of foreign relations. It would be strange indeed if the
courts and the executive spoke with different voices in the realm of foreign policy.
Precisely because of the nature of the questions presented, and the lapse of more than 60
years since the conduct complained of, we make no attempt to lay down general
guidelines covering other situations not involved here, and confine the opinion only to the
very questions necessary to reach a decision on this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an
application for the issuance of a writ of preliminary mandatory injunction against the
Office of the Executive Secretary, the Secretary of the Department of Foreign Affairs
(DFA), the Secretary of the Department of Justice (DOJ), and the Office of the Solicitor
General (OSG).
Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit
organization registered with the Securities and Exchange Commission, established for the
purpose of providing aid to the victims of rape by Japanese military forces in the
Philippines during the Second World War. DHcSIT
Petitioners narrate that during the Second World War, the Japanese army attacked
villages and systematically raped the women as part of the destruction of the village.
Their communities were bombed, houses were looted and burned, and civilians were
publicly tortured, mutilated, and slaughtered. Japanese soldiers forcibly seized the
women and held them in houses or cells, where they were repeatedly raped, beaten, and
abused by Japanese soldiers. As a result of the actions of their Japanese tormentors, the
petitioners have spent their lives in misery, having endured physical injuries, pain and
disability, and mental and emotional suffering. 2
Petitioners claim that since 1998, they have approached the Executive Department
through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the
Japanese officials and military officers who ordered the establishment of the "comfort
women" stations in the Philippines. However, officials of the Executive Department
declined to assist the petitioners, and took the position that the individual claims of the
comfort women for compensation had already been fully satisfied by Japan's compliance
with the Peace Treaty between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to (a) declare that respondents
committed grave abuse of discretion amounting to lack or excess of discretion in refusing
to espouse their claims for the crimes against humanity and war crimes committed
against them; and (b) compel the respondents to espouse their claims for official apology
and other forms of reparations against Japan before the International Court of Justice
(ICJ) and other international tribunals. DHIcET
Petitioners' arguments
Petitioners argue that the general waiver of claims made by the Philippine government in
the Treaty of Peace with Japan is void. They claim that the comfort women system
established by Japan, and the brutal rape and enslavement of petitioners constituted a
crime against humanity, 3 sexual slavery, 4 and torture. 5 They allege that the prohibition
against these international crimes is jus cogens norms from which no derogation is
possible; as such, in waiving the claims of Filipina comfort women and failing to espouse
their complaints against Japan, the Philippine government is in breach of its legal
obligation not to afford impunity for crimes against humanity. Finally, petitioners assert
that the Philippine government's acceptance of the "apologies" made by Japan as well as
funds from the Asian Women's Fund (AWF) were contrary to international law.
Respondents' Arguments
Respondents maintain that all claims of the Philippines and its nationals relative to the
war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral
Reparations Agreement of 1956. 6
Article 14 of the Treaty of Peace 7 provides: HCIaDT
Article 14. Claims and Property. —
a) It is recognized that Japan should pay reparations to the Allied Powers for the
damage and suffering caused by it during the war. Nevertheless it is also recognized that
the resources of Japan are not presently sufficient, if it is to maintain a viable economy, to
make complete reparation for all such damage and suffering and at the present time meet
its other obligations.
b) Except as otherwise provided in the present Treaty, the Allied Powers waive all
reparations claims of the Allied Powers, other claims of the Allied Powers and their
nationals arising out of any actions taken by Japan and its nationals in the course of the
prosecution of the war, and claims of the Allied Powers for direct military costs of
occupation.
In addition, respondents argue that the apologies made by Japan 8 have been satisfactory,
and that Japan had addressed the individual claims of the women through the atonement
money paid by the Asian Women's Fund.
Historical Background
The comfort women system was the tragic legacy of the Rape of Nanking. In December
1937, Japanese military forces captured the city of Nanking in China and began a
"barbaric campaign of terror" known as the Rape of Nanking, which included the rapes
and murders of an estimated 20,000 to 80,000 Chinese women, including young girls,
pregnant mothers, and elderly women. 9 EcHTCD
In reaction to international outcry over the incident, the Japanese government sought
ways to end international condemnation 10 by establishing the "comfort women" system.
Under this system, the military could simultaneously appease soldiers' sexual appetites
and contain soldiers' activities within a regulated environment. 11 Comfort stations
would also prevent the spread of venereal disease among soldiers and discourage soldiers
from raping inhabitants of occupied territories. 12
Daily life as a comfort woman was "unmitigated misery." 13 The military forced victims
into barracks-style stations divided into tiny cubicles where they were forced to live,
sleep, and have sex with as many 30 soldiers per day. 14 The 30 minutes allotted for
sexual relations with each soldier were 30-minute increments of unimaginable horror for
the women. 15 Disease was rampant. 16 Military doctors regularly examined the women,
but these checks were carried out to prevent the spread of venereal diseases; little notice
was taken of the frequent cigarette burns, bruises, bayonet stabs and even broken bones
inflicted on the women by soldiers.
Fewer than 30% of the women survived the war. 17 Their agony continued in having to
suffer with the residual physical, psychological, and emotional scars from their former
lives. Some returned home and were ostracized by their families. Some committed
suicide. Others, out of shame, never returned home. 18 TcEaDS
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese government to accept legal
responsibility and pay compensatory damages for the comfort women system were
through a series of lawsuits, discussion at the United Nations (UN), resolutions by
various nations, and the Women's International Criminal Tribunal. The Japanese
government, in turn, responded through a series of public apologies and the creation of
the AWF. 19
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in Japan
by former comfort women against the Japanese government. The Tokyo District Court
however dismissed their case. 20 Other suits followed, 21 but the Japanese government
has, thus far, successfully caused the dismissal of every case. 22
Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the
comfort women system brought their claims before the United States (US). On
September 18, 2000, 15 comfort women filed a class action lawsuit in the US District
Court for the District of Columbia 23 "seeking money damages for [allegedly] having
been subjected to sexual slavery and torture before and during World War II," in
violation of "both positive and customary international law." The case was filed pursuant
to the Alien Tort Claims Act ("ATCA"), 24 which allowed the plaintiffs to sue the
Japanese government in a US federal district court. 25 On October 4, 2001, the district
court dismissed the lawsuit due to lack of jurisdiction over Japan, stating that "[t]here is
no question that this court is not the appropriate forum in which plaintiffs may seek to
reopen . . . discussions nearly half a century later . . . [E]ven if Japan did not enjoy
sovereign immunity, plaintiffs' claims are non-justiciable and must be dismissed."
EHTIcD
The District of Columbia Court of Appeals affirmed the lower court's dismissal of the
case. 26 On appeal, the US Supreme Court granted the women's petition for writ of
certiorari, vacated the judgment of the District of Columbia Court of Appeals, and
remanded the case. 27 On remand, the Court of Appeals affirmed its prior decision,
noting that "much as we may feel for the plight of the appellants, the courts of the US
simply are not authorized to hear their case." 28 The women again brought their case to
the US Supreme Court which denied their petition for writ of certiorari on February 21,
2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by
Japan (KCWS), submitted a petition to the UN Human Rights Commission (UNHRC),
asking for assistance in investigating crimes committed by Japan against Korean women
and seeking reparations for former comfort women. 29 The UNHRC placed the issue on
its agenda and appointed Radhika Coomaraswamy as the issue's special investigator. In
1996, Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing
Korean women to act as sex slaves for the imperial army, and made the following
recommendations:
A. At the national level
137. The Government of Japan should: ISCHET
(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial
Army during the Second World War was a violation of its obligations under international
law and accept legal responsibility for that violation;
(b) Pay compensation to individual victims of Japanese military sexual slavery
according to principles outlined by the Special Rapporteur of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities on the right to restitution,
compensation and rehabilitation for victims of grave violations of human rights and
fundamental freedoms. A special administrative tribunal for this purpose should be set up
with a limited time-frame since many of the victims are of a very advanced age;
(c) Make a full disclosure of documents and materials in its possession with regard to
comfort stations and other related activities of the Japanese Imperial Army during the
Second World War;
(d) Make a public apology in writing to individual women who have come forward
and can be substantiated as women victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by amending educational curricula to reflect
historical realities; TADaCH
(f) Identify and punish, as far as possible, perpetrators involved in the recruitment
and institutionalization of comfort stations during the Second World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities, also presented a report to the Sub-
Committee on June 22, 1998 entitled Contemporary Forms of Slavery: Systematic Rape,
Sexual Slavery and Slavery-like Practices During Armed Conflict. The report included an
appendix entitled An Analysis of the Legal Liability of the Government of Japan for
'Comfort Women Stations' established during the Second World War, 30 which contained
the following findings:
68. The present report concludes that the Japanese Government remains liable for
grave violations of human rights and humanitarian law, violations that amount in their
totality to crimes against humanity. The Japanese Government's arguments to the
contrary, including arguments that seek to attack the underlying humanitarian law
prohibition of enslavement and rape, remain as unpersuasive today as they were when
they were first raised before the Nuremberg war crimes tribunal more than 50 years ago.
In addition, the Japanese Government's argument that Japan has already settled all claims
from the Second World War through peace treaties and reparations agreements following
the war remains equally unpersuasive. This is due, in large part, to the failure until very
recently of the Japanese Government to admit the extent of the Japanese military's direct
involvement in the establishment and maintenance of these rape centres. The Japanese
Government's silence on this point during the period in which peace and reparations
agreements between Japan and other Asian Governments were being negotiated
following the end of the war must, as a matter of law and justice, preclude Japan from
relying today on these peace treaties to extinguish liability in these cases. HTCDcS
69. The failure to settle these claims more than half a century after the cessation of
hostilities is a testament to the degree to which the lives of women continue to be
undervalued. Sadly, this failure to address crimes of a sexual nature committed on a
massive scale during the Second World War has added to the level of impunity with
which similar crimes are committed today. The Government of Japan has taken some
steps to apologize and atone for the rape and enslavement of over 200,000 women and
girls who were brutalized in "comfort stations" during the Second World War. However,
anything less than full and unqualified acceptance by the Government of Japan of legal
liability and the consequences that flow from such liability is wholly inadequate. It must
now fall to the Government of Japan to take the necessary final steps to provide adequate
redress.
The UN, since then, has not taken any official action directing Japan to provide the
reparations sought.
Women's International War Crimes Tribunal
The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal"
established by a number of Asian women and human rights organizations, supported by
an international coalition of non-governmental organizations. 31 First proposed in 1998,
the WIWCT convened in Tokyo in 2000 in order to "adjudicate Japan's military sexual
violence, in particular the enslavement of comfort women, to bring those responsible for
it to justice, and to end the ongoing cycle of impunity for wartime sexual violence against
women." ADCEcI
After examining the evidence for more than a year, the "tribunal" issued its verdict on
December 4, 2001, finding the former Emperor Hirohito and the State of Japan guilty of
crimes against humanity for the rape and sexual slavery of women. 32 It bears stressing,
however, that although the tribunal included prosecutors, witnesses, and judges, its
judgment was not legally binding since the tribunal itself was organized by private
citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of California, along with six co-
sponsor representatives, introduced House Resolution 121 which called for Japanese
action in light of the ongoing struggle for closure by former comfort women. The
Resolution was formally passed on July 30, 2007, 33 and made four distinct demands:
ECDaAc
[I]t is the sense of the House of Representatives that the Government of Japan (1) should
formally acknowledge, apologize, and accept historical responsibility in a clear and
unequivocal manner for its Imperial Armed Forces' coercion of young women into sexual
slavery, known to the world as "comfort women", during its colonial and wartime
occupation of Asia and the Pacific Islands from the 1930s through the duration of World
War II; (2) would help to resolve recurring questions about the sincerity and status of
prior statements if the Prime Minister of Japan were to make such an apology as a public
statement in his official capacity; (3) should clearly and publicly refute any claims that
the sexual enslavement and trafficking of the "comfort women" for the Japanese Imperial
Army never occurred; and (4) should educate current and future generations about this
horrible crime while following the recommendations of the international community with
respect to the "comfort women." 34
In December 2007, the European Parliament, the governing body of the European Union,
drafted a resolution similar to House Resolution 121. 35 Entitled, "Justice for Comfort
Women," the resolution demanded: (1) a formal acknowledgment of responsibility by the
Japanese government; (2) a removal of the legal obstacles preventing compensation; and
(3) unabridged education of the past. The resolution also stressed the urgency with which
Japan should act on these issues, stating: "the right of individuals to claim reparations
against the government should be expressly recognized in national law, and cases for
reparations for the survivors of sexual slavery, as a crime under international law, should
be prioritized, taking into account the age of the survivors." EScAID
The Canadian and Dutch parliaments have each followed suit in drafting resolutions
against Japan. Canada's resolution demands the Japanese government to issue a formal
apology, to admit that its Imperial Military coerced or forced hundreds of thousands of
women into sexual slavery, and to restore references in Japanese textbooks to its war
crimes. 36 The Dutch parliament's resolution calls for the Japanese government to uphold
the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdom's Parliament also produced a
report in November, 2008 entitled, "Global Security: Japan and Korea" which concluded
that Japan should acknowledge the pain caused by the issue of comfort women in order to
ensure cooperation between Japan and Korea.
Statements of Remorse made by
representatives of the Japanese
government
Various officials of the Government of Japan have issued the following public statements
concerning the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993
The Government of Japan has been conducting a study on the issue of wartime "comfort
women" since December 1991. I wish to announce the findings as a result of that study.
DcITHE
As a result of the study which indicates that comfort stations were operated in extensive
areas for long periods, it is apparent that there existed a great number of comfort women.
Comfort stations were operated in response to the request of the military authorities of the
day. The then Japanese military was, directly or indirectly, involved in the establishment
and management of the comfort stations and the transfer of comfort women. The
recruitment of the comfort women was conducted mainly by private recruiters who acted
in response to the request of the military. The Government study has revealed that in
many cases they were recruited against their own will, through coaxing coercion, etc.,
and that, at times, administrative/military personnel directly took part in the recruitments.
They lived in misery at comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were transferred to the war areas,
excluding those from Japan, those from the Korean Peninsula accounted for a large part.
The Korean Peninsula was under Japanese rule in those days, and their recruitment,
transfer, control, etc., were conducted generally against their will, through coaxing,
coercion, etc.
Undeniably, this was an act, with the involvement of the military authorities of the day,
that severely injured the honor and dignity of many women. The Government of Japan
would like to take this opportunity once again to extend its sincere apologies and remorse
to all those, irrespective of place of origin, who suffered immeasurable pain and incurable
physical and psychological wounds as comfort women. EHaASD
It is incumbent upon us, the Government of Japan, to continue to consider seriously,
while listening to the views of learned circles, how best we can express this sentiment.
We shall face squarely the historical facts as described above instead of evading them,
and take them to heart as lessons of history. We hereby reiterated our firm determination
never to repeat the same mistake by forever engraving such issues in our memories
through the study and teaching of history.
As actions have been brought to court in Japan and interests have been shown in this
issue outside Japan, the Government of Japan shall continue to pay full attention to this
matter, including private researched related thereto.
b) Prime Minister Tomiichi Murayama's Statement in 1994
On the issue of wartime "comfort women", which seriously stained the honor and dignity
of many women, I would like to take this opportunity once again to express my profound
and sincere remorse and apologies"
c) Letters from the Prime Minister of Japan to Individual Comfort Women
ETHaDC
The issue of comfort women, with the involvement of the Japanese military authorities at
that time, was a grave affront to the honor and dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse
to all the women who endured immeasurable and painful experiences and suffered
incurable physical and psychological wounds as comfort women.
I believe that our country, painfully aware of its moral responsibilities, with feelings of
apology and remorse, should face up squarely to its past history and accurately convey it
to future generations.
d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005
Solemnly reflecting upon the many instances of colonial rule and acts of aggression that
occurred in modern world history, and recognizing that Japan carried out such acts in the
past and inflicted suffering on the people of other countries, especially in Asia, the
Members of this House hereby express deep remorse. (Resolution of the House of
Representatives adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister Shinzo Abe
I have talked about this matter in the Diet sessions last year, and recently as well, and to
the press. I have been consistent. I will stand by the Kono Statement. This is our
consistent position. Further, we have been apologizing sincerely to those who suffered
immeasurable pain and incurable psychological wounds as comfort women. Former
Prime Ministers, including Prime Ministers Koizumi and Hashimoto, have issued letters
to the comfort women. I would like to be clear that I carry the same feeling. This has not
changed even slightly. (Excerpt from Remarks by Prime Minister Abe at an Interview by
NHK, March 11, 2007). EHSIcT
I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated
in the statement by the Chief Cabinet Secretary Kono. (Excerpt from Remarks by Prime
Minister Abe at the Budget Committee, the House of Councilors, the Diet of Japan,
March 26, 2007).
I am deeply sympathetic to the former comfort women who suffered hardships, and I
have expressed my apologies for the extremely agonizing circumstances into which they
were placed. (Excerpt from Telephone Conference by Prime Minister Abe to President
George W. Bush, April 3, 2007).
I have to express sympathy from the bottom of my heart to those people who were taken
as wartime comfort women. As a human being, I would like to express my sympathies,
and also as prime minister of Japan I need to apologize to them. My administration has
been saying all along that we continue to stand by the Kono Statement. We feel
responsible for having forced these women to go through that hardship and pain as
comfort women under the circumstances at the time. (Excerpt from an interview article
"A Conversation with Shinzo Abe" by the Washington Post, April 22, 2007).
. . . both personally and as Prime Minister of Japan, my heart goes out in sympathy to all
those who suffered extreme hardships as comfort women; and I expressed my apologies
for the fact that they were forced to endure such extreme and harsh conditions. Human
rights are violated in many parts of the world during the 20th Century; therefore we must
work to make the 21st Century a wonderful century in which no human rights are
violated. And the Government of Japan and I wish to make significant contributions to
that end. (Excerpt from Prime Minister Abe's remarks at the Joint Press Availability after
the summit meeting at Camp David between Prime Minister Abe and President Bush,
April 27, 2007). acEHCD
The Asian Women's Fund
Established by the Japanese government in 1995, the AWF represented the government's
concrete attempt to address its moral responsibility by offering monetary compensation to
victims of the comfort women system. 37 The purpose of the AWF was to show
atonement of the Japanese people through expressions of apology and remorse to the
former wartime comfort women, to restore their honor, and to demonstrate Japan's strong
respect for women. 38
The AWF announced three programs for former comfort women who applied for
assistance: (1) an atonement fund paying ¥2 million (approximately $20,000) to each
woman; (2) medical and welfare support programs, paying ¥2.5-3 million ($25,000-
$30,000) for each woman; and (3) a letter of apology from the Japanese Prime Minister to
each woman. Funding for the program came from the Japanese government and private
donations from the Japanese people. As of March 2006, the AWF provided ¥700 million
(approximately $7 million) for these programs in South Korea, Taiwan, and the
Philippines; ¥380 million (approximately $3.8 million) in Indonesia; and ¥242 million
(approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine government signed a Memorandum of
Understanding for medical and welfare support programs for former comfort women.
Over the next five years, these were implemented by the Department of Social Welfare
and Development. cTECHI
Our Ruling
Stripped down to its essentials, the issue in this case is whether the Executive Department
committed grave abuse of discretion in not espousing petitioners' claims for official
apology and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the
Executive Department has the exclusive
prerogative to determine whether to
espouse petitioners' claims against
Japan.
Baker v. Cart 39 remains the starting point for analysis under the political question
doctrine. There the US Supreme Court explained that:
. . . Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it,
or the impossibility of deciding without an initial policy determination of a kind clearly
for non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of government;
or an unusual need for unquestioning adherence to a political decision already made; or
the potentiality of embarrassment from multifarious pronouncements by various
departments on question. DSEIcT
In Tañada v. Cuenco, 40 we held that political questions refer "to those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity, or in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure."
Certain types of cases often have been found to present political questions. 41 One such
category involves questions of foreign relations. It is well-established that "[t]he conduct
of the foreign relations of our government is committed by the Constitution to the
executive and legislative — 'the political' — departments of the government, and the
propriety of what may be done in the exercise of this political power is not subject to
judicial inquiry or decision." 42 The US Supreme Court has further cautioned that
decisions relating to foreign policy
are delicate, complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they advance
or imperil. They are decisions of a kind for which the Judiciary has neither aptitude,
facilities nor responsibility. 43
To be sure, not all cases implicating foreign relations present political questions, and
courts certainly possess the authority to construe or invalidate treaties and executive
agreements. 44 However, the question whether the Philippine government should espouse
claims of its nationals against a foreign government is a foreign relations matter, the
authority for which is demonstrably committed by our Constitution not to the courts but
to the political branches. In this case, the Executive Department has already decided that
it is to the best interest of the country to waive all claims of its nationals for reparations
against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari. SEACTH
In the seminal case of US v. Curtiss-Wright Export Corp., 45 the US Supreme Court held
that "[t]he President is the sole organ of the nation in its external relations, and its sole
representative with foreign relations."
It is quite apparent that if, in the maintenance of our international relations,
embarrassment — perhaps serious embarrassment — is to be avoided and success for our
aims achieved, congressional legislation which is to be made effective through
negotiation and inquiry within the international field must often accord to the President a
degree of discretion and freedom from statutory restriction which would not be
admissible where domestic affairs alone involved. Moreover, he, not Congress, has the
better opportunity of knowing the conditions which prevail in foreign countries, and
especially is this true in time of war. He has his confidential sources of information. He
has his agents in the form of diplomatic, consular and other officials. . . .
This ruling has been incorporated in our jurisprudence through Bayan v. Executive
Secretary 46 and Pimentel v. Executive Secretary; 47 its overreaching principle was,
perhaps, best articulated in (now Chief) Justice Puno's dissent in Secretary of Justice v.
Lantion: 48 EaISDC
. . . The conduct of foreign relations is full of complexities and consequences, sometimes
with life and death significance to the nation especially in times of war. It can only be
entrusted to that department of government which can act on the basis of the best
available information and can decide with decisiveness. . . . It is also the President who
possesses the most comprehensive and the most confidential information about foreign
countries for our diplomatic and consular officials regularly brief him on meaningful
events all over the world. He has also unlimited access to ultra-sensitive military
intelligence data. In fine, the presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of discretion in the conduct of foreign
affairs. The regularity, nay, validity of his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national embarrassment and a plethora
of other problems with equally undesirable consequences.
The Executive Department has determined that taking up petitioners' cause would be
inimical to our country's foreign policy interests, and could disrupt our relations with
Japan, thereby creating serious implications for stability in this region. For us to overturn
the Executive Department's determination would mean an assessment of the foreign
policy judgments by a coordinate political branch to which authority to make that
judgment has been constitutionally committed. IDScTE
In any event, it cannot reasonably be maintained that the Philippine government was
without authority to negotiate the Treaty of Peace with Japan. And it is equally true that,
since time immemorial, when negotiating peace accords and settling international claims:
. . . [g]overnments have dealt with . . . private claims as their own, treating them as
national assets, and as counters, 'chips', in international bargaining. Settlement
agreements have lumped, or linked, claims deriving from private debts with others that
were intergovernmental in origin, and concessions in regard to one category of claims
might be set off against concessions in the other, or against larger political considerations
unrelated to debts. 49
Indeed, except as an agreement might otherwise provide, international settlements
generally wipe out the underlying private claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton, 50 a case brought by a British subject to recover a debt
confiscated by the Commonwealth of Virginia during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes the subject of the war, and that after peace
is concluded, neither the matter in dispute, nor the conduct of either party, during the war,
can ever be revived, or brought into contest again. All violences, injuries, or damages
sustained by the government, or people of either, during the war, are buried in oblivion;
and all those things are implied by the very treaty of peace; and therefore not necessary to
be expressed. Hence it follows, that the restitution of, or compensation for, British
property confiscated, or extinguished, during the war, by any of the United States, could
only be provided for by the treaty of peace; and if there had been no provision, respecting
these subjects, in the treaty, they could not be agitated after the treaty, by the British
government, much less by her subjects in courts of justice. (Emphasis supplied).
aIcDCA
This practice of settling claims by means of a peace treaty is certainly nothing new. For
instance, in Dames & Moore v. Regan, 51 the US Supreme Court held:
Not infrequently in affairs between nations, outstanding claims by nationals of one
country against the government of another country are "sources of friction" between the
two sovereigns. United States v. Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796
(1942). To resolve these difficulties, nations have often entered into agreements settling
the claims of their respective nationals. As one treatise writer puts it, international
agreements settling claims by nationals of one state against the government of another
"are established international practice reflecting traditional international theory." L.
Henkin, Foreign Affairs and the Constitution 262 (1972). Consistent with that principle,
the United States has repeatedly exercised its sovereign authority to settle the claims of
its nationals against foreign countries. . . . Under such agreements, the President has
agreed to renounce or extinguish claims of United States nationals against foreign
governments in return for lump-sum payments or the establishment of arbitration
procedures. To be sure, many of these settlements were encouraged by the United States
claimants themselves, since a claimant's only hope of obtaining any payment at all might
lie in having his Government negotiate a diplomatic settlement on his behalf. But it is
also undisputed that the "United States has sometimes disposed of the claims of its
citizens without their consent, or even without consultation with them, usually without
exclusive regard for their interests, as distinguished from those of the nation as a whole."
Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations Law of
the United States § 213 (1965) (President "may waive or settle a claim against a foreign
state . . . [even] without the consent of the [injured] national"). It is clear that the practice
of settling claims continues today. aSECAD
Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the suffering caused by Japanese aggression
during the war, not for the payment of adequate reparations, but for security purposes.
The treaty sought to prevent the spread of communism in Japan, which occupied a
strategic position in the Far East. Thus, the Peace Treaty compromised individual claims
in the collective interest of the free world.
This was also the finding in a similar case involving American victims of Japanese slave
labor during the war. 52 In a consolidated case in the Northern District of California, 53
the court dismissed the lawsuits filed, relying on the 1951 peace treaty with Japan, 54
because of the following policy considerations:
The official record of treaty negotiations establishes that a fundamental goal of the
agreement was to settle the reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes clear, it was well understood
that leaving open the possibility of future claims would be an unacceptable impediment
to a lasting peace:
Reparation is usually the most controversial aspect of peacemaking. The present peace is
no exception. dctai
On the one hand, there are claims both vast and just. Japan's aggression caused
tremendous cost, losses and suffering.
On the other hand, to meet these claims, there stands a Japan presently reduced to four
home islands which are unable to produce the food its people need to live, or the raw
materials they need to work. . . .
The policy of the United States that Japanese liability for reparations should be sharply
limited was informed by the experience of six years of United States-led occupation of
Japan. During the occupation the Supreme Commander of the Allied Powers (SCAP) for
the region, General Douglas MacArthur, confiscated Japanese assets in conjunction with
the task of managing the economic affairs of the vanquished nation and with a view to
reparations payments. It soon became clear that Japan's financial condition would render
any aggressive reparations plan an exercise in futility. Meanwhile, the importance of a
stable, democratic Japan as a bulwark to communism in the region increased. At the end
of 1948, MacArthur expressed the view that "[t]he use of reparations as a weapon to
retard the reconstruction of a viable economy in Japan should be combated with all
possible means" and "recommended that the reparations issue be settled finally and
without delay."
That this policy was embodied in the treaty is clear not only from the negotiations history
but also from the Senate Foreign Relations Committee report recommending approval of
the treaty by the Senate. The committee noted, for example: DIETcH
Obviously insistence upon the payment of reparations in any proportion commensurate
with the claims of the injured countries and their nationals would wreck Japan's
economy, dissipate any credit that it may possess at present, destroy the initiative of its
people, and create misery and chaos in which the seeds of discontent and communism
would flourish. In short, [it] would be contrary to the basic purposes and policy of . . . the
United States . . . .
We thus hold that, from a municipal law perspective, that certiorari will not lie. As a
general principle — and particularly here, where such an extraordinary length of time has
lapsed between the treaty's conclusion and our consideration — the Executive must be
given ample discretion to assess the foreign policy considerations of espousing a claim
against Japan, from the standpoint of both the interests of the petitioners and those of the
Republic, and decide on that basis if apologies are sufficient, and whether further steps
are appropriate or necessary.
The Philippines is not under any
international obligation to espouse
petitioners' claims.
In the international sphere, traditionally, the only means available for individuals to bring
a claim within the international legal system has been when the individual is able to
persuade a government to bring a claim on the individual's behalf. 55 Even then, it is not
the individual's rights that are being asserted, but rather, the state's own rights. Nowhere
is this position more clearly reflected than in the dictum of the Permanent Court of
International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions Case:
AECDHS
By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own right
to ensure, in the person of its subjects, respect for the rules of international law. The
question, therefore, whether the present dispute originates in an injury to a private
interest, which in point of fact is the case in many international disputes, is irrelevant
from this standpoint. Once a State has taken up a case on behalf of one of its subjects
before an international tribunal, in the eyes of the latter the State is sole claimant. 56
Since the exercise of diplomatic protection is the right of the State, reliance on the right is
within the absolute discretion of states, and the decision whether to exercise the
discretion may invariably be influenced by political considerations other than the legal
merits of the particular claim. 57 As clearly stated by the ICJ in Barcelona Traction:
The Court would here observe that, within the limits prescribed by international law, a
State may exercise diplomatic protection by whatever means and to whatever extent it
thinks fit, for it is its own right that the State is asserting. Should the natural or legal
person on whose behalf it is acting consider that their rights are not adequately protected,
they have no remedy in international law. All they can do is resort to national law, if
means are available, with a view to fathering their cause or obtaining redress. The
municipal legislator may lay upon the State an obligation to protect its citizens abroad,
and may also confer upon the national a right to demand the performance of that
obligation, and clothe the right with corresponding sanctions. However, all these
questions remain within the province of municipal law and do not affect the position
internationally. 58 (Emphasis supplied) cEHITA
The State, therefore, is the sole judge to decide whether its protection will be granted, to
what extent it is granted, and when will it cease. It retains, in this respect, a discretionary
power the exercise of which may be determined by considerations of a political or other
nature, unrelated to the particular case.
The International Law Commission's (ILC's) Draft Articles on Diplomatic Protection
fully support this traditional view. They (i) state that "the right of diplomatic protection
belongs to or vests in the State," 59 (ii) affirm its discretionary nature by clarifying that
diplomatic protection is a "sovereign prerogative" of the State; 60 and (iii) stress that the
state "has the right to exercise diplomatic protection on behalf of a national. It is under no
duty or obligation to do so." 61
It has been argued, as petitioners argue now, that the State has a duty to protect its
nationals and act on his/her behalf when rights are injured. 62 However, at present, there
is no sufficient evidence to establish a general international obligation for States to
exercise diplomatic protection of their own nationals abroad. 63 Though, perhaps
desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a
duty internationally, it is only a moral and not a legal duty, and there is no means of
enforcing its fulfillment. 64 SECcAI
We fully agree that rape, sexual slavery, torture, and sexual violence are morally
reprehensible as well as legally prohibited under contemporary international law. 65
However, petitioners take quite a theoretical leap in claiming that these proscriptions
automatically imply that that the Philippines is under a non-derogable obligation to
prosecute international crimes, particularly since petitioners do not demand the
imputation of individual criminal liability, but seek to recover monetary reparations from
the state of Japan. Absent the consent of states, an applicable treaty regime, or a directive
by the Security Council, there is no non-derogable duty to institute proceedings against
Japan. Indeed, precisely because of states' reluctance to directly prosecute claims against
another state, recent developments support the modern trend to empower individuals to
directly participate in suits against perpetrators of international crimes. 66 Nonetheless,
notwithstanding an array of General Assembly resolutions calling for the prosecution of
crimes against humanity and the strong policy arguments warranting such a rule, the
practice of states does not yet support the present existence of an obligation to prosecute
international crimes. 67 Of course a customary duty of prosecution is ideal, but we cannot
find enough evidence to reasonably assert its existence. To the extent that any state
practice in this area is widespread, it is in the practice of granting amnesties, immunity,
selective prosecution, or de facto impunity to those who commit crimes against
humanity." 68
Even the invocation of jus cogens norms and erga omnes obligations will not alter this
analysis. Even if we sidestep the question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes committed by the Japanese army
violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the
duty to prosecute perpetrators of international crimes is an erga omnes obligation or has
attained the status of jus cogens. EHcaDT
The term erga omnes (Latin: in relation to everyone) in international law has been used as
a legal term describing obligations owed by States towards the community of states as a
whole. The concept was recognized by the ICJ in Barcelona Traction:
. . . an essential distinction should be drawn between the obligations of a State towards
the international community as a whole, and those arising vis-à-vis another State in the
field of diplomatic protection. By their very nature, the former are the concern of all
States. In view of the importance of the rights involved, all States can be held to have a
legal interest in their protection; they are obligations erga omnes.
Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including protection from slavery and
racial discrimination. Some of the corresponding rights of protection have entered into
the body of general international law . . . others are conferred by international instruments
of a universal or quasi-universal character.
The Latin phrase, 'erga omnes,' has since become one of the rallying cries of those
sharing a belief in the emergence of a value-based international public order. However, as
is so often the case, the reality is neither so clear nor so bright. Whatever the relevance of
obligations erga omnes as a legal concept, its full potential remains to be realized in
practice. 69 SHECcD
The term is closely connected with the international law concept of jus cogens. In
international law, the term "jus cogens" (literally, "compelling law") refers to norms that
command peremptory authority, superseding conflicting treaties and custom. Jus cogens
norms are considered peremptory in the sense that they are mandatory, do not admit
derogation, and can be modified only by general international norms of equivalent
authority. 70
Early strains of the jus cogens doctrine have existed since the 1700s, 71 but peremptory
norms began to attract greater scholarly attention with the publication of Alfred von
Verdross's influential 1937 article, Forbidden Treaties in International Law. 72 The
recognition of jus cogens gained even more force in the 1950s and 1960s with the ILC's
preparation of the Vienna Convention on the Law of Treaties (VCLT). 73 Though there
was a consensus that certain international norms had attained the status of jus cogens, 74
the ILC was unable to reach a consensus on the proper criteria for identifying peremptory
norms.
After an extended debate over these and other theories of jus cogens, the ILC concluded
ruefully in 1963 that "there is not as yet any generally accepted criterion by which to
identify a general rule of international law as having the character of jus cogens." 75 In a
commentary accompanying the draft convention, the ILC indicated that "the prudent
course seems to be to . . . leave the full content of this rule to be worked out in State
practice and in the jurisprudence of international tribunals." 76 Thus, while the existence
of jus cogens in international law is undisputed, no consensus exists on its substance, 77
beyond a tiny core of principles and rules. 78 CSDcTA
Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to
comprehend the unimaginable horror they underwent at the hands of the Japanese
soldiers. We are also deeply concerned that, in apparent contravention of fundamental
principles of law, the petitioners appear to be without a remedy to challenge those that
have offended them before appropriate fora. Needless to say, our government should take
the lead in protecting its citizens against violation of their fundamental human rights.
Regrettably, it is not within our power to order the Executive Department to take up the
petitioners' cause. Ours is only the power to urge and exhort the Executive Department to
take up petitioners' cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.

[G.R. No. 166620. April 20, 2010.]

ATTY. SYLVIA BANDA, CONSORICIA O. PENSON, RADITO V. PADRIGANO,
JEAN R. DE MESA, LEAH P. DELA CRUZ, ANDY V. MACASAQUIT, SENEN B.
CORDOBA, ALBERT BRILLANTES, GLORIA BISDA, JOVITA V. CONCEPCION,
TERESITA G. CARVAJAL, ROSANNA T. MALIWANAG, RICHARD ODERON,
CECILIA ESTERNON, BENEDICTO CABRAL, MA. VICTORIA E. LAROCO,
CESAR ANDRA, FELICISIMO GALACIO, ELSA R. CALMA, FILOMENA A.
GALANG, JEAN PAUL MELEGRITO, CLARO G. SANTIAGO, JR., EDUARDO
FRIAS, REYNALDO O. ANDAL, NEPHTALIE IMPERIO, RUEL BALAGTAS,
VICTOR R. ORTIZ, FRANCISCO P. REYES, JR., ELISEO M. BALAGOT, JR., JOSE
C. MONSALVE, JR., ARTURO ADSUARA, F.C. LADRERO, JR., NELSON PADUA,
MARCELA C. SAYAO, ANGELITO MALAKAS, GLORIA RAMENTO, JULIANA
SUPLEO, MANUEL MENDRIQUE, E. TAYLAN, CARMELA BOBIS, DANILO
VARGAS, ROY-LEO C. PABLO, ALLAN VILLANUEVA, VICENTE R. VELASCO,
JR., IMELDA ERENO, FLORIZA M. CATIIS, RANIEL R. BASCO, E. JALIJALI,
MARIO C. CARAAN, DOLORES M. AVIADO, MICHAEL P. LAPLANA,
GUILLERMO G. SORIANO, ALICE E. SOJO, ARTHUR G. NARNE, LETICIA
SORIANO, FEDERICO RAMOS, JR., PETERSON CAAMPUED, RODELIO L.
GOMEZ, ANTONIO D. GARCIA, JR., ANTONIO GALO, A. SANCHEZ, SOL E.
TAMAYO, JOSEPHINE A.M. COCJIN, DAMIAN QUINTO, JR., EDLYN MARIANO,
M.A. MALANUM, ALFREDO S. ESTRELLA, and JESUS MEL SAYO, petitioners, vs.
EDUARDO R. ERMITA, in his capacity as Executive Secretary, THE DIRECTOR
GENERAL OF THE PHILIPPINE INFORMATION AGENCY and THE NATIONAL
TREASURER, respondents.
DECISION
LEONARDO-DE CASTRO, J p:
The present controversy arose from a Petition for Certiorari and prohibition challenging
the constitutionality of Executive Order No. 378 dated October 25, 2004, issued by
President Gloria Macapagal Arroyo (President Arroyo). Petitioners characterize their
action as a class suit filed on their own behalf and on behalf of all their co-employees at
the National Printing Office (NPO). ECcTaS
The NPO was formed on July 25, 1987, during the term of former President Corazon C.
Aquino (President Aquino), by virtue of Executive Order No. 285 1 which provided,
among others, the creation of the NPO from the merger of the Government Printing
Office and the relevant printing units of the Philippine Information Agency (PIA).
Section 6 of Executive Order No. 285 reads:
SECTION 6. Creation of the National Printing Office. — There is hereby created a
National Printing Office out of the merger of the Government Printing Office and the
relevant printing units of the Philippine Information Agency. The Office shall have
exclusive printing jurisdiction over the following:
a. Printing, binding and distribution of all standard and accountable forms of
national, provincial, city and municipal governments, including government corporations;
b. Printing of officials ballots;
c. Printing of public documents such as the Official Gazette, General Appropriations
Act, Philippine Reports, and development information materials of the Philippine
Information Agency.
The Office may also accept other government printing jobs, including government
publications, aside from those enumerated above, but not in an exclusive basis.
SHCaEA
The details of the organization, powers, functions, authorities, and related management
aspects of the Office shall be provided in the implementing details which shall be
prepared and promulgated in accordance with Section II of this Executive Order.
The Office shall be attached to the Philippine Information Agency.
On October 25, 2004, President Arroyo issued the herein assailed Executive Order No.
378, amending Section 6 of Executive Order No. 285 by, inter alia, removing the
exclusive jurisdiction of the NPO over the printing services requirements of government
agencies and instrumentalities. The pertinent portions of Executive Order No. 378, in
turn, provide:
SECTION 1. The NPO shall continue to provide printing services to government
agencies and instrumentalities as mandated by law. However, it shall no longer enjoy
exclusive jurisdiction over the printing services requirements of the government over
standard and accountable forms. It shall have to compete with the private sector, except
in the printing of election paraphernalia which could be shared with the Bangko Sentral
ng Pilipinas, upon the discretion of the Commission on Elections consistent with the
provisions of the Election Code of 1987.
SECTION 2. Government agencies/instrumentalities may source printing services
outside NPO provided that: DIEcHa
2.1 The printing services to be provided by the private sector is superior in quality
and at a lower cost than what is offered by the NPO; and
2.2 The private printing provider is flexible in terms of meeting the target completion
time of the government agency.
SECTION 3. In the exercise of its functions, the amount to be appropriated for the
programs, projects and activities of the NPO in the General Appropriations Act (GAA)
shall be limited to its income without additional financial support from the government.
(Emphases and underscoring supplied.)
Pursuant to Executive Order No. 378, government agencies and instrumentalities are
allowed to source their printing services from the private sector through competitive
bidding, subject to the condition that the services offered by the private supplier be of
superior quality and lower in cost compared to what was offered by the NPO. Executive
Order No. 378 also limited NPO's appropriation in the General Appropriations Act to its
income.
Perceiving Executive Order No. 378 as a threat to their security of tenure as employees of
the NPO, petitioners now challenge its constitutionality, contending that: (1) it is beyond
the executive powers of President Arroyo to amend or repeal Executive Order No. 285
issued by former President Aquino when the latter still exercised legislative powers; and
(2) Executive Order No. 378 violates petitioners' security of tenure, because it paves the
way for the gradual abolition of the NPO. THaDAE
We dismiss the petition.
Before proceeding to resolve the substantive issues, the Court must first delve into a
procedural matter. Since petitioners instituted this case as a class suit, the Court, thus,
must first determine if the petition indeed qualifies as one. In Board of Optometry v.
Colet, 2 we held that "[c]ourts must exercise utmost caution before allowing a class suit,
which is the exception to the requirement of joinder of all indispensable parties. For
while no difficulty may arise if the decision secured is favorable to the plaintiffs, a
quandary would result if the decision were otherwise as those who were deemed
impleaded by their self-appointed representatives would certainly claim denial of due
process."
Section 12, Rule 3 of the Rules of Court defines a class suit, as follows:
Sec. 12. Class suit. — When the subject matter of the controversy is one of
common or general interest to many persons so numerous that it is impracticable to join
all as parties, a number of them which the court finds to be sufficiently numerous and
representative as to fully protect the interests of all concerned may sue or defend for the
benefit of all. Any party in interest shall have the right to intervene to protect his
individual interest.
From the foregoing definition, the requisites of a class suit are: 1) the subject matter of
controversy is one of common or general interest to many persons; 2) the parties affected
are so numerous that it is impracticable to bring them all to court; and 3) the parties
bringing the class suit are sufficiently numerous or representative of the class and can
fully protect the interests of all concerned. cSCTID
In Mathay v. The Consolidated Bank and Trust Company, 3 the Court held that:
An action does not become a class suit merely because it is designated as such in the
pleadings. Whether the suit is or is not a class suit depends upon the attending facts, and
the complaint, or other pleading initiating the class action should allege the existence of
the necessary facts, to wit, the existence of a subject matter of common interest, and the
existence of a class and the number of persons in the alleged class, in order that the court
might be enabled to determine whether the members of the class are so numerous as to
make it impracticable to bring them all before the court, to contrast the number appearing
on the record with the number in the class and to determine whether claimants on record
adequately represent the class and the subject matter of general or common interest.
(Emphases ours.)
Here, the petition failed to state the number of NPO employees who would be affected by
the assailed Executive Order and who were allegedly represented by petitioners. It was
the Solicitor General, as counsel for respondents, who pointed out that there were about
549 employees in the NPO. 4 The 67 petitioners undeniably comprised a small fraction of
the NPO employees whom they claimed to represent. Subsequently, 32 of the original
petitioners executed an Affidavit of Desistance, while one signed a letter denying ever
signing the petition, 5 ostensibly reducing the number of petitioners to 34. We note that
counsel for the petitioners challenged the validity of the desistance or withdrawal of some
of the petitioners and insinuated that such desistance was due to pressure from people
"close to the seat of power." 6 Still, even if we were to disregard the affidavit of
desistance filed by some of the petitioners, it is highly doubtful that a sufficient,
representative number of NPO employees have instituted this purported class suit. A
perusal of the petition itself would show that of the 67 petitioners who signed the
Verification/Certification of Non-Forum Shopping, only 20 petitioners were in fact
mentioned in the jurat as having duly subscribed the petition before the notary public. In
other words, only 20 petitioners effectively instituted the present case. DIEAHc
Indeed, in MVRS Publications, Inc. v. Islamic Da'wah Council of the Philippines, Inc., 7
we observed that an element of a class suit or representative suit is the adequacy of
representation. In determining the question of fair and adequate representation of
members of a class, the court must consider (a) whether the interest of the named party is
coextensive with the interest of the other members of the class; (b) the proportion of
those made a party, as it so bears, to the total membership of the class; and (c) any other
factor bearing on the ability of the named party to speak for the rest of the class.
Previously, we held in Ibañes v. Roman Catholic Church 8 that where the interests of the
plaintiffs and the other members of the class they seek to represent are diametrically
opposed, the class suit will not prosper.
It is worth mentioning that a Manifestation of Desistance, 9 to which the previously
mentioned Affidavit of Desistance 10 was attached, was filed by the President of the
National Printing Office Workers Association (NAPOWA). The said manifestation
expressed NAPOWA's opposition to the filing of the instant petition in any court. Even if
we take into account the contention of petitioners' counsel that the NAPOWA President
had no legal standing to file such manifestation, the said pleading is a clear indication that
there is a divergence of opinions and views among the members of the class sought to be
represented, and not all are in favor of filing the present suit. There is here an apparent
conflict between petitioners' interests and those of the persons whom they claim to
represent. Since it cannot be said that petitioners sufficiently represent the interests of the
entire class, the instant case cannot be properly treated as a class suit. cISAHT
As to the merits of the case, the petition raises two main grounds to assail the
constitutionality of Executive Order No. 378:
First, it is contended that President Arroyo cannot amend or repeal Executive Order No.
285 by the mere issuance of another executive order (Executive Order No. 378).
Petitioners maintain that former President Aquino's Executive Order No. 285 is a
legislative enactment, as the same was issued while President Aquino still had legislative
powers under the Freedom Constitution; 11 thus, only Congress through legislation can
validly amend Executive Order No. 285.
Second, petitioners maintain that the issuance of Executive Order No. 378 would lead to
the eventual abolition of the NPO and would violate the security of tenure of NPO
employees.
Anent the first ground raised in the petition, we find the same patently without merit.
It is a well-settled principle in jurisprudence that the President has the power to
reorganize the offices and agencies in the executive department in line with the
President's constitutionally granted power of control over executive offices and by virtue
of previous delegation of the legislative power to reorganize executive offices under
existing statutes.
In Buklod ng Kawaning EIIB v. Zamora, 12 the Court pointed out that Executive Order
No. 292 or the Administrative Code of 1987 gives the President continuing authority to
reorganize and redefine the functions of the Office of the President. Section 31, Chapter
10, Title III, Book III of the said Code, is explicit: caAICE
Sec. 31. Continuing Authority of the President to Reorganize his Office. — The
President, subject to the policy in the Executive Office and in order to achieve simplicity,
economy and efficiency, shall have continuing authority to reorganize the administrative
structure of the Office of the President. For this purpose, he may take any of the
following actions:
(1) Restructure the internal organization of the Office of the President Proper,
including the immediate Offices, the President Special Assistants/Advisers System and
the Common Staff Support System, by abolishing, consolidating or merging units thereof
or transferring functions from one unit to another;
(2) Transfer any function under the Office of the President to any other Department
or Agency as well as transfer functions to the Office of the President from other
Departments and Agencies; and
(3) Transfer any agency under the Office of the President to any other department or
agency as well as transfer agencies to the Office of the President from other departments
or agencies. (Emphases ours.)
Interpreting the foregoing provision, we held in Buklod ng Kawaning EIIB, thus:
DTEAHI
But of course, the list of legal basis authorizing the President to reorganize any
department or agency in the executive branch does not have to end here. We must not
lose sight of the very source of the power — that which constitutes an express grant of
power. Under Section 31, Book III of Executive Order No. 292 (otherwise known as the
Administrative Code of 1987), "the President, subject to the policy in the Executive
Office and in order to achieve simplicity, economy and efficiency, shall have the
continuing authority to reorganize the administrative structure of the Office of the
President." For this purpose, he may transfer the functions of other Departments or
Agencies to the Office of the President. In Canonizado v. Aguirre [323 SCRA 312
(2000)], we ruled that reorganization "involves the reduction of personnel, consolidation
of offices, or abolition thereof by reason of economy or redundancy of functions." It
takes place when there is an alteration of the existing structure of government offices or
units therein, including the lines of control, authority and responsibility between them.
The EIIB is a bureau attached to the Department of Finance. It falls under the Office of
the President. Hence, it is subject to the President's continuing authority to reorganize. 13
(Emphasis ours.)
It is undisputed that the NPO, as an agency that is part of the Office of the Press
Secretary (which in various times has been an agency directly attached to the Office of
the Press Secretary or as an agency under the Philippine Information Agency), is part of
the Office of the President. 14 CacTIE
Pertinent to the case at bar, Section 31 of the Administrative Code of 1987 quoted above
authorizes the President (a) to restructure the internal organization of the Office of the
President Proper, including the immediate Offices, the President Special
Assistants/Advisers System and the Common Staff Support System, by abolishing,
consolidating or merging units thereof or transferring functions from one unit to another,
and (b) to transfer functions or offices from the Office of the President to any other
Department or Agency in the Executive Branch, and vice versa.
Concomitant to such power to abolish, merge or consolidate offices in the Office of the
President Proper and to transfer functions/offices not only among the offices in the Office
of President Proper but also the rest of the Office of the President and the Executive
Branch, the President implicitly has the power to effect less radical or less substantive
changes to the functional and internal structure of the Office of the President, including
the modification of functions of such executive agencies as the exigencies of the service
may require.
In the case at bar, there was neither an abolition of the NPO nor a removal of any of its
functions to be transferred to another agency. Under the assailed Executive Order No.
378, the NPO remains the main printing arm of the government for all kinds of
government forms and publications but in the interest of greater economy and
encouraging efficiency and profitability, it must now compete with the private sector for
certain government printing jobs, with the exception of election paraphernalia which
remains the exclusive responsibility of the NPO, together with the Bangko Sentral ng
Pilipinas, as the Commission on Elections may determine. At most, there was a mere
alteration of the main function of the NPO by limiting the exclusivity of its printing
responsibility to election forms. 15 IaSAHC
There is a view that the reorganization actions that the President may take with respect to
agencies in the Office of the President are strictly limited to transfer of functions and
offices as seemingly provided in Section 31 of the Administrative Code of 1987.
However, Section 20, Chapter 7, Title I, Book III of the same Code significantly
provides:
Sec. 20. Residual Powers. — Unless Congress provides otherwise, the President
shall exercise such other powers and functions vested in the President which are provided
for under the laws and which are not specifically enumerated above, or which are not
delegated by the President in accordance with law. (Emphasis ours.)
Pursuant to Section 20, the power of the President to reorganize the Executive Branch
under Section 31 includes such powers and functions that may be provided for under
other laws. To be sure, an inclusive and broad interpretation of the President's power to
reorganize executive offices has been consistently supported by specific provisions in
general appropriations laws.
In the oft-cited Larin v. Executive Secretary, 16 the Court likewise adverted to certain
provisions of Republic Act No. 7645, the general appropriations law for 1993, as among
the statutory bases for the President's power to reorganize executive agencies, to wit:
EACTSH
Section 48 of R.A. 7645 provides that:
"Sec. 48. Scaling Down and Phase Out of Activities of Agencies Within the
Executive Branch. — The heads of departments, bureaus and offices and agencies are
hereby directed to identify their respective activities which are no longer essential in the
delivery of public services and which may be scaled down, phased out or abolished,
subject to civil [service] rules and regulations. . . . . Actual scaling down, phasing out or
abolition of the activities shall be effected pursuant to Circulars or Orders issued for the
purpose by the Office of the President."
Said provision clearly mentions the acts of "scaling down, phasing out and abolition" of
offices only and does not cover the creation of offices or transfer of functions.
Nevertheless, the act of creating and decentralizing is included in the subsequent
provision of Section 62, which provides that:
"Sec. 62. Unauthorized organizational changes. — Unless otherwise created by law
or directed by the President of the Philippines, no organizational unit or changes in key
positions in any department or agency shall be authorized in their respective organization
structures and be funded from appropriations by this Act."
The foregoing provision evidently shows that the President is authorized to effect
organizational changes including the creation of offices in the department or agency
concerned. HCSEcI
The contention of petitioner that the two provisions are riders deserves scant
consideration. Well settled is the rule that every law has in its favor the presumption of
constitutionality. Unless and until a specific provision of the law is declared invalid and
unconstitutional, the same is valid and binding for all intents and purposes. 17 (Emphases
ours)
Buklod ng Kawaning EIIB v. Zamora, 18 where the Court upheld as valid then President
Joseph Estrada's Executive Order No. 191 "deactivating" the Economic Intelligence and
Investigation Bureau (EIIB) of the Department of Finance, hewed closely to the
reasoning in Larin. The Court, among others, also traced from the General
Appropriations Act 19 the President's authority to effect organizational changes in the
department or agency under the executive structure, thus:
We adhere to the precedent or ruling in Larin that this provision recognizes the authority
of the President to effect organizational changes in the department or agency under the
executive structure. Such a ruling further finds support in Section 78 of Republic Act No.
8760. Under this law, the heads of departments, bureaus, offices and agencies and other
entities in the Executive Branch are directed (a) to conduct a comprehensive review of
their respective mandates, missions, objectives, functions, programs, projects, activities
and systems and procedures; (b) identify activities which are no longer essential in the
delivery of public services and which may be scaled down, phased-out or abolished; and
(c) adopt measures that will result in the streamlined organization and improved overall
performance of their respective agencies. Section 78 ends up with the mandate that the
actual streamlining and productivity improvement in agency organization and operation
shall be effected pursuant to Circulars or Orders issued for the purpose by the Office of
the President. . . . . 20 (Emphasis ours) HcSaAD
Notably, in the present case, the 2003 General Appropriations Act, which was reenacted
in 2004 (the year of the issuance of Executive Order No. 378), likewise gave the
President the authority to effect a wide variety of organizational changes in any
department or agency in the Executive Branch. Sections 77 and 78 of said Act provides:
Section 77. Organized Changes. — Unless otherwise provided by law or directed by
the President of the Philippines, no changes in key positions or organizational units in
any department or agency shall be authorized in their respective organizational structures
and funded from appropriations provided by this Act.
Section 78. Institutional Strengthening and Productivity Improvement in Agency
Organization and Operations and Implementation of Organization/Reorganization
Mandated by Law. — The Government shall adopt institutional strengthening and
productivity improvement measures to improve service delivery and enhance
productivity in the government, as directed by the President of the Philippines. The heads
of departments, bureaus, offices, agencies, and other entities of the Executive Branch
shall accordingly conduct a comprehensive review of their respective mandates, missions,
objectives, functions, programs, projects, activities and systems and procedures; identify
areas where improvements are necessary; and implement corresponding structural,
functional and operational adjustments that will result in streamlined organization and
operations and improved performance and productivity: PROVIDED, That actual
streamlining and productivity improvements in agency organization and operations, as
authorized by the President of the Philippines for the purpose, including the utilization of
savings generated from such activities, shall be in accordance with the rules and
regulations to be issued by the DBM, upon consultation with the Presidential Committee
on Effective Governance: PROVIDED, FURTHER, That in the implementation of
organizations/reorganizations, or specific changes in agency structure, functions and
operations as a result of institutional strengthening or as mandated by law, the
appropriation, including the functions, projects, purposes and activities of agencies
concerned may be realigned as may be necessary: PROVIDED, FINALLY, That any
unexpended balances or savings in appropriations may be made available for payment of
retirement gratuities and separation benefits to affected personnel, as authorized under
existing laws. (Emphases and underscoring ours.) SIDEaA
Implicitly, the aforequoted provisions in the appropriations law recognize the power of
the President to reorganize even executive offices already funded by the said
appropriations act, including the power to implement structural, functional, and
operational adjustments in the executive bureaucracy and, in so doing, modify or realign
appropriations of funds as may be necessary under such reorganization. Thus, insofar as
petitioners protest the limitation of the NPO's appropriations to its own income under
Executive Order No. 378, the same is statutorily authorized by the above provisions.
In the 2003 case of Bagaoisan v. National Tobacco Administration, 21 we upheld the
"streamlining" of the National Tobacco Administration through a reduction of its
personnel and deemed the same as included in the power of the President to reorganize
executive offices granted under the laws, notwithstanding that such streamlining neither
involved an abolition nor a transfer of functions of an office. To quote the relevant
portion of that decision:
In the recent case of Rosa Ligaya C. Domingo, et al. vs. Hon. Ronaldo D. Zamora, in his
capacity as the Executive Secretary, et al., this Court has had occasion to also delve on
the President's power to reorganize the Office of the President under Section 31(2) and
(3) of Executive Order No. 292 and the power to reorganize the Office of the President
Proper. . . . IEAacT
xxx xxx xxx
The first sentence of the law is an express grant to the President of a continuing authority
to reorganize the administrative structure of the Office of the President. The succeeding
numbered paragraphs are not in the nature of provisos that unduly limit the aim and
scope of the grant to the President of the power to reorganize but are to be viewed in
consonance therewith. Section 31(1) of Executive Order No. 292 specifically refers to the
President's power to restructure the internal organization of the Office of the President
Proper, by abolishing, consolidating or merging units hereof or transferring functions
from one unit to another, while Section 31(2) and (3) concern executive offices outside
the Office of the President Proper allowing the President to transfer any function under
the Office of the President to any other Department or Agency and vice-versa, and the
transfer of any agency under the Office of the President to any other department or
agency and vice-versa.
In the present instance, involving neither an abolition nor transfer of offices, the assailed
action is a mere reorganization under the general provisions of the law consisting mainly
of streamlining the NTA in the interest of simplicity, economy and efficiency. It is an act
well within the authority of the President motivated and carried out, according to the
findings of the appellate court, in good faith, a factual assessment that this Court could
only but accept. 22 (Emphases and underscoring supplied.) TAcDHS
In the more recent case of Tondo Medical Center Employees Association v. Court of
Appeals, 23 which involved a structural and functional reorganization of the Department
of Health under an executive order, we reiterated the principle that the power of the
President to reorganize agencies under the executive department by executive or
administrative order is constitutionally and statutorily recognized. We held in that case:
This Court has already ruled in a number of cases that the President may, by executive or
administrative order, direct the reorganization of government entities under the Executive
Department. This is also sanctioned under the Constitution, as well as other statutes.
Section 17, Article VII of the 1987 Constitution, clearly states: "[T]he president shall
have control of all executive departments, bureaus and offices." Section 31, Book III,
Chapter 10 of Executive Order No. 292, also known as the Administrative Code of 1987
reads:
SEC. 31. Continuing Authority of the President to Reorganize his Office. — The
President, subject to the policy in the Executive Office and in order to achieve simplicity,
economy and efficiency, shall have continuing authority to reorganize the administrative
structure of the Office of the President. For this purpose, he may take any of the
following actions: HAICcD
xxx xxx xxx
In Domingo v. Zamora [445 Phil. 7 (2003)], this Court explained the rationale behind the
President's continuing authority under the Administrative Code to reorganize the
administrative structure of the Office of the President. The law grants the President the
power to reorganize the Office of the President in recognition of the recurring need of
every President to reorganize his or her office "to achieve simplicity, economy and
efficiency." To remain effective and efficient, it must be capable of being shaped and
reshaped by the President in the manner the Chief Executive deems fit to carry out
presidential directives and policies.
The Administrative Code provides that the Office of the President consists of the Office
of the President Proper and the agencies under it. The agencies under the Office of the
President are identified in Section 23, Chapter 8, Title II of the Administrative Code:
Sec. 23. The Agencies under the Office of the President. — The agencies under the
Office of the President refer to those offices placed under the chairmanship of the
President, those under the supervision and control of the President, those under the
administrative supervision of the Office of the President, those attached to it for policy
and program coordination, and those that are not placed by law or order creating them
under any specific department. EHTCAa
xxx xxx xxx
The power of the President to reorganize the executive department is likewise recognized
in general appropriations laws. . . . .
xxx xxx xxx
Clearly, Executive Order No. 102 is well within the constitutional power of the President
to issue. The President did not usurp any legislative prerogative in issuing Executive
Order No. 102. It is an exercise of the President's constitutional power of control over the
executive department, supported by the provisions of the Administrative Code,
recognized by other statutes, and consistently affirmed by this Court. 24 (Emphases
supplied.)
Subsequently, we ruled in Anak Mindanao Party-List Group v. Executive Secretary 25
that:
The Constitution's express grant of the power of control in the President justifies an
executive action to carry out reorganization measures under a broad authority of law.
In enacting a statute, the legislature is presumed to have deliberated with full knowledge
of all existing laws and jurisprudence on the subject. It is thus reasonable to conclude that
in passing a statute which places an agency under the Office of the President, it was in
accordance with existing laws and jurisprudence on the President's power to reorganize.
AaSIET
In establishing an executive department, bureau or office, the legislature necessarily
ordains an executive agency's position in the scheme of administrative structure. Such
determination is primary, but subject to the President's continuing authority to reorganize
the administrative structure. As far as bureaus, agencies or offices in the executive
department are concerned, the power of control may justify the President to deactivate the
functions of a particular office. Or a law may expressly grant the President the broad
authority to carry out reorganization measures. The Administrative Code of 1987 is one
such law. 26
The issuance of Executive Order No. 378 by President Arroyo is an exercise of a
delegated legislative power granted by the aforementioned Section 31, Chapter 10, Title
III, Book III of the Administrative Code of 1987, which provides for the continuing
authority of the President to reorganize the Office of the President, "in order to achieve
simplicity, economy and efficiency." This is a matter already well-entrenched in
jurisprudence. The reorganization of such an office through executive or administrative
order is also recognized in the Administrative Code of 1987. Sections 2 and 3, Chapter 2,
Title I, Book III of the said Code provide:
Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory powers
shall be promulgated in executive orders. EHASaD
Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspects
of governmental operations in pursuance of his duties as administrative head shall be
promulgated in administrative orders. (Emphases supplied.)
To reiterate, we find nothing objectionable in the provision in Executive Order No. 378
limiting the appropriation of the NPO to its own income. Beginning with Larin and in
subsequent cases, the Court has noted certain provisions in the general appropriations
laws as likewise reflecting the power of the President to reorganize executive offices or
agencies even to the extent of modifying and realigning appropriations for that purpose.
Petitioners' contention that the issuance of Executive Order No. 378 is an invalid exercise
of legislative power on the part of the President has no legal leg to stand on.
In all, Executive Order No. 378, which purports to institute necessary reforms in
government in order to improve and upgrade efficiency in the delivery of public services
by redefining the functions of the NPO and limiting its funding to its own income and to
transform it into a self-reliant agency able to compete with the private sector, is well
within the prerogative of President Arroyo under her continuing delegated legislative
power to reorganize her own office. As pointed out in the separate concurring opinion of
our learned colleague, Associate Justice Antonio T. Carpio, the objective behind
Executive Order No. 378 is wholly consistent with the state policy contained in Republic
Act No. 9184 or the Government Procurement Reform Act to encourage competitiveness
by extending equal opportunity to private contracting parties who are eligible and
qualified. 27 STECDc
To be very clear, this delegated legislative power to reorganize pertains only to the Office
of the President and the departments, offices and agencies of the executive branch and
does not include the Judiciary, the Legislature or the constitutionally-created or mandated
bodies. Moreover, it must be stressed that the exercise by the President of the power to
reorganize the executive department must be in accordance with the Constitution,
relevant laws and prevailing jurisprudence.
In this regard, we are mindful of the previous pronouncement of this Court in Dario v.
Mison 28 that:
Reorganizations in this jurisdiction have been regarded as valid provided they are
pursued in good faith. As a general rule, a reorganization is carried out in "good faith" if
it is for the purpose of economy or to make bureaucracy more efficient. In that event, no
dismissal (in case of a dismissal) or separation actually occurs because the position itself
ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that
as it may, if the "abolition," which is nothing else but a separation or removal, is done for
political reasons or purposely to defeat security of tenure, or otherwise not in good faith,
no valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There
is an invalid "abolition" as where there is merely a change of nomenclature of positions,
or where claims of economy are belied by the existence of ample funds. (Emphasis ours.)
EACIaT
Stated alternatively, the presidential power to reorganize agencies and offices in the
executive branch of government is subject to the condition that such reorganization is
carried out in good faith.
If the reorganization is done in good faith, the abolition of positions, which results in loss
of security of tenure of affected government employees, would be valid. In Buklod ng
Kawaning EIIB v. Zamora, 29 we even observed that there was no such thing as an
absolute right to hold office. Except those who hold constitutional offices, which provide
for special immunity as regards salary and tenure, no one can be said to have any vested
right to an office or salary. 30
This brings us to the second ground raised in the petition — that Executive Order No.
378, in allowing government agencies to secure their printing requirements from the
private sector and in limiting the budget of the NPO to its income, will purportedly lead
to the gradual abolition of the NPO and the loss of security of tenure of its present
employees. In other words, petitioners avow that the reorganization of the NPO under
Executive Order No. 378 is tainted with bad faith. The basic evidentiary rule is that he
who asserts a fact or the affirmative of an issue has the burden of proving it. 31
A careful review of the records will show that petitioners utterly failed to substantiate
their claim. They failed to allege, much less prove, sufficient facts to show that the
limitation of the NPO's budget to its own income would indeed lead to the abolition of
the position, or removal from office, of any employee. Neither did petitioners present any
shred of proof of their assertion that the changes in the functions of the NPO were for
political considerations that had nothing to do with improving the efficiency of, or
encouraging operational economy in, the said agency. IHDCcT
In sum, the Court finds that the petition failed to show any constitutional infirmity or
grave abuse of discretion amounting to lack or excess of jurisdiction in President
Arroyo's issuance of Executive Order No. 378.
WHEREFORE, the petition is hereby DISMISSED and the prayer for a Temporary
Restraining Order and/or a Writ of Preliminary Injunction is hereby DENIED. No costs.
SO ORDERED.

[G.R. No. 169777. July 14, 2006.]

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his
capacity as Senate President, JUAN M. FLAVIER, in his capacity as Senate President
Pro Tempore, FRANCIS N. PANGILINAN, in his capacity as Majority Leader,
AQUILINO Q. PIMENTEL, JR., in his capacity as Minority Leader, SENATORS
RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO
ESTRADA, LUISA "LOI" EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD
J. GORDON, PANFILO M. LACSON, ALFREDO S. LIM, M. A. MADRIGAL,
SERGIO OSMENA III, RALPH G. RECTO, MAR ROXAS and MANUEL B. VILLAR,
JR., petitioners, vs. EDUARDO R. ERMITA, in his capacity as Executive Secretary and
alter-ego of President Gloria Macapagal-Arroyo, and anyone acting in his stead and in
behalf of the President of the Philippines, respondents.
[G.R. No. 169659. July 14, 2006.]
BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR
OCAMPO, Rep. CRISPIN BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA,
Rep. TEODORO CASINO, Rep. JOEL VIRADOR, COURAGE represented by
FERDINAND GAITE, and COUNSELS FOR THE DEFENSE OF LIBERTIES
(CODAL) represented by ATTY. REMEDIOS BALBIN, petitioners, vs. EDUARDO
ERMITA, in his capacity as Executive Secretary and alter-ego of President Gloria
Macapagal-Arroyo, respondent.
[G.R. No. 169660. July 14, 2006.]
FRANCISCO I. CHAVEZ, petitioner, vs. EDUARDO R. ERMITA, in his capacity as
Executive Secretary, AVELINO J. CRUZ, JR., in his capacity as Secretary of Defense,
and GENEROSO S. SENGA, in his capacity as AFP Chief of Staff, respondents.
[G.R. No. 169667. July 14, 2006.]
ALTERNATIVE LAW GROUPS, INC. (ALG), petitioner, vs. HON. EDUARDO R.
ERMITA, in his capacity as Executive Secretary, respondent.
[G.R. No. 169834. July 14, 2006.]
PDP-LABAN, petitioner, vs. EXECUTIVE SECRETARY EDUARDO R. ERMITA,
respondent.
[G.R. No. 171246. July 14, 2006.]
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA,
JOSE AMOR AMORANDO, ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III,
MANUEL P. LEGASPI, J. B. JOVY C. BERNABE, BERNARD L. DAGCUTA,
ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE PHILIPPINES,
petitioners, vs. HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, respondent.
RESOLUTION
CARPIO-MORALES, J p:
Pending consideration are 1) the Motion for Reconsideration dated May 18, 2006 filed by
respondents, praying that the Decision promulgated on April 20, 2006 (the Decision) be
set aside, and 2) the Motion for Reconsideration dated May 17, 2006 filed by petitioner
PDP-Laban in so far as the Decision held that it was without the requisite standing to file
the petition in G.R. No. 169834. DTSaIc
Petitioners Senate of the Philippines et al., Alternative Law Groups, Inc., Francisco I.
Chavez, and PDP-Laban filed their respective Comments to respondents' Motion for
Reconsideration.
Respecting PDP-Laban's Motion for Reconsideration, petitioners Senate of the
Philippines et al. and petitioner Chavez endorse the same. Respondents, however, pray
for its denial.
In their Motion for Reconsideration, respondents argue that the Senate Rules of
Procedure Governing Inquiries in Aid of Legislation has not been published, hence, the
President may properly prohibit the appearance of executive officials before Congress.
Even assuming arguendo that the said Rules of Procedure had not been published, such
does not have any bearing on the validity of any of the provisions of E.O. 464. The
prohibition under Section 1 of E.O. 464 has to do with the question hour, not with
inquiries in aid of legislation. As to the prohibition authorized by Section 3 in relation to
Section 2(b), the basis thereof is executive privilege, not the purported failure to publish
rules of procedure.
If the President would prohibit executive officials from appearing before Congress on the
ground of lack of published rules of procedure, such would not be an exercise of
executive privilege, but simply a claim to. protection under the due process clause — a
right which the President has in common with any other citizen. The claim to such
protection is not based on the confidential nature of the information held by the official
concerned, as in the case off executive privilege, but on the defective nature of the
legislative inquiry itself. The prohibition under Section 3 in relation to Section 2(b) of
E.O. 464, however, is based solely on executive privilege, not on any alleged defect in
the inquiry arising from a lack of published rules of procedure.
Respondents go on to argue that the President's invocation of executive privilege is "for
practical purposes," in that since the President would be in no position to raise an
objection the moment a question is asked by Congress, she must be alled to prohibit the
appearance of the official concerned, at least until she is able to thoroughly discuss the
matter with the said official. For, so respondents contend, "once the information has been
coerced out of the official, there is not turning back, and the damage that could result
might be devastating to the functioning of government." 1
The tentative prevention of an official from appearing before Congress pending
discussion of the matter on inquiry with the President cannot, however, be properly
deemed an exercise of executive privilege, not even, one "for practical purposes." Any
such discussion is meant precisely to allow the President to determine whether the
information sought falls under privilege. Bofore such determination, the claim of
privilege could only be based on mere speculation that the information sought might be
confidential in nature. Certainly, cannot be bound by such a tenuous invocation of the
privilege. CSIHDA
The executive branch, nonetheless, need not be apprehensive that it might not be able to
invoke executive privilege in time to prevent disclosures of legitimately confidential
information. As this Court stated in the Decision, the President and the Executive
Secretary must be given fair opportunity to determine whether the matter under
legislative investigation calls for a claim of privilege. 2 To secure this fair opportunity,
the executive branch need not resort to a precautionary claim of privilege like that
proffered by respondent. The President may, instead, direct the official concerned to ask
Congress for reasonable time to discuss with her the subject matter of the investigation.
Section 3 in relation to 2(b) of E.O. 464, however, is far from being a mere directive to
officials summoned by Congress to ask for time to confer with the President. It is an
authorization for implied claims of privilege. 3 As such, the criteria for evaluating its
validity must be those for claims of executive privilege. On the basis of such criteria, the
Court found the implied claim authorized under Section 3 in relation to Section 2(b) of
E.O. 464 to be defective.
In fine, no argument in respondents' Motion for Reconsideration merits a reversal or
modification of the Decision.
As for its Motion for Reconsideration, petitioner PDP-Laban avers that there is no
fundamental difference between it and petitioner Bayan Muna to justify their unequal
treatment since both of them have members in. Congress. It claims, moreover, that all its
members are taxpayers and Filipino citizens whose right to information was, as held in
the Decision, violated by E.O. 464.
There are, however, fundamental distinctions between PDP-Laban and Bayan Muna
which call for this Court's contrasting rulings with regard to their standing.
While both parties have members in Congress, PDP-Laban, unlike Bayan Muna, is not
represented therein as a party-list organization. The PDP-Laban members in Congress
were elected to represent, not their party, but their constituents, i.e., their legislative
district in the case of representatives, or the nation at large in the case of senators. The
Bayan Muna members in Congress, on the other hand, were elected precisely to represent
their party. 4 In fact, in light of the party-list system, the representatives from Bayan
Muna may be said to have been elected only indirectly, since it was Bayan Muna itself, as
a party, which was voted for in the last elections where it received enough votes to entitle
it to three seats in the House of Representatives. 5 This, again, contrasts with the situation
of the PDP-Laban members in Congress who were all elected in their individual
capacities.
Indeed, the rights of the Bayan Muna representatives are so intertwined with their party's
right to representation in Congress that, in the event they change their party affiliation
during their term of office, they would have to forfeit their seat 6 — a rule which clearly
does not apply to the PDP-Laban members in Congress. IEDHAT
Bayan Muna is thus entitled to participate in the legislative process in a way that cannot
be said of PDP-Laban.
With regard to PDP-Laban's assertion that it consists of taxpayers and Filipino citizens,
suffice it to state that its Petition did not assert this as a ground for its standing to sue. It
merely alleged that E.O. 464 hampers its legislative agenda and that the issues involved
are of transcendental importance, 7 which points were already addressed in the Decision.
If PDP-Laban intended to sue as an organization of citizens in pursuit of the right to
information of such citizens, it did not so state in its petition. As such, the Court could not
be satisfied that its participation in the controversy would ensure "concrete adverseness
which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions." 8
A final point. Petitioners Senate of the Philippines et al., by Manifestation dated April 25.
2006, called this Court's attention to the inadvertent omission, in the title of the petition in
G.R. No. 169777, of the name of Senator Manuel B. Villar, Jr. The Manifestation
reiterated an earlier Manifestation dated October 24, 2005 requesting that Senator Villar's
name be included in the title of said petition. Finding the Manifestations well-taken, the
title of G.R. No. 169777 is hereby amended to reflect the name of Senator Villar as one
of the petitioners.
WHEREFORE, the MOTION FOR RECONSIDERATION of Respondents dated May
18, 2006 and the MOTION FOR RECONSIDERATION of Petitioner PDP-Laban dated
May 17, 2006 are DENIED WITH FINALITY for lack of merit. The title of G.R. No.
169777 is amended to include the name Senator Manuel B. Villar, Jr. as one of the
petitioners. TIaEDC
SO ORDERED.
Panganiban, C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez,
Corona, Callejo, Sr, Azcuna, Chico-Nazario, Garcia and Velasco, Jr., JJ., concur.
Puno, J., took no part. On leave when the case was decided on merits.
Carpio, J., is on official leave.
Tinga, J., please see separate opinion.
Separate Opinions
TINGA, J p:
While I concur generally in the result begot by the adjudication of these cases, there are
nuances to my views that are not sufficiently addressed by the majority. I thus write
separately to elaborate on them.
Executive Order No. 464 (EO 464) does not conform to the usual mode of executive
orders, defined in the Administrative Code as "[a]cts of the President providing for rules
of a general or permanent character in implementation or execution of constitutional or
statutory powers". 1 On its face, it reads instead as a series of instructions by the
President to the members of the executive branch.
Without doubt, the President is vested with executive control of all executive
departments, bureaus and offices. Such power is granted by the Constitution 2 and
reiterated by statute. 3 A necessary implement of executive control is the ability of the
President to prescribe instructions to members of the executive department on any matter
related to the exercise of their respective functions. Executive control is not absolute, and
its exercise may not contravene the laws of the land, 4 yet it must be recognized as a
constitutional prerogative of the President which is entitled to respect from the other co-
equal branches of government.
This point is relevant, for Sections 2(b) and 3 of EO 464, on their face, align with the
presidential power of executive control.
The provisions bear replication:
SEC. 2. Nature, Scope and Coverage of Executive Privilege. —
(b) Who are covered. — The following are covered by this executive order:
i. Senior officials of executive department who in the judgment of the department
heads are covered by the executive privilege; ESDHCa
ii. Generals and flag officers of the Armed Forces of the Philippines and such other
officers who in the judgment of the Chief of Staff are covered by the executive privilege;
iii. Philippine National Police (PNP) officers with rank of chief superintendent or
higher and such other officers who in the judgment of the Chief of the PNP are covered
by the executive privilege;
iv. Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive privilege; and
v. Such other officers as may be determined by the President.
SECTION 3. Appearance of Other Public Officials Before Congress. — All public
officials enumerated in Section 2(b) hereof shall secure prior consent of the President
prior to appearing before either House of Congress to ensure the observance of the
principle of separation of powers, adherence to the rule on executive privilege and respect
for the rights of public officials appearing in inquiries in aid of legislation.
By itself, Section 2(b) is a mere enumeration of the officials covered under the Executive
Order and would be thus innocuous unless tied to the other provisions. Section 3 however
bears closer scrutiny.
The provision is styled as an instruction by the President to the officials covered under
Section 2(b) that they secure the consent of the President before appearing before either
chamber of Congress. No other persons, certainly none outside the executive branch, are
brought into the purview and command of Section 3. Neither is the provision worded in
such a manner as intending to bind anybody outside of the executive branch to its
expressed prohibition. Section 3 is not even stated in declarative fashion such as: "No
public official enumerated under Section 2(b) may appear before Congress without
securing the prior consent of the President." Such phrasing would have left room for
interpretation that the President was imposing such rule on Congress. Instead, Section 3
ordains that "[a]ll public officials enumerated in Section 2(b) hereof shall secure prior
consent of the President. . ."
The difference should not be appreciated as merely semantic. Since executive control
guarantees the President the right to issue instructions to members of the executive
branch, any such set of instructions, however worded or issued, should be recognized as
falling within the ambit of the President's constitutional prerogative. The existence of the
power of executive control would not shelter such instructions or issuances from judicial
review, as in this case. Yet it would at least be a proper measure of balance come the time
of adjudication, especially if there is a competing constitutional value against which
executive control should be weighed. ETDHSa
Thus, it is a reasonable position to take that Section 3, on its face, is valid as it embodies
the exercise of executive control without expressly binding those outside of the executive
department to its restrictions.
It would be difficult to effectuate Section 3 on its face as representing a broad claim of
implied claim of executive privilege. I agree that the concept of implied claim of
executive privilege is legally untenable. Yet the requirement of consent prescribed under
Section 3 does not ipso facto provoke the claim of executive privilege. It is the actual
refusal of the President to extend consent to the appearance that triggers the claim of
executive privilege. While Section 3 does recognize the possibility or the scenario of the
President withholding consent, I submit that the authority of the President to withhold
such consent is drawn not from Section 3 or any other provision of E.O. 464, but from the
general principle of executive control. Even without E.O. 464, the President, by virtue of
executive control, can very well order a member of the executive department not to
appear before Congress, or any other body for that matter. Still, this exercise of executive
control would not necessarily shield the official concerned if he/she refuses to appear
before Congress or any other body from judicial review over such action. Nonetheless,
the proper legal predicates to the impasse, which include the concept of executive
control, should be spelled out.
The Decision did suggest that the actual invocation of Section 3 by several officials, as
basis for their refusal to appear before Congress, represents an implied claim of executive
privilege. I think that such refusal actually embodies an express claim of executive
privilege, as it derives from the withholding of consent by the President. Still, the
character of the claim has no effect on the capacity of the courts initially to review the
claim of privilege and ultimately to reject the same.
Even as the claim of executive privilege is express, it is nonetheless a general claim
bereft of any specifics. Which leads to my other main point. Even though I posit that
Sections 2(b) and 3 of EO 464 are valid on their face, the fact remains that their actual
application, as invoked by various members of the executive department, engendered
consequences that could not be sanctioned by the Constitution. ICASEH
It is a given that EO 464 was invoked by several members of the executive department as
basis for their non-appearance before various committees of the Senate. 5 While these
officials may have invoked a broad but express claim of executive privilege, yet it is
evident, as stated in the Decision, that such claims were not accompanied by any specific
allegation of the basis of such claim. 6 Congress is entitled to know of the particular basis
of the claim of executive privilege. Moreover, to prevent abuse of the right to executive
privilege, the Court properly mandated that the claim of executive privilege must be
formally invoked, in a manner that clearly states the grounds for such privilege 7 ,
sufficiently particular without having to compel disclosure of the information which the
privilege is meant to protect. 8
The actual invocation of executive privilege by the officials concerned herein, using
Section 3 of EO 464 as basis, hardly conforms to any acceptable and proper claim of the
privilege. The application of Section 3 precludes Congress or the courts from any
meaningful evaluation of the invoked claim of executive privilege, since no basis for such
claim is supplied other than the rank or position held by the officials compelled to testify.
Given that the claim of executive privilege had actually been invoked using Section 3,
and that the Senate itself resultantly sought judicial relief before this Court, the
controversy was rightly ripe for adjudication, and the ultimate denouement reached by
the Court was correct then and remains so, but only on a result-oriented basis and not on
a strictly constitutional foundation.
I offer a final nuance. Following the principle of executive control, the President need not
have issued EO 464 in order to command executive officials to secure presidential
consent before appearing before Congress. The mere invalidation of provisions of EO
464 alone did not sufficiently strike, as it could not have sufficiently struck, at the heart
of the problem. However, the Decision stands as a vital precedent which hopefully would
resolve future controversies of similar nature. For in invalidating portions of EO 464, the
Court at the same time laid down the standards for compelling members of the executive
branch to appear, before Congress, as well as the standards for the proper invocation of
the claim of executive privilege. These standards were formulated with due recognition
accorded to the constitutional functions and prerogatives of both the executive and
legislative branches of government. ECAaTS
These standards, which should be now respected as doctrine, could have very well been
imposed by the Court without having to invalidate Sections 2(b) and 3 of EO 464, since
said provisions, as written, do not purport to bind any person outside the executive
branch. Ultimately though, the invalidation of said provisions of EO 464, unneeded as it
is, serves the expedience of emphasis, if anything else, making it clear that any valid
claim of executive privilege binding on the legislature or on the courts must be invoked
in a particular manner and on specified grounds.
I say again my view is that Sections 2(b) and 3 of EO 464 are void as applied only,
definitely not on their face.

[G.R. No. 171396. May 3, 2006.]

PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H.
HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S.
MALLARI, ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG,
petitioners, vs. GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, EXECUTIVE SECRETARY EDUARDO ERMITA, HON.
AVELINO CRUZ II, SECRETARY OF NATIONAL DEFENSE, GENERAL
GENEROSO SENGA, CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
DIRECTOR GENERAL ARTURO LOMIBAO, CHIEF, PHILIPPINE NATIONAL
POLICE, respondents.
[G.R. No. 171409. May 3, 2006.]
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., petitioners, vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR
GENERAL ARTURO C. LOMIBAO, respondents.
[G.R. No. 171485. May 3, 2006.]
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A.
CASINO, AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV
S. HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS,
RENATO B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ,
DARLENE ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G.
VIRADOR, RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G.
NOEL, ANA THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS,
MARVIC M.V.F. LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF
CONCERNED CITIZENS FOR CIVIL LIBERTIES REPRESENTED BY AMADO
GAT INCIONG, petitioners, vs. EDUARDO R. ERMITA, EXECUTIVE SECRETARY,
AVELINO J. CRUZ, JR., SECRETARY, DND RONALDO V. PUNO, SECRETARY,
DILG, GENEROSO SENGA, AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF
PNP, respondents.
[G.R. No. 171483. May 3, 2006.]
KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C.
LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU),
REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ,
ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN, petitioners, vs. HER
EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND THE
PNP DIRECTOR GENERAL, ARTURO LOMIBAO, respondents.
[G.R. No. 171400. May 3, 2006.]
ALTERNATIVE LAW GROUPS, INC. (ALG), petitioner, vs. EXECUTIVE
SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND
DIRECTOR GENERAL ARTURO LOMIBAO, respondents.
[G.R. No. 171489. May 3, 2006.]
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA,
JOSE AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA
III, MANUEL P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA,
ROGELIO V. GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP),
petitioners, vs. HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL
GENEROSO SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND
DIRECTOR GENERAL ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF,
respondents.
[G.R. No. 171424. May 3, 2006.]
LOREN B. LEGARDA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, IN HER
CAPACITY AS PRESIDENT AND COMMANDER-IN-CHIEF; ARTURO LOMIBAO,
IN HIS CAPACITY AS DIRECTOR-GENERAL OF THE PHILIPPINE NATIONAL
POLICE (PNP); GENEROSO SENGA, IN HIS CAPACITY AS CHIEF OF STAFF OF
THE ARMED FORCES OF THE PHILIPPINES (AFP); AND EDUARDO ERMITA, IN
HIS CAPACITY AS EXECUTIVE SECRETARY, respondents.
DECISION
SANDOVAL-GUTIERREZ, J p:
All powers need some restraint; practical adjustments rather than rigid formula are
necessary. 1 Superior strength — the use of force — cannot make wrongs into rights. In
this regard, the courts should be vigilant in safeguarding the constitutional rights of the
citizens, specifically their liberty. EIcSDC
Chief Justice Artemio V. Panganiban's philosophy of liberty is thus most relevant. He
said: "In cases involving liberty, the scales of justice should weigh heavily against
government and in favor of the poor, the oppressed, the marginalized, the dispossessed
and the weak." Laws and actions that restrict fundamental rights come to the courts "with
a heavy presumption against their constitutional validity." 2
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5),
President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners
contend that respondent officials of the Government, in their professed efforts to defend
and preserve democratic institutions, are actually trampling upon the very freedom
guaranteed and protected by the Constitution. Hence, such issuances are void for being
unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How
does the Constitution of a free people combine the degree of liberty, without which, law
becomes tyranny, with the degree of law, without which, liberty becomes license? 3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa People
Power I, President Arroyo issued PP 1017 declaring a state of national emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the
Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue
of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution
which states that: "The President. . . whenever it becomes necessary, . . . may call out
(the) armed forces to prevent or suppress . . . rebellion. . . ," and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms of
lawless violence as well as any act of insurrection or rebellion and to enforce obedience
to all the laws and to all decrees, orders and regulations promulgated by me personally or
upon my direction; and as provided in Section 17, Article 12 of the Constitution do
hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have conspired
with authoritarians of the extreme Left represented by the NDF-CPP-NPA and the
extreme Right, represented by military adventurists — the historical enemies of the
democratic Philippine State — who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to bring down the duly
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State — by obstructing
governance including hindering the growth of the economy and sabotaging the people's
confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and extreme
Right the opening to intensify their avowed aims to bring down the democratic Philippine
State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and
collateral effects constitute a clear and present danger to the safety and the integrity of the
Philippine State and of the Filipino people; SHECcD
On the same day, the President issued G.O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired
with authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the
extreme Right, represented by military adventurists — the historical enemies of the
democratic Philippine State — and who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to bring down the duly-
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican
government;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing
governance, including hindering the growth of the economy and sabotaging the people's
confidence in the government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and extreme
Right the opening to intensify their avowed aims to bring down the democratic Philippine
State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation
of the democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and
collateral effects constitute a clear and present danger to the safety and the integrity of the
Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a State
of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers
vested in me under the Constitution as President of the Republic of the Philippines, and
Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation
No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress acts
of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the
officers and men of the AFP and PNP, to immediately carry out the necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and lawless
violence. CaATDE
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP 1017. She
issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a
state of national emergency;
WHEREAS, by virtue of General Order No. 5 and No. 6 dated February 24, 2006, which
were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines
(AFP) and the Philippine National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless violence as well as
any act of rebellion and to undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the
acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic
of the Philippines, by virtue of the powers vested in me by law, hereby declare that the
state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents stated
that the proximate cause behind the executive issuances was the conspiracy among some
military officers, leftist insurgents of the New People's Army (NPA), and some members
of the political opposition in a plot to unseat or assassinate President Arroyo. 4 They
considered the aim to oust or assassinate the President and take-over the reigns of
government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the
facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no
refutation from petitioners' counsels.
The Solicitor General argued that the intent of the Constitution is to give full
discretionary powers to the President in determining the necessity of calling out the
armed forces. He emphasized that none of the petitioners has shown that PP 1017 was
without factual bases. While he explained that it is not respondents' task to state the facts
behind the questioned Proclamation, however, they are presenting the same, narrated
hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny Sarmiento,
Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group indicted in
the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig City. In a
public statement, they vowed to remain defiant and to elude arrest at all costs. They
called upon the people to "show and proclaim our displeasure at the sham regime. Let us
demonstrate our disgust, not only by going to the streets in protest, but also by wearing
red bands on our left arms." 5
On February 17, 2006, the authorities got hold of a document entitled "Oplan Hackle I"
which detailed plans for bombings and attacks during the Philippine Military Academy
Alumni Homecoming in Baguio City. The plot was to assassinate selected targets
including some cabinet members and President Arroyo herself. 6 Upon the advice of her
security, President Arroyo decided not to attend the Alumni Homecoming. The next day,
at the height of the celebration, a bomb was found and detonated at the PMA parade
ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing minutes
of the meetings between members of the Magdalo Group and the National People's Army
(NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of subversive
documents. 7 Prior to his arrest, Lt. San Juan announced through DZRH that the
"Magdalo's D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I."
TAaIDH
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members
of the PNP- Special Action Force were planning to defect. Thus, he immediately ordered
SAF Commanding General Marcelino Franco, Jr. to "disavow" any defection. The latter
promptly obeyed and issued a public statement: "All SAF units are under the effective
control of responsible and trustworthy officers with proven integrity and unquestionable
loyalty." cDACST
On the same day, at the house of former Congressman Peping Cojuangco, President Cory
Aquino's brother, businessmen and mid-level government officials plotted moves to bring
down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that Pastor
Saycon, longtime Arroyo critic, called a U.S. government official about his group's plans
if President Arroyo is ousted. Saycon also phoned a man code-named Delta. Saycon
identified him as B/Gen. Danilo Lim, Commander of the Army's elite Scout Ranger. Lim
said "it was all systems go for the planned movement against Arroyo." 8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen.
Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a huge
number of soldiers would join the rallies to provide a critical mass and armed component
to the Anti-Arroyo protests to be held on February 24, 2005. According to these two (2)
officers, there was no way they could possibly stop the soldiers because they too, were
breaking the chain of command to join the forces foist to unseat the President. However,
Gen. Senga has remained faithful to his Commander-in-Chief and to the chain of
command. He immediately took custody of B/Gen. Lim and directed Col. Querubin to
return to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within
the military and the police establishments in order to forge alliances with its members and
key officials. NPA spokesman Gregorio "Ka Roger" Rosal declared: "The Communist
Party and revolutionary movement and the entire people look forward to the possibility in
the coming year of accomplishing its immediate task of bringing down the Arroyo
regime; of rendering it to weaken and unable to rule that it will not take much longer to
end it." 9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF)
at North Central Mindanao, publicly announced: "Anti-Arroyo groups within the military
and police are growing rapidly, hastened by the economic difficulties suffered by the
families of AFP officers and enlisted personnel who undertake counter-insurgency
operations in the field." He claimed that with the forces of the national democratic
movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that
have been reinforcing since June 2005, it is probable that the President's ouster is nearing
its concluding stage in the first half of 2006. AcDaEH
Respondents further claimed that the bombing of telecommunication towers and cell sites
in Bulacan and Bataan was also considered as additional factual basis for the issuance of
PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet resulting in the
death of three (3) soldiers. And also the directive of the Communist Party of the
Philippines ordering its front organizations to join 5,000 Metro Manila radicals and
25,000 more from the provinces in mass protests. 10
By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order situation.
She directed both the AFP and the PNP to account for all their men and ensure that the
chain of command remains solid and undivided. To protect the young students from any
possible trouble that might break loose on the streets, the President suspended classes in
all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP 1017 and
G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and
activities related to the 20th anniversary celebration of Edsa People Power I; and revoked
the permits to hold rallies issued earlier by the local governments. Justice Secretary Raul
Gonzales stated that political rallies, which to the President's mind were organized for
purposes of destabilization, are cancelled. Presidential Chief of Staff Michael Defensor
announced that "warrantless arrests and take-over of facilities, including media, can
already be implemented." 11
Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National
Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from
various parts of Metro Manila with the intention of converging at the EDSA shrine.
Those who were already near the EDSA site were violently dispersed by huge clusters of
anti-riot police. The well-trained policemen used truncheons, big fiber glass shields,
water cannons, and tear gas to stop and break up the marching groups, and scatter the
massed participants. The same police action was used against the protesters marching
forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That
same evening, hundreds of riot policemen broke up an EDSA celebration rally held along
Ayala Avenue and Paseo de Roxas Street in Makati City. 12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for
the dispersal of their assemblies. TacSAE
During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and
newspaper columnist. Also arrested was his companion, Ronald Llamas, president of
party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and G.O.
No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated news
stories by reporters, documents, pictures, and mock-ups of the Saturday issue. Policemen
from Camp Crame in Quezon City were stationed inside the editorial and business offices
of the newspaper; while policemen from the Manila Police District were stationed outside
the building. 13
A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is "meant to show a
'strong presence,' to tell media outlets not to connive or do anything that would help the
rebels in bringing down this government." The PNP warned that it would take over any
media organization that would not follow "standards set by the government during the
state of national emergency." Director General Lomibao stated that "if they do not follow
the standards — and the standards are — if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No.
1017 — we will recommend a 'takeover.'" National Telecommunications' Commissioner
Ronald Solis urged television and radio networks to "cooperate" with the government for
the duration of the state of national emergency. He asked for "balanced reporting" from
broadcasters when covering the events surrounding the coup attempt foiled by the
government. He warned that his agency will not hesitate to recommend the closure of any
broadcast outfit that violates rules set out for media coverage when the national security
is threatened. 14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while
leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated 1985.
Beltran's lawyer explained that the warrant, which stemmed from a case of inciting to
rebellion filed during the Marcos regime, had long been quashed. Beltran, however, is not
a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told
they could not be admitted because of PP 1017 and G.O. No. 5. Two members were
arrested and detained, while the rest were dispersed by the police. ADaECI
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after him
during a public forum at the Sulo Hotel in Quezon City. But his two drivers, identified as
Roel and Art, were taken into custody.
Retired Major General Ramon Montaño, former head of the Philippine Constabulary, was
arrested while with his wife and golfmates at the Orchard Golf and Country Club in
Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo, Representative
Rafael Mariano, Bayan Muna Representative Teodoro Casiño and Gabriela
Representative Liza Maza. Bayan Muna Representative Josel Virador was arrested at the
PAL Ticket Office in Davao City. Later, he was turned over to the custody of the House
of Representatives where the "Batasan 5" decided to stay indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives
Beltran, Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and
G.O. No. 5 were filed with this Court against the above-named respondents. Three (3) of
these petitions impleaded President Arroyo as respondent.
In G.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the grounds
that (1) it encroaches on the emergency powers of Congress; (2) it is a subterfuge to
avoid the constitutional requirements for the imposition of martial law; and (3) it violates
the constitutional guarantees of freedom of the press, of speech and of assembly.
HDTISa
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co., Inc.
challenged the CIDG's act of raiding the Daily Tribune offices as a clear case of
"censorship" or "prior restraint." They also claimed that the term "emergency" refers only
to tsunami, typhoon, hurricane and similar occurrences, hence, there is "absolutely no
emergency" that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero,
and twenty one (21) other members of the House of Representatives, including
Representatives Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel
Virador. They asserted that PP 1017 and G.O. No. 5 constitute "usurpation of legislative
powers"; "violation of freedom of expression" and "a declaration of martial law." They
alleged that President Arroyo "gravely abused her discretion in calling out the armed
forces without clear and verifiable factual basis of the possibility of lawless violence and
a showing that there is necessity to do so."
In G.R. No. 171483, petitioners KMU, NAFLU-KMU, and their members averred that
PP 1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President
Arroyo the power to enact laws and decrees; (2) their issuance was without factual basis;
and (3) they violate freedom of expression and the right of the people to peaceably
assemble to redress their grievances. aTEHIC
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP
1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 4 15 of Article
II, (b) Sections 1, 16 2, 17 and 4 18 of Article III, (c) Section 23 19 of Article VI, and (d)
Section 17 20 of Article XII of the Constitution. IcDCaS
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
"arbitrary and unlawful exercise by the President of her Martial Law powers." And
assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that
"it amounts to an exercise by the President of emergency powers without congressional
approval." In addition, petitioners asserted that PP 1017 "goes beyond the nature and
function of a proclamation as defined under the Revised Administrative Code."
And lastly, in G.R. No. 171424, petitioner Loren B. Legarda maintained that PP 1017 and
G.O. No. 5 are "unconstitutional for being violative of the freedom of expression,
including its cognate rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under Article III, Section 4 of
the 1987 Constitution." In this regard, she stated that these issuances prevented her from
fully prosecuting her election protest pending before the Presidential Electoral Tribunal.
IaESCH
In respondents' Consolidated Comment, the Solicitor General countered that: first, the
petitions should be dismissed for being moot; second, petitioners in G.R. Nos. 171400
(ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489
(Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis; and
fifth, PP 1017 does not violate the people's right to free expression and redress of
grievances.
On March 7, 2006, the Court conducted oral arguments and heard petitioners on the
above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
DcHaET
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos. 171400 (ALGI),
171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have legal standing.
B. SUBSTANTIVE:
1) Whether the Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I — Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept of
judicial review enunciated in Marbury v. Madison. 21 This concept rests on the
extraordinary simple foundation —
The Constitution is the supreme law. It was ordained by the people, the ultimate source of
all political authority. It confers limited powers on the national government. . . . If the
government consciously or unconsciously oversteps these limitations there must be some
authority competent to hold it in control, to thwart its unconstitutional attempt, and thus
to vindicate and preserve inviolate the will of the people as expressed in the Constitution.
This power the courts exercise. This is the beginning and the end of the theory of judicial
review. 22
But the power of judicial review does not repose upon the courts a "self-starting
capacity." 23 Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have to
raise a question of constitutionality; third, the constitutional question must be raised at the
earliest opportunity; and fourth, the decision of the constitutional question must be
necessary to the determination of the case itself. 24
Respondents maintain that the first and second requisites are absent, hence, we shall limit
our discussion thereon. HICSTa
An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is "definite and concrete, touching the legal relations
of parties having adverse legal interest;" a real and substantial controversy admitting of
specific relief. 25 The Solicitor General refutes the existence of such actual case or
controversy, contending that the present petitions were rendered "moot and academic" by
President Arroyo's issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by virtue
of supervening events, 26 so that a declaration thereon would be of no practical use or
value. 27 Generally, courts decline jurisdiction over such case 28 or dismiss it on ground
of mootness. 29
The Court holds that President Arroyo's issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the
police officers, according to petitioners, committed illegal acts in implementing it. Are
PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts?
These are the vital issues that must be resolved in the present petitions. It must be
stressed that "an unconstitutional act is not a law, it confers no rights, it imposes no
duties, it affords no protection; it is in legal contemplation, inoperative." 30
The "moot and academic" principle is not a magical formula that can automatically
dissuade the courts in resolving a case. Courts will decide cases, otherwise moot and
academic, if: first, there is a grave violation of the Constitution; 31 second, the
exceptional character of the situation and the paramount public interest is involved; 32
third, when constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; 33 and fourth, the case is capable of repetition
yet evading review. 34
All the foregoing exceptions are present here and justify this Court's assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017 and
G.O. No. 5 violates the Constitution. There is no question that the issues being raised
affect the public's interest, involving as they do the people's basic rights to freedom of
expression, of assembly and of the press. Moreover, the Court has the duty to formulate
guiding and controlling constitutional precepts, doctrines or rules. It has the symbolic
function of educating the bench and the bar, and in the present petitions, the military and
the police, on the extent of the protection given by constitutional guarantees. 35 And
lastly, respondents' contested actions are capable of repetition. Certainly, the petitions are
subject to judicial review. IScaAE
In their attempt to prove the alleged mootness of this case, respondents cited Chief
Justice Artemio V. Panganiban's Separate Opinion in Sanlakas v. Executive Secretary. 36
However, they failed to take into account the Chief Justice's very statement that an
otherwise "moot" case may still be decided "provided the party raising it in a proper case
has been and/or continues to be prejudiced or damaged as a direct result of its issuance."
The present case falls right within this exception to the mootness rule pointed out by the
Chief Justice.
II — Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as "a right of appearance in a court of justice on a given
question." 37 In private suits, standing is governed by the "real-parties-in interest" rule as
contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It
provides that "every action must be prosecuted or defended in the name of the real party
in interest." Accordingly, the "real-party-in interest" is "the party who stands to be
benefited or injured by the judgment in the suit or the party entitled to the avails of the
suit." 38 Succinctly put, the plaintiff's standing is based on his own right to the relief
sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who
asserts a "public right" in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no differently
from any other person. He could be suing as a "stranger," or in the category of a "citizen,"
or 'taxpayer." In either case, he has to adequately show that he is entitled to seek judicial
protection. In other words, he has to make out a sufficient interest in the vindication of
the public order and the securing of relief as a "citizen" or "taxpayer. cCEAHT
Case law in most jurisdictions now allows both "citizen" and "taxpayer" standing in
public actions. The distinction was first laid down in Beauchamp v. Silk, 39 where it was
held that the plaintiff in a taxpayer's suit is in a different category from the plaintiff in a
citizen's suit. In the former, the plaintiff is affected by the expenditure of public funds,
while in the latter, he is but the mere instrument of the public concern. As held by the
New York Supreme Court in People ex rel Case v. Collins: 40 "In matter of mere public
right, however . . . the people are the real parties. . . It is at least the right, if not the duty,
of every citizen to interfere and see that a public offence be properly pursued and
punished, and that a public grievance be remedied." With respect to taxpayer's suits, Terr
v. Jordan 41 held that "the right of a citizen and a taxpayer to maintain an action in courts
to restrain the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial interference in any
official policy or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United States Supreme Court laid
down the more stringent "direct injury" test in Ex Parte Levitt, 42 later reaffirmed in
Tileston v. Ullman. 43 The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative action, he must
show that he has sustained a direct injury as a result of that action, and it is not sufficient
that he has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In People v. Vera, 44 it
held that the person who impugns the validity of a statute must have "a personal and
substantial interest in the case such that he has sustained, or will sustain direct injury as a
result." The Vera doctrine was upheld in a litany of cases, such as, Custodio v. President
of the Senate, 45 Manila Race Horse Trainers' Association v. De la Fuente, 46 Pascual v.
Secretary of Public Works 47 and Anti-Chinese League of the Philippines v. Felix. 48
However, being a mere procedural technicality, the requirement of locus standi may be
waived by the Court in the exercise of its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v. Dinglasan, 49 where the "transcendental
importance" of the cases prompted the Court to act liberally. Such liberality was neither a
rarity nor accidental. In Aquino v. Comelec, 50 this Court resolved to pass upon the
issues raised due to the "far-reaching implications" of the petition notwithstanding its
categorical statement that petitioner therein had no personality to file the suit. Indeed,
there is a chain of cases where this liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings. 51
Thus, the Court has adopted a rule that even where the petitioners have failed to show
direct injury, they have been allowed to sue under the principle of "transcendental
importance." Pertinent are the following cases: DcCIAa
(1) Chavez v. Public Estates Authority, 52 where the Court ruled that the enforcement
of the constitutional right to information and the equitable diffusion of natural resources
are matters of transcendental importance which clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v. Zamora, 53 wherein the Court held that "given
the transcendental importance of the issues involved, the Court may relax the standing
requirements and allow the suit to prosper despite the lack of direct injury to the parties
seeking judicial review" of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary, 54 while the Court noted that the petitioners may not
file suit in their capacity as taxpayers absent a showing that "Balikatan 02-01" involves
the exercise of Congress' taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora, 55 that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing requirements may be relaxed.
By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing to
sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that
the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the
election law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of
infringes upon their prerogatives as legislators. STADIH
Significantly, recent decisions show a certain toughening in the Court's attitude toward
legal standing.
In Kilosbayan, Inc. v. Morato, 56 the Court ruled that the status of Kilosbayan as a
people's organization does not give it the requisite personality to question the validity of
the on-line lottery contract, more so where it does not raise any issue of constitutionality.
Moreover, it cannot sue as a taxpayer absent any allegation that public funds are being
misused. Nor can it sue as a concerned citizen as it does not allege any specific injury it
has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec, 57
the Court reiterated the "direct injury" test with respect to concerned citizens' cases
involving constitutional issues. It held that "there must be a showing that the citizen
personally suffered some actual or threatened injury arising from the alleged illegal
official act."
In Lacson v. Perez, 58 the Court ruled that one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated
any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary, 59 the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the President's declaration
of a state of rebellion is a usurpation of the emergency powers of Congress, thus
impairing their legislative powers. As to petitioners Sanlakas, Partido Manggagawa, and
Social Justice Society, the Court declared them to be devoid of standing, equating them
with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-Olivares
and Tribune Publishing Co. Inc. They alleged "direct injury" resulting from "illegal
arrest" and "unlawful search" committed by police operatives pursuant to PP 1017.
Rightly so, the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of
Congress is necessary whenever the alarming powers incident to Martial Law are used.
Moreover, it is in the interest of justice that those affected by PP 1017 can be represented
by their Congressmen in bringing to the attention of the Court the alleged violations of
their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez, 60 Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 61
Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform, 62 Basco v. Philippine Amusement and Gaming Corporation, 63 and Tañada v.
Tuvera, 64 that when the issue concerns a public right, it is sufficient that the petitioner is
a citizen and has an interest in the execution of the laws. TCIHSa
In G.R. No. 171483, KMU's assertion that PP 1017 and G.O. No. 5 violated its right to
peaceful assembly may be deemed sufficient to give it legal standing. Organizations may
be granted standing to assert the rights of their members. 65 We take judicial notice of
the announcement by the Office of the President banning all rallies and canceling all
permits for public assemblies following the issuance of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated
Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct or
potential injury which the IBP as an institution or its members may suffer as a
consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the
Philippines v. Zamora, 66 the Court held that the mere invocation by the IBP of its duty
to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to
clothe it with standing in this case. This is too general an interest which is shared by other
groups and the whole citizenry. However, in view of the transcendental importance of the
issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant
petition as there are no allegations of illegal disbursement of public funds. The fact that
she is a former Senator is of no consequence. She can no longer sue as a legislator on the
allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and G.O.
No. 5. Her claim that she is a media personality will not likewise aid her because there
was no showing that the enforcement of these issuances prevented her from pursuing her
occupation. Her submission that she has pending electoral protest before the Presidential
Electoral Tribunal is likewise of no relevance. She has not sufficiently shown that PP
1017 will affect the proceedings or result of her case. But considering once more the
transcendental importance of the issue involved, this Court may relax the standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the
bigger question of proper exercise of judicial power. This is the underlying legal tenet of
the "liberality doctrine" on legal standing. It cannot be doubted that the validity of PP No.
1017 and G.O. No. 5 is a judicial question which is of paramount importance to the
Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits
with bated breath the ruling of this Court on this very critical matter. The petitions thus
call for the application of the "transcendental importance" doctrine, a relaxation of the
standing requirements for the petitioners in the "PP 1017 cases."
This Court holds that all the petitioners herein have locus standi. aETDIc
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the
doctrine that the President, during his tenure of office or actual incumbency, 67 may not
be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the
Head of State, if he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official duties and
functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great and
important duties imposed upon him by the Constitution necessarily impairs the operation
of the Government. However, this does not mean that the President is not accountable to
anyone. Like any other official, he remains accountable to the people 68 but he may be
removed from office only in the mode provided by law and that is by impeachment. 69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not "necessary" for
President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President's exercise of
his Commander-in-Chief power has reached its distilled point — from the indulgent days
of Barcelona v. Baker 70 and Montenegro v. Castaneda 71 to the volatile era of Lansang
v. Garcia, 72 Aquino, Jr. v. Enrile, 73 and Garcia-Padilla v. Enrile. 74 The tug-of-war
always cuts across the line defining "political questions," particularly those questions "in
regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government." 75 Barcelon and Montenegro were in unison in
declaring that the authority to decide whether an exigency has arisen belongs to the
President and his decision is final and conclusive on the courts. Lansang took the
opposite view. There, the members of the Court were unanimous in the conviction that
the Court has the authority to inquire into the existence of factual bases in order to
determine their constitutional sufficiency. From the principle of separation of powers, it
shifted the focus to the system of checks and balances, "under which the President is
supreme, . . . only if and when he acts within the sphere allotted to him by the Basic Law,
and the authority to determine whether or not he has so acted is vested in the Judicial
Department, which in this respect, is, in turn, constitutionally supreme." 76 In 1973, the
unanimous Court of Lansang was divided in Aquino v. Enrile. 77 There, the Court was
almost evenly divided on the issue of whether the validity of the imposition of Martial
Law is a political or justiciable question. 78 Then came Garcia-Padilla v. Enrile which
greatly diluted Lansang. It declared that there is a need to re-examine the latter case,
ratiocinating that "in times of war or national emergency, the President must be given
absolute control for the very life of the nation and the government is in great peril. The
President, it intoned, is answerable only to his conscience, the People, and God." 79
The Integrated Bar of the Philippines v. Zamora 80 — a recent case most pertinent to
these cases at bar — echoed a principle similar to Lansang. While the Court considered
the President's "calling-out" power as a discretionary power solely vested in his wisdom,
it stressed that "this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was exercised in a manner
constituting grave abuse of discretion." This ruling is mainly a result of the Court's
reliance on Section 1, Article VIII of 1987 Constitution which fortifies the authority of
the courts to determine in an appropriate action the validity of the acts of the political
departments. Under the new definition of judicial power, the courts are authorized not
only "to settle actual controversies involving rights which are legally demandable and
enforceable," but also "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government." The latter part of the authority represents a
broadening of judicial power to enable the courts of justice to review what was before a
forbidden territory, to wit, the discretion of the political departments of the government.
81 It speaks of judicial prerogative not only in terms of power but also of duty. 82
As to how the Court may inquire into the President's exercise of power, Lansang adopted
the test that "judicial inquiry can go no further than to satisfy the Court not that the
President's decision is correct," but that "the President did not act arbitrarily." Thus, the
standard laid down is not correctness, but arbitrariness. 83 In Integrated Bar of the
Philippines, this Court further ruled that "it is incumbent upon the petitioner to show that
the President's decision is totally bereft of factual basis" and that if he fails, by way of
proof, to support his assertion, then "this Court cannot undertake an independent
investigation beyond the pleadings."
Petitioners failed to show that President Arroyo's exercise of the calling-out power, by
issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor General's
Consolidated Comment and Memorandum shows a detailed narration of the events
leading to the issuance of PP 1017, with supporting reports forming part of the records.
Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo
D-Day, the defections in the military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army showing the growing
alliance between the NPA and the military. Petitioners presented nothing to refute such
events. Thus, absent any contrary allegations, the Court is convinced that the President
was justified in issuing PP 1017 calling for military aid. aTcSID
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to
simply fold her arms and do nothing to prevent or suppress what she believed was
lawless violence, invasion or rebellion. However, the exercise of such power or duty must
not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5
Doctrines of Several Political Theorists
on the Power of the President
in Times of Emergency
This case brings to fore a contentious subject — the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides an
adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English
doctrine of prerogative to cope with the problem of emergency. In times of danger to the
nation, positive law enacted by the legislature might be inadequate or even a fatal
obstacle to the promptness of action necessary to avert catastrophe. In these situations,
the Crown retained a prerogative "power to act according to discretion for the public
good, without the proscription of the law and sometimes even against it." 84 But Locke
recognized that this moral restraint might not suffice to avoid abuse of prerogative
powers. Who shall judge the need for resorting to the prerogative and how may its abuse
be avoided? Here, Locke readily admitted defeat, suggesting that "the people have no
other remedy in this, as in all other cases where they have no judge on earth, but to appeal
to Heaven." 85
Jean-Jacques Rousseau also assumed the need for temporary suspension of democratic
processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them bring about,
at a time of crisis, the ruin of the State. . .
It is wrong therefore to wish to make political institutions as strong as to render it
impossible to suspend their operation. Even Sparta allowed its law to lapse. . .
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the laws
and suspend for a moment the sovereign authority. In such a case, there is no doubt about
the general will, and it clear that the people's first intention is that the State shall not
perish. 86
Rosseau did not fear the abuse of the emergency dictatorship or "supreme magistracy" as
he termed it. For him, it would more likely be cheapened by "indiscreet use." He was
unwilling to rely upon an "appeal to heaven." Instead, he relied upon a tenure of office of
prescribed duration to avoid perpetuation of the dictatorship. 87
John Stuart Mill concluded his ardent defense of representative government: "I am far
from condemning, in cases of extreme necessity, the assumption of absolute power in the
form of a temporary dictatorship." 88
Nicollo Machiavelli's view of emergency powers, as one element in the whole scheme of
limited government, furnished an ironic contrast to the Lockean theory of prerogative. He
recognized and attempted to bridge this chasm in democratic political theory, thus:
AScHCD
Now, in a well-ordered society, it should never be necessary to resort to extra-
constitutional measures; for although they may for a time be beneficial, yet the precedent
is pernicious, for if the practice is once established for good objects, they will in a little
while be disregarded under that pretext but for evil purposes. Thus, no republic will ever
be perfect if she has not by law provided for everything, having a remedy for every
emergency and fixed rules for applying it. 89
Machiavelli — in contrast to Locke, Rosseau and Mill — sought to incorporate into the
constitution a regularized system of standby emergency powers to be invoked with
suitable checks and controls in time of national danger. He attempted forthrightly to meet
the problem of combining a capacious reserve of power and speed and vigor in its
application in time of emergency, with effective constitutional restraints. 90
Contemporary political theorists, addressing themselves to the problem of response to
emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship. 91 Frederick M. Watkins saw "no reason why absolutism should not be used
as a means for the defense of liberal institutions," provided it "serves to protect
established institutions from the danger of permanent injury in a period of temporary
emergency and is followed by a prompt return to the previous forms of political life." 92
He recognized the two (2) key elements of the problem of emergency governance, as well
as all constitutional governance: increasing administrative powers of the executive, while
at the same time "imposing limitation upon that power." 93 Watkins placed his real faith
in a scheme of constitutional dictatorship. These are the conditions of success of such a
dictatorship: "The period of dictatorship must be relatively short. . . Dictatorship should
always be strictly legitimate in character. . . Final authority to determine the need for
dictatorship in any given case must never rest with the dictator himself . . ." 94 and the
objective of such an emergency dictatorship should be "strict political conservatism."
HCacDE
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 "It is a problem
of concentrating power — in a government where power has consciously been divided —
to cope with . . . situations of unprecedented magnitude and gravity. There must be a
broad grant of powers, subject to equally strong limitations as to who shall exercise such
powers, when, for how long, and to what end." 96 Friedrich, too, offered criteria for
judging the adequacy of any of scheme of emergency powers, to wit: "The emergency
executive must be appointed by constitutional means — i.e., he must be legitimate; he
should not enjoy power to determine the existence of an emergency; emergency powers
should be exercised under a strict time limitation; and last, the objective of emergency
action must be the defense of the constitutional order." 97
Clinton L. Rossiter, after surveying the history of the employment of emergency powers
in Great Britain, France, Weimar, Germany and the United States, reverted to a
description of a scheme of "constitutional dictatorship" as solution to the vexing
problems presented by emergency. 98 Like Watkins and Friedrich, he stated a priori the
conditions of success of the "constitutional dictatorship," thus:
1) No general regime or particular institution of constitutional dictatorship should be
initiated unless it is necessary or even indispensable to the preservation of the State and
its constitutional order. . .
2) . . . the decision to institute a constitutional dictatorship should never be in the
hands of the man or men who will constitute the dictator. . .
3) No government should initiate a constitutional dictatorship without making
specific provisions for its termination. . .
4) . . . all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements. . .
5) . . . no dictatorial institution should be adopted, no right invaded, no regular
procedure altered any more than is absolutely necessary for the conquest of the particular
crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship
should never be permanent in character or effect. . .
7) The dictatorship should be carried on by persons representative of every part of
the citizenry interested in the defense of the existing constitutional order. . .
8) Ultimate responsibility should be maintained for every action taken under a
constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to
institute one should never be in the hands of the man or men who constitute the dictator. .
.
10) No constitutional dictatorship should extend beyond the termination of the crisis
for which it was instituted. . . AcHSEa
11) the termination of the crisis must be followed by a complete return as possible to
the political and governmental conditions existing prior to the initiation of the
constitutional dictatorship. . . 99
Rossiter accorded to legislature a far greater role in the oversight exercise of emergency
powers than did Watkins. He would secure to Congress final responsibility for declaring
the existence or termination of an emergency, and he places great faith in the
effectiveness of congressional investigating committees. 100
Scott and Cotter, in analyzing the above contemporary theories in light of recent
experience, were one in saying that, "the suggestion that democracies surrender the
control of government to an authoritarian ruler in time of grave danger to the nation is not
based upon sound constitutional theory." To appraise emergency power in terms of
constitutional dictatorship serves merely to distort the problem and hinder realistic
analysis. It matters not whether the term "dictator" is used in its normal sense (as applied
to authoritarian rulers) or is employed to embrace all chief executives administering
emergency powers. However used, "constitutional dictatorship" cannot be divorced from
the implication of suspension of the processes of constitutionalism. Thus, they favored
instead the "concept of constitutionalism" articulated by Charles H. McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of
emergency powers, and which is consistent with the findings of this study, is that
formulated by Charles H. McIlwain. While it does not by any means necessarily exclude
some indeterminate limitations upon the substantive powers of government, full emphasis
is placed upon procedural limitations, and political responsibility. McIlwain clearly
recognized the need to repose adequate power in government. And in discussing the
meaning of constitutionalism, he insisted that the historical and proper test of
constitutionalism was the existence of adequate processes for keeping government
responsible. He refused to equate constitutionalism with the enfeebling of government by
an exaggerated emphasis upon separation of powers and substantive limitations on
governmental power. He found that the really effective checks on despotism have
consisted not in the weakening of government but, but rather in the limiting of it; between
which there is a great and very significant difference. In associating constitutionalism
with "limited" as distinguished from "weak" government, McIlwain meant government
limited to the orderly procedure of law as opposed to the processes of force. The two
fundamental correlative elements of constitutionalism for which all lovers of liberty must
yet fight are the legal limits to arbitrary power and a complete political responsibility of
government to the governed. 101
In the final analysis, the various approaches to emergency of the above political theorists
— from Lock's "theory of prerogative," to Watkins' doctrine of "constitutional
dictatorship" and, eventually, to McIlwain's "principle of constitutionalism" — ultimately
aim to solve one real problem in emergency governance, i.e., that of allotting increasing
areas of discretionary power to the Chief Executive, while insuring that such powers will
be exercised with a sense of political responsibility and under effective limitations and
checks. SADECI
Our Constitution has fairly coped with this problem. Fresh from the fetters of a repressive
regime, the 1986 Constitutional Commission, in drafting the 1987 Constitution,
endeavored to create a government in the concept of Justice Jackson's "balanced power
structure." 102 Executive, legislative, and judicial powers are dispersed to the President,
the Congress, and the Supreme Court, respectively. Each is supreme within its own
sphere. But none has the monopoly of power in times of emergency. Each branch is given
a role to serve as limitation or check upon the other. This system does not weaken the
President, it just limits his power, using the language of McIlwain. In other words, in
times of emergency, our Constitution reasonably demands that we repose a certain
amount of faith in the basic integrity and wisdom of the Chief Executive but, at the same
time, it obliges him to operate within carefully prescribed procedural limitations.
a. "Facial Challenge"
Petitioners contend that PP 1017 is void on its face because of its "overbreadth." They
claim that its enforcement encroached on both unprotected and protected rights under
Section 4, Article III of the Constitution and sent a "chilling effect" to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing
"on their faces" statutes in free speech cases, also known under the American Law as
First Amendment cases. 103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even
speech-related conduct. It is actually a call upon the AFP to prevent or suppress all forms
of lawless violence. In United States v. Salerno, 104 the US Supreme Court held that "we
have not recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment" (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
"reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct." Undoubtedly, lawless violence, insurrection and
rebellion are considered "harmful" and "constitutionally unprotected conduct." In
Broadrick v. Oklahoma, 105 it was held:
It remains a 'matter of no little difficulty' to determine when a law may properly be held
void on its face and when 'such summary action' is inappropriate. But the plain import of
our cases is, at the very least, that facial overbreadth adjudication is an exception to our
traditional rules of practice and that its function, a limited one at the outset, attenuates as
the otherwise unprotected behavior that it forbids the State to sanction moves from 'pure
speech' toward conduct and that conduct —even if expressive — falls within the scope of
otherwise valid criminal laws that reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only "spoken words" and again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that
are sought to be applied to protected conduct." 106 Here, the incontrovertible fact
remains that PP 1017 pertains to a spectrum of conduct, not free speech, which is
manifestly subject to state regulation. HSDCTA
Second, facial invalidation of laws is considered as "manifestly strong medicine," to be
used "sparingly and only as a last resort," and is "generally disfavored;" 107 The reason
for this is obvious. Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be applied will not be
heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court. 108 A writer and
scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an exception to
some of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims
that a statute is unconstitutional as applied to him or her; if the litigant prevails, the courts
carve away the unconstitutional aspects of the law by invalidating its improper
applications on a case to case basis. Moreover, challengers to a law are not permitted to
raise the rights of third parties and can only assert their own interests. In overbreadth
analysis, those rules give way; challenges are permitted to raise the rights of third parties;
and the court invalidates the entire statute "on its face," not merely "as applied for" so
that the overbroad law becomes unenforceable until a properly authorized court construes
it more narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the "chilling;" deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court assumes that an overbroad law's
"very existence may cause others not before the court to refrain from constitutionally
protected speech or expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual
operation to petitioners, but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris, 109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis of detailed
statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge
to mount successfully, since the challenger must establish that there can be no instance
when the assailed law may be valid. Here, petitioners did not even attempt to show
whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This,
too, is unwarranted. STaCIA
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds
that "a law is facially invalid if men of common intelligence must necessarily guess at its
meaning and differ as to its application." 110 It is subject to the same principles
governing overbreadth doctrine. For one, it is also an analytical tool for testing "on their
faces" statutes in free speech cases. And like overbreadth, it is said that a litigant may
challenge a statute on its face only if it is vague in all its possible applications. Again,
petitioners did not even attempt to show that PP 1017 is vague in all its application. They
also failed to establish that men of common intelligence cannot understand the meaning
and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:
"by virtue of the power vested upon me by Section 18, Article VII . . . do hereby
command the Armed Forces of the Philippines, to maintain law and order throughout the
Philippines, prevent or suppress all forms of lawless violence as well any act of
insurrection or rebellion"
Second provision:
"and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction;"
Third provision:
"as provided in Section 17, Article XII of the Constitution do hereby declare a State of
National Emergency."
First Provision: Calling-out Power
The first provision pertains to the President's calling-out power. In Sanlakas v. Executive
Secretary, 111 this Court, through Mr. Justice Dante O. Tinga, held that Section 18,
Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary, he may call out such armed forces to
prevent or suppress lawless violence, invasion or rebellion. In case of invasion or
rebellion, when the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set aside by the President.
Upon the initiative of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the Congress, if the invasion
or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall within twenty-four hours following such
proclamation or suspension, convene in accordance with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by any citizen, the
sufficiency of the factual bases of the proclamation of martial law or the suspension of
the privilege of the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ. AacCIT
The suspension of the privilege of the writ shall apply only to persons judicially charged
for rebellion or offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any person thus arrested or detained
shall be judicially charged within three days, otherwise he shall be released.
grants the President, as Commander-in-Chief, a "sequence" of graduated powers. From
the most to the least benign, these are: the calling-out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to declare Martial Law. Citing
Integrated Bar of the Philippines v. Zamora, 112 the Court ruled that the only criterion
for the exercise of the calling-out power is that "whenever it becomes necessary," the
President may call the armed forces "to prevent or suppress lawless violence, invasion or
rebellion." Are these conditions present in the instant cases? As stated earlier, considering
the circumstances then prevailing, President Arroyo found it necessary to issue PP 1017.
Owing to her Office's vast intelligence network, she is in the best position to determine
the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police
action. But every act that goes beyond the President's calling-out power is considered
illegal or ultra vires. For this reason, a President must be careful in the exercise of his
powers. He cannot invoke a greater power when he wishes to act under a lesser power.
There lies the wisdom of our Constitution, the greater the power, the greater are the
limitations.
It is pertinent to state, however, that there is a distinction between the President's
authority to declare a "state of rebellion" (in Sanlakas) and the authority to proclaim a
state of national emergency. While President Arroyo's authority to declare a "state of
rebellion" emanates from her powers as Chief Executive, the statutory authority cited in
Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of 1987,
which provides:
SEC. 4. Proclamations. — Acts of the President fixing a date or declaring a status
or condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.
President Arroyo's declaration of a "state of rebellion" was merely an act declaring a
status or condition of public moment or interest, a declaration allowed under Section 4
cited above. Such declaration, in the words of Sanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did not only rely on Section 18,
Article VII of the Constitution, a provision calling on the AFP to prevent or suppress
lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a
provision on the State's extraordinary power to take over privately-owned public utility
and business affected with public interest. Indeed, PP 1017 calls for the exercise of an
awesome power. Obviously, such Proclamation cannot be deemed harmless, without
legal significance, or not written, as in the case of Sanlakas. DHIETc
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of
Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is
plain therein that what the President invoked was her calling-out power.
The declaration of Martial Law is a "warn[ing] to citizens that the military power has
been called upon by the executive to assist in the maintenance of law and order, and that,
while the emergency lasts, they must, upon pain of arrest and punishment, not commit
any acts which will in any way render more difficult the restoration of order and the
enforcement of law." 113
In his "Statement before the Senate Committee on Justice" on March 13, 2006, Mr.
Justice Vicente V. Mendoza, 114 an authority in constitutional law, said that of the three
powers of the President as Commander-in-Chief, the power to declare Martial Law poses
the most severe threat to civil liberties. It is a strong medicine which should not be
resorted to lightly. It cannot be used to stifle or persecute critics of the government. It is
placed in the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual freedoms. In
fact, Section 18, Art. VII, provides:
A state of martial law does not suspend the operation of the Constitution, nor supplant the
functioning of the civil courts or legislative assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over civilians where civil courts are able to
function, nor automatically suspend the privilege of the writ.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no
more than a call by the President to the armed forces to prevent or suppress lawless
violence. As such, it cannot be used to justify acts that only under a valid declaration of
Martial Law can be done. Its use for any other purpose is a perversion of its nature and
scope, and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and
press censorship; and (d) issuance of Presidential Decrees, are powers which can be
exercised by the President as Commander-in-Chief only where there is a valid declaration
of Martial Law or suspension of the writ of habeas corpus. DcITHE
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial
Law. It is merely an exercise of President Arroyo's calling-out power for the armed forces
to assist her in preventing or suppressing lawless violence.
Second Provision: "Take Care" Power
The second provision pertains to the power of the President to ensure that the laws be
faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested, 115 the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in existing
laws. He sees to it that all laws are enforced by the officials and employees of his
department. Before assuming office, he is required to take an oath or affirmation to the
effect that as President of the Philippines, he will, among others, "execute its laws." 116
In the exercise of such function, the President, if needed, may employ the powers
attached to his office as the Commander-in-Chief of all the armed forces of the country,
117 including the Philippine National Police 118 under the Department of Interior and
Local Government. 119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo,
Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the power to enact laws and
decrees in violation of Section 1, Article VI of the Constitution, which vests the power to
enact laws in Congress. They assail the clause "to enforce obedience to all the laws and to
all decrees, orders and regulations promulgated by me personally or upon my direction."
Petitioners' contention is understandable. A reading of PP 1017 operative clause shows
that it was lifted 120 from Former President Marcos' Proclamation No. 1081, which
partly reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by
virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of
the Constitution under martial law and, in my capacity as their Commander-in-Chief, do
hereby command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as well as
any act of insurrection or rebellion and to enforce obedience to all the laws and decrees,
orders and regulations promulgated by me personally or upon my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its
enabling clause states: "to enforce obedience to all the laws and decrees, orders and
regulations promulgated by me personally or upon my direction." Upon the other hand,
the enabling clause of PP 1017 issued by President Arroyo is: to enforce obedience to all
the laws and to all decrees, orders and regulations promulgated by me personally or upon
my direction."
Is it within the domain of President Arroyo to promulgate "decrees"?
PP 1017 states in part: "to enforce obedience to all the laws and decrees . . . promulgated
by me personally or upon my direction."
The President is granted an Ordinance Power under Chapter 2, Book III of Executive
Order No. 292 (Administrative Code of 1987). She may issue any of the following:
DHATcE
Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory powers
shall be promulgated in executive orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect
of governmental operations in pursuance of his duties as administrative head shall be
promulgated in administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or
condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative detail
or of subordinate or temporary interest which only concern a particular officer or office
of the Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the President in his capacity
as Commander-in-Chief of the Armed Forces of the Philippines shall be issued as general
or special orders.
President Arroyo's ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081.
Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative power
during the period of Martial Law under the 1973 Constitution. 121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants President
Arroyo the authority to promulgate "decrees." Legislative power is peculiarly within the
province of the Legislature. Section 1, Article VI categorically states that "[t]he
legislative power shall be vested in the Congress of the Philippines which shall consist of
a Senate and a House of Representatives." To be sure, neither Martial Law nor a state of
rebellion nor a state of emergency can justify President Arroyo's exercise of legislative
power by issuing decrees. SHDAEC
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It follows
that these decrees are void and, therefore, cannot be enforced. With respect to "laws," she
cannot call the military to enforce or implement certain laws, such as customs laws, laws
governing family and property relations, laws on obligations and contracts and the like.
She can only order the military, under PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
. . . and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17,
Article XII of the Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience "to all the
laws and to all decrees . . ." but also to act pursuant to the provision of Section 17, Article
XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the
State may, during the emergency and under reasonable terms prescribed by it,
temporarily take over or direct the operation of any privately-owned public utility or
business affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she
issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP 1017
purports to grant the President, without any authority or delegation from Congress, to
take over or direct the operation of any privately-owned public utility or business affected
with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the "martial
law" thinking of the 1971 Constitutional Convention. 122 In effect at the time of its
approval was President Marcos' Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over "the management, control and
operation of the Manila Electric Company, the Philippine Long Distance Telephone
Company, the National Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the
successful prosecution by the Government of its effort to contain, solve and end the
present national emergency."
Petitioners, particularly the members of the House of Representatives, claim that
President Arroyo's inclusion of Section 17, Article XII in PP 1017 is an encroachment on
the legislature's emergency powers.
This is an area that needs delineation. DIEcHa
A distinction must be drawn between the President's authority to declare "a state of
national emergency" and to exercise emergency powers. To the first, as elucidated by the
Court, Section 18, Article VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold constitutional issues
arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of a state
of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize
the President, for a limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only to
war but also to "other national emergency." If the intention of the Framers of our
Constitution was to withhold from the President the authority to declare a "state of
national emergency" pursuant to Section 18, Article VII (calling-out power) and grant it
to Congress (like the declaration of the existence of a state of war), then the Framers
could have provided so. Clearly, they did not intend that Congress should first authorize
the President before he can declare a "state of national emergency." The logical
conclusion then is that President Arroyo could validly declare the existence of a state of
national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned public
utility or business affected with public interest, is a different matter. This requires a
delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be construed
together. Otherwise stated, different clauses, sections, and provisions of a constitution
which relate to the same subject matter will be construed together and considered in the
light of each other. 123 Considering that Section 17 of Article XII and Section 23 of
Article VI, previously quoted, relate to national emergencies, they must be read together
to determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate such powers to the President.
Certainly, a body cannot delegate a power not reposed upon it. However, knowing that
during grave emergencies, it may not be possible or practicable for Congress to meet and
exercise its powers, the Framers of our Constitution deemed it wise to allow Congress to
grant emergency powers to the President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared
by Congress. 124
Section 17, Article XII must be understood as an aspect of the emergency powers clause.
The taking over of private business affected with public interest is just another facet of
the emergency powers generally reposed upon Congress. Thus, when Section 17 states
that the "the State may, during the emergency and under reasonable terms prescribed by
it, temporarily take over or direct the operation of any privately owned public utility or
business affected with public interest," it refers to Congress, not the President. Now,
whether or not the President may exercise such power is dependent on whether Congress
may delegate it to him pursuant to a law prescribing the reasonable terms thereof.
Youngstown Sheet & Tube Co. et al. v. Sawyer, 125 held:
It is clear that if the President had authority to issue the order he did, it must be found in
some provision of the Constitution. And it is not claimed that express constitutional
language grants this power to the President. The contention is that presidential power
should be implied from the aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that "The executive Power shall
be vested in a President . . . . ;" that "he shall take Care that the Laws be faithfully
executed;" and that he "shall be Commander-in-Chief of the Army and Navy of the
United States. DacASC
The order cannot properly be sustained as an exercise of the President's military power as
Commander-in-Chief of the Armed Forces. The Government attempts to do so by citing a
number of cases upholding broad powers in military commanders engaged in day-to-day
fighting in a theater of war. Such cases need not concern us here. Even though "theater of
war" be an expanding concept, we cannot with faithfulness to our constitutional system
hold that the Commander-in-Chief of the Armed Forces has the ultimate power as such to
take possession of private property in order to keep labor disputes from stopping
production. This is a job for the nation's lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions
that grant executive power to the President. In the framework of our Constitution, the
President's power to see that the laws are faithfully executed refutes the idea that he is to
be a lawmaker. The Constitution limits his functions in the lawmaking process to the
recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the
Constitution is neither silent nor equivocal about who shall make laws which the
President is to execute. The first section of the first article says that "All legislative
Powers herein granted shall be vested in a Congress of the United States. . ." 126
Petitioner Cacho-Olivares, et al. contends that the term "emergency" under Section 17,
Article XII refers to "tsunami," "typhoon," "hurricane" and "similar occurrences." This is
a limited view of "emergency."
Emergency, as a generic term, connotes the existence of conditions suddenly intensifying
the degree of existing danger to life or well-being beyond that which is accepted as
normal. Implicit in this definitions are the elements of intensity, variety, and perception.
127 Emergencies, as perceived by legislature or executive in the United Sates since 1933,
have been occasioned by a wide range of situations, classifiable under three (3) principal
heads: a) economic, 128 b) natural disaster, 129 and c) national security. 130
"Emergency," as contemplated in our Constitution, is of the same breadth. It may include
rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar
catastrophe of nationwide proportions or effect. 131 This is evident in the Records of the
Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee's definition of "national emergency" which
appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for example,
calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes
and riots? TcIaHC
MR. VILLEGAS. Strikes, no; those would not be covered by the term "national
emergency."
MR. BENGZON. Unless they are of such proportions such that they would paralyze
government service. 132
xxx xxx xxx
MR. TINGSON. May I ask the committee if "national emergency" refers to military
national emergency or could this be economic emergency?"
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much. 133
It may be argued that when there is national emergency, Congress may not be able to
convene and, therefore, unable to delegate to the President the power to take over
privately-owned public utility or business affected with public interest.
In Araneta v. Dinglasan, 134 this Court emphasized that legislative power, through which
extraordinary measures are exercised, remains in Congress even in times of crisis.
"xxx xxx xxx
After all the criticisms that have been made against the efficiency of the system of the
separation of powers, the fact remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in preference to the commingling of
powers in one man or group of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of other democracy-loving peoples
in this system, with all its faults, as the ideal. The point is, under this framework of
government, legislation is preserved for Congress all the time, not excepting periods of
crisis no matter how serious. Never in the history of the United States, the basic features
of whose Constitution have been copied in ours, have specific functions of the legislative
branch of enacting laws been surrendered to another department — unless we regard as
legislating the carrying out of a legislative policy according to prescribed standards; no,
not even when that Republic was fighting a total war, or when it was engaged in a life-
and-death struggle to preserve the Union. The truth is that under our concept of
constitutional government, in times of extreme perils more than in normal circumstances
'the various branches, executive, legislative, and judicial,' given the ability to act, are
called upon 'to perform the duties and discharge the responsibilities committed to them
respectively."
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her during the
emergency to temporarily take over or direct the operation of any privately owned public
utility or business affected with public interest without authority from Congress.
HEScID
Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privately-owned
public utility or business affected with public interest. The President cannot decide
whether exceptional circumstances exist warranting the take over of privately-owned
public utility or business affected with public interest. Nor can he determine when such
exceptional circumstances have ceased. Likewise, without legislation, the President has
no power to point out the types of businesses affected with public interest that should be
taken over. In short, the President has no absolute authority to exercise all the powers of
the State under Section 17, Article VII in the absence of an emergency powers act passed
by Congress.
c. "AS APPLIED CHALLENGE"
One of the misfortunes of an emergency, particularly, that which pertains to security, is
that military necessity and the guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of conflict, many rights are curtailed
and trampled upon. Here, the right against unreasonable search and seizure; the right
against warrantless arrest; and the freedom of speech, of expression, of the press, and of
assembly under the Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate "direct injury."
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006,
they were arrested without warrants on their way to EDSA to celebrate the 20th
Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the arrest.

In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed
that on February 25, 2006, the CIDG operatives "raided and ransacked without warrant"
their office. Three policemen were assigned to guard their office as a possible "source of
destabilization." Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were "turned away and dispersed" when they went to EDSA and later, to Ayala
Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O. No. 5, of PP 1017. EHaDIC
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these
illegal acts? In general, does the illegal implementation of a law render it
unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they
may be abused and misabused 135 and may afford an opportunity for abuse in the
manner of application. 136 The validity of a statute or ordinance is to be determined from
its general purpose and its efficiency to accomplish the end desired, not from its effects in
a particular case. 137 PP 1017 is merely an invocation of the President's calling-out
power. Its general purpose is to command the AFP to suppress all forms of lawless
violence, invasion or rebellion. It had accomplished the end desired which prompted
President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police,
expressly or impliedly, to conduct illegal arrest, search or violate the citizens'
constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the
validity of the statute or ordinance is to be measured is the essential basis for the exercise
of power, and not a mere incidental result arising from its exertion. 138 This is logical.
Just imagine the absurdity of situations when laws may be declared unconstitutional just
because the officers implementing them have acted arbitrarily. If this were so, judging
from the blunders committed by policemen in the cases passed upon by the Court,
majority of the provisions of the Revised Penal Code would have been declared
unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017.
General orders are "acts and commands of the President in his capacity as Commander-
in-Chief of the Armed Forces of the Philippines." They are internal rules issued by the
executive officer to his subordinates precisely for the proper and efficient administration
of law. Such rules and regulations create no relation except between the official who
issues them and the official who receives them. 139 They are based on and are the
product of, a relationship in which power is their source, and obedience, their object. 140
For these reasons, one requirement for these rules to be valid is that they must be
reasonable, not arbitrary or capricious. AIDcTE
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and lawless
violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or
rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept.
Congress has yet to enact a law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of
terrorism" confronts not only our country, but the international community as well. The
following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has
become one of the basic slogans when it comes to the justification of the use of force
against certain states and against groups operating internationally. Lists of states
"sponsoring terrorism" and of terrorist organizations are set up and constantly being
updated according to criteria that are not always known to the public, but are clearly
determined by strategic interests.
The basic problem underlying all these military actions — or threats of the use of force as
the most recent by the United States against Iraq — consists in the absence of an agreed
definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence
either by states, by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying "One country's terrorist is another
country's freedom fighter." The apparent contradiction or lack of consistency in the use of
the term "terrorism" may further be demonstrated by the historical fact that leaders of
national liberation movements such as Nelson Mandela in South Africa, Habib
Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were
originally labeled as terrorists by those who controlled the territory at the time, but later
became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts — the differentia specifica
distinguishing those acts from eventually legitimate acts of national resistance or self-
defense?
Since the times of the Cold War the United Nations Organization has been trying in vain
to reach a consensus on the basic issue of definition. The organization has intensified its
efforts recently, but has been unable to bridge the gap between those who associate
"terrorism" with any violent act by non-state groups against civilians, state functionaries
or infrastructure or military installations, and those who believe in the concept of the
legitimate use of force when resistance against foreign occupation or against systematic
oppression of ethnic and/or religious groups within a state is concerned. CSIcTa
The dilemma facing the international community can best be illustrated by reference to
the contradicting categorization of organizations and movements such as Palestine
Liberation Organization (PLO) — which is a terrorist group for Israel and a liberation
movement for Arabs and Muslims — the Kashmiri resistance groups — who are
terrorists in the perception of India, liberation fighters in that of Pakistan — the earlier
Contras in Nicaragua — freedom fighters for the United States, terrorists for the Socialist
camp — or, most drastically, the Afghani Mujahedeen (later to become the Taliban
movement): during the Cold War period they were a group of freedom fighters for the
West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could
go on and on in enumerating examples of conflicting categorizations that cannot be
reconciled in any way — because of opposing political interests that are at the roots of
those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our analysis, the
basic reason for these striking inconsistencies lies in the divergent interest of states.
Depending on whether a state is in the position of an occupying power or in that of a
rival, or adversary, of an occupying power in a given territory, the definition of terrorism
will "fluctuate" accordingly. A state may eventually see itself as protector of the rights of
a certain ethnic group outside its territory and will therefore speak of a "liberation
struggle," not of "terrorism" when acts of violence by this group are concerned, and vice-
versa.
The United Nations Organization has been unable to reach a decision on the definition of
terrorism exactly because of these conflicting interests of sovereign states that determine
in each and every instance how a particular armed movement (i.e. a non-state actor) is
labeled in regard to the terrorists-freedom fighter dichotomy. A "policy of double
standards" on this vital issue of international affairs has been the unavoidable
consequence.
This "definitional predicament" of an organization consisting of sovereign states — and
not of peoples, in spite of the emphasis in the Preamble to the United Nations Charter! —
has become even more serious in the present global power constellation: one superpower
exercises the decisive role in the Security Council, former great powers of the Cold War
era as well as medium powers are increasingly being marginalized; and the problem has
become even more acute since the terrorist attacks of 11 September 2001 I the United
States. 141
The absence of a law defining "acts of terrorism" may result in abuse and oppression on
the part of the police or military. An illustration is when a group of persons are merely
engaged in a drinking spree. Yet the military or the police may consider the act as an act
of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse
and oppression on their part. It must be remembered that an act can only be considered a
crime if there is a law defining the same as such and imposing the corresponding penalty
thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835
dated January 16, 1981 enacted by President Marcos during the Martial Law regime. This
decree is entitled "Codifying The Various Laws on Anti-Subversion and Increasing The
Penalties for Membership in Subversive Organizations." The word "terrorism" is
mentioned in the following provision: "That one who conspires with any other person for
the purpose of overthrowing the Government of the Philippines . . . by force, violence,
terrorism, . . . shall be punished by reclusion temporal . . . ."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define "acts of terrorism." Since there is no law defining "acts of
terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is absolute, without
restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking
into offices and residences, taking over the media enterprises, prohibition and dispersal of
all assemblies and gatherings unfriendly to the administration. All these can be effected
in the name of G.O. No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of the Constitution. Thus, this
Court declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit
acts beyond what are necessary and appropriate to suppress and prevent lawless violence,
the limitation of their authority in pursuing the Order. Otherwise, such acts are
considered illegal.
We first examine G.R. No. 171396 (David et al.) cDaEAS
The Constitution provides that "the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall
issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to
be seized." 142 The plain import of the language of the Constitution is that searches,
seizures and arrests are normally unreasonable unless authorized by a validly issued
search warrant or warrant of arrest. Thus, the fundamental protection given by this
provision is that between person and police must stand the protective authority of a
magistrate clothed with power to issue or refuse to issue search warrants or warrants of
arrest. 143
In the Brief Account 144 submitted by petitioner David, certain facts are established:
first, he was arrested without warrant; second, the PNP operatives arrested him on the
basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he was
fingerprinted, photographed and booked like a criminal suspect; fourth, he was treated
brusquely by policemen who "held his head and tried to push him" inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 880 145 and
Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he was
eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
xxx xxx xxx.
Neither of the two (2) exceptions mentioned above justifies petitioner David's warrantless
arrest. During the inquest for the charges of inciting to sedition and violation of BP 880,
all that the arresting officers could invoke was their observation that some rallyists were
wearing t-shirts with the invective "Oust Gloria Now" and their erroneous assumption
that petitioner David was the leader of the rally. 146 Consequently, the Inquest
Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He
noted that petitioner David was not wearing the subject t-shirt and even if he was wearing
it, such fact is insufficient to charge him with inciting to sedition. Further, he also stated
that there is insufficient evidence for the charge of violation of BP 880 as it was not even
known whether petitioner David was the leader of the rally. 147
But what made it doubly worse for petitioners David et al. is that not only was their right
against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances. IEHScT
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in
respect to public affairs. It is a necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of expression, this right is not
to be limited, much less denied, except on a showing of a clear and present danger of a
substantive evil that Congress has a right to prevent. In other words, like other rights
embraced in the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly is
intended to be held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime, neither
was there a showing of a clear and present danger that warranted the limitation of that
right. As can be gleaned from circumstances, the charges of inciting to sedition and
violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers' conduct. In De Jonge v. Oregon, 148 it
was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of
meetings for peaceable political action cannot be proscribed. Those who assist in the
conduct of such meetings cannot be branded as criminals on that score. The question, if
the rights of free speech and peaceful assembly are not to be preserved, is not as to the
auspices under which the meeting was held but as to its purpose; not as to the relations of
the speakers, but whether their utterances transcend the bounds of the freedom of speech
which the Constitution protects. If the persons assembling have committed crimes
elsewhere, if they have formed or are engaged in a conspiracy against the public peace
and order, they may be prosecuted for their conspiracy or other violations of valid laws.
But it is a different matter when the State, instead of prosecuting them for such offenses,
seizes upon mere participation in a peaceable assembly and a lawful public discussion as
the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest
of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their
dispersal was done merely on the basis of Malacañang's directive canceling all permits
previously issued by local government units. This is arbitrary. The wholesale cancellation
of all permits to rally is a blatant disregard of the principle that "freedom of assembly is
not to be limited, much less denied, except on a showing of a clear and present danger of
a substantive evil that the State has a right to prevent." 149 Tolerance is the rule and
limitation is the exception. Only upon a showing that an assembly presents a clear and
present danger that the State may deny the citizens' right to exercise it. Indeed,
respondents failed to show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the blanket revocation of
permits, the distinction between protected and unprotected assemblies was eliminated.
aTIAES
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with
the local government units. They have the power to issue permits and to revoke such
permits after due notice and hearing on the determination of the presence of clear and
present danger. Here, petitioners were not even notified and heard on the revocation of
their permits. 150 The first time they learned of it was at the time of the dispersal. Such
absence of notice is a fatal defect. When a person's right is restricted by government
action, it behooves a democratic government to see to it that the restriction is fair,
reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech
i.e., the freedom of the press. Petitioners' narration of facts, which the Solicitor General
failed to refute, established the following: first, the Daily Tribune's offices were searched
without warrant; second, the police operatives seized several materials for publication;
third, the search was conducted at about 1:00 o'clock in the morning of February 25,
2006; fourth, the search was conducted in the absence of any official of the Daily Tribune
except the security guard of the building; and fifth, policemen stationed themselves at the
vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of
Staff Michael Defensor was quoted as saying that such raid was "meant to show a 'strong
presence,' to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further stated that "if they do
not follow the standards — and the standards are if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 — we will recommend a 'takeover.'" National Telecommunications
Commissioner Ronald Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit that violates
rules set out for media coverage during times when the national security is threatened.
151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down
the steps in the conduct of search and seizure. Section 4 requires that a search warrant be
issued upon probable cause in connection with one specific offence to be determined
personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce. Section 8 mandates that the search of a house, room,
or any other premise be made in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, in the presence of two (2) witnesses
of sufficient age and discretion residing in the same locality. And Section 9 states that the
warrant must direct that it be served in the daytime, unless the property is on the person
or in the place ordered to be searched, in which case a direction may be inserted that it be
served at any time of the day or night. All these rules were violated by the CIDG
operatives.
Not only that, the search violated petitioners' freedom of the press. The best gauge of a
free and democratic society rests in the degree of freedom enjoyed by its media. In the
Burgos v. Chief of Staff 152 this Court held that —
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search
and seizure, these premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom
of the press guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan
Mail" and "We Forum" newspapers in the above case, yet it cannot be denied that the
CIDG operatives exceeded their enforcement duties. The search and seizure of materials
for publication, the stationing of policemen in the vicinity of the The Daily Tribune
offices, and the arrogant warning of government officials to media, are plain censorship.
It is that officious functionary of the repressive government who tells the citizen that he
may speak only if allowed to do so, and no more and no less than what he is permitted to
say on pain of punishment should he be so rash as to disobey. 153 Undoubtedly, the The
Daily Tribune was subjected to these arbitrary intrusions because of its anti-government
sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even
if it involves the most defiant of our citizens. Freedom to comment on public affairs is
essential to the vitality of a representative democracy. It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon. The motto should always be obsta principiis. 154
Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the Tribune's offices and the seizure of its materials for publication and other papers are
illegal; and that the same are inadmissible "for any purpose," thus: cIaHDA
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when
inspected the Tribune for the purpose of gathering evidence and you admitted that the
policemen were able to get the clippings. Is that not in admission of the admissibility of
these clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I
know, Your Honor, and these are inadmissible for any purpose. 155
xxx xxx xxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to
do is to get those past issues. So why do you have to go there at 1 o'clock in the morning
and without any search warrant? Did they become suddenly part of the evidence of
rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on any law,
and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in
1017 which says that the police could go and inspect and gather clippings from Daily
Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no. DITEAc
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don't know if it is
premature to say this, we do not condone this. If the people who have been injured by this
would want to sue them, they can sue and there are remedies for this. 156
Likewise, the warrantless arrests and seizures executed by the police were, according to
the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don't know whether this will clarify. The acts, the supposed illegal or unlawful
acts committed on the occasion of 1017, as I said, it cannot be condoned. You cannot
blame the President for, as you said, a misapplication of the law. These are acts of the
police officers, that is their responsibility. 157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every
aspect and "should result in no constitutional or statutory breaches if applied according to
their letter."
The Court has passed upon the constitutionality of these issuances. Its ratiocination has
been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to
the calling out by the President of the military to prevent or suppress lawless violence,
invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the
military and the police committed acts which violate the citizens' rights under the
Constitution, this Court has to declare such acts unconstitutional and illegal. DaAISH
In this connection, Chief Justice Artemio V. Panganiban's concurring opinion, attached
hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 — a supervening event —
would have normally rendered this case moot and academic. However, while PP 1017
was still operative, illegal acts were committed allegedly in pursuance thereof. Besides,
there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already,
there have been media reports on April 30, 2006 that allegedly PP 1017 would be
reimposed "if the May 1 rallies" become "unruly and violent." Consequently, the
transcendental issues raised by the parties should not be "evaded;" they must now be
resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call
by the President for the AFP to prevent or suppress lawless violence. The proclamation is
sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence
discussed earlier. However, PP 1017's extraneous provisions giving the President express
or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all
laws even those not related to lawless violence as well as decrees promulgated by the
President; and (3) to impose standards on media or any form of prior restraint on the
press, are ultra vires and unconstitutional. The Court also rules that under Section 17,
Article XII of the Constitution, the President, in the absence of a legislation, cannot take
over privately-owned public utility and private business affected with public interest.
SIEHcA
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President
— acting as Commander-in-Chief — addressed to subalterns in the AFP to carry out the
provisions of PP 1017. Significantly, it also provides a valid standard — that the military
and the police should take only the "necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence." But the words "acts of terrorism" found in
G.O. No. 5 have not been legally defined and made punishable by Congress and should
thus be deemed deleted from the said G.O. While "terrorism" has been denounced
generally in media, no law has been enacted to guide the military, and eventually the
courts, to determine the limits of the AFP's authority in carrying out this portion of G.O.
No. 5. STcEaI
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear
that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the
dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members;
(3) the imposition of standards on media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical seizures of some articles for
publication and other materials, are not authorized by the Constitution, the law and
jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of
action and/or relevant criminal Informations have not been presented before this Court.
Elementary due process bars this Court from making any specific pronouncement of
civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and substantive civil
rights are ends in themselves. How to give the military the power it needs to protect the
Republic without unnecessarily trampling individual rights is one of the eternal balancing
tasks of a democratic state. During emergency, governmental action may vary in breadth
and intensity from normal times, yet they should not be arbitrary as to unduly restrain our
people's liberty. DECcAS
Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority to
cope with crises without surrendering the two vital principles of constitutionalism: the
maintenance of legal limits to arbitrary power, and political responsibility of the
government to the governed. 158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is
CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-
Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of
PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as
decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition,
the provision in PP 1017 declaring national emergency under Section 17, Article VII of
the Constitution is CONSTITUTIONAL, but such declaration does not authorize the
President to take over privately-owned public utility or business affected with public
interest without prior legislation. DHcESI
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and
the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate actions
and measures to suppress and prevent acts of lawless violence." Considering that "acts of
terrorism" have not yet been defined and made punishable by the Legislature, such
portion of G.O. No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the
absence of proof that these petitioners were committing acts constituting lawless
violence, invasion or rebellion and violating BP 880; the imposition of standards on
media or any form of prior restraint on the press, as well as the warrantless search of the
Tribune offices and whimsical seizure of its articles for publication and other materials,
are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.

[G.R. No. 170165. August 15, 2006.]

B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F.
BALUTAN, petitioners, vs. LT./GEN. GENEROSO S. SENGA AS CHIEF OF STAFF
OF THE ARMED FORCES OF THE PHILIPPINES, COL. GILBERTO JOSE C. ROA
AS THE PRE-TRIAL INVESTIGATING OFFICER, THE PROVOST MARSHALL
GENERAL OF THE ARMED FORCES OF THE PHILIPPINES AND THE GENERAL
COURT-MARTIAL, respondents.
DECISION
TINGA, J p:
A most dangerous general proposition is foisted on the Court — that soldiers who defy
orders of their superior officers are exempt from the strictures of military law and
discipline if such defiance is predicated on an act otherwise valid under civilian law.
Obedience and deference to the military chain of command and the President as
commander-in-chief are the cornerstones of a professional military in the firm cusp of
civilian control. These values of obedience and deference expected of military officers
are content-neutral, beyond the sway of the officer's own sense of what is prudent or rash,
or more elementally, of right or wrong. A self-righteous military invites itself as the
scoundrel's activist solution to the "ills" of participatory democracy. aTcSID
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo 1
enjoining them and other military officers from testifying before Congress without the
President's consent. Petitioners also pray for injunctive relief against a pending
preliminary investigation against them, in preparation for possible court-martial
proceedings, initiated within the military justice system in connection with petitioners'
violation of the aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional
principles that center on fundamental freedoms enshrined in the Bill of Rights. Although
these concerns will not be addressed to the satisfaction of petitioners, the Court
recognizes these values as of paramount importance to our civil society, even if not
determinative of the resolution of this petition. Had the relevant issue before us been the
right of the Senate to compel the testimony of petitioners, the constitutional questions
raised by them would have come to fore. Such a scenario could have very well been
presented to the Court in such manner, without the petitioners having had to violate a
direct order from their commanding officer. Instead, the Court has to resolve whether
petitioners may be subjected to military discipline on account of their defiance of a direct
order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP).
Both petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant
Colonel Alexander Balutan (Col. Balutan), belonged to the Philippine Marines. At the
time of the subject incidents, both Gen. Gudani and Col. Balutan were assigned to the
Philippine Military Academy (PMA) in Baguio City, the former as the PMA Assistant
Superintendent, and the latter as the Assistant Commandant of Cadets. 2
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior
officers of the AFP to appear at a public hearing before the Senate Committee on
National Defense and Security (Senate Committee) scheduled on 28 September 2005.
The hearing was scheduled after topics concerning the conduct of the 2004 elections
emerged in the public eye, particularly allegations of massive cheating and the surfacing
of copies of an audio excerpt purportedly of a phone conversation between President
Gloria Macapagal Arroyo and an official of the Commission on Elections (COMELEC)
widely reputed as then COMELEC Commissioner Virgilio Garcillano. At the time of the
2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan a
member, of "Joint Task Force Ranao" by the AFP Southern Command. "Joint Task Force
Ranao" was tasked with the maintenance of peace and order during the 2004 elections in
the provinces of Lanao del Norte and Lanao del Sur. 3
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga
(Gen. Senga) were among the several AFP officers who received a letter invitation from
Sen. Biazon to attend the 28 September 2005 hearing. On 23 September 2005, Gen.
Senga replied through a letter to Sen. Biazon that he would be unable to attend the
hearing due to a previous commitment in Brunei, but he nonetheless "directed other
officers from the AFP who were invited to attend the hearing." 4
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a
Memorandum addressed to the Superintendent of the PMA Gen. Cristolito P. Baloing
(Gen. Baloing). It was signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga.
5 Noting that Gen. Gudani and Col. Balutan had been invited to attend the Senate
Committee hearing on 28 September 2005, the Memorandum directed the two officers to
attend the hearing. 6 Conformably, Gen. Gudani and Col. Balutan filed their respective
requests for travel authority addressed to the PMA Superintendent. TSHcIa
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the
postponement of the hearing scheduled for the following day, since the AFP Chief of
Staff was himself unable to attend said hearing, and that some of the invited officers also
could not attend as they were "attending to other urgent operational matters." By this
time, both Gen. Gudani and Col. Balutan had already departed Baguio for Manila to
attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was
transmitted to the PMA Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL
SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING
WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND
LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY. 7
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the
senator that "no approval has been granted by the President to any AFP officer to appear"
before the hearing scheduled on that day. Nonetheless, both Gen. Gudani and Col.
Balutan were present as the hearing started, and they both testified as to the conduct of
the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this
Court, has offered additional information surrounding the testimony of Gen. Gudani and
Col. Balutan. The OSG manifests that the couriers of the AFP Command Center had
attempted to deliver the radio message to Gen. Gudani's residence in a subdivision in
Parañaque City late in the night of 27 September 2005, but they were not permitted entry
by the subdivision guards. The next day, 28 September 2005, shortly before the start of
the hearing, a copy of Gen. Senga's letter to Sen. Biazon sent earlier that day was handed
at the Senate by Commodore Amable B. Tolentino of the AFP Office for Legislative
Affairs to Gen. Gudani, who replied that he already had a copy. Further, Gen. Senga
called Commodore Tolentino on the latter's cell phone and asked to talk to Gen. Gudani,
but Gen. Gudani refused. In response, Gen. Senga instructed Commodore Tolentino to
inform Gen. Gudani that "it was an order," yet Gen. Gudani still refused to take Gen.
Senga's call. 8
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the
office of Gen. Senga issued a statement which noted that the two had appeared before the
Senate Committee "in spite of the fact that a guidance has been given that a Presidential
approval should be sought prior to such an appearance;" that such directive was "in
keeping with the time[-]honored principle of the Chain of Command;" and that the two
officers "disobeyed a legal order, in violation of A[rticles of] W[ar] 65 (Willfully
Disobeying Superior Officer), hence they will be subjected to General Court Martial
proceedings . . ." Both Gen. Gudani and Col. Balutan were likewise relieved of their
assignments then. 9
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo
issued Executive Order No. 464 (E.O. 464). The OSG notes that the E.O. "enjoined
officials of the executive department including the military establishment from appearing
in any legislative inquiry without her approval." 10 This Court subsequently ruled on the
constitutionality of the said executive order in Senate v. Ermita. 11 The relevance of E.O.
464 and Senate to the present petition shall be discussed forthwith. ADCETI
In the meantime, on 30 September 2005, petitioners were directed by General Senga,
through Col. Henry A. Galarpe of the AFP Provost Marshal General, to appear before the
Office of the Provost Marshal General (OPMG) on 3 October 2005 for investigation.
During their appearance before Col. Galarpe, both petitioners invoked their right to
remain silent. 12 The following day, Gen. Gudani was compulsorily retired from military
service, having reached the age of 56. 13
In an Investigation Report dated 6 October 2005, the OPMG recommended that
petitioners be charged with violation of Article of War 65, on willfully disobeying a
superior officer, in relation to Article of War 97, on conduct prejudicial to the good order
and military discipline. 14 As recommended, the case was referred to a Pre-Trial
Investigation Officer (PTIO) preparatory to trial by the General Court Martial (GCM). 15
Consequently, on 24 October 2005, petitioners were separately served with Orders
respectively addressed to them and signed by respondent Col. Gilbert Jose C. Roa, the
Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners to appear in
person before Col. Roa at the Pre-Trial Investigation of the Charges for violation of
Articles 65 16 and 97 17 of Commonwealth Act No. 408, 18 and to submit their counter-
affidavits and affidavits of witnesses at the Office of the Judge Advocate General. 19 The
Orders were accompanied by respective charge sheets against petitioners, accusing them
of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and prohibition was
filed, particularly seeking that (1) the order of President Arroyo coursed through Gen.
Senga preventing petitioners from testifying before Congress without her prior approval
be declared unconstitutional; (2) the charges stated in the charge sheets against petitioners
be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their successors-in-interest
or persons acting for and on their behalf or orders, be permanently enjoined from
proceeding against petitioners, as a consequence of their having testified before the
Senate on 28 September 2005. 20
Petitioners characterize the directive from President Arroyo requiring her prior approval
before any AFP personnel appear before Congress as a "gag order," which violates the
principle of separation of powers in government as it interferes with the investigation of
the Senate Committee conducted in aid of legislation. They also equate the "gag order"
with culpable violation of the Constitution, particularly in relation to the public's
constitutional right to information and transparency in matters of public concern.
Plaintively, petitioners claim that "the Filipino people have every right to hear the
[petitioners'] testimonies," and even if the "gag order" were unconstitutional, it still was
tantamount to "the crime of obstruction of justice." Petitioners further argue that there
was no law prohibiting them from testifying before the Senate, and in fact, they were
appearing in obeisance to the authority of Congress to conduct inquiries in aid of
legislation. cHAIES
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military
jurisdiction on account of his compulsory retirement on 4 October 2005. It is pointed out
that Article 2, Title I of the Articles of War defines persons subject to military law as "all
officers and soldiers in the active service" of the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of
petitioners in violating Articles 65 and 97 of the Articles of War is not an issue before
this Court, especially considering that per records, petitioners have not yet been subjected
to court martial proceedings. Owing to the absence of such proceedings, the correct
inquiry should be limited to whether respondents could properly initiate such proceedings
preparatory to a formal court-martial, such as the aforementioned preliminary
investigation, on the basis of petitioners' acts surrounding their testimony before the
Senate on 28 September 2005. Yet this Court, consistent with the principle that it is not a
trier of facts at first instance, 21 is averse to making any authoritative findings of fact, for
that function is first for the court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court, having
been commonly alleged by petitioners and the OSG (for respondents). Petitioners were
called by the Senate Committee to testify in its 28 September 2005 hearing. Petitioners
attended such hearing and testified before the Committee, despite the fact that the day
before, there was an order from Gen. Senga (which in turn was sourced "per instruction"
from President Arroyo) prohibiting them from testifying without the prior approval of the
President. Petitioners do not precisely admit before this Court that they had learned of
such order prior to their testimony, although the OSG asserts that at the very least, Gen.
Gudani already knew of such order before he testified. 22 Yet while this fact may be
ultimately material in the court-martial proceedings, it is not determinative of this
petition, which as stated earlier, does not proffer as an issue whether petitioners are guilty
of violating the Articles of War.
What the Court has to consider though is whether the violation of the aforementioned
order of Gen. Senga, which emanated from the President, could lead to any investigation
for court-martial of petitioners. It has to be acknowledged as a general principle 23 that
AFP personnel of whatever rank are liable under military law for violating a direct order
of an officer superior in rank. Whether petitioners did violate such an order is not for the
Court to decide, but it will be necessary to assume, for the purposes of this petition, that
petitioners did so. THCASc
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Court's ruling in Senate on
the present petition. Notably, it is not alleged that petitioners were in any way called to
task for violating E.O. 464, but instead, they were charged for violating the direct order
of Gen. Senga not to appear before the Senate Committee, an order that stands
independent of the executive order. Distinctions are called for, since Section 2(b) of E.O.
464 listed "generals and flag officers of the Armed Forces of the Philippines and such
other officers who in the judgment of the Chief of Staff are covered by the executive
privilege," as among those public officials required in Section 3 of E.O. 464 "to secure
prior consent of the President prior to appearing before either House of Congress." The
Court in Senate declared both Section 2(b) and Section 3 void, 24 and the impression
may have been left following Senate that it settled as doctrine, that the President is
prohibited from requiring military personnel from attending congressional hearings
without having first secured prior presidential consent. That impression is wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is
encumbered by significant limitations. Insofar as E.O. 464 compelled officials of the
executive branch to seek prior presidential approval before appearing before Congress,
the notion of executive control also comes into consideration. 25 However, the ability of
the President to require a military official to secure prior consent before appearing before
Congress pertains to a wholly different and independent specie of presidential authority
— the commander-in-chief powers of the President. By tradition and jurisprudence, the
commander-in-chief powers of the President are not encumbered by the same degree of
restriction as that which may attach to executive privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of this
petition as well as the issues raised herein. The decision in Senate was rendered with the
comfort that the nullification of portions of E.O. 464 would bear no impact on the present
petition since petitioners herein were not called to task for violating the executive order.
Moreover, the Court was then cognizant that Senate and this case would ultimately hinge
on disparate legal issues. Relevantly, Senate purposely did not touch upon or rule on the
faculty of the President, under the aegis of the commander-in-chief powers 26 to require
military officials from securing prior consent before appearing before Congress. The
pertinent factors in considering that question are markedly outside of those which did
become relevant in adjudicating the issues raised in Senate. It is in this petition that those
factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike at the heart
of the matter. General Gudani argues that he can no longer fall within the jurisdiction of
the court-martial, considering his retirement last 4 October 2005. He cites Article 2, Title
I of Commonwealth Act No. 408, which defines persons subject to military law as,
among others, "all officers and soldiers in the active service of the [AFP]," and points out
that he is no longer in the active service. SECAHa
This point was settled against Gen. Gudani's position in Abadilla v. Ramos, 27 where the
Court declared that an officer whose name was dropped from the roll of officers cannot
be considered to be outside the jurisdiction of military authorities when military justice
proceedings were initiated against him before the termination of his service. Once
jurisdiction has been acquired over the officer, it continues until his case is terminated.
Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time
of the alleged offenses. This jurisdiction having been vested in the military authorities, it
is retained up to the end of the proceedings against Colonel Abadilla. Well-settled is the
rule that jurisdiction once acquired is not lost upon the instance of the parties but
continues until the case is terminated. 28
Citing Colonel Winthrop's treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the following
passage which goes against the contention of the petitioners, viz —
3. Offenders in general — Attaching of jurisdiction. It has further been held, and is
now settled law, in regard to military offenders in general, that if the military jurisdiction
has once duly attached to them previous to the date of the termination of their legal
period of service, they may be brought to trial by court-martial after that date, their
discharge being meanwhile withheld. This principle has mostly been applied to cases
where the offense was committed just prior to the end of the term. In such cases the
interests of discipline clearly forbid that the offender should go unpunished. It is held
therefore that if before the day on which his service legally terminates and his right to a
discharge is complete, proceedings with a view to trial are commenced against him — as
by arrest or the service of charges, — the military jurisdiction will fully attach and once
attached may be continued by a trial by court-martial ordered and held after the end of the
term of the enlistment of the accused . . . 29
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts
complained of and the initiation of the proceedings against him occurred before he
compulsorily retired on 4 October 2005. We see no reason to unsettle the Abadilla
doctrine. The OSG also points out that under Section 28 of Presidential Decree No. 1638,
as amended, "[a]n officer or enlisted man carried in the retired list [of the Armed Forces
of the Philippines] shall be subject to the Articles of War . . ." 30 To this citation,
petitioners do not offer any response, and in fact have excluded the matter of Gen.
Gudani's retirement as an issue in their subsequent memorandum. CAIHTE
IV.
We now turn to the central issues.
Petitioners wish to see annulled the "gag order" that required them to secure presidential
consent prior to their appearance before the Senate, claiming that it violates the
constitutional right to information and transparency in matters of public concern; or if
not, is tantamount at least to the criminal acts of obstruction of justice and grave
coercion. However, the proper perspective from which to consider this issue entails the
examination of the basis and authority of the President to issue such an order in the first
place to members of the AFP and the determination of whether such an order is subject to
any limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces
is most crucial to the democratic way of life, to civilian supremacy over the military, and
to the general stability of our representative system of government. The Constitution
reposes final authority, control and supervision of the AFP to the President, a civilian
who is not a member of the armed forces, and whose duties as commander-in-chief
represent only a part of the organic duties imposed upon the office, the other functions
being clearly civil in nature. 31 Civilian supremacy over the military also countermands
the notion that the military may bypass civilian authorities, such as civil courts, on
matters such as conducting warrantless searches and seizures. 32
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has
allocated specific roles to the legislative and executive branches of government in
relation to military affairs. Military appropriations, as with all other appropriations, are
determined by Congress, as is the power to declare the existence of a state of war. 33
Congress is also empowered to revoke a proclamation of martial law or the suspension of
the writ of habeas corpus. 34 The approval of the Commission on Appointments is also
required before the President can promote military officers from the rank of colonel or
naval captain. 35 Otherwise, on the particulars of civilian dominance and administration
over the military, the Constitution is silent, except for the commander-in-chief clause
which is fertile in meaning and implication as to whatever inherent martial authority the
President may possess. 36
The commander-in-chief provision in the Constitution is denominated as Section 18,
Article VII, which begins with the simple declaration that "[t]he President shall be the
Commander-in-Chief of all armed forces of the Philippines . . ." 37 Outside explicit
constitutional limitations, such as those found in Section 5, Article XVI, the commander-
in-chief clause vests on the President, as commander-in-chief, absolute authority over the
persons and actions of the members of the armed forces. Such authority includes the
ability of the President to restrict the travel, movement and speech of military officers,
activities which may otherwise be sanctioned under civilian law. aSAHCE
Reference to Kapunan, Jr. v. De Villa 38 is useful in this regard. Lt. Col. Kapunan was
ordered confined under "house arrest" by then Chief of Staff (later President) Gen. Fidel
Ramos. Kapunan was also ordered, as a condition for his house arrest, that he may not
issue any press statements or give any press conference during his period of detention.
The Court unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline.
It cannot be gainsaid that certain liberties of persons in the military service, including the
freedom of speech, may be circumscribed by rules of military discipline. Thus, to a
certain degree, individual rights may be curtailed, because the effectiveness of the
military in fulfilling its duties under the law depends to a large extent on the maintenance
of discipline within its ranks. Hence, lawful orders must be followed without question
and rules must be faithfully complied with, irrespective of a soldier's personal views on
the matter. It is from this viewpoint that the restrictions imposed on petitioner Kapunan,
an officer in the AFP, have to be considered. 39
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way
of life circumscribes several of the cherished freedoms of civilian life. It is part and
parcel of the military package. Those who cannot abide by these limitations normally do
not pursue a military career and instead find satisfaction in other fields; and in fact many
of those discharged from the service are inspired in their later careers precisely by their
rebellion against the regimentation of military life. Inability or unwillingness to cope with
military discipline is not a stain on character, for the military mode is a highly
idiosyncratic path which persons are not generally conscripted into, but volunteer
themselves to be part of. But for those who do make the choice to be a soldier, significant
concessions to personal freedoms are expected. After all, if need be, the men and women
of the armed forces may be commanded upon to die for country, even against their
personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has been
fully integrated into the democratic system of governance. The constitutional role of the
armed forces is as protector of the people and of the State. 40 Towards this end, the
military must insist upon a respect for duty and a discipline without counterpart in
civilian life. 41 The laws and traditions governing that discipline have a long history; but
they are founded on unique military exigencies as powerful now as in the past. 42 In the
end, it must be borne in mind that the armed forces has a distinct subculture with unique
needs, a specialized society separate from civilian society. 43 In the elegant prose of the
eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians and
diplomats. They are those of a world apart, a very ancient world, which exists in parallel
with the everyday world but does not belong to it. Both worlds change over time, and the
warrior world adopts in step to the civilian. It follows it, however, at a distance. The
distance can never be closed, for the culture of the warrior can never be that of
civilization itself. . . . 44
Critical to military discipline is obeisance to the military chain of command. Willful
disobedience of a superior officer is punishable by court-martial under Article 65 of the
Articles of War. 45 "An individual soldier is not free to ignore the lawful orders or duties
assigned by his immediate superiors. For there would be an end of all discipline if the
seaman and marines on board a ship of war [or soldiers deployed in the field], on a
distant service, were permitted to act upon their own opinion of their rights [or their
opinion of the President's intent], and to throw off the authority of the commander
whenever they supposed it to be unlawfully exercised." 46
Further traditional restrictions on members of the armed forces are those imposed on free
speech and mobility. Kapunan is ample precedent in justifying that a soldier may be
restrained by a superior officer from speaking out on certain matters. As a general rule,
the discretion of a military officer to restrain the speech of a soldier under his/her
command will be accorded deference, with minimal regard if at all to the reason for such
restraint. It is integral to military discipline that the soldier's speech be with the consent
and approval of the military commander. TcCEDS
The necessity of upholding the ability to restrain speech becomes even more imperative if
the soldier desires to speak freely on political matters. The Constitution requires that
"[t]he armed forces shall be insulated from partisan politics," and that '[n]o member of
the military shall engage directly or indirectly in any partisan political activity, except to
vote." 47 Certainly, no constitutional provision or military indoctrination will eliminate a
soldier's ability to form a personal political opinion, yet it is vital that such opinions be
kept out of the public eye. For one, political belief is a potential source of discord among
people, and a military torn by political strife is incapable of fulfilling its constitutional
function as protectors of the people and of the State. For another, it is ruinous to military
discipline to foment an atmosphere that promotes an active dislike of or dissent against
the President, the commander-in-chief of the armed forces. Soldiers are constitutionally
obliged to obey a President they may dislike or distrust. This fundamental principle averts
the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our country's recent past
is marked by regime changes wherein active military dissent from the chain of command
formed a key, though not exclusive, element. The Court is not blind to history, yet it is a
judge not of history but of the Constitution. The Constitution, and indeed our modern
democratic order, frown in no uncertain terms on a politicized military, informed as they
are on the trauma of absolute martial rule. Our history might imply that a political
military is part of the natural order, but this view cannot be affirmed by the legal order.
The evolutionary path of our young democracy necessitates a reorientation from this
view, reliant as our socio-political culture has become on it. At the same time, evolution
mandates a similar demand that our system of governance be more responsive to the
needs and aspirations of the citizenry, so as to avoid an environment vulnerable to a
military apparatus able at will to exert an undue influence in our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel
is another necessary restriction on members of the military. A soldier cannot leave his/her
post without the consent of the commanding officer. The reasons are self-evident. The
commanding officer has to be aware at all times of the location of the troops under
command, so as to be able to appropriately respond to any exigencies. For the same
reason, commanding officers have to be able to restrict the movement or travel of their
soldiers, if in their judgment, their presence at place of call of duty is necessary. At times,
this may lead to unsentimental, painful consequences, such as a soldier being denied
permission to witness the birth of his first-born, or to attend the funeral of a parent. Yet
again, military life calls for considerable personal sacrifices during the period of
conscription, wherein the higher duty is not to self but to country. IHCESD
Indeed, the military practice is to require a soldier to obtain permission from the
commanding officer before he/she may leave his destination. A soldier who goes from
the properly appointed place of duty or absents from his/her command, guard, quarters,
station, or camp without proper leave is subject to punishment by court-martial. 48 It is
even clear from the record that petitioners had actually requested for travel authority from
the PMA in Baguio City to Manila, to attend the Senate Hearing. 49 Even petitioners are
well aware that it was necessary for them to obtain permission from their superiors before
they could travel to Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental principles
we have discussed. They seek to be exempted from military justice for having traveled to
the Senate to testify before the Senate Committee against the express orders of Gen.
Senga, the AFP Chief of Staff. If petitioners' position is affirmed, a considerable
exception would be carved from the unimpeachable right of military officers to restrict
the speech and movement of their juniors. The ruinous consequences to the chain of
command and military discipline simply cannot warrant the Court's imprimatur on
petitioner's position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities
surrounding military discipline. After all, petitioners seek to impress on us that their acts
are justified as they were responding to an invitation from the Philippine Senate, a
component of the legislative branch of government. At the same time, the order for them
not to testify ultimately came from the President, the head of the executive branch of
government and the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of the
armed forces from testifying before a legislative inquiry? We hold that the President has
constitutional authority to do so, by virtue of her power as commander-in-chief, and that
as a consequence a military officer who defies such injunction is liable under military
justice. At the same time, we also hold that any chamber of Congress which seeks the
appearance before it of a military officer against the consent of the President has adequate
remedies under law to compel such attendance. Any military official whom Congress
summons to testify before it may be compelled to do so by the President. If the President
is not so inclined, the President may be commanded by judicial order to compel the
attendance of the military officer. Final judicial orders have the force of the law of the
land which the President has the duty to faithfully execute. 50
Explication of these principles is in order. CASTDI
As earlier noted, we ruled in Senate that the President may not issue a blanket
requirement of prior consent on executive officials summoned by the legislature to attend
a congressional hearing. In doing so, the Court recognized the considerable limitations on
executive privilege, and affirmed that the privilege must be formally invoked on specified
grounds. However, the ability of the President to prevent military officers from testifying
before Congress does not turn on executive privilege, but on the Chief Executive's power
as commander-in-chief to control the actions and speech of members of the armed forces.
The President's prerogatives as commander-in-chief are not hampered by the same
limitations as in executive privilege.
Our ruling that the President could, as a general rule, require military officers to seek
presidential approval before appearing before Congress is based foremost on the notion
that a contrary rule unduly diminishes the prerogatives of the President as commander-in-
chief. Congress holds significant control over the armed forces in matters such as budget
appropriations and the approval of higher-rank promotions, 51 yet it is on the President
that the Constitution vests the title as commander-in-chief and all the prerogatives and
functions appertaining to the position. Again, the exigencies of military discipline and the
chain of command mandate that the President's ability to control the individual members
of the armed forces be accorded the utmost respect. Where a military officer is torn
between obeying the President and obeying the Senate, the Court will without hesitation
affirm that the officer has to choose the President. After all, the Constitution prescribes
that it is the President, and not the Senate, who is the commander-in-chief of the armed
forces. 52
At the same time, the refusal of the President to allow members of the military to appear
before Congress is still subject to judicial relief. The Constitution itself recognizes as one
of the legislature's functions is the conduct of inquiries in aid of legislation. 53 Inasmuch
as it is ill-advised for Congress to interfere with the President's power as commander-in-
chief, it is similarly detrimental for the President to unduly interfere with Congress's right
to conduct legislative inquiries. The impasse did not come to pass in this petition, since
petitioners testified anyway despite the presidential prohibition. Yet the Court is aware
that with its pronouncement today that the President has the right to require prior consent
from members of the armed forces, the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by which
members of the military may be compelled to attend legislative inquiries even if the
President desires otherwise, a modality which does not offend the Chief Executive's
prerogatives as commander-in-chief. The remedy lies with the courts.
The fact that the executive branch is an equal, coordinate branch of government to the
legislative creates a wrinkle to any basic rule that persons summoned to testify before
Congress must do so. There is considerable interplay between the legislative and
executive branches, informed by due deference and respect as to their various
constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only
as a last resort that one branch seeks to compel the other to a particular mode of behavior.
The judiciary, the third coordinate branch of government, does not enjoy a similar
dynamic with either the legislative or executive branches. Whatever weakness inheres on
judicial power due to its inability to originate national policies and legislation, such is
balanced by the fact that it is the branch empowered by the Constitution to compel
obeisance to its rulings by the other branches of government. CDAHIT
As evidenced by Arnault v. Nazareno 54 and Bengzon v. Senate Blue Ribbon Committee,
55 among others, the Court has not shirked from reviewing the exercise by Congress of
its power of legislative inquiry. 56 Arnault recognized that the legislative power of
inquiry and the process to enforce it, "is an essential and appropriate auxiliary to the
legislative function." 57 On the other hand, Bengzon acknowledged that the power of
both houses of Congress to conduct inquiries in aid of legislation is not "absolute or
unlimited", and its exercise is circumscribed by Section 21, Article VI of the
Constitution. 58 From these premises, the Court enjoined the Senate Blue Ribbon
Committee from requiring the petitioners in Bengzon from testifying and producing
evidence before the committee, holding that the inquiry in question did not involve any
intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional
scope and limitations on the constitutional power of congressional inquiry. Thus:
As discussed in Arnault, the power of inquiry, "with process to enforce it," is grounded
on the necessity of information in the legislative process. If the information possessed by
executive officials on the operation of their offices is necessary for wise legislation on
that subject, by parity of reasoning, Congress has the right to that information and the
power to compel the disclosure thereof.
As evidenced by the American experience during the so-called "McCarthy era", however,
the right of Congress to conduct inquirites in aid of legislation is, in theory, no less
susceptible to abuse than executive or judicial power. It may thus be subjected to judicial
review pursuant to the Court's certiorari powers under Section 1, Article VIII of the
Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might
not properly be in aid of legislation, and thus beyond the constitutional power of
Congress. Such inquiry could not usurp judicial functions. Parenthetically, one possible
way for Congress to avoid such result as occurred in Bengzon is to indicate in its
invitations to the public officials concerned, or to any person for that matter, the possible
needed statute which prompted the need for the inquiry. Given such statement in its
invitations, along with the usual indication of the subject of inquiry and the questions
relative to and in furtherance thereof, there would be less room for speculation on the part
of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe the
legislative power of inquiry. The provision requires that the inquiry be done in
accordance with the Senate or House's duly published rules of procedure, necessarily
implying the constitutional infirmity of an inquiry conducted without duly published
rules of procedure. Section 21 also mandates that the rights of persons appearing in or
affected by such inquiries be respected, an imposition that obligates Congress to adhere
to the guarantees in the Bill of Rights. cEDaTS
These abuses are, of course, remediable before the courts, upon the proper suit filed by
the persons affected, even if they belong to the executive branch. Nonetheless, there may
be exceptional circumstances . . . wherein a clear pattern of abuse of the legislative power
of inquiry might be established, resulting in palpable violations of the rights guaranteed
to members of the executive department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by the Executive Branch to forestall
these abuses may be accorded judicial sanction 59 .
In Senate, the Court ruled that the President could not impose a blanket prohibition
barring executive officials from testifying before Congress without the President's
consent notwithstanding the invocation of executive privilege to justify such prohibition.
The Court did not rule that the power to conduct legislative inquiry ipso facto superseded
the claim of executive privilege, acknowledging instead that the viability of executive
privilege stood on a case to case basis. Should neither branch yield to the other branch's
assertion, the constitutional recourse is to the courts, as the final arbiter if the dispute. It is
only the courts that can compel, with conclusiveness, attendance or non-attendance in
legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff refuses to
allow a member of the AFP to appear before Congress, the legislative body seeking such
testimony may seek judicial relief to compel the attendance. Such judicial action should
be directed at the heads of the executive branch or the armed forces, the persons who
wield authority and control over the actions of the officers concerned. The legislative
purpose of such testimony, as well as any defenses against the same — whether grounded
on executive privilege, national security or similar concerns — would be accorded due
judicial evaluation. All the constitutional considerations pertinent to either branch of
government may be raised, assessed, and ultimately weighed against each other. And
once the courts speak with finality, both branches of government have no option but to
comply with the decision of the courts, whether the effect of the decision is to their liking
or disfavor.
Courts are empowered, under the constitutional principle of judicial review, to arbitrate
disputes between the legislative and executive branches of government on the proper
constitutional parameters of power. 60 This is the fair and workable solution implicit in
the constitutional allocation of powers among the three branches of government. The
judicial filter helps assure that the particularities of each case would ultimately govern,
rather than any overarching principle unduly inclined towards one branch of government
at the expense of the other. The procedure may not move as expeditiously as some may
desire, yet it ensures thorough deliberation of all relevant and cognizable issues before
one branch is compelled to yield to the other. Moreover, judicial review does not
preclude the legislative and executive branches from negotiating a mutually acceptable
solution to the impasse. After all, the two branches, exercising as they do functions and
responsibilities that are political in nature, are free to smooth over the thorns in their
relationship with a salve of their own choosing. DTIcSH
And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the
President, as commander-in-chief, to authorize the appearance of the military officers
before Congress. Even if the President has earlier disagreed with the notion of officers
appearing before the legislature to testify, the Chief Executive is nonetheless obliged to
comply with the final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom of the
President's order on them and other military officers not to testify before Congress
without the President's consent. Yet these issues ultimately detract from the main point
— that they testified before the Senate despite an order from their commanding officer
and their commander-in-chief for them not to do so, 61 in contravention of the traditions
of military discipline which we affirm today. The issues raised by petitioners could have
very well been raised and properly adjudicated if the proper procedure was observed.
Petitioners could have been appropriately allowed to testify before the Senate without
having to countermand their Commander-in-chief and superior officer under the setup we
have prescribed.
We consider the other issues raised by petitioners unnecessary to the resolution of this
petition.
Petitioners may have been of the honest belief that they were defying a direct order of
their Commander-in-Chief and Commanding General in obeisance to a paramount idea
formed within their consciences, which could not be lightly ignored. Still, the Court, in
turn, is guided by the superlative principle that is the Constitution, the embodiment of the
national conscience. The Constitution simply does not permit the infraction which
petitioners have allegedly committed, and moreover, provides for an orderly manner by
which the same result could have been achieved without offending constitutional
principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs. ECaScD
SO ORDERED.

[G.R. No. 86439. April 13, 1989.]

MARY CONCEPCION BAUTISTA, petitioner, vs. SENATOR JOVITO R. SALONGA,
COMMISSION ON APPOINTMENTS, COMMITTEE ON JUSTICE, JUDICIAL AND
BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R. MALLILLIN,
respondents.
Mary Concepcion Bautista for and in her own behalf.
Christine A. Tomas Espinosa for private respondent Hesiquio R. Mallillin.
SYLLABUS
1. CONSTITUTIONAL LAW; COMMISSION ON HUMAN RIGHTS;
APPOINTMENT OF ITS CHAIRMAN; VESTED SOLELY IN THE PRESIDENT
WITHOUT NEED OF CONFIRMATION FROM THE COMMISSION ON
APPOINTMENTS. — The position of Chairman of the Commission on Human Rights is
not among the positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987
Constitution, appointments to which are to be made with the confirmation of the
Commission on Appointments, it follows that the appointments by the President of the
Chairman of the CHR is to be made without the review or participation of the
Commission on Appointments. To be more precise, the appointment of the Chairman and
Members of the Commission on Human Rights is not specifically provided for in the
Constitution itself, unlike the Chairman and Members of the Civil Service Commission,
the Commission on Elections and the Commission on Audit, whose appointments are
expressly vested by the Constitution in the President with the consent of the Commission
on Appointments. The President appoints the Chairman and Members of the Commission
on Human Rights pursuant to the second sentence in Section 16, Art. VII, that is, without
the confirmation of the Commission on Appointments because they are among the
officers of government "whom he (the President) may be authorized by law to appoint."
And Section 2(c), Executive Order No. 163, 5 May 1987, authorizes the President to
appoint the Chairman and Members of the Commission on Human Rights. It provides:
"(c) The Chairman and the Members of the Commission on Human Rights shall be
appointed by the President for a term of seven years without reappointment. Appointment
to any vacancy shall be only for the unexpired term of the predecessor." It is clear that
petitioner Bautista was extended by her Excellency, the President a permanent
appointment as Chairman of the Commission on Human Rights on 17 December 1988.
Before this date, she was merely the "Acting Chairman" of the Commission. Bautista's
appointment on 17 December 1988 is an appointment that was for the President solely to
make, i.e., not an appointment to be submitted for review and confirmation (or rejection)
by the Commission on Appointments. This is in accordance with Sec. 16, Art. VII of the
1987 Constitution and the doctrine in Mison which is here reiterated.
2. ID.; ID.; ID.; WHEN COMPLETE AND ACCEPTED BY THE APPOINTEE,
SUBSEQUENT APPOINTMENT TO THE SAME POSITION NOT VALID AS NO
VACANCY EXISTS. — When the President appointed petitioner Bautista on 17
December 1988 to the position of Chairman of the Commission on Human Rights with
the advice to her that by virtue of such appointment (not, until confirmed by the
Commission on Appointments), she could qualify and enter upon the performance of her
duties after taking her oath of office, the presidential act of appointment to the subject
position which, under the constitution, is to be made, in the first place, without the
participation of the Commission on Appointments, was then and there a complete and
finished act, which, upon the acceptance by Bautista, as shown by her taking of the oath
of office and actual assumption of the duties of said office, installed her, indubitably and
unequivocally, as the lawful Chairman of the Commission on Human Rights for a term of
seven (7) years. There was thus no vacancy in the subject office on 14 January 1989 to
which an appointment could be validly made. In fact, there is no vacancy in said office to
this day.
3. ID.; AD-INTERIM APPOINTMENTS; SUBJECT TO CONFIRMATION OF
THE COMMISSION ON APPOINTMENTS. — Under the Constitutional design, ad
interim appointments do not apply to appointments solely for the President to make, i.e.,
without the participation of the Commission on Appointments. Ad interim appointments,
by their very nature under the 1987 Constitution, extend only to appointments where the
review of the Commission on Appointments is needed. That is why ad interim
appointments are to remain valid until disapproval by the Commission on Appointments
or until the next adjournment of Congress: but appointments that are for the President
solely to make, that is, without the participation of the Commission on Appointments, can
not be ad interim appointments.
4. ID.; PUBLIC OFFICERS; "TERM OF OFFICE", DISTINGUISHED FROM
TENURE IN OFFICE". — Executive Order (No. 163) speaks of a term of office of the
Chairman and Members of the Commission on Human Rights — which is seven (7) years
without reappointment — the later executive order (163-A) speaks of the tenure in office
of the Chairman and Members of the Commission on Human Rights, which is, "at the
pleasure of the President." Tenure in office should not be confused with term of office.
As Mr. Justice (later, Chief Justice) Concepcion in his concurring opinion in Alba vs.
Evangelista (100 Phil. at 683) stated: "The distinction between 'term' and 'tenure' is
important, for, pursuant to the Constitution, 'no officer or employee in the Civil Service
may be removed or suspended except for cause, as provided by law' (Art. XII, Section 4),
and this fundamental principle would be defeated if Congress could legally make the
tenure of some officials dependent upon the pleasure of the President, by clothing the
latter with blanket authority to replace a public officer before the expiration of his term."
5. ID.; ID.; EXECUTIVE ORDER NO. 163-A DECLARED
UNCONSTITUTIONAL. — The full text of Executive Order No. 163-A, 30 June 1987,
is as follows: "WHEREAS, the Constitution does not prescribe the term of office of the
Chairman and Members of the Commission on Human Rights unlike those of other
Constitutional Commissions: NOW, THEREFORE, I, CORAZON C. AQUINO,
President of the Philippines, do hereby order: SECTION 1. Section 2, sub-paragraph (c)
of Executive Order No. 163 is hereby amended to read as follows: The Chairman and
Members of the Commission on Human Rights shall be appointed by the President. Their
tenure in office shall be at the pleasure of the President. SEC. 2. This Executive Order
shall take effect immediately. DONE in the City of Manila, this 30th day of June, in the
year of Our Lord, nineteen hundred and eighty-seven. (Sgd.) Corazon C. Aquino
President of the Philippines by the President: (Sgd.) JOKER P. ARROYO Executive
Secretary." Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order
No. 163 was issued by the President, Sec. 2(c) of which provides: "Sec. 2(c) The
Chairman and the Members of the Commission on Human Rights shall be appointed by
the President for a term of seven years without reappointment. Appointments to any
vacancy shall be only for the unexpired term of the predecessor." When Executive Order
No. 163 was issued, the evident purpose was to comply with the constitutional provision
that "the term of office and other qualifications and disabilities of the Members of the
Commission (on Human Rights) shall be provided by law" (Sec. 17 (2), Art. XIII, 1987
Constitution). As the term of office of the Chairman (and Members) of the Commission
on Human Rights, is seven (7) years, without re-appointment, as provided by Executive
Order No. 163, and consistent with the constitutional design to give the Commission the
needed independence to perform and accomplish its functions and duties, the tenure in
office of said Chairman (and Members) cannot be later made dependent on the pleasure
of the President. Indeed, the Court finds it extremely difficult to conceptualize how an
office conceived and created by the Constitution to be independent — as the Commission
on Human Rights — and vested with the delicate and vital functions of investigating
violations of human rights, pinpointing responsibility and recommending sanctions as
well as remedial measures, can truly functions with independence and effectiveness,
when the tenure in office of its Chairman and Members is made dependent on the
pleasure of the President. Executive Order No. 163-A, being antithetical to the
constitutional mandate of independence for the Commission on Human Rights has to be
declared unconstitutional.
6. ID.; ID.; CHAIRMAN OF A CONSTITUTIONALLY MANDATED
INDEPENDENT OFFICE; MAY BE REMOVED THEREFROM ONLY FOR CAUSE
AND AFTER OBSERVANCE OF DUE PROCESS. — To hold, as the Court holds, that
petitioner Bautista is the lawful incumbent of the office of Chairman of the Commission
on Human Rights by virtue of her appointment, as such, by the President on 17 December
1988, and her acceptance thereof, is not to say that she cannot be removed from office
before the expiration of her seven (7) year term. She certainly can be removed but her
removal must be for cause and with her right to due process properly safeguarded. In the
case of NASECO vs. NLRC, G.R. No. 69870, Naseco vs. NLRC; G.R. No. 70295,
Eugenia C. Credo vs. NLRC, 29 November 1988 this Court held that before a rank-and-
file employee of the NASECO, a government-owned corporation, could be dismissed,
she was entitled to a hearing and due process. How much more, in the case of the
Chairman of a constitutionally mandated INDEPENDENT OFFICE, like the Commission
on Human Rights.
7. ID.; PRINCIPLE OF CHECKS AND BALANCES APPLIED IN MATTERS OF
APPOINTMENT TO PUBLIC OFFICE. — Constitutional Law is concerned with power
not political convenience, wisdom, exigency or even necessity. Neither the Executive nor
the Legislative (Commission on Appointments) can create power where the Constitution
confers none. The evident constitutional intent is to strike a careful and delicate balance
in the matter of appointments to public office between the President and Congress (the
latter acting through the Commission on Appointments). To tilt one side or the other of
the scale is to disrupt or alter such balance of power. In other words, to the extent that the
Constitution has blocked off certain appointments for the President to make with the
participation of the Commission on Appointments, so also has the Constitution mandated
that the President can confer no power of participation in the Commission on
Appointments over other appointments exclusively reserved for her by the Constitution.
The exercise of political options that finds no support in the Constitution cannot be
sustained. Nor can the Commission on Appointments by the actual exercise of its
constitutionality delimited power to review presidential appointments, create power to
confirm appointments that the Constitution has reserved to the President alone. Stated
differently, when the appointment is one that the Constitution mandates is for the
President to make without the participation of the Commission on Appointments, the
executive's voluntary act of submitting such appointment to the Commission on
Appointment and the latter's act of confirming or rejecting the same are done without or
in excess of jurisdiction.
GRIÑO-AQUINO, J., dissenting:
1. CONSTITUTIONAL LAW; CHAIRMAN OF THE COMMISSION ON
HUMAN RIGHTS; APPOINTMENT THERETO NEEDS CONFIRMATION FROM
COMMISSION ON APPOINTMENTS. — The "other officers" mentioned under the 1st
sentence of Section 16, Article VII of the 1987 Constitution whose appointments are
vested in the President in the Constitution are the constitutional officers, meaning those
who hold offices created under the Constitution, and whose appointments are not
otherwise provided for in the Charter. Those constitutional officers are the chairmen and
members of the Constitutional Commissions, namely: the Civil Service Commission (Art.
IX-B), the Commission on Elections (Art. IX-C), the Commission on Audit (Art. IX-D),
and the Commission on Human Rights (Sec. 17, Art. XIII). These constitutional
commissions are, without exception, declared to be "independent," but while in the case
of the Civil Service Commission, the Commission on Elections and the Commission on
Audit, the 1987 Constitution expressly provides that "the Chairman and the
Commissioners shall be appointed by the President with the consent of the Commission
on Appointments" (Sec. 1[2], Art. IX-B; Sec. 1[2], Art. IX-C and Sec. 1[2], Art. IX-D),
no such clause is found in Section 17, Article XIII creating the Commission on Human
Rights. Its absence, however, does not detract from, or diminish, the President's power to
appoint the Chairman and Commissioners of the said Commission. The source of that
power is the first sentence of Section 16, Article VII of the Constitution for: (1) the
Commission on Human Rights is an office created by the Constitution, and (2) the
appointment of the Chairman and Commissioners thereof is vested in the President by the
Constitution. Therefore, the said appointments shall be made by the President with the
consent of the Commission on Appointments, as provided in Section 16, Article VII of
the Constitution.
2. ID.; COMMISSION ON APPOINTMENTS; POWER THEREOF TO REVIEW
AND CONFIRM APPOINTMENTS MADE BY THE PRESIDENT, PART OF
SYSTEM OF CHECKS AND BALANCES. — The petitioner argues that the power of
the Commission on Appointments to review and confirm appointments made by the
President is a "derogation of the Chief Executive's appointing power." That power is
given to the Commission on Appointments as part of the system of checks and balances
in the democratic form of government provided for in our Constitution. As stated by a
respected constitutional authority, former U.P. Law Dean and President Vicente G.
Sinco: "The function of confirming appointments is part of the power of appointment
itself. It is, therefore, executive rather than legislative in nature. In giving this power to an
organ of the legislative department, the Constitution merely provides a detail in the
scheme of checks and balances between the executive and legislative organs of the
government." (Phil. Political Law by Sinco, 11th Ed., p. 226).
GUTIERREZ, JR., dissenting:
1. CONSTITUTIONAL LAW; SECTION 16; ARTICLE VII OF THE
CONSTITUTION; APPOINTMENT OF PUBLIC OFFICERS UNDER SECOND
SENTENCE THEREOF REQUIRES CONFIRMATION OF COMMISSION ON
APPOINTMENTS. — Section 16, Article VII of the Constitution consists of only three
sentences. The officers specified in the first sentence clearly require confirmation by the
Commission on Appointments. The officers mentioned in the third sentence just as
clearly do not require confirmation. The problem area lies with those in the second
sentence. The first group are the heads of executive departments, ambassadors, other
public ministers and consuls, officers of the armed forces from colonel or naval captain,
and other officers whose appointments are vested in the President by the Constitution.
The first sentence of Section 16 state they must be confirmed by the Commission on
Appointments. The third group are officers lower in rank whose appointments Congress
has by law vested in the President alone. They need no confirmation. The second group
of presidential appointees are "all other officers of the Government whose appointments
are not otherwise provided for by law and those whom he may be authorized by law to
appoint." If the officers in the first group are the only appointees who need confirmation,
there would be no need for the second and third sentences of Section 16. They become
superfluous. Any one not falling under an express listing would need no confirmation.
The second sentence of Section 16 starts with, "He shall also appoint . . ." Whenever we
see the word "also" in a sentence, we associate it with preceding sentences, never with the
different sentence that follows. On the other hand, the third sentence specifies "other
officers lower in rank" who are appointed pursuant to law by the President "alone." This
can only mean that the higher ranking officers in the second sentence must also be
appointed with the concurrence of the Commission on Appointments. When the
Constitution requires Congress to specify who may be appointed by the President alone,
we should not add other and higher ranking officers as also appointed by her alone. The
strained interpretation by the Court's majority makes the word "alone" meaningless if the
officers to whom "alone" is not appended are also included in the third group.
2. ID.; CHAIRMAN OF THE COMMISSION ON HUMAN RIGHTS;
APPOINTMENT THERETO NEEDS CONFIRMATION FROM THE COMMISSION
ON APPOINTMENTS; REASON THEREFOR. — The Commission on Appointments is
an important constitutional body which helps give fuller expression to the democratic
principles inherent in our presidential form of government. There are those who would
render innocuous the Commission's power or perhaps even move for its abolition as a
protest against what they believe is too much horsetrading or sectarian politics in the
exercise of its functions. Since the President is a genuinely liked and popular leader,
personally untouched by scandal, who appears to be motivated only by the sincerest of
intentions, these people would want the Commission to routinely rubberstamp those
whom she appoints to high office. Unfortunately, we cannot have one reading of Section
16 for popular Presidents and another interpretation for more mediocre, disliked, and
even abusive or dictatorial ones. Precisely, Section 16 was intended to check abuse or ill-
considered appointments by a President who belongs to the latter class. It is not the
judiciary and certainly not the appointed bureaucracy but Congress which truly represents
the people. We should not expect Congress to act only as the selfless idealists, the well-
meaning technocrats, the philosophers, and the coffee-shop pundits would have it move.
The masses of our people are poor and underprivileged, without the resources or the time
to get publicly involved in the intricate workings of Government, and often ill-informed
or functionally illiterate. These masses together with the propertied gentry and the elite
class can express their divergent views only through their Senators and Congressmen.
Even the buffoons and retardates deserve to have their interests considered and aired by
the people's representatives. In the democracy we have and which we try to improve
upon, the Commission on Appointments cannot be expected to function like a mindless
machine without any debates or even imperfections. The discussions and wranglings, the
delays and posturing are part of the democratic process. They should never be used as
arguments to restrict legislative power where the Constitution does not expressly provide
for such a limitation. The Commission on Human Rights is a very important office. Our
country is beset by widespread insurgency, marked inequity in the ownership and
enjoyment of wealth and political power, and dangerous conflicts arising from
ideological, ethnic and religious differences. The tendency to use force and violent means
against those who hold opposite views appears irresistible to the holders of both
governmental and rebel firepower. The President is doubly careful in the choice of the
Chairman and Members of the Commission on Human Rights. Fully aware of the ruling
in Sarmiento III v. Mison, she wants the appointments to be a joint responsibility of the
Presidency and Congress, through the Commission on Appointments. She wants a more
thorough screening process for these sensitive positions. She wants only the best to
survive the process.
CRUZ, J., dissenting:
CONSTITUTIONAL LAW; CHAIRMAN OF THE COMMISSION ON HUMAN
RIGHTS; APPOINTMENT THERETO NEEDS CONFIRMATION FROM
COMMISSION ON APPOINTMENTS. — I submit that what President Aquino
extended to the petitioner on 17 December 1988 was an ad interim appointment that
although immediately effective upon acceptance was still subject to confirmation. I
cannot agree that when the President said the petitioner could qualify and enter into the
performance of her duties, "all that remained for Bautista to do was to reject or accept the
appointment." In fact, on the very day it was extended, the ad interim appointment was
submitted by the President of the Philippines to the Commission on Appointments "for
confirmation." The ponencia says that the appointment did not need any confirmation,
being the sole act of the President under the Mison ruling. That would have settled the
question quite conclusively, but the opinion goes on to argue another justification that I
for one find unnecessary, not to say untenable. I sense here a palpable effort to bolster
Mison because of the apprehension that it is falling apart. Of course, there was no
vacancy when the nomination was made on 14 January 1989. There is no question that
the petitioner was still validly holding the office by virtue of her ad interim appointment
thereto on 17 December 1988. The nomination made later was unnecessary because the
ad interim appointment was still effective. When the Commission on Appointments sent
the petitioner the letters dated 9 January 1989 and 10 January 1989 requiring her to
submit certain data and inviting her to appear before it, it was acting not on the
nomination but on the ad interim appointment. What was disapproved was the ad interim
appointment, not the nomination. The nomination of 14 January 1989 is not in issue in
this case. It is entirely immaterial. At best, it is important only as an affirmation of the
President's acknowledgment that the Chairman of the Commission on Human Rights
must be confirmed under Article VII, Section 16 of the Constitution. I repeat my view
that the Chairman of the Commission on Human Rights is subject to confirmation by the
Commission on Appointments, for the reasons stated in my dissent in Mison.
Accordingly, I vote to DENY the petition.
DECISION
PADILLA, J p:
The Court had hoped that its decision in Sarmiento III vs. Mison, 1 would have settled
the question of which appointments by the President, under the 1987 Constitution, are to
be made with and without the review of the Commission on Appointments. The Mison
case was the first major case under the 1987 Constitution and in construing Sec. 16, Art.
VII of the 1987 Constitution which provides:
"The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are vested in him in this Constitution. He
shall also appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of the departments, agencies, commissions
or boards.
"The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until the next adjournment
of the Congress."
this Court, drawing extensively from the proceedings of the 1986 Constitutional
Commission and the country's experience under the 1935 and 1973 Constitutions, held
that only those appointments expressly mentioned in the first sentence of Sec. 16, Art.
VII are to be reviewed by the Commission on Appointments, namely, "the heads of the
executive department, ambassadors, other public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution." All other appointments by the
President are to be made without the participation of the Commission on Appointments.
Accordingly, in the Mison case, the appointment of therein respondent Salvador M.
Mison as head of the Bureau of Customs, without the confirmation of the Commission on
Appointments, was held valid and in accordance with the Constitution. LibLex
The Mison case doctrine did not foreclose contrary opinions. So with the very provisions
of Sec. 16, Art. VII as designed by the framers of the 1987 Constitution. But the
Constitution, as construed by this Court in appropriate cases, is the supreme law of the
land. And it cannot be over-stressed that the strength of the Constitution, with all its
imperfections, lies in the respect and obedience accorded to it by the people, especially
the officials of government, who are the subjects of its commands.
Barely a year after Mison, the Court is again confronted with a similar question, this time,
whether or not the appointment by the President of the Chairman of the Commission on
Human Rights (CHR), an "independent office" created by the 1987 Constitution, is to be
made with or without the confirmation of the Commission on Appointments (CA, for
brevity). Once more, as in Mison, the Court will resolve the issue irrespective of the
parties involved in the litigation, mindful that what really matters are the principles that
will guide this Administration and others in the years come.
Since the position of Chairman of the Commission on Human Rights is not among the
positions mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution,
appointments to which are to be made with the confirmation of the Commission on
Appointments, it follows that the appointment by the President of the Chairman of the
CHR is to be made without the review or participation of the Commission on
Appointments.
To be more precise, the appointment of the Chairman and Members of the Commission
on Human Rights is not specifically provided for in the Constitution itself, unlike the
Chairmen and Members of the Civil Service Commission, the Commission on Elections
and the Commission on Audit, whose appointments are expressly vested by the
Constitution in the President with the consent of the Commission on Appointment. 2
The President appoints the Chairman and Members of the Commission on Human Rights
pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation
of the Commission on Appointments because they are among the officers of government
"whom he (the President) may be authorized by law to appoint." And Section 2(c),
Executive Order No. 163, 5 May 1987, authorizes the President to appoint the Chairman
and Members of the Commission on Human Rights. It provides:
"(c) The Chairman and the Members of the Commission on Human Rights shall be
appointed by the President for a term of seven years without re-appointment.
Appointment to any vacancy shall be only for the unexpired term of the predecessor."
The above conclusions appear to be plainly evident and, therefore, irresistible. However,
the presence in this case of certain elements — absent in the Mison case — makes
necessary a closer scrutiny. The facts are therefore essential.
On 27 August 1987, the President of the Philippines designated herein petitioner Mary
Concepcion Bautista as "Acting Chairman, Commission on Human Rights." The letter of
designation reads:
"27 August 1987
Madam:
You are hereby designated ACTING CHAIRMAN, COMMISSION ON HUMAN
RIGHTS, to succeed the late Senator Jose W. Diokno and Justice J. B. L. Reyes.
Very truly yours,
CORAZON C. AQUINO
HON. MARY CONCEPCION BAUTISTA" 3
Realizing perhaps the need for a permanent chairman and members of the Commission
on Human Rights, befitting an independent office, as mandated by the Constitution, 4 the
President of the Philippines on 17 December 1988 extended to petitioner Bautista a
permanent appointment as Chairman of the Commission. The appointment letter is as
follows:
"17 December 1988
The Honorable
The Chairman
Commission on Human Rights
Pasig, Metro Manila
Madam:
Pursuant to the provisions of existing laws, the following are hereby appointed to the
positions indicated opposite their respective names in the Commission on Human Rights:
MARY CONCEPCION BAUTISTA — Chairman
ABELARDO L. APORTADERA, JR. — Member
SAMUEL SORIANO — Member
HESIQUIO R. MALLILLIN — Member
NARCISO C. MONTEIRO — Member
By virtue hereof, they may qualify and enter upon the performance of the duties of the
office furnishing this Office and the Civil Service Commission with copies of their oath
of office.
Very truly yours,
CORAZON C. AQUINO" 5
It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the
President that she could qualify and enter upon the performance of the duties of the office
of Chairman of the Commission on Human Rights, requiring her to furnish the office of
the President and the Civil Service Commission with copies of her oath of office.
On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan,
petitioner Bautista took her oath of office by virtue of her appointment as Chairman of
the Commission on Human Rights. The full text of the oath of office is as follows:

"OATH OF OFFICE
I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal,
Makati, Metro Manila having been appointed to the position of CHAIRMAN of the
Commission on Human Rights, do solemnly swear that I will discharge to the best of my
ability all the duties and responsibilities of the office to which I have been appointed;
uphold the Constitution of the Republic of the Philippines, and obey all the laws of the
land without mental reservation or purpose of evasion.
SO HELP ME GOD.
MARY CONCEPCION BAUTISTA
SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of
Our Lord, 1988 in Manila.
MARCELO B. FERNAN
Chief Justice
Supreme Court of the Philippines" 6
Immediately, after taking her oath of office as Chairman of the Commission on Human
Rights, petitioner Bautista discharged the functions and duties of the Office of Chairman
of the Commission on Human Rights which, as previously stated, she had originally held
merely in an acting capacity beginning 27 August 1987.
On 9 January 1989, petitioner Bautista received a letter from the Secretary of the
Commission on Appointments requesting her to submit to the Commission certain
information and documents as required by its rules in connection with the confirmation of
her appointment as Chairman of the Commission on Human Rights. 7 On 10 January
1989, the Commission on Appointments' Secretary again wrote petitioner Bautista
requesting her presence at a meeting of the Commission on Appointments Committee on
Justice, Judicial and Bar Council and Human Rights set for 19 January 1989 at 9 A.M. at
the Conference Room, 8th Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that
would deliberate on her appointment as Chairman of the Commission on Human Rights.
8
On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on
Appointments stating, for the reasons therein given, why she considered the Commission
on Appointments as having no jurisdiction to review her appointment as Chairman of the
Commission on Human Rights. The petitioner's letter to the Commission on
Appointments' Chairman reads:
"January 13, 1989
SENATE PRESIDENT JOVITO R. SALONGA
Chairman
Commission on Appointments
Senate, Manila
Sir:
We acknowledge receipt of the communication from the Commission on Appointments
requesting our appearance on January 19, 1989 for deliberation on our appointments.
We respectfully submit that the appointments of the Commissioners of the Human Rights
Commission are not subject to confirmation by the Commission on Appointments.
The Constitution, in Article VII Section 16 which expressly vested on the President the
appointing power, has expressly mentioned the government officials whose appointments
are subject to the confirmation of the Commission on Appointments of Congress. The
Commissioners of the Commission on Human Rights are not included among those.
Where the confirmation of the Commission on Appointments is required, as in the case of
the Constitutional Commissions such as the Commission on Audit, Civil Service
Commission and the Commission on Elections, it was expressly provided that the
nominations will be subject to confirmation of Commission on Appointments. The
exclusion again of the Commission on Human Rights, a constitutional office, from this
enumeration is a clear denial of authority to the Commission on Appointments to review
our appointments to the Commission on Human Rights.
Furthermore, the Constitution specifically provides that this Commission is an
independent office which:
a. must investigate all forms of human rights violations involving civil and political
rights;
b. shall monitor the government's compliance in all our treaty obligations on human
rights. We submit that, the monitoring of all agencies of government, includes even
Congress itself, in the performance of its functions which may affect human rights;
c. may call on all agencies of government for the implementation of its mandate.
The powers of the Commission on Appointments is in fact a derogation of the Chief
Executive's appointing power and therefore the grant of that authority to review a valid
exercise of the executive power can never be presumed. It must be expressly granted.

The Commission on Appointments has no jurisdiction under the Constitution to review

appointments by the President of Commissioners of the Commission on Human Rights.
In view of the foregoing considerations, as Chairman of an independent constitutional
office. I cannot submit myself to the Commission on Appointments for the purpose of
confirming or rejecting my appointment.
Very truly yours,
MARY CONCEPCION BAUTISTA
Chairman" 9
In respondent Commission's comment (in this case), dated 3 February 1989, there is
attached as Annex 1 a letter of the Commission on Appointments' Secretary to the
Executive Secretary, Hon. Catalino Macaraig, Jr. making reference to the "ad interim
appointment which Her Excellency extended to Atty. Mary Concepcion Bautista on 14
January 1989 as Chairperson of the Commission on Human Rights" 10 and informing
Secretary Macaraig that, as previously conveyed to him in a letter of 26 January 1989, the
Commission on Appointments disapproved petitioner Bautista's "ad interim appointment"
as Chairperson of the Commission on Human Rights in view of her refusal to submit to
the jurisdiction of the Commission on Appointments. The letter reads:
"1 February 1989
HON. CATALINO MACARAIG, JR.
Executive Secretary
Malacanang, Manila
Sir:
This refers to the ad interim appointment which Her Excellency extended to Atty. Mary
Concepcion Bautista on 14 January 1989 as Chairperson of the Commission on Human
Rights.
As we conveyed to you in our letter of 25 January 1989, the Commission on
Appointments, assembled in plenary (session) on the same day, disapproved Atty.
Bautista's ad interim appointment as Chairperson of the Commission on Human Rights in
view of her refusal to submit to the jurisdiction of the Commission on Appointments.
This is to inform you that the Commission on Appointments, likewise assembled in
plenary (session) earlier today, denied Senator Mamintal A. J. Tamano's motion for
reconsideration of the disapproval of Atty. Bautista's ad interim appointment as
Chairperson of the Commission on Human Rights.
Very truly yours,
RAOUL V. VICTORINO
Secretary" 11
On the same date (1 February 1989), the Commission on Appointments' Secretary
informed petitioner Bautista that the motion for reconsideration of the disapproval of her
"ad interim appointment as Chairman of the Commission on Human Rights" was denied
by the Commission on Appointments. The letter reads as follows:
"1 February 1989
ATTY. MARY CONCEPCION BAUTISTA
Commission on Human Rights
Integrated Bar of the Philippines Bldg.
Pasig, Metro Manila
Dear Atty. Bautista:
Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on Appointments, the
denial by the Commission on Appointments assembled in plenary (session) earlier today,
of Senator Mamintal A.J. Tamano's motion for reconsideration of the disapproval of your
ad interim appointment as Chairperson of the Commission on Human Rights is
respectfully conveyed.
Thank you for your attention.
Very truly yours,
RAOUL V. VICTORINO
Secretary" 12
In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a
news item appearing in the 3 February 1989 issue of the "Manila Standard" reporting that
the President had designated PCHR Commissioner Hesiquio R. Mallillin as "Acting
Chairman of the Commission" pending the resolution of Bautista's case which had been
elevated to the Supreme Court. The news item is here quoted in full, thus —
"Aquino names replacement for MaryCon
President Aquino has named replacement for Presidential Commission on Human Rights
Chairman Mary Concepcion Bautista whose appointment was rejected anew by the
Congressional commission on appointments.
The President designated PCHR commissioner Hesiquio R. Malilillin as "acting
chairman" of the Commission pending the resolution of Bautista's case which had been
elevated to the Supreme Court.
The President's action followed after Congressional Commission on Appointments
Chairman, Senate President Jovito Salonga declared Bautista can no longer hold on to her
position after her appointment was not confirmed for the second time.
"For all practical purposes," Salonga said Bautista can be accused of usurpation of
authority if she insists to stay on her office.
In effect, the President had asked Bautista to vacate her office and give way to Mallillin.
(Mari Villa)" 13
On 20 January 1989, or even before the respondent Commission on Appointments had
acted on her "ad interim appointment as Chairman of the Commission on Human Rights"
petitioner Bautista filed with this Court the present petition for certiorari with a prayer for
the immediate issuance of a restraining order, to declare "as unlawful and
unconstitutional and without any legal force and effect any action of the Commission on
Appointments as well as of the Committee on Justice, Judicial and Bar Council and
Human Rights, on the lawfully extended appointment of the petitioner as Chairman of the
Commission on Human Rights, on the ground that they have no lawful and constitutional
authority to confirm and to review her appointment." 14
The prayer for temporary restraining order was "to enjoin the respondent Commission on
Appointments not to proceed further with their deliberation and/or proceedings on the
appointment of the petitioner . . . nor to enforce, implement or act on any order,
resolution, etc. issued in the course of their deliberations." 15
Respondents were required to file comment within ten (10) days. 16 On 7 February 1989,
petitioner filed an amended petition, with urgent motion for restraining order, impleading
Commissioner Hesiquio R. Mallillin the designated acting chairman as party respondent
and praying for the nullification of his appointment. The succeeding day, a supplemental
urgent ex-parte motion was filed by petitioner seeking to restrain respondent Mallillin
from continuing to exercise the functions of chairman and to refrain from demanding
courtesy resignations from officers or separating or dismissing employees of the
Commission.
Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the
Court resolved to issue a temporary restraining order directing respondent Mallillin to
cease and desist from effecting the dismissal, courtesy resignation, removal and
reorganization and other similar personnel actions. 17 Respondents were likewise
required to comment on said amended petition with allowance for petitioner to file a
reply within two (2) days from receipt of a copy thereof.
Respondents Senator Salonga, the Commission on Appointments, the Committee on J &
BC and Human Rights filed a comment to the amended petition on 21 February 1989. 18
Petitioner filed her reply. 19 On 24 February 1989, respondent Mallillin filed a separate
comment. 20 The Court required petitioner to reply to respondent Mallillin's comment.
21 Petitioner filed her reply. 22
In deference to the Commission on Appointments, an instrumentality of a co-ordinate and
co-equal branch of government, the Court did not issue a temporary restraining order
directed against it. However, this does not mean that the issues raised by the petition, as
met by the respondents' comments, will not be resolved in this case. The Court will not
shirk from its duty as the final arbiter of constitutional issues, in the same way that it did
not in Mison.
As disclosed by the records, and as previously adverted to, it is clear that petitioner
Bautista was extended by Her Excellency, the President a permanent appointment as
Chairman of the Commission on Human Rights on 17 December 1988. Before this date,
she was merely the "Acting Chairman" of the Commission. Bautista's appointment on 17
December 1988 is an appointment that was for the President solely to make, i.e., not an
appointment to be submitted for review and confirmation (or rejection) by the
Commission on Appointments. This is in accordance with Sec. 16, Art. VII of the 1987
Constitution and the doctrine in Mison which is here reiterated.
The threshold question that has really come to the fore is whether the President,
subsequent to her act of 17 December 1988, and after petitioner Bautista had qualified for
the office to which she had been appointed, by taking the oath of office and actually
assuming and discharging the functions and duties thereof, could extend another
appointment to the petitioner on 14 January 1989, an "ad interim appointment" as termed
by the respondent Commission on Appointments or any other kind of appointment to the
same office of Chairman of the Commission on Human Rights that called for
confirmation by the Commission on Appointments.
The Court, with all due respect to both the Executive and Legislative Departments of
government, and after careful deliberation, is constrained to hold and rule in the negative.
When Her Excellency, the President converted petitioner Bautista's designation as Acting
Chairman to a permanent appointment as Chairman of the Commission on Human Rights
on 17 December 1988, significantly she advised Bautista (in the same appointment letter)
that, by virtue of such appointment, she could qualify and enter upon the performance of
the duties of the office (of Chairman of the Commission on Human Rights). All that
remained for Bautista to do was to reject or accept the appointment. Obviously, she
accepted the appointment by taking her oath of office before the Chief Justice of the
Supreme Court, Hon. Marcelo B. Fernan and assuming immediately thereafter the
functions and duties of the Chairman of the Commission on Human Rights. Bautista's
appointment therefore on 17 December 1988 as Chairman of the Commission on Human
Rights was a completed act on the part of the President. To paraphrase the great jurist,
Mr. Chief Justice Marshall, in the celebrated case of Marbury vs. Madison. 23
xxx xxx xxx
"The answer to this question seems an obvious one. The appointment being the sole act
of the President, must be completely evidenced, when it is shown that he has done
everything to be performed by him.
xxx xxx xxx
"Some point of time must be taken when the power of the executive over an officer, not
removable at his will must cease. That point of time must be when the constitutional
power of appointment has been exercised. And this power has been exercised when the
last act, required from the person possessing the power, has been performed . . .
xxx xxx xxx
"But having once made the appointment, his (the President's) power over the office is
terminated in all cases, where by law the officer is not removable by him. The right to the
office is then in the person appointed, and he has the absolute, unconditional power of
accepting or rejecting it.
xxx xxx xxx"
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989
It is respondent Commission's submission that the President, after the appointment of 17
December 1988 extended to petitioner Bautista, decided to extend another appointment
(14 January 1989) to petitioner Bautista, this time, submitting such appointment (more
accurately, nomination) to the Commission on Appointments for confirmation. And yet,
it seems obvious enough, both in logic and in fact, that no new or further appointment
could be made to a position already filled by a previously completed appointment which
had been accepted by the appointee, through a valid qualification and assumption of its
duties.
Respondent Commission vigorously contends that, granting that petitioner's appointment
as Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of
the Constitution, as interpreted in the Mison case, is solely for the President to make, yet,
it is within the president's prerogative to voluntarily submit such appointment to the
Commission on Appointment for confirmation. The mischief in this contention, as the
Court perceives it, lies in the suggestion that the President (with Congress agreeing) may,
from time to time move power boundaries, in the Constitution differently from where
they are placed by the Constitution.
The Court really finds the above contention difficult of acceptance. Constitutional Law,
to begin with, is concerned with power not political convenience, wisdom, exigency, or
even necessity. Neither the Executive nor the Legislative (Commission on Appointments)
can create power where the Constitution confers none. The evident constitutional intent is
to strike a careful and delicate balance, in the matter of appointments to public office,
between the President and Congress (the latter acting through the Commission on
Appointments). To tilt one side or the other of the scale is to disrupt or alter such balance
of power. In other words, to the extent that the Constitution has blocked off certain
appointments for the President to make with the participation of the Commission on
Appointments, so also has the Constitution mandated that the President can confer no
power of participation in the Commission on Appointments over other appointments
exclusively reserved for her by the Constitution. The exercise of political options that
finds no support in the Constitution cannot be sustained.
Nor can the Commission on Appointments, by the actual exercise of its constitutionally
delimited power to review presidential appointments, create power to confirm
appointments that the Constitution has reserved to the President alone. Stated differently,
when the appointment is one that the Constitution mandates is for the President to make
without the participation of the Commission on Appointments, the executive's voluntary
act of submitting such appointment to the Commission on Appointments and the latter's
act of confirming or rejecting the same, are done without or in excess of jurisdiction.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE
COMMISSION ON APPOINTMENTS AN APPOINTMENT THAT UNDER THE
CONSTITUTION SOLELY BELONGS TO HER, STILL, THERE WAS NO
VACANCY TO WHICH AN APPOINTMENT COULD BE MADE ON 14 JANUARY
1989
Under this heading, we will assume, ex gratia argumenti, that the Executive may
voluntarily allow the Commission on Appointments to exercise the power of review over
an appointment otherwise solely vested by the Constitution in the President. Yet, as
already noted, when the President appointed petitioner Bautista on 17 December 1988 to
the position of Chairman of the Commission on Human Rights with the advice to her that
by virtue of such appointment (not, until confirmed by the Commission on
Appointments), she could qualify and enter upon the performance of her duties after
taking her oath of office, the presidential act of appointment to the subject position
which, under the Constitution, is to be made, in the first place, without the participation
of the Commission on Appointments, was then and there a complete and finished act,
which, upon the acceptance by Bautista, as shown by her taking of the oath of office and
actual assumption of the duties of said office, installed her, indubitably and
unequivocally, as the lawful Chairman of the Commission on Human Rights for a term of
seven (7) years. There was thus no vacancy in the subject office on 14 January 1989 to
which an appointment could be validly made. In fact, there is no vacancy in said office to
this day.
Nor can respondents impressively contend that the new appointment or re-appointment
on 14 January 1989 was an ad interim appointment, because, under the Constitutional
design, ad interim appointments do not apply to appointments solely for the President to
make, i.e., without the participation of the Commission on Appointments. Ad interim
appointments, by their very nature under the 1987 Constitution, extend only to
appointments where the review of the Commission on Appointments is needed. That is
why ad interim appointments are to remain valid until disapproval by the Commission on
Appointments or until the next adjournment of Congress; but appointments that are for
the President solely to make, that is, without the participation of the Commission on
Appointments, can not be ad interim appointments.
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE
OF THE CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN
RIGHTS SHALL BE AT THE PLEASURE OF THE PRESIDENT IS
UNCONSTITUTIONAL.
Respondent Mallillin contends that with or without confirmation by the Commission on
Appointments, petitioner Bautista, as Chairman of the Commission on Human Rights,
can be removed from said office at anytime, at the pleasure of the President; and that with
the disapproval of Bautista's appointment (nomination) by the Commission on
Appointments, there was greater reason for her removal by the President and her
replacement with respondent Mallillin. Thus, according to respondent Mallillin, the
petition at bar has become moot and academic.
We do not agree that the petition has become moot and academic. To insist on such a
posture is akin to deluding oneself that day is night just because the drapes are drawn and
the lights are on. For, aside from the substantive questions of constitutional law raised by
petitioner, the records clearly show that petitioner came to this Court in timely manner
and has not shown any indication of abandoning her petition.
Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987,
full text of which is as follows:
"WHEREAS, the Constitution does not prescribe the term of office of the Chairman and
Members of the Commission on Human Rights unlike those of other Constitutional
Commissions;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do
hereby order:
SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby
amended to read as follows:
The Chairman and Members of the Commission on Human Rights shall be appointed by
the President. Their tenure in office shall be at the pleasure of the President.
SEC. 2. This Executive Order shall take effect immediately. DONE in the City of
Manila, this 30th day of June, in the year of Our Lord, nineteen hundred and eighty-
seven.
(Sgd.) CORAZON C. AQUINO
President of the Philippines
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary" 24
Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163 25
was issued by the President, Sec. 2(c) of which provides:
"Sec. 2(c). The Chairman and the Members of the Commission on Human Rights
shall be appointed by the President for a term of seven years without re-appointment.
Appointments to any vacancy shall be only for the unexpired term of the predecessor."
It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office
of the Chairman and Members of the Commission on Human Rights — which is seven
(7) years without re-appointment — the later executive order (163-A) speaks of the
tenure in office of the Chairman and Members of the Commission on Human Rights,
which is "at the pleasure of the President."
Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief
Justice) Concepcion in his concurring opinion in Alba vs. Evangelista, 26 stated:
"The distinction between 'term' and 'tenure' is important, for, pursuant to the Constitution,
'no officer or employee in the Civil Service may be removed or suspended except for
cause, as provided by law' (Art. XII, section 4), and this fundamental principle would be
defeated if Congress could legally make the tenure of some officials dependent upon the
pleasure of the President, by clothing the latter with blanket authority to replace a public
officer before the expiration of his term" 27
When Executive Order No. 163 was issued, the evident purpose was to comply with the
constitutional provision that "the term of office and other qualifications and disabilities of
the Members of the Commission (on Human Rights) shall be provided by law" (Sec.
17(2), Art. XIII, 1987 Constitution).
As the term of office of the Chairman (and Members) of the Commission on Human
Rights, is seven (7) years, without re-appointment, as provided by Executive Order No.
163, and consistent with the constitutional design to give the Commission the needed
independence to perform and accomplish its functions and duties, the tenure in office of
said Chairman (and Members) cannot be later made dependent on the pleasure of the
President.
Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra,
because the power of the President, sustained therein, to replace a previously appointed
vice-mayor of Roxas City — given the express provision in Sec. 8, Rep. Act No. 603
(creating the City of Roxas) stating that the vice-mayor shall serve at the pleasure of the
President, can find no application to the Chairman of an INDEPENDENT OFFICE,
created not by statute but by the Constitution itself. Besides, unlike in the Alba case, here
the Constitution has decreed that the Chairman and Members of the Commission on
Human Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived
and created by the Constitution to be independent — as the Commission on Human
Rights — and vested with the delicate and vital functions of investigating violations of
human rights, pinpointing responsibility and recommending sanctions as well as remedial
measures therefor, can truly function with independence and effectiveness, when the
tenure in office of its Chairman and Members is made dependent on the pleasure of the
President. Executive Order No. 163-A, being antithetical to the constitutional mandate of
independence for the Commission on Human Rights has to be declared unconstitutional.
The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of
its constitutional destruction. The proceedings in the 1986 Constitutional Commission
clearly point to its being plainly at war with the constitutional intent of independence for
the Commission. Thus —
"MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this
body to be constitutionalized is the fact that regardless of who is the President or who
holds the executive power, the human rights issue is of such importance that it should be
safeguarded and it should be independent of political parties or powers that are actually
holding the reins of government. Our experience during the martial law period made us
realize how precious those rights are and, therefore, these must be safeguarded at all
times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact: Precisely we do not want the term or
the power of the Commission on Human Rights to be coterminous with the president,
because the President's power is such that if he appoints a certain commissioner and that
commissioner is subject to the President, therefore, any human rights violations
committed under the person's administration will be subject to presidential pressure. That
is what we would like to avoid — to make the protection of human rights go beyond the
fortunes of different political parties or administrations in power." 28
xxx xxx xxx
"MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the
honorable Chief Justice Concepcion and retired Justice J.B.L. Reyes and they believe that
there should be an independent Commission on Human Rights free from executive
influence because many of the irregularities on human rights violations are committed by
members of the armed forces and members of the executive branch of the government.
So as to insulate this body from political interference, there is a need to constitutionalize
it." 29
xxx xxx xxx
"MR. SARMIENTO: On the inquiry on whether there is a need for this to be
constitutionalized, I would refer to a previous inquiry that there is still a need for making
this a constitutional body free or insulated from interference. I conferred with former
Chief Justice Concepcion and the acting chairman of the Presidential Committee on
Human Rights, retired Justice J.B.L. Reyes, and they are one in saying that this body
should be constitutionalized so that it will be free from executive control or interferences,
since many of the abuses are committed by the members of the military or the armed
forces." 30
xxx xxx xxx
"MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we leave
it to Congress, this commission will be within the reach of politicians and of public
officers and that to me is dangerous. We should insulate this body from political control
and political interference because of the nature of its functions — to investigate all forms
of human rights violations which are principally committed by members of the military,
by the Armed Forces of the Philippines" 31
xxx xxx xxx
"MR. GARCIA. The critical factor here is political control, and normally, when a
body is appointed by Presidents who may change, the commission must remain above
these changes in political control. Secondly, the other important factor to consider are the
armed forces, the police forces which have tremendous power at their command and,
therefore, we would need a commission composed of men who also are beyond the reach
of these forces and the changes in political administration." 32
xxx xxx xxx
"MR. MONSOD. Yes, It is the committee's position that this proposed special body,
in order to function effectively, must be invested with an independence that is necessary
not only for its credibility but also for the effectiveness of its work. However, we want to
make a distinction in this Constitution. May be what happened was that it was referred to
the wrong committee. In the opinion of the committee, this need not be a commission that
is similar to the three constitutional commissions like the COA, the COMELEC, and
Civil Service. It need not be in that article." 33
xxx xxx xxx
"MR. COLAYCO. The Commissioner's earlier objection was that the Office of the
President is not involved in the project. How sure are we that the next President of the
Philippines will be somebody we can trust? Remember, even now there is a growing
concern about some of the bodies, agencies and commission created by President
Aquino." 34
xxx xxx xxx
". . . Leaving to Congress the creation of the Commission on Human Rights is giving less
importance to a truly fundamental need to set up a body that will effectively enforce the
rules designed to uphold human rights." 35
PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR
CAUSE.
To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office
of Chairman of the Commission on Human Rights by virtue of her appointment, as such,
by the President on 17 December 1988, and her acceptance thereof, is not to say that she
cannot be removed from office before the expiration of her seven (7) year term. She
certainly can be removed but her removal must be for cause and with her right to due
process properly safeguarded. In the case of NASECO vs. NLRC, 36 this Court held that
before a rank-and-file employee of the NASECO, a government-owned corporation,
could be dismissed, she was entitled to a hearing and due process. How much more, in
the case of the Chairman of a constitutionally mandated INDEPENDENT OFFICE, like
the Commission on Human Rights. cdphil
If there are charges against Bautista for misfeasance or malfeasance in office, charges
may be filed against her with the Ombudsman. If he finds a prima facie case against her,
the corresponding information or informations can be filed with the Sandiganbayan
which may in turn order her suspension from office while the case or cases against her
are pending before said court. 37 This is due process in action. This is the way of a
government of laws and not of men.
A FINAL WORD
It is to the credit of the President that, in deference to the rule of law, after petitioner
Bautista had elevated her case to this Tribunal, Her Excellency merely designated an
Acting Chairman for the Commission on Human Rights (pending decision in this case)
instead of appointing another permanent Chairman. The latter course would have added
only more legal difficulties to an already difficult situation.
WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is,
the duly appointed Chairman of the Commission on Human Rights and the lawful
incumbent thereof, entitled to all the benefits, privileges and emoluments of said office.
The temporary restraining order heretofore issued by the Court against respondent
Mallillin enjoining him from dismissing or terminating personnel of the Commission on
Human Rights is made permanent.
SO ORDERED.

[A.M. No. 98-5-01-SC. November 9, 1998.]

IN RE APPOINTMENTS DATED MARCH 30, 1998 OF HON. MATEO A.
VALENZUELA AND HON. PLACIDO B. VALLARTA AS JUDGES OF THE
REGIONAL TRIAL COURT OF BRANCH 62, BAGO CITY AND OF BRANCH 24,
CABANATUAN CITY, RESPECTIVELY.
SYNOPSIS
Referred to the Court En Banc by the Chief Justice were the appointments signed by His
Excellency the President under date of March 20, 1998 of Hon. Mateo A. Valenzuela and
Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City
and Branch 24, Cabanatuan City, respectively. The appointments were received at the
Chief Justice's chambers on May 12, 1998. The referral was made in view of the serious
constitutional issue concerning said appointments. The question presented is whether,
during the period of the ban on appointments imposed by Section 15, Article VII of the
Constitution, the President is nonetheless required to fill vacancies in the judiciary, in
view of Sections 4(1) and 9 of Article VIII of the Constitution. A corollary question is
whether he can make appointments to the judiciary during the period of the ban in the
interest of public service. HDITCS
Section 15, Article VII restricts the appointing power of the President during the period
of the ban. It is directed against two types of appointments: (1) those made for buying
votes and (2) those made for partisan considerations. The first refers to those
appointments made within the two months preceding a Presidential election and are
similar to those declared election offenses in Section 261 (a) and (g) of the Omnibus
Election Code. The second type of appointment consists of the so-called "midnight"
appointments — those presumed made for the purpose of influencing the outcome of the
Presidential election. The exception in the same section allows only the making of
temporary appointments to executive positions when continued vacancies will prejudice
public service or endanger public safety. It is the Supreme Court's view that during the
period stated in Section 15, Article VII, the President is neither required to make
appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of Article
VIII simply mean that the President is required to fill vacancies in the courts within the
time frames provided therein unless prohibited by Section 15 of Article VII. Considering
the respective reasons for the time frames for filling vacancies in the courts and the
restriction on the President's power of appointment, it is the Court's view that, as a
general proposition, in case of conflict, the former should yield to the latter. The
prevention of vote-buying and similar evils outweighs the need for avoiding delays in
filling up of court vacancies or the disposition of some cases. Furthermore, those
occurring in the lower courts can be filled temporarily by designation.
The appointments of Messrs. Valenzuela and Vallarta were made during the period of the
ban. Consequently, they come within the operation of the first prohibition relating to
appointments. While the filling of vacancies in the judiciary is in the public interest, there
was no showing in this case of any compelling reason to justify the making of the
appointments during the period of the ban. Hence, the Court declared their appointments
void. CADSHI
SYLLABUS
1. CONSTITUTIONAL LAW; JUDICIARY; APPOINTMENTS TO THE
JUDICIARY; ARTICLE VIII OF THE CONSTITUTION; SECTIONS 4(1) AND 9
THEREOF; CONSTRUED. — The Court's view is that during the period stated in
Section 15, Article VII of the Constitution — "(t)wo months immediately before the next
presidential elections and up to the end of his term" — the President is neither required to
make appointments to the courts nor allowed to do so; and that Sections 4(1) and 9 of
Article VIII simply mean that the President is required to fill vacancies in the courts
within the time frames provided therein unless prohibited by Section 15 of Article VII.
2. ID,; ID.; ID.; IN CASE OF CONFLICT, PERIOD FOR FILLING UP OF
COURT VACANCIES MUST YIELD TO THE RESTRICTIONS ON PRESIDENT'S
POWER OF APPOINTMENT; RATIONALE. — Considering the respective reasons for
the time frames for filling vacancies in the courts and the restriction on the President's
power of appointment, it is this Court's view that, as a general proposition, in case of
conflict, the former should yield to the latter. Surely, the prevention of vote-buying and
similar evils outweighs the need for avoiding delays in filling up of court vacancies or the
disposition of some cases. Temporary vacancies can abide the period of the ban which,
incidentally and as earlier pointed out, comes to exist only once in every six years.
Moreover, those occurring in the lower courts can be filled temporarily by designation.
But prohibited appointments are long-lasting and permanent in their effects. They may, as
earlier pointed out, in fact influence the results of elections and, for that reason, their
making is considered an election offense.
3. ID.; ID.; ID.; INSTANCES WHEN APPOINTMENT IN THE SUPREME
COURT MAY BE MADE EVEN DURING THE PERIOD OF THE BAN. — To be
sure, instances may be conceived of the imperative need for an appointment, during the
period of the ban, not only in the executive but also in the Supreme Court. This may be
the case should the membership of the Court be so reduced that it will have no quorum,
or should the voting on a particularly important question requiring expeditious resolution
be evenly divided. Such a case, however, is covered by neither Section 15 of Article VII
nor Sections 4 (1) and 9 of Article VIII.
4. ID.; ID.; ID.; PROCEDURE THEREOF; RATIONALE. — A final word,
concerning Valenzuela's oath-taking and "reporting for duty" as Presiding Judge of RTC
Branch 62, Bago City, on May 14, 1998. Standing practice is for the originals of all
appointments to the Judiciary — from the highest to the lowest courts — to be sent by the
Office of the President to the Office of the Chief Justice, the appointments being
addressed to the appointees "Thru: the Chief Justice, Supreme Court, Manila." It is the
Clerk of Court of the Supreme Court, in the Chief Justice's behalf, who thereafter advises
the individual appointees of their appointments and also of the date of commencement of
the pre-requisite orientation seminar to be conducted by the Philippine Judicial Academy
for new Judges. The rationale of this procedure is salutary and readily perceived. The
procedure ensures the authenticity of the appointments, enables the Court, particularly the
Office of the Court Administrator, to enter in the appropriate records all appointments to
the Judiciary as well as other relevant data such as the dates of qualification, the
completion by the appointees of their pre-requisite orientation seminars, their assumption
of duty, etc. The procedure also precludes the possibility, however remote, of Judges
acting on spurious or otherwise defective appointments. It is obviously not advisable, to
say the least, for a Judge to take his oath of office and enter upon the performance of his
duties on the basis alone of a document purporting to be a copy of his appointment
coming from Malacañang, the authenticity of which has not been verified from the latter
or the Office of the Court Administrator; or otherwise to begin performing his duties as
Judge without the Court Administrator knowing of that fact. The undesirability of such a
situation is illustrated by the case of Judge Valenzuela who acted, with no little
impatience or rashness, on a mere copy of his supposed appointment, without having
received any formal notice from this Court, and without verifying the authenticity of the
appointment or the propriety of taking oath on the basis thereof. Had he bothered to
inquire about his appointment from the Court Administrator's Office he would have been
informed of the question concerning it and the Court's injunction.
5. ID.; ID.; ID.; NO COMPELLING REASON TO JUSTIFY APPOINTMENTS
MADE IN CASE AT BAR. — The appointments of Messrs. Valenzuela and Vallarta on
March 30, 1998 (transmitted to the Office of the Chief Justice on May 14, 1998) were
unquestionably made during the period of the ban. Consequently, they come within the
operation of the first prohibition relating to appointments which are considered to be for
the purpose of buying votes or influencing the election. While the filling of vacancies in
the judiciary is undoubtedly in the public interest, there is no showing in this case of any
compelling reason to justify the making of the appointments during the period of the ban.
On the other hand, as already discussed, there is a strong public policy for the prohibition
against appointments made within the period of the ban.
6. ID.; EXECUTIVE DEPARTMENT; ARTICLE VII, SECTION 15 OF THE
CONSTITUTION; PROHIBITED APPOINTMENTS; ENUMERATED. — Now, it
appears that Section 15, Article VII is directed against two types of appointments: (1)
those made for buying votes and (2) those made for partisan considerations. The first
refers to those appointments made within the two months preceding a Presidential
election and are similar to those which are declared election offenses in Sec. 261(a)(g) of
the Omnibus Election Code. The second type of appointments prohibited by Section 15,
Article VII consists of the so-called "midnight" appointments.
7. ID.; ID.; ID.; CONSTRUED. — Section 15, Article VII has a broader scope than
the Aytona ruling. It may not unreasonably be deemed to contemplate not only
"midnight" appointments — those made obviously for partisan reasons as shown by their
number and the time of their making — but also appointments presumed made for the
purpose of influencing the outcome of the Presidential election. On the other hand, the
exception in the same Section 15 of Article VII — allowing appointments to be made
during the period of the ban therein provided — is much narrower than that recognized in
Aytona. The exception allows only the making of temporary appointments to executive
positions when continued vacancies will prejudice public service or endanger public
safety. Obviously, the article greatly restricts the appointing power of the President
during the period of the ban. EAHDac
8. ID.; CONSTITUTION; MUST BE CONSTRUED IN ITS ENTIRETY AS ONE,
SINGLE INSTRUMENT. — To the contention that may perhaps be asserted, that
Sections 4 (1) and 9 of Article VIII should prevail over Section 15 of Article VII, because
they may be considered later expressions of the people when they adopted the
Constitution, it suffices to point out that the Constitution must be construed in its entirety
as one, single instrument.
DECISION
NARVASA, C .J p:
The question presented for resolution in the administrative matter at bar is whether,
during the period of the ban on appointments imposed by Section 15, Article VII of the
Constitution, the President is nonetheless required to fill vacancies in the judiciary, in
view of Sections 4(1) and 9 of Article VIII. A corollary question is whether he can make
appointments to the judiciary during the period of the ban in the interest of public service.
LLpr
Resolution of the issues is needful; it will preclude a recurrence of any conflict in the
matter of nominations and appointments to the Judiciary — as that here involved —
between the Chief Executive, on the one hand, and on the other, the Supreme Court and
the Judicial and Bar Council over which the Court exercises general supervision and
wields specific powers including the assignment to it of other functions and duties in
addition to its principal one of recommending appointees to the Judiciary, and the
determination of its Members emoluments. 1
I. The Relevant Facts
The Resolution of the Court En Banc, handed down on May 14, 1998, sets out the
relevant facts and is for that reason hereunder reproduced in full.
Referred to the Court En Banc by the Chief Justice are the appointments signed by His
Excellency the President under date of March 30, 1998 of Hon. Mateo A. Valenzuela and
Hon. Placido B. Vallarta as Judges of the Regional Trial Court of Branch 62, Bago City
and of Branch 24, Cabanatuan City, respectively. The appointments were received at the
Chief Justice's chambers on May 12, 1998. The referral was made in view of the serious
constitutional issue concerning said appointments arising from the pertinent antecedents.
The issue was first ventilated at the meeting of the Judicial and Bar Council on March 9,
1998. The meeting had been called, according to the Chief Justice as Ex Officio
Chairman, to discuss the question raised by some sectors about the "constitutionality of . .
. appointments" to the Court of Appeals, specifically, in light of the forthcoming
presidential elections. Attention was drawn to Section 15, Article VII of the constitution
reading as follows:
"SEC. 15. Two months immediately before the next presidential elections and up to
the end of his terms, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety."
On the other hand, appointments to fill vacancies in the Supreme Court during the period
mentioned in the provision just quoted could seemingly be justified by another provisions
of the same Constitution. Section 4 (1) of Article VIII which states:
"SEC. 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justice. . . . Any vacancy shall be filled within ninety days from the occurrence
thereof."
Also pertinent although not specifically discussed is Section 9 of the same Article VIII
which provides that for the lower courts, the President shall issue the appointments —
from a list of at least three nominees prepared by the Council for every vacancy — within
ninety days from the submission of the list. cdtai
The view was then expressed by Senior Associate Justice Florenz D. Regalado,
Consultant of the Council, who had been a member of the Committee of the Executive
Department and of the Committee on the Judicial Department of the 1986 Constitutional
Commission, that on the basis of the Commission's records, the election ban had no
application to appointments to the Court of Appeals. Without any extended discussion or
any prior research and study on the part of the other Members of the JBC, this hypothesis
was accepted, and was then submitted to the President for consideration, together with
the Council's nominations for eight (8) vacancies in the Court of Appeals.
On April 6, 1998 the Chief Justice received an official communication from the
Executive Secretary transmitting the appointments of eight (8) Associate Justices of the
Court of Appeals all of which had been duly signed on March 11, 1998 by His
Excellency the President. In view of the fact that all the appointments had been signed on
March 11, 1998 — the day immediately before the commencement of the ban on
appointments imposed by Section 15, Article VII of the Constitution — which impliedly
but not less clearly indicated that the President's Office did not agree with the hypothesis
that appointments to the Judiciary were not covered by said ban, the Chief Justice
resolved to defer consideration of nominations for the vacancy in the Supreme Court
created by the retirement of Associate Justice Ricardo J. Francisco, specially considering
that the court had scheduled sessions in Baguio City in April, 1998, that the legislature's
representatives to the JBC were occupied with the forthcoming elections, and that a
member of the Council was going on a trip out of the country.
On May 4, 1998, the Chief Justice received a letter from the President, addressed to the
JBC, requesting transmission of the "list of final nominees" for the vacancy" no later than
Wednesday, May 6, 1998," in view of the duty imposed on him by the Constitution "to
fill up the vacancy . . . within ninety (90) days from February 13, 1998, the date the
present vacancy occurred."
On May 5, 1998, Secretary of Justice Silvestre Bello III requested the Chief Justice for
"guidance" respecting the expressed desire of the "regular members" of the JBC to hold a
meeting immediately to fill up the vacancy in the Court in line with the President's letter
of May 4. The Chief Justice advised Secretary Bello to await the reply that he was
drafting to the President's communication, a copy of which he would give the Secretary
the following day.
On May 6, 1998 the Chief Justice sent his reply to the President. He began by stating that
no sessions had been scheduled for the Council until after the May elections for the
reason that apparently the President's Office did not share the view posited by the JBC
that Section 15, Article VII of the Constitution had no application to JBC-recommended
appointments — the appointments to the Court of Appeals having been all uniformly
dated March 11, 1998, before the commencement of the prohibition in said provision —
thus giving rise to the "need to undertake further study of the matter," prescinding from
"the desire to avoid any constitutional issue regarding the appointment to the mentioned
vacancy" and the further fact that "certain senior members of the Court of Appeals . . .
(had) asked the Council to reopen the question of their exclusion on account of age from
such (final) list." He closed with the assurance that the JBC expected to deliberate on the
nominations "forthwith upon the completion of the coming elections." The letter was
delivered to Malacañang at about 5 o'clock in the afternoon of May 6, 1998, and a copy
given to the Office of Justice Secretary Bello shortly before that hour.
It would appear, however, that the Justice Secretary and the regular members of the
Council had already taken action without awaiting the Chief Justice's promised response
to the President's letter of May 4, 1998. On that day, May 6, 1998, they met at some
undisclosed place, deliberated, and came to an agreement on a resolution which they
caused to be reduced to writing and thereafter signed. In that two page Resolution they
drew attention to Section 4 (1), Article VIII of the Constitution (omitting any mention of
Section 15, Article VII) as well as to the President's letter of May 4 in which he
"emphatically requested that the required list of final nominees be submitted to him;" and
pointing out that the "Council would be remiss in its duties" should it fail to submit said
nominations, closed with an appeal that the Chief Justice convene the Council for the
purpose "on May 7, 1998, at 2:00 o'clock in the afternoon." This Resolution they
transmitted to the Chief Justice together with their letter, also dated May 6, in which they
emphasized that "we are pressed for time" again drawing attention to Section 4 (1).
Article VIII of the Constitution (and again omitting any reference to Section 15, Article
VII). They ended their letter with the following intriguing paragraph:
"Should the Chief Justice be not disposed to call for the meeting aforesaid, the
undersigned members constituting the majority will be constrained to convene the
Council for the purpose of complying with its Constitutional mandate."
It seems evident, as just intimated, that the resolution and the covering letter were
deliberated on, prepared and signed hours before delivery of the Chief Justice's letter to
the President and the Justice Secretary.
Since the Members of the Council appeared determined to hold a meeting regardless of
the Chief Justice's wishes, the latter convoked the Council to a meeting at 3 o'clock in the
afternoon of May 7, 1998. Present at the meeting were the Chief Justice, Secretary Bello,
ex officio member, and the regular members of the Council: Justice Regino Hermosisima,
Atty. Teresita Cruz Sison, Judge Cesar C. Peralejo. Also present, on invitation of the
Chief Justice, were Justices Hilario G. Davide, Jr., Flerida Ruth P. Romero, Josue N.
Bellosillo, Reynato S. Puno, Jose C. Vitug, Vicente V. Mendoza, Artemio V.
Panganiban, Antonio M. Martinez, Leonardo A. Quisumbing and Fidel P. Purisima. The
Chief Justice reviewed the events leading to the session, and after discussion, the body
agreed to give the President time to answer the Chief Justice's letter of May 6, 1998.
On May 7, 1998, the Chief Justice received a letter from His Excellency the President in
reply to his letter of May 6 (which the President said had been "received early this
morning"). The President expressed the view that "the election-ban provision (Article
VII, Sec. 15) . . . applies only to executive appointments or appointments in the executive
branch of government," the whole article being "entitled 'EXECUTIVE
DEPARTMENT.'" He also observed that further proof of his theory "is the fact that
appointments to the judiciary have special, specific provisions applicable to them" (citing
Article VIII, Sec. 4 [1] and Article VIII, Section 9. In view thereof, he "firmly and
respectfully reiterate(d) . . . (his) request for the Judicial and Bar Council to transmit . . .
the final list of nominees for the lone Supreme Court vacancy."
The Chief Justice replied to the letter the following day, May 8, 1998. Since the Chief
Justice's letter explains the issue quite plainly, it is here quoted in full.
"Thank you for your letter of May 7, 1998, responding to my own communication of
May 6, 1998 which, I would like to say, reflects the collective sentiments of my
colleagues in the Supreme Court. Knowing how busy you are, I will deal straightaway
with the points set out in your letter. prcd
The dating of the latest appointments to the Court of Appeals was adverted to merely to
explain how we in the Court and the JBC came to have the impression that you did not
share the view expressed in the JBC minutes of March 9, 1998 'that there is no election
ban with regard to the JBC appointments.' Be this as it may, the Court feels that there is a
serious question concerning the matter in light of the seemingly inconsistent provisions of
the constitution. The first of these is Section 15, Article VII, which reads:
'SEC. 15. Two months immediately before the next presidential elections and up to
the end of his terms, a President or Acting President shall not make appointments, except
temporary appointments to executive positions when continued vacancies therein will
prejudice public service or endanger public safety.'
The second is Section 4 (1) of Article VIII which states:
'SEC. 4 (1) The Supreme Court shall be composed of a Chief Justice and fourteen
Associate Justices. . . . Any vacancy shall be filled within ninety days from the
occurrence thereof.'
As you can see, Your Excellency, Section 15 of Article VII imposes a direct prohibition
on the President: he "shall not make appointments" within the period mentioned, and
since there is no specification of which appointments are proscribed, the same, may be
considered as applying to all appointments of any kind and nature. This is the general rule
then, the only exception being only as regards "executive positions" as to which
"temporary appointments" may be made within the interdicted period "when continued
vacancies therein will prejudice public service or endanger public safety." As the
exception makes reference only to "executive" positions, it would seem that "judicial"
positions are covered by the general rule.
On the other hand, Section 4 (1) of Article VIII, requires that any vacancy in the Supreme
Court "shall be filled within ninety days from the occurrence thereof." Unlike Section 15,
Article VII, the duty of filling the vacancy is not specifically imposed on the President;
hence, it may be inferred that it is a duty shared by the Judicial and Bar Council and the
President.
Now, in view of the general prohibition in the first-quoted provision, how is the
requirement of filling vacancies in the Court within ninety days to be construed? One
interpretation that immediately suggests itself is that Section 4 (1), Article VIII is a
general provision while Section 15, Article VII is a particular one; that is to say,
normally, when there are no presidential elections — which after all, occur only every six
years — Section 4 (1), Article VIII shall apply: vacancies in the Supreme Court shall be
filled within 90 days; but when (as now) there are presidential elections, the prohibition
in Section 15, Article VII comes into play: the President shall not make any
appointments. The reason for said prohibition, according to Fr. J. Bernas, SJ., an
authority on Constitutional Law and himself a member of the Constitutional Commission,
is "(i)n order not to tie the hands of the incoming President through midnight
appointments." Another interpretation is that put forth in the minutes of the JBC Meeting
of March 9, 1998.
I must emphasize that the validity of any appointment to the Supreme Court at this time
hinges on the correct interpretation of the foregoing sections of the Constitution. On
account of the importance of the question, I consulted he Court about it but, as I stated in
my letter of May 6, 1998, "it declined to take any position, since obviously there had not
been enough time to deliberate on the same . . . (although it) did agree that further study
was necessary . . ." Cdpr
Since the question has actually come up, and its importance cannot be gainsaid, and it is
the Court that is empowered under the constitution to make an authoritative interpretation
of its (provisions) or of those of any other law, I believe that the Court may now perhaps
consider the issue ripe for determination and come to grips with it, to avoid any possible
polemics concerning the matter. However the court resolves the issue, no serious
prejudice will be done. Should the court rule that the President is indeed prohibited to
make appointments in a presidential election year, then any appointment attempted within
the proscribed period would be void anyway. If the Court should adjudge that the ban has
no application to appointments to the Supreme Court, the JBC may submit nominations
and the President may make the appointment forthwith upon such adjudgment.
The matter is a delicate one, quite obviously, and must thus be dealt with with utmost
circumspection, to avoid any question regarding the validity of an appointment to the
Court at this time, or any accusation of "midnight" appointments or rash, hasty action on
the part of the JBC or the President.
In view thereof, and upon the advice and consent of the Members of the Court, I am
requesting the regular Members of the Judicial and Bar Council to defer action on the
matter until further advice by the Court. I earnestly make the same request of you, Your
Excellency. I assure your, however, that as befits a matter in which the Chief Executive
has evinced much interest, may colleagues and I will give it preferential and expeditious
attention and consideration. To this end, I intend to convene the Court by next week, at
the latest."
On May 8, 1998, again on the insistence of the regular Members of the JBC, another
meeting was held at which were present the Chief Justice, the Secretary of Justice and the
three regular Members above mentioned, as well as Justices Hilario G. Davide, Jr.,
Flerida Ruth P. Romero, Josue N. Bellosillo, Reynato S. Puno, Jose C. Vitug, Santiago
M. Kapunan, Vicente V. Mendoza, Artemio V. Panganiban, Antonio M. Martinez,
Leonardo A. Quisumbing and Fidel P. Purisima. The meeting closed with a resolution
that "the constitutional provisions . . . (in question) be referred to the Supreme Court En
Banc for appropriate action, together with the request that the Supreme Court consider
that the ninety-day period stated in Section 4 (1), Article VIII be suspended or interrupted
in view of the peculiar circumstances. . . ."
On May 12, 1998, the Chief Justice received from Malacañang the appointments of two
(2) Judges of the Regional Trial Court mentioned above. This places on the Chief Justice
the obligation of acting thereon: i.e., transmitting the appointments to the appointees so
that they might take their oaths and assume the duties of their office. The trouble is that in
doing so, the Chief Justice runs the risk of acting in a manner inconsistent with the
Constitution, for these appointments appear prima facie, at least, to be expressly
prohibited by Section 15, Article VII of the Charter. This circumstance, and the referral
of the constitutional question to the Court in virtue of the Resolution of May 8, 1998,
supra, operate to raise a justiciable issue before the Court, an issue of sufficient
importance to warrant consideration and adjudication on the merits.
Accordingly, the court Resolved to (1) CONSIDER the case at bar an administrative
matter and cause it to be appropriately docketed: (2) to DIRECT the Clerk of Court to
immediately serve copies of this Resolution on (a) the Office of the President, (b) the
Office of the Solicitor General, (c) Hon. Mateo A. Valenzuela, and (d) Hon. Placido B.
Vallarta (at their addresses recorded in the Judicial and Bar Council); and (3) to
REQUIRE the Office of the President, the Office of the Solicitor General, Hon. Mateo A.
Valenzuela, and Hon. Placido B. Vallarta to file their comments on this Resolution within
fifteen (15) days from notice thereof.
The Court further Resolved that (1) pending the foregoing proceedings and the
deliberation by the court on the matter, and until further orders, no action be taken on the
appointments of Hon. Valenzuela and Hon. Vallarta which in the meantime shall be held
in abeyance and not given any effect and said appointees shall refrain from taking their
oath of office; and that (2) exercising its power of supervision over the Judicial and Bar
Council, said Council and its ex officio and regular Members herein mentioned be
INSTRUCTED, as they are hereby INSTRUCTED, to defer all action on the matter of
nominations to fill up the lone vacancy in the Supreme Court or any other vacancy until
further orders.
SO ORDERED.

[G.R. No. 103524. April 15, 1992.]

CESAR BENGZON, QUERUBE MAKALINTAL, LINO M. PATAJO, JOSE
LEUTERIO, ET AL., petitioners, vs. HON. FRANKLIN N. DRILON in his capacity as
Executive Secretary; HON. GUILLERMO CARAGUE in his capacity as Secretary of
Department of Budget and Management, and HON. ROSALINA CAJUCOM in her
capacity as National Treasurer, respondents.
[A.M. No. 91-8-225-CA. April 15, 1992.]
REQUEST OF RETIRED JUSTICES MANUEL P. BARCELONA, JUAN P.
ENRIQUEZ, JUAN O. REYES, JR., and GUARDSON R. LOOD FOR
READJUSTMENT OF THEIR MONTHLY PENSION.
Lino M. Patajo for petitioners.
SYLLABUS
1. CONSTITUTIONAL LAW; CONSTITUTION, THE BASIC AND
PARAMOUNT LAW. — The Constitution is the basic and paramount law to which all
other laws must conform and to which all persons, including the highest official of this
land, must defer.
2. ID.; ID.; PRINCIPLES OF SEPARATION OF POWERS; DIFFERENT
FUNCTIONS OF THE THREE BRANCHES OF GOVERNMENT. — From this
cardinal postulate, it follows that the three branches of government must discharge their
respective functions within the limits of authority conferred by the Constitution. Under
the principle of separation of powers, neither Congress, the President, nor the Judiciary
may encroach on fields allocated to the other branches of government. The legislature is
generally limited to the enactment of laws, the executive to the enforcement of laws and
the judiciary to their interpretation and application to cases and controversies.
3. ID.; ID.; ID.; ID.; JUDICIARY TO MAINTAIN INVIOLATE WHAT THE
CONSTITUTION DECREES. — The Constitution expressly confers on the judiciary the
power to maintain inviolate what it decrees. As the guardian of the Constitution we
cannot shirk the duty of seeing to it that the officers in each branch of government do not
go beyond their constitutionally allocated boundaries and that the entire government itself
or any of its branches does not violate the basic liberties of the people. The essence of
this judicial duty was emphatically explained by Justice Laurel in the leading case of
Angara v. Electoral Commission, (63 Phil. 139 [1936].
4. ID.; ID.; ID.; ID.; VETO POWER OF THE PRESIDENT; A BILL IS VETOED
IN ITS ENTIRETY OR NOT AT ALL. — The act of the Executive in vetoing the
particular provisions is an exercise of a constitutionally vested power. But even as the
Constitution grants the power, it also provides limitations to its exercise. The veto power
is not absolute. The pertinent provision of the Constitution reads: "The President shall
have the power to veto any particular item or items in an appropriation, revenue or tariff
bill but the veto shall not affect the item or items to which he does not object." (Section
27(2), Article VI, Constitution) The OSG is correct when it states that the Executive must
veto a bill in its entirety or not at all. He or she cannot act like an editor crossing out
specific lines, provisions, or paragraphs in a bill that he or she dislikes. In the exercise of
the veto power, it is generally all or nothing.
5. ID.; ID.; ID.; ID.; ID.; ID.; EXCEPTION, IN APPROPRIATION, REVENUE
OR TARIFF BILLS, THE "ITEM VETO POWER". — However, when it comes to
appropriation, revenue or tariff bills, the Administration needs the money to run the
machinery of government and it can not veto the entire bill even if it may contain
objectionable features. The President is, therefore, compelled to approve into law the
entire bill, including its undesirable parts. It is for this reason that the Constitution has
wisely provided the "item veto powers" to avoid inexpedient riders being attached to an
indispensable appropriation or revenue measure.
6. ID.; ID.; ID.; ID.; ID.; ID.; ID.; POWER TO DISAPPROVE AN ITEM IN AN
APPROPRIATION BILL DOES NOT GRANT AUTHORITY TO VETO ONLY A
PART OF AN ITEM. — The Constitution provides that only a particular item or items
may be vetoed. The power to disapprove any item or items in an appropriate bill does not
grant the authority to veto a part of an item and to approve the remaining portion of the
same item. (Gonzales v. Macaraig, Jr., 191 SCRA 452, 464 [1990]).
7. ID.; ID.; ITEM AND PROVISION IN BUDGETARY LEGISLATION AND
PRACTICE, DISTINGUISHED. — We distinguish an item from a provision in the
following manner: "The terms item and provision in budgetary legislations and practice
are concededly different. An item in a bill refers to the particulars, the details, the distinct
and severable parts . . . of the bill (Bengzon, supra, at 916). It is an indivisible sum of
money dedicated to a stated purpose (Commonwealth v. Dodson, 11 S.E., 2d 120, 124,
125, etc., 176 Va. 281). The United States Supreme Court, in the case of Bengzon v.
Secretary of Justice (299 U.S. 410, 414, 57 Ct 252, 81 L. Ed., 312) declared 'that an 'item'
of an appropriation bill obviously means an item which in itself is a specific
appropriation of money, not some general provision of law, which happens to be put into
an appropriation bill.'"
8. ID.; ID.; VETO POWER OF THE PRESIDENT; PRESIDENT NOT TO VETO
PROVISIONS OF LAW ENACTED BEFORE HIS TERM OR TO SET ASIDE OR
REVERSE A FINAL AND EXECUTORY JUDGMENT OF THE SUPREME COURT.
— We need no lengthy justifications or citations of authorities to declare that no
President may veto the provisions of a law enacted thirty-five (35) years before his or her
term of office. Neither may the President set aside or reverse a final and executory
judgment of this Court through the exercise of the veto power.
9. ID.; ID.; POWERS OF THE PRESIDENT; PRESIDENT NOT TO ENACT OR
AMEND STATUTES OR REPEAL EXISTING LAWS. — Republic Act No. 1797
provided for the adjustment of pensions of retired Justices which privilege was extended
to retired members of Constitutional Commissions by Republic Act No. 3595. On
January 25, 1975, President Marcos issued Presidential Decree No. 644 which repealed
Republic Acts 1797 and 3595. It turns out, however, that P. D. No. 644 never became
valid law. If P.D. No. 644 was not law, it follows that Rep. Act No. 1797 was not
repealed and continues to be effective up to the present. It can be seen that when the
President vetoed certain provisions of the 1992 General Appropriations Act, she was
actually vetoing Republic Act No. 1797 which, of course, is beyond her power to
accomplish. This is arrogating unto the Presidency legislative powers which are beyond
its authority. The President has no power to enact or amend statutes promulgated by her
predecessors much less to repeal existing laws. The President's power is merely to
execute the laws as passed by Congress.
10. ID.; ID.; ID.; COURT HAS RULED THAT PD 644 NEVER BECAME A LAW;
THE EXECUTIVE HAS NO AUTHORITY TO SET ASIDE AND OVERRULE A
DECISION OF THE SUPREME COURT. — On the issue of whether or not Presidential
Decree 644 became law, the Court has already categorically spoken in a definitive ruling
on the matter, to wit: . . . We agree that PD 644 never became a law because it was not
validly published and that, consequently, it did not have the effect of repealing RA 1797.
The Supreme Court has spoken and it has done so with finality, logically and rightly so as
to assure stability in legal relations, and avoid confusion. (see Ver v. Quetullo, 163 SCRA
80 [1988]) Like other decisions of this Court, the ruling and principles set out in the
Court resolution constitute binding precedent. (Bulig-Bulig Kita Kamaganak Association,
et al. v. Sulpicio Lines, Inc. and Regional Trial Court, etc. G.R. 84750, 16 May 89, En
Banc, Minute Resolution). The challenged veto has far-reaching implications which the
Court can not countenance as they undermine the principle of separation of powers. The
Executive has no authority to set aside and overrule a decision of the Supreme Court.
11. ID.; ID.; AS LONG AS RETIREMENT LAWS REMAIN IN THE STATUTE
BOOK, GOVERNMENT MUST PAY ADJUSTED PENSION RATE. — As early as
1953, Congress passed a law providing for retirement pensions to retired Justices of the
Supreme Court and the Court of Appeals. This law was amended by Republic Act 1797
in 1957. Funds necessary to pay the retirement pensions under these statutes are deemed
automatically appropriated every year. Thus, Congress included in the General
Appropriations Act of 1992, provisions identifying funds and savings which may be used
to pay the adjusted pensions pursuant to the Supreme Court Resolution. As long as
retirement laws remain in the statute book, there is an existing obligation on the part of
the government to pay the adjusted pension rate pursuant to RA 1797 and AM-91-8-225-
CA.
12. ID.; ID.; FISCAL AUTONOMY; FREEDOM FROM OUTSIDE CONTROL. —
As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil
Service Commission, the Commission on Audit, the Commission on Elections, and the
Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and
utilize their resources with the wisdom and dispatch that their needs require. It recognizes
the power and authority to levy, assess and collect fees, fix rates of compensation not
exceeding the highest rates authorized by law for compensation and play plans of the
government and allocate and disburse such sums as may be provided by law or prescribed
by them in the course of the discharge of their functions. Fiscal autonomy means freedom
from outside control. If the Supreme Court says it needs 100 typewriters but DBM rules
we need only 10 typewriters and sends its recommendations to Congress without even
informing us, the autonomy given by the Constitution becomes an empty and illusory
platitude.
13. ID.; ID.; ID.; ID.; IMPOSITION OF RESTRAINTS AND CONSTRAINTS
ANATHEMA TO FISCAL AUTONOMY; GRANT OF AUTONOMY SHOULD
CEASE TO BE A MEANINGLESS PROVISION. — The Judiciary, the Constitutional
Commissions, and the Ombudsman must have the independence and flexibility needed in
the discharge of their constitutional duties. The imposition of restrictions and constraints
on the manner the independent constitutional offices allocate and utilize the funds
appropriated for their operations is anathema to fiscal autonomy and violative not only of
the express mandate of the Constitution but especially as regards the Supreme Court, of
the independence and separation of powers upon which the entire fabric of our
constitutional system is based. In the interest of comity and cooperation, the Supreme
Court, Constitutional Commissions, and the Ombudsman have so far limited their
objections to constant reminders. We now agree with the petitioners that this grant of
autonomy should cease to be a meaningless provision.
14. ID.; ID.; ID.; ID.; CHIEF JUSTICE MUST BE GIVEN FREE HAND ON HOW
TO AUGMENT APPROPRIATIONS WHERE AUGMENTATION IS NEEDED. — In
the case at bar, the veto of these specific provisions in the General Appropriations Act is
tantamount to dictating to the Judiciary how its funds should be utilized, which is clearly
repugnant to fiscal autonomy. The freedom of the Chief Justice to make adjustments in
the utilization of the funds appropriated for the expenditures of the judiciary, including
the use of any savings from any particular item to cover deficits or shortages in other
items of the judiciary is withheld. Pursuant to the Constitutional mandate, the Judiciary
must enjoy freedom in the disposition of the funds allocated to it in the appropriations
law. It knows its priorities just as it is aware of the fiscal restraints. The Chief Justice
must be given a free hand on how to augment appropriations where augmentation is
needed.
15. ID.; JUDICIARY; PENSION; RETIRED JUSTICES HAVE A VESTED RIGHT
TO ACCRUED PENSIONS. — Finally, it can not be denied that the retired Justices have
a vested right to the accrued pensions due them pursuant to RA 1797. The right to a
public pension is of statutory origin and statutes dealing with pensions have been enacted
by practically all the states in the United States (State ex rel. Murray v. Riley, 44 Del 505,
62 Ad 236), and presumably in most countries of the world. Statutory provisions for the
support of Judges or Justices on retirement are founded on services rendered to the state.
Where a judge has complied with the statutory prerequisite for retirement with pay, his
right to retire and draw salary becomes vested and may not, thereafter, be revoked or
impaired. (Gay v. Whitehorse 44 So ad 430).
16. ID.; ID.; ID.; ID.; BASED ON CONSTITUTIONAL REASONS TO
GUARANTEE AND PRESERVE THE INDEPENDENCE OF THE JUDICIARY. —
The rationale behind the veto which implies that Justices and Constitutional officers are
unduly favored is, again, a misimpression. Immediately, we can state that retired Armed
Forces officers and enlisted men number in the tens of thousands while retired Justices
are so few they can be immediately identified. Justices retire at age 70 while military men
retire at a much younger age — some retired Generals left the military at age 50 or
earlier. Yet, the benefits in Rep. Act No. 1797 are made to apply equally to both groups.
Any ideas arising from an alleged violation of the equal protection clause should first be
directed to retirees in the military or civil service where the reason for the retirement
provision is not based on indubitable and constitutionally sanctioned grounds, not to a
handful of retired Justices whose retirement pensions are founded on constitutional
reasons. The provisions regarding retirement pensions of Justices arise from the package
of protections given by the Constitution to guarantee and preserve the independence of
the Judiciary.
17. ID.; ID.; ID.; ID.; ARGUMENT OF THE SOLICITOR GENERAL,
DISRESPECTFUL; CONTINUING ESTEEM AND GOOD MANNERS SHOULD BE
SHOWN TOWARD THE JUSTICES. — The arguments are not only specious, impolite
and offensive; they certainly are unbecoming of an Office whose top officials are
supposed to be, under their charter, learned in the law. Chief Justice Cesar Bengzon and
Chief Justice Querube Makalintal, Justices J.B.L. Reyes, Cecilia Muñoz Palma, Efren
Plana, Vicente Abad Santos, and, in fact, all retired Justices of the Supreme Court and the
Court of Appeals may no longer be in the active service. Still, the Solicitor General and
all lawyers under him who represent the Government before the two courts and whose
predecessors themselves appeared before these retirees, should show some continuing
esteem and good manners toward these Justices who are now in the evening of their
years. All that the retirees ask is to be given the benefits granted by law. To characterize
them as engaging in "robbery" is intemperate, abrasive, and disrespectful more so
because the argument is unfounded.
18. ID.; ID.; ID.; ID.; OLD CASE CITED BY THE SOLICITOR NOT
APPLICABLE TO THE CASE AT BAR. — The case of Citizen's Savings and Loan
Association of Cleveland, Ohio v. Topeka City, (20 Wall. 655; 87 U.S. 729; 22 Law. Ed.
455 [1874] involves the validity of a statute authorizing cities and counties to issue bonds
for the purpose of building bridges, waterpower, and other public works to aid private
railroads improve their services. The law was declared void on the ground that the right
of a municipality to impose a tax cannot be used for private interests. The case was
decided in 1874. The world has turned over more than 40,000 times since that ancient
period. Public use is now equated with public interest. Public money may now be used
for slum clearance, low-cost housing, squatter resettlement, urban and agrarian reform
where only private persons are the immediate beneficiaries. What was "robbery" in 1874
is now called "social justice." There is nothing about retirement benefits in the cited case.
19. ID.; ID.; ID.; RETIREMENT LAWS TO BE INTERPRETED LIBERALLY IN
FAVOR OF RETIREE; APPRECIATION OF THE RETIREE'S SERVICE
EXPRESSED IN A GENEROUS RETIREMENT GRATUITY. — The Court has been
deluged with letters and petitions by former colleagues in the Judiciary requesting
adjustments in their pensions just so they would be able to cope with the everyday living
expenses not to mention the high cost of medical bills that old age entails. As Justice
Cruz aptly stated in Teodoro J. Santiago v. COA, (G.R. No. 92284, July 12, 1991):
"Retirement laws should be interpreted liberally in favor of the retiree because their
intention is to provide for his sustenance, and hopefully even comfort, when he no longer
has the stamina to continue earning his livelihood. After devoting the best years of his life
to the public service, he deserves the appreciation of a grateful government as best
concretely expressed in a generous retirement gratuity commensurate with the value and
length of his services."
DECISION
GUTIERREZ, JR., J p:
The issue in this petition is the constitutionality of the veto by the President of certain
provisions in the General Appropriations Act for the Fiscal Year 1992 relating to the
payment of the adjusted pensions of retired justices of the Supreme Court and the Court
of Appeals.
The petitioners are retired Justices of the Supreme Court and the Court of Appeals who
are currently receiving monthly pensions under Republic Act No. 910 as amended by
Republic Act No. 1797. They filed the instant petition on their own behalf and in
representation of all other retired Justices of the Supreme Court and the Court of Appeals
similarly situated.
Named respondents are Hon. Franklin Drilon the Executive Secretary, Hon. Guillermo
Carague as Secretary of the Department of Budget and Management, and Hon. Rosalina
Cajucom, the Treasurer of the Philippines. The respondents are sued in their official
capacities, being officials of the Executive Department involved in the implementation of
the release of funds appropriated in the Annual Appropriations Law.
We treat the Comments of the Office of the Solicitor General (OSG) as an Answer and
decide the petition on its merits.
The factual backdrop of this case is as follows:
On June 20, 1953, Republic Act No. 910 was enacted to provide the retirement pensions
of Justices of the Supreme Court and of the Court of Appeals who have rendered at least
twenty (20) years service either in the Judiciary or in any other branch of the Government
or in both, having attained the age of seventy (70) years or who resign by reason of
incapacity to discharge the duties of the office. The retired Justice shall receive during the
residue of his natural life the salary which he was receiving at the time of his retirement
or resignation.
Republic Act No. 910 was amended by Republic Act No. 1797 (approved on June 21,
1957) which provided that:
"SECTION 3-A. In case the salary of Justices of the Supreme Court or of the Court
of Appeals is increased or deceased, such increased or decreased salary shall, for
purposes of this Act, be deemed to be the salary or the retirement pension which a Justice
who as of June twelve, nineteen hundred fifty-four had ceased to be such to accept
another position in the Government or who retired as receiving at the time of his
cessation in office. Provided, that any benefits that have already accrued prior to such
increase or decrease shall not be affected thereby".
Identical retirement benefits were also given to the members of the Constitutional
Commissions under Republic Act No. 1568, as amended by Republic Act No. 3595. On
November 12, 1974, on the occasion of the Armed Forces Loyalty Day, President Marcos
signed Presidential Decree 578 which extended similar retirement benefits to the
members of the Armed Forces giving them also the automatic readjustment features of
Republic Act No. 1797 and Republic Act No. 3595.
Two months later, however President Marcos issued Presidential Decree 644 on January
25, 1975 repealing Section 3-A of Republic Act No. 1797 and Republic Act No. 3595
(amending Republic Act No. 1568 and Presidential Decree No. 578) which authorized the
adjustment of the pension of the retired Justices of the Supreme Court, Court of Appeals,
Chairman and members of the Constitutional Commissions and the officers and enlisted
members of the Armed Forces to the prevailing rates of salaries.
Significantly, under Presidential Decree 1638 the automatic readjustment of the
retirement pension of officers and enlisted men was subsequently restored by President
Marcos. A later decree Presidential Decree 1909 was also issued providing for the
automatic readjustment of the pensions of members of the Armed Forces who have
retired prior to September 10, 1979.
While the adjustment of the retirement pensions for members of the Armed Forces who
number in the tens of thousands was restored, that of the retired Justices of the Supreme
Court and Court of Appeals who are only a handful and fairly advanced in years, was not.
Realizing the unfairness of the discrimination against the members of the Judiciary and
the Constitutional Commissions, Congress approved in 1990 a bill for the reenactment of
the repealed provisions of Republic Act No. 1797 and Republic Act No. 3595. Congress
was under the impression that Presidential Decree 644 became law after it was published
in the Official Gazette on April 7, 1977. In the explanatory note of House Bill No. 16297
and Senate Bill No. 740, the legislature saw the need to reenact Republic Act Nos. 1797
and 3595 to restore said retirement pensions and privileges of the retired Justices and
members of the Constitutional Commissions in order to assure those serving in the
Supreme Court, Court of Appeals and Constitutional Commissions adequate old age
pensions even during the time when the purchasing power of the peso has been
diminished substantially by worldwide recession or inflation. This is underscored by the
fact that the petitioner retired Chief Justice, a retired Associate Justice of the Supreme
Court and the retired Presiding Justice are presently receiving monthly pensions of
P3,333.33, P2,666.66 and P2,333.33 respectively.
President Aquino, however, vetoed House Bill No. 16297 on July 11, 1990 on the ground
that according to her "it would erode the very foundation of the Government's collective
effort to adhere faithfully to and enforce strictly the policy on standardization of
compensation as articulated in Republic Act No. 6758 known as Compensation and
Position Classification Act of 1989." She further said that "the Government should not
grant distinct privileges to select group of officials whose retirement benefits under
existing laws already enjoy preferential treatment over those of the vast majority of our
civil service servants".
Prior to the instant petition, however, Retired Court of Appeals Justices Manuel P.
Barcelona, Juan P. Enriquez, Juan O. Reyes, Jr. and Guardson R. Lood filed a
letter/petition dated April 22, 1991 which we treated as Administrative Matter No. 91-8-
225-CA. The petitioners asked this Court for a readjustment of their monthly pensions in
accordance with Republic Act No. 1797. They reasoned out that Presidential Decree 644
repealing Republic Act No. 1797 did not become law as there was no valid publication
pursuant to Tañada v. Tuvera, (136 SCRA 27 [1985] and 146 SCRA 446 [1986]).
Presidential Decree 644 promulgated on January 24, 1975 appeared for the first time only
in the supplemental issue of the Official Gazette, (Vol. 74 No. 14) purportedly dated
April 4, 1977 but published only on September 5, 1983. Since Presidential Decree 644
has no binding force and effect of law, it therefore did not repeal Republic Act No. 1797.
In a Resolution dated November 28, 1991 the Court acted favorably on the request. The
dispositive portion reads as follows:
"WHEREFORE, the requests of retired Justices Manuel P. Barcelona, Juan P. Enriquez,
Juan O. Reyes and Guardson Lood are GRANTED. It is hereby AUTHORIZED that their
monthly pensions be adjusted and paid on the basis of RA 1797 effective January 1, 1991
without prejudice to the payment of their pension differentials corresponding to the
previous years upon the availability of funds for the purpose."
Pursuant to the above resolution, Congress included in the General Appropriations Bill
for Fiscal Year 1992 certain appropriations for the Judiciary intended for the payment of
the adjusted pension rates due the retired Justices of the Supreme Court and Court of
Appeals.
The pertinent provisions in House Bill No. 34925 are as follows:
"XXVIII. THE JUDICIARY
A. Supreme Court of the Philippines and the Lower Courts
"For general administration, administration of personnel benefits, supervision of courts,
adjudication of constitutional questions appealed and other cases, operation and
maintenance of the Judicial and Bar Council in the Supreme Court, and the adjudication
of regional court cases, metropolitan court cases, municipal trial court case, in Cities,
municipal circuit court cases, municipal court cases, Shari'a district court cases and
Shari'a circuit court cases as indicated hereunder P2,095,651,000.
xxx xxx xxx
"Special Provisions.
"1. Augmentation of any Item in the Court's Appropriations. Any savings in the
appropriation for the Supreme Court and the Lower Courts may be utilized by the Chief
Justice of the Supreme Court to augment any item of the Court's appropriations for: (a)
printing of decisions and publications of Philippine Reports; (b) commutable terminal
leaves of Justices and other personnel of the Supreme Court and payment of adjusted
pension rates to retired Justices entitled thereto pursuant to Administrative Matter No. 91-
8-225-C.A.; (c) repair, maintenance, improvement, and other operating expenses of the
courts' books and periodicals; (d) purchase, maintenance and improvement of printing
equipment; (e) necessary expenses for the employment of temporary employees,
contractual and casual employees, for judicial administration; (f) maintenance and
improvement of the Court's Electronic Data Processing (g) extraordinary expenses of the
Chief Justice, attendance in international conferences and conduct of training programs;
(h) commutable transportation and representation allowances and fringe benefits for
Justices, Clerks of Court, Court Administrator, Chief of Offices and other Court
personnel in accordance with the rates prescribed by law; and (i) compensation of
attorneys-de-oficio: PROVIDED, that as mandated by LOI No. 489 any increases in
salary and allowances shall be subject to the usual procedures and policies as provided
for under P.D. No. 985 and other pertinent laws." (page 1071, General Appropriations
Act, FY 1992; Emphasis supplied).
xxx xxx xxx
"4. Payment of Adjusted Pension Rates to Retired Justices. The amount herein
appropriated for payment of pensions to retired judges and justices shall include the
payment of pensions at the adjusted rates to retired justices of the Supreme Court entitled
thereto pursuant to the ruling of the court in Administrative Matter No. 91-8-225-C.A.
page 1071, General Appropriations Act, FY 1992)."
xxx xxx xxx
Activities and Purposes
"1. General Administration and Support Services.
a. General administrative services P43,515,000
b. Payment of retirement gratuity of
national government officials and
employees P206,717,000
c. Payment of terminal leave benefits
to officials and employees entitled
thereto P 55,316,000
d. Payment of pensions to retired
judges and justices entitled thereto P22,500,000
(page 1071, General Appropriations Act, FY 1992).
"C. COURT OF APPEALS
"For general administration, administration
of personnel benefits and the adjudication
of appealed and other cases as indicated
hereunder. P114,615,000
Special Provisions.
1. Authority to Use Savings. Subject to the approval of the Chief Justice of the
Supreme Court in accordance with Section 25 (5), Article VI of the Constitution of the
Republic of the Philippines, the Presiding Justice may be authorized to use any savings in
any item of the appropriation for the Court of Appeals for purposes of: (1) improving its
compound and facilities; and (2) for augmenting any deficiency in any item of its
appropriation including its extraordinary expenses and payment of adjusted pension rates
to retired justices entitled thereto pursuant to Administrative Matter No. 91-8-225-C.A.
(page 1079, General Appropriations Act, FY 1992; Emphasis supplied)
2. Payment of Adjusted Pension Rates to Retired Justices. The amount herein
appropriated for payment of pensions to retired judges and justices shall include the
payment of pensions at the adjusted rates to retired justices of the Court of Appeals
entitled thereto pursuant to the Ruling of the Supreme Court in Administrative Matter No.
91-8-225-C.A. (page 1079 General Appropriations Act, FY 1992).
"XL. GENERAL FUND ADJUSTMENT
For general fund adjustment for operational
and special requirements as indicated hereunder P500,000,000
xxx xxx xxx
Special Provision
1. Use of the Fund. This fund shall be used for:
xxx xxx xxx
1.3. Authorized overdrafts and/or valid unbooked obligations, including the payment
of back salaries and related personnel benefits arising from decision of competent
authority including the Supreme Court decision in Administrative Matter No. 91-8-225-
C.A. and COA decision in No. 1704." (page 1164, Gen. Appropriations Act, FY 1992;
Emphasis supplied).
On January 15, 1992, the President vetoed the underlined portions of Section 1 and the
entire Section 4 of the Special Provisions for the Supreme Court of the Philippines and
the Lower Courts (General Appropriations Act, FY 1992, page 1071) and the underlined
portions of Section 1 and the entire Section 2, of the Special Provisions for the Court of
Appeals (page 1079) and the underlined portions of Section 1.3 of Article XLV of the
Special Provisions of the General Fund Adjustments (page 1164, General Appropriations
Act, FY 1992). LLjur
The reason given for the veto of said provisions is that "the resolution of this Honorable
Court in Administrative Matter No. 91-8-225-CA pursuant to which the foregoing
appropriations for the payment of the retired justices of the Supreme Court and the Court
of Appeals have been enacted effectively nullified the veto of the President of House Bill
No. 16297, the bill which provided for the automatic increase in the retirement pensions
of the Justices of the Supreme Court and the Court of Appeals and chairmen of the
Constitutional Commissions by re-enacting Republic Act No. 1797 and Republic Act No.
3595. The President's veto of the aforesaid provisions was further justified by reiterating
the earlier reasons for vetoing House Bill No. 16297: "they would erode the very
foundation of our collective effort to adhere faithfully to and enforce strictly the policy on
standardization of compensation. We should not permit the grant of distinct privileges to
select group of officials whose retirement pensions under existing laws already enjoy
preferential treatment over those of the vast majority of our civil servants."
Hence, the instant petition filed by the petitioners with the assertions that:
1) The subject veto is not an item veto;
2) The veto by the Executive is violative of the doctrine of separation of powers;
3) The veto deprives the retired Justices of their rights to the pensions due them;
4) The questioned veto impairs the Fiscal Autonomy guaranteed by the Constitution.
Raising similar grounds, the petitioners in AM-91-8-225-CA, brought to the attention of
this Court that the veto constitutes no legal obstacle to the continued payment of the
adjusted pensions pursuant to the Court's resolution.
On February 14, 1992, the Court resolved to consolidate Administrative Matter No. 91-8-
225-CA with G.R. No. 103524.
The petitioners' contentions are well-taken.
I
It cannot be overstressed that in a constitutional government such as ours, the rule of law
must prevail. The Constitution is the basic and paramount law to which all other laws
must conform and to which all persons, including the highest official of this land, must
defer. From this cardinal postulate, it follows that the three branches of government must
discharge their respective functions within the limits of authority conferred by the
Constitution. Under the principle of separation of powers, neither Congress, the
President, nor the Judiciary may encroach on fields allocated to the other branches of
government. The legislature is generally limited to the enactment of laws, the executive
to the enforcement of laws and the judiciary to their interpretation and application to
cases and controversies.
The Constitution expressly confers on the judiciary the power to maintain inviolate what
it decrees. As the guardian of the Constitution we cannot shirk the duty of seeing to it that
the officers in each branch of government do not go beyond their constitutionally
allocated boundaries and that the entire government itself or any of its branches does not
violate the basic liberties of the people. The essence of this judicial duty was
emphatically explained by Justice Laurel in the leading case of Angara v. Electoral
Commission, (63 Phil. 139 [1936] to wit:
"The Constitution is a definition of the powers of government. Who is to determine the
nature, scope and extent of such powers? The Constitution itself has provided for the
instrumentality of the judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the other
department, it does not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them."
(Emphasis supplied)
The act of the Executive in vetoing the particular provisions is an exercise of a
constitutionally vested power. But even as the Constitution grants the power, it also
provides limitations to its exercise. The veto power is not absolute. cdrep
The pertinent provision of the Constitution reads:
"The President shall have the power to veto any particular item or items in an
appropriation, revenue or tariff bill but the veto shall not affect the item or items to which
he does not object." (Section 27(2), Article VI, Constitution)
The OSG is correct when it states that the Executive must veto a bill in its entirety or not
at all. He or she cannot act like an editor crossing out specific lines, provisions, or
paragraphs in a bill that he or she dislikes. In the exercise of the veto power, it is
generally all or nothing. However, when it comes to appropriation, revenue or tariff bills,
the Administration needs the money to run the machinery of government and it can not
veto the entire bill even if it may contain objectionable features. The President is,
therefore, compelled to approve into law the entire bill, including its undesirable parts. It
is for this reason that the Constitution has wisely provided the "item veto powers" to
avoid inexpedient riders being attached to an indispensable appropriation or revenue
measure.
The Constitution provides that only a particular item or items may be vetoed. The power
to disapprove any item or items in an appropriate bill does not grant the authority to veto
a part of an item and to approve the remaining portion of the same item. (Gonzales v.
Macaraig, Jr., 191 SCRA 452, 464 [1990]).
We distinguish an item from a provision in the following manner:
"The terms item and provision in budgetary legislations and practice are concededly
different. An item in a bill refers to the particulars, the details, the distinct and severable
parts . . . of the bill (Bengzon, supra, at 916). It is an indivisible sum of money dedicated
to a stated purpose (Commonwealth v. Dodson, 11 S.E., 2d 120, 124, 125, etc., 176 Va.
281). The United States Supreme Court, in the case of Bengzon v. Secretary of Justice
(299 U.S. 410, 414, 57 Ct 252, 81 L. Ed., 312) declared 'that an 'item' of an appropriation
bill obviously means an item which in itself is a specific appropriation of money, not
some general provision of law, which happens to be put into an appropriation bill.'" (id. at
page 465).
We regret having to state that misimpressions or unfortunately wrong advice must have
been the basis of the disputed veto.
The general fund adjustment is an item which appropriates P500,000,000.00 to enable the
Government to meet certain unavoidable obligations which may have been inadequately
funded by the specific items for the different branches, departments, bureaus, agencies,
and offices of the government. llcd
The President did not veto this item. What were vetoed were methods or systems placed
by Congress to insure that permanent and continuing obligations to certain officials
would be paid when they fell due.
An examination of the entire sections and the underlined portions of the law which were
vetoed will readily show that portions of the item have been chopped up into vetoed and
unvetoed parts. Less than all of an item has been vetoed. Moreover, the vetoed portions
are not items. They are provisions.
Thus, the augmentation of specific appropriations found inadequate to pay retirement
payments, by transferring savings from other items of appropriation is a provision and not
an item. It gives power to the Chief Justice to transfer funds from one item to another.
There is no specific appropriation of money involved.
In the same manner, the provision which states that in compliance with decisions of the
Supreme Court and the Commission on Audit, funds still undetermined in amount may be
drawn from the general fund adjustment is not an item. It is the "general fund adjustment"
itself which is the item. This was not touched. It was not vetoed.
More ironic is the fact that misinformation led the Executive to believe that the items in
the 1992 Appropriations Act were being vetoed when, in fact, the veto struck something
else.
What were really vetoed are:.
(1) Republic Act No. 1797 enacted as early as June 21, 1957; and
(2) The Resolution of the Supreme Court dated November 28, 1991 in Administrative
Matter No. 91-8-225-CA.
We need no lengthy justifications or citations of authorities to declare that no President
may veto the provisions of a law enacted thirty-five (35) years before his or her term of
office. Neither may the President set aside or reverse a final and executory judgment of
this Court through the exercise of the veto power.
A few background facts may be reiterated to fully explain the unhappy situation.
Republic Act No. 1797 provided for the adjustment of pensions of retired Justices which
privilege was extended to retired members of Constitutional Commissions by Republic
Act No. 3595.
On January 25, 1975, President Marcos issued Presidential Decree No. 644 which
repealed Republic Acts 1797 and 3595. Subsequently, automatic readjustment of
pensions for retired Armed Forces officers and men was surreptitiously restored through
Presidential Decree Nos. 1638 and 1909.
It was the impression that Presidential Decree No. 644 had reduced the pensions of
Justices and Constitutional Commissioners which led Congress to restore the repealed
provisions through House Bill No. 16297 in 1990. When her finance and budget advisers
gave the wrong information that the questioned provisions is the 1992 General
Appropriations Act were simply an attempt to overcome her earlier 1990 veto, she issued
the veto now challenged in this petition.
It turns out, however, that P.D. No. 644 never became valid law. If P.D. No. 644 was not
law, it follows that Rep. Act No. 1797 was not repealed and continues to be effective up
to the present. In the same way that it was enforced from 1957 to 1975, so should it be
enforced today.
House Bill No. 16297 was superfluous as it tried to restore benefits which were never
taken away validly. The veto of House Bill No. 16297 in 1990 did not also produce any
effect. Both were based on erroneous and non-existent premises.
From the foregoing discussion, it can be seen that when the President vetoed certain
provisions of the 1992 General Appropriations Act, she was actually vetoing Republic
Act No. 1797 which, of course, is beyond her power to accomplish.
Presidential Decree No. 644 which purportedly repealed Republic Act No. 1797 never
achieved that purpose because it was not properly published. It never became a law.
The case of Tañada v. Tuvera (136 SCRA 27 [1985] and 146 SCRA 446 [1986])
specifically requires that "all laws shall immediately upon their approval or as soon
thereafter as possible, be published in full in the Official Gazette, to become effective
only after fifteen days from their publication, or on another date specified by the
legislature, in accordance with Article 2 of the Civil Code". This was the Court's answer
to the petition of Senator Lorenzo Tañada and other opposition leaders who challenged
the validity of Marcos' decrees which, while never published, were being enforced. Secret
decrees are anathema in a free society. LLjur
In support of their request, the petitioners in Administrative Matter No. 91-8-225-CA
secured a certification from Director Lucita C. Sanchez of the National Printing Office
that the April 4, 1977 Supplement to the Official Gazette was published only on
September 5, 1983 and officially released on September 29, 1983.
On the issue of whether or not Presidential Decree 644 became law, the Court has already
categorically spoken in a definitive ruling on the matter, to wit:
xxx xxx xxx
"PD 644 was promulgated by President Marcos on January 24, 1975, but was not
immediately or soon thereafter published although preceding and subsequent decrees
were duly published in the Official Gazette. It now appears that it was intended as a
secret decree "NOT FOR PUBLICATION" as the notation on the face of the original
copy thereof plainly indicated (Annex B). It is also clear that the decree was published in
the back-dated Supplement only after it was challenged in the Tañada Case as among the
presidential decrees that had not become effective for lack of the required publication.
The petition was filed on May 7, 1983, four months before the actual publication of the
decree.
It took more than eight years to publish the decree after its promulgation in 1975.
Moreover, the publication was made in bad faith insofar as it purported to show that it
was done in 1977 when the now demonstrated fact is that the April 4, 1977 supplement
was actually published and released only in September 1983. The belated publication was
obviously intended to refute the petitioner's claim in the Tañada Case and to support the
Solicitor General's submission that the petition had become moot and academic.
xxx xxx xxx
We agree that PD 644 never became a law because it was not validly published and that,
consequently, it did not have the effect of repealing RA 1797. The requesting justices
(including Justice Lood, whose request for the upgrading of his pension was denied on
January 15, 1991) are therefore entitled to be paid their monthly pensions on the basis of
the latter measure, which remains unchanged to date."
The Supreme Court has spoken and it has done so with finality, logically and rightly so as
to assure stability in legal relations, and avoid confusion. (see Ver v. Quetullo, 163 SCRA
80 [1988]) Like other decisions of this Court, the ruling and principles set out in the
Court resolution constitute binding precedent. (Bulig-Bulig Kita Kamaganak Association,
et al. v. Sulpicio Lines, Inc. and Regional Trial Court, etc. G.R. 84750, 16 May 89, En
Banc, Minute Resolution).
The challenged veto has far-reaching implications which the Court can not countenance
as they undermine the principle of separation of powers. The Executive has no authority
to set aside and overrule a decision of the Supreme Court.
We must emphasize that the Supreme Court did not enact Rep. Act No. 1797. It is not
within its powers to pass laws in the first place. Its duty is confined to interpreting or
defining what the law is and whether or not it violates a provision of the Constitution.
LibLex
As early as 1953, Congress passed a law providing for retirement pensions to retired
Justices of the Supreme Court and the Court of Appeals. This law was amended by
Republic Act 1797 in 1957. Funds necessary to pay the retirement pensions under these
statutes are deemed automatically appropriated every year.
Thus, Congress included in the General Appropriations Act of 1992, provisions
identifying funds and savings which may be used to pay the adjusted pensions pursuant to
the Supreme Court Resolution. As long as retirement laws remain in the statute book,
there is an existing obligation on the part of the government to pay the adjusted pension
rate pursuant to RA 1797 and AM-91-8-225-CA.
Neither may the veto power of the President be exercised as a means of repealing RA
1797. This is arrogating unto the Presidency legislative powers which are beyond its
authority. The President has no power to enact or amend statutes promulgated by her
predecessors much less to repeal existing laws. The President's power is merely to
execute the laws as passed by Congress.
II
There is a matter of greater consequence arising from this petition. The attempt to use the
veto power to set aside a Resolution of this Court and to deprive retirees of benefits given
them by Rep. Act No. 1797 trenches upon the constitutional grant of fiscal autonomy to
the Judiciary.
Sec. 3 Art. VIII mandates that:
"SECTION 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the
Judiciary may not be reduced by the legislature below the amount appropriated for the
previous year and, after approval, shall be automatically and regularly released."
We can not overstress the importance of and the need for an independent judiciary. The
Court has on various past occasions explained the significance of judicial independence.
In the case of De la Llana v. Alba (112 SCRA 294 [1982], it ruled:
"It is a cardinal rule of faith of our constitutional regime that it is the people who are
endowed with rights, to secure which a government is instituted. Acting as it does
through public officials, it has to grant them either expressly or implicitly certain powers.
These they exercise not for their own benefit but for the body politic . . .
"A public office is a public trust. That is more than a moral adjuration. It is a legal
imperative. The law may vest in a public official certain rights. It does so to enable them
to perform his functions and fulfill his responsibilities more efficiently . . . It is an added
guarantee that justices and judges can administer justice undeterred by any fear of
reprisal or untoward consequence. Their judgments then are even more likely to be
inspired solely by their knowledge of the law and the dictates of their conscience, free
from the corrupting influence of base or unworthy motives. The independence of which
they are assured is impressed with a significance transcending that of a purely personal
right." (At pp. 338-339).
The exercise of the veto power in this case may be traced back to the efforts of the
Department of Budget and Management (DBM) to ignore or overlook the plain mandate
of the Constitution on fiscal autonomy. The OSG Comment reflects the same truncated
view of the provision.
We have repeatedly in the past few years called the attention of DBM that not only does
it allocate less than one percent (1%) of the national budget annually for the 22,769
Justices, Judges, and court personnel all over the country but it also examines with a fine-
toothed comb how we spend the funds appropriated by Congress based on DBM
recommendations.
The gist of our position papers and arguments before Congress is as follows: cdll
"The DBM requires the Supreme Court, the Constitutional Commissions, and the
Ombudsman to submit budget proposals in accordance with parameters it establishes.
DBM evaluates the proposals, asks each agency to defend its proposals during DBM
budget hearings, submits its own version of the proposals to Congress without informing
the agency of major alterations and mutilations inflicted on their proposals, and expects
each agency to defend in Congress proposals not of the agency's making.
After the general appropriations bill is passed by Congress and signed into law by the
President, the tight and officious control by DBM continues. For the release of
appropriated funds, the Judiciary, Constitutional Commissions, and Ombudsman are
instructed through 'guidelines', how to prepare Work and Financial Plans and requests for
monthly allotments. The DBM evaluates and approves these plans and requests and on
the basis of its approval authorizes the release of allotments with corresponding notices
of cash allocation. These notices specify the maximum withdrawals each month which
the Supreme Court, the Commissions, and the Ombudsman may make from the servicing
government bank. The above agencies are also required to submit to DBM monthly,
quarterly, and year-end budget accountability reports to indicate their performance,
physical and financial operations, and income.
The DBM reserves to itself the power to review the accountability reports and when
importuned for needed funds, to release additional allotments to the agency. Since DBM
always prunes the budget proposals to below subsistence levels and since emergency
situations usually occur during the fiscal year, the Chief Justice, Chairmen of the
Commissions, and Ombudsman are compelled to make pilgrimages to DBM for
additional funds to tide their respective agencies over the emergency."
What is fiscal autonomy?
As envisioned in the Constitution, the fiscal autonomy enjoyed by the Judiciary, the Civil
Service Commission, the Commission on Audit, the Commission on Elections, and the
Office of the Ombudsman contemplates a guarantee of full flexibility to allocate and
utilize their resources with the wisdom and dispatch that their needs require. It recognizes
the power and authority to levy, assess and collect fees, fix rates of compensation not
exceeding the highest rates authorized by law for compensation and play plans of the
government and allocate and disburse such sums as may be provided by law or prescribed
by them in the course of the discharge of their functions.
Fiscal autonomy means freedom from outside control. If the Supreme Court says it needs
100 typewriters but DBM rules we need only 10 typewriters and sends its
recommendations to Congress without even informing us, the autonomy given by the
Constitution becomes an empty and illusory platitude.
The Judiciary, the Constitutional Commissions, and the Ombudsman must have the
independence and flexibility needed in the discharge of their constitutional duties. The
imposition of restrictions and constraints on the manner the independent constitutional
offices allocate and utilize the funds appropriated for their operations is anathema to
fiscal autonomy and violative not only of the express mandate of the Constitution but
especially as regards the Supreme Court, of the independence and separation of powers
upon which the entire fabric of our constitutional system is based. In the interest of
comity and cooperation, the Supreme Court, Constitutional Commissions, and the
Ombudsman have so far limited their objections to constant reminders. We now agree
with the petitioners that this grant of autonomy should cease to be a meaningless
provision.
In the case at bar, the veto of these specific provisions in the General Appropriations Act
is tantamount to dictating to the Judiciary how its funds should be utilized, which is
clearly repugnant to fiscal autonomy. The freedom of the Chief Justice to make
adjustments in the utilization of the funds appropriated for the expenditures of the
judiciary, including the use of any savings from any particular item to cover deficits or
shortages in other items of the judiciary is withheld. Pursuant to the Constitutional
mandate, the Judiciary must enjoy freedom in the disposition of the funds allocated to it
in the appropriations law. It knows its priorities just as it is aware of the fiscal restraints.
The Chief Justice must be given a free hand on how to augment appropriations where
augmentation is needed. LibLex
Furthermore, in the case of Gonzales v. Macaraig (191 SCRA 452 [1990]), the Court
upheld the authority of the President and other key officials to augment any item or any
appropriation from savings in the interest of expediency and efficiency. The Court stated
that:
"There should be no question, therefore, that statutory authority has, in fact, been granted.
And once given, the heads of the different branches of the Government and those of the
Constitutional Commissions are afforded considerable flexibility in the use of public
funds and resources (Demetria v. Alba, supra). The doctrine of separation of powers is in
no way endangered because the transfer is made within a department (or branch of
government) and not from one department (branch) to another."
The Constitution, particularly Article VI Section 25(5) also provides:
"SECTION 25. (5) No law shall be passed authorizing any transfer of
appropriations; however, the President, the President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in the
general appropriations law for their respective offices from savings in other items of their
respective appropriations".
In the instant case, the vetoed provisions which relate to the use of savings for
augmenting items for the payment of the pension differentials, among others, are clearly
in consonance with the abovestated pronouncements of the Court. The veto impairs the
power of the Chief Justice to augment other items in the Judiciary's appropriation, in
contravention of the constitutional provision on "fiscal autonomy".
III
Finally, it can not be denied that the retired Justices have a vested right to the accrued
pensions due them pursuant to RA 1797.
The right to a public pension is of statutory origin and statutes dealing with pensions have
been enacted by practically all the states in the United States (State ex rel. Murray v.
Riley, 44 Del 505, 62 Ad 236), and presumably in most countries of the world. Statutory
provisions for the support of Judges or Justices on retirement are founded on services
rendered to the state. Where a judge has complied with the statutory prerequisite for
retirement with pay, his right to retire and draw salary becomes vested and may not,
thereafter, be revoked or impaired. (Gay v. Whitehorse 44 So ad 430).
Thus, in the Philippines, a number of retirement laws have been enacted, the purpose of
which is to entice competent men and women to enter the government service and to
permit them to retire therefrom with relative security, not only those who have retained
their vigor but, more so, those who have been incapacitated by illness or accident. (In re:
Amount of the Monthly Pension of Judges and Justices Starting From the Sixth Year of
their Retirement and After the Expiration of the Initial Five-year Period of Retirement,
(190 SCRA 315 [1990]).
As early as 1953, Rep. Act No. 910 was enacted to grant pensions to retired Justices of
the Supreme Court and Court of Appeals.
This was amended by RA 1797 which provided for an automatic adjustment of the
pension rates. Through the years, laws were enacted and jurisprudence expounded to
afford retirees better benefits.
P.D. No. 1438, for one, was promulgated on June 10, 1978 amending RA 910 providing
that the lump sum of 5 years gratuity to which the retired Justices of the Supreme Court
and Court of Appeals were entitled was to be computed on the basis of the highest
monthly aggregate of transportation, living and representation allowances each Justice
was receiving on the date of his resignation. The Supreme Court in a resolution dated
October 4, 1990, stated that this law on gratuities covers the monthly pensions of retired
Judges and Justices which should include the highest monthly aggregate of
transportation, living and representation allowances the retiree was receiving on the date
of retirement. (In Re: Amount of the Monthly Pension of Judges and Justices, supra).
llcd
The rationale behind the veto which implies that Justices and Constitutional officers are
unduly favored is, again, a misimpression.
Immediately, we can state that retired Armed Forces officers and enlisted men number in
the tens of thousands while retired Justices are so few they can be immediately identified.
Justices retire at age 70 while military men retire at a much younger age — some retired
Generals left the military at age 50 or earlier. Yet, the benefits in Rep. Act No. 1797 are
made to apply equally to both groups. Any ideas arising from an alleged violation of the
equal protection clause should first be directed to retirees in the military or civil service
where the reason for the retirement provision is not based on indubitable and
constitutionally sanctioned grounds, not to a handful of retired Justices whose retirement
pensions are founded on constitutional reasons.
The provisions regarding retirement pensions of Justices arise from the package of
protections given by the Constitution to guarantee and preserve the independence of the
Judiciary.
The Constitution expressly vests the power of judicial review in this Court. Any
institution given the power to declare, in proper cases, that acts of both the President and
Congress are unconstitutional needs a high degree of independence in the exercise of its
functions. Our jurisdiction may not be reduced by Congress. Neither may it be increased
without our advice and concurrence. Justices may not be removed until they reach age 70
except through impeachment. All courts and court personnel are under the administrative
supervision of the Supreme Court. The President may not appoint any Judge or Justice
unless he or she has been nominated by the Judicial and Bar Council which, in turn, is
under the Supreme Court's supervision. Our salaries may not be decreased during our
continuance in office. We cannot be designated to any agency performing administrative
or quasi-judicial functions. We are specifically given fiscal autonomy. The Judiciary is
not only independent of, but also co-equal and coordinate with the Executive and
Legislative Departments. (Article VIII and Section 30, Article VI, Constitution).
Any argument which seeks to remove special privileges given by law to former Justices
of this Court on the ground that there should be no "grant of distinct privileges" or
"preferential treatment" to retired Justices ignores these provisions of the Constitution
and, in effect, asks that these Constitutional provisions on special protections for the
Judiciary be repealed. The integrity of our entire constitutional system is premised to a
large extent on the independence of the Judiciary. All these provisions are intended to
preserve that independence. So are the laws on retirement benefits of Justices.
One last point.
The Office of the Solicitor General argues that:
". . . Moreover, by granting these benefits to retired Justices implies that public funds,
raised from taxes on other citizens, will be paid off to select individuals who are already
leading private lives and have ceased performing public service. Said the United States
Supreme Court, speaking through Mr. Justice Miller; 'To lay with one hand the power of
the government on the property of the citizen, and with the other to bestow upon favored
individuals . . . . is nonetheless a robbery because it is done under the forms of law . . .'
(Law Association v. Topeka, 20 Wall. 655)" (Comment, p. 16).
The above arguments are not only specious, impolite and offensive; they certainly are
unbecoming of an Office whose top officials are supposed to be, under their charter,
learned in the law. cdrep
Chief Justice Cesar Bengzon and Chief Justice Querube Makalintal, Justices J.B.L.
Reyes, Cecilia Muñoz Palma, Efren Plana, Vicente Abad Santos, and, in fact, all retired
Justices of the Supreme Court and the Court of Appeals may no longer be in the active
service. Still, the Solicitor General and all lawyers under him who represent the
Government before the two courts and whose predecessors themselves appeared before
these retirees, should show some continuing esteem and good manners toward these
Justices who are now in the evening of their years.
All that the retirees ask is to be given the benefits granted by law. To characterize them as
engaging in "robbery" is intemperate, abrasive, and disrespectful more so because the
argument is unfounded.
If the Comment is characteristic of OSG pleadings today, then we are sorry to state that
the then quality of research in that institution has severely deteriorated.
In the first place, the citation of the case is wrong. The title is not LAW Association v.
Topeka but Citizen's Savings and Loan Association of Cleveland, Ohio v. Topeka City,
(20 Wall. 655; 87 U.S. 729; 22 Law. Ed. 455 [1874]. Second, the case involves the
validity of a statute authorizing cities and counties to issue bonds for the purpose of
building bridges, waterpower, and other public works to aid private railroads improve
their services. The law was declared void on the ground that the right of a municipality to
impose a tax cannot be used for private interests.
The case was decided in 1874. The world has turned over more than 40,000 times since
that ancient period. Public use is now equated with public interest. Public money may
now be used for slum clearance, low-cost housing, squatter resettlement, urban and
agrarian reform where only private persons are the immediate beneficiaries. What was
"robbery" in 1874 is now called "social justice." There is nothing about retirement
benefits in the cited case. Obviously, the OSG lawyers cited from an old textbook or
encyclopedia which could not even spell "loan" correctly. Good lawyers are expected to
go to primary sources and to use only relevant citations.
The Court has been deluged with letters and petitions by former colleagues in the
Judiciary requesting adjustments in their pensions just so they would be able to cope with
the everyday living expenses not to mention the high cost of medical bills that old age
entails. As Justice Cruz aptly stated in Teodoro J. Santiago v. COA, (G.R. No. 92284,
July 12, 1991):
"Retirement laws should be interpreted liberally in favor of the retiree because their
intention is to provide for his sustenance, and hopefully even comfort, when he no longer
has the stamina to continue earning his livelihood. After devoting the best years of his life
to the public service, he deserves the appreciation of a grateful government as best
concretely expressed in a generous retirement gratuity commensurate with the value and
length of his services. That generosity is the least he should expect now that his work is
done and his youth is gone. Even as he feels the weariness in his bones and glimpses the
approach of the lengthening shadows, he should be able to luxuriate in the thought that he
did his task well, and was rewarded for it."
For as long as these retired Justices are entitled under laws which continue to be
effective, the government can not deprive them of their vested right to the payment of
their pensions. cdphil
WHEREFORE, the petition is hereby GRANTED. The questioned veto is SET ASIDE as
illegal and unconstitutional. The vetoed provisions of the 1992 Appropriations Act are
declared valid and subsisting. The respondents are ordered to automatically and regularly
release pursuant to the grant of fiscal autonomy the funds appropriated for the subject
pensions as well as the other appropriations for the Judiciary. The resolution in
Administrative Matter No. 91-8-225-CA dated November 28, 1991 is likewise ordered to
be implemented and promulgated.
SO ORDERED.

[G.R. No. 137718. July 27, 1999.]

REYNALDO O. MALONZO, in his capacity as City Mayor of Caloocan City, OSCAR
MALAPITAN, in his capacity as Vice-Mayor of Caloocan City, CHITO ABEL,
BENJAMIN MANLAPIG, EDGAR ERICE, DENNIS PADILLA, ZALDY DOLATRE,
LUIS TITO VARELA, SUSAN PUNZALAN, HENRY CAMAYO, in their capacities as
Members of the Sangguniang Panlungsod of Caloocan City, petitioners, vs. HON.
RONALDO B. ZAMORA, in his capacity as Executive Secretary, HON. RONALDO V.
PUNO, in his capacity as Undersecretary of the Department of Interior and Local
Government, and EDUARDO TIBOR, respondents.
Balgos and Perez Law Offices, Aquilino L. Pimentel III and Veza Nadal and Associates
Law Offices for petitioner.
The Solicitor General for public respondent.
Julian B. San Juan for private respondent.
SYNOPSIS
In 1994, the Sangguniang Panlungsod (SP) of Caloocan City authorized through an
ordinance, the Mayor to initiate expropriation proceedings for the acquisition of Lot 26 of
the Maysilo Estate registered in the name of CLT Realty Development Corporation. The
ordinance appropriated P35,997,975.00 to represent 15% of the fair market value of the
property sought to be expropriated. Because of a territorial dispute between Caloocan
City and the Municipality of Malabon, CLT Realty filed an action for interpleader
praying for an order for the two local government units to litigate their conflicting claims
over the right to collect real estate taxes from them. In 1997, the Sangguniang
Panlungsod, under the stewardship of incumbent Mayor Malonzo, enacted an ordinance
increasing the appropriated amount for the subject property supposed to be expropriated.
However, after failing to conclude the voluntary sale, a suit of eminent domain was filed
by the city government. In the meantime, the Vice Mayor requested for the renovation of
the councilors' office and salaries for the city government personnel. The City Treasurer
issued a certification on the availability of funds. The City Council, acting favorably on
Mayor Malonzo's endorsement, appropriated the amount of P39,343,028.00 and passed
Ordinance No. 0254, S1998. A certain Eduardo Tibor filed an administrative complaint
against petitioners before the Office of the President (OP) due to the passage of the said
ordinance. Petitioners herein filed a motion to refer the case to the Department of Budget
and Management. This motion remained unresolved by the OP. Later, Teotimo de
Guzman Gajudo filed an action for the nullity of the ordinance before the Regional Trial
Court of Caloocan. Petitioner again filed with the OP a manifestation that the
determination of the validity of the said ordinance was a prejudicial question. Likewise,
the motion was not acted upon. Without resolving the two motions of the petitioners, the
OP rendered the assailed judgment meting upon them the penalty of suspension for a
period of three months, which is immediately executory upon the receipt of the decision.
Without moving for reconsideration, petitioners filed before the Supreme Court the
instant Petition for Certiorari.
According to the Supreme Court, the assailed decision of the OP had been tainted with
grave abuse of discretion, thus requiring the immediate exercise of the Court's corrective
power, lest public welfare be jeopardized by a more circumlocutory procedure, which the
respondents insisted upon. The court also ruled that the argument on realignment of the
budget is inapplicable in this case considering that what is complained about was an
appropriation different from that of the appropriation for the purchase of the Maysilo
Estate. The Court stressed that petitioners herein were acting within legal bounds, hence
the Court was justified in striking down the impugned act of the Office of the President.
The petition herein was granted and the decision of the Office of the President was
annulled and set aside. EcHTCD
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; SUPREME
COURT HAS FULL DISCRETIONARY POWER TO TAKE COGNIZANCE OF THE
PETITION FILED DIRECTLY TO IT IF COMPELLING REASONS, OR THE
NATURE AND IMPORTANCE OF THE ISSUES RAISED WARRANT. — It is not the
first time that similar procedural challenges have been brought before this Court. Just
recently, in the case of Fortich, et al. v. Corona, et al., we again had an occasion to clarify
our position on these questions. By way of backgrounder, said case involved the so-called
"Win-Win Resolution" of the OP which modified the approval of the conversion to agro-
industrial area of a 144-hectare land located in San Vicente, Sumilao, Bukidnon. As in
this case, the OSG opposed said petition on the ground that the same should have been
filed with the Court of Appeals since what was sought to be reviewed was the OP's
decision. Facing said issues squarely, we explained that we did not find any reason why
such petition should not have been filed in this Court, holding that: "But the Supreme
Court has the full discretionary power to take cognizance of the petition filed directly to it
if compelling reasons, or the nature and importance of the issues raised, warrant. This has
been the judicial policy to be observed and which has been reiterated in subsequent cases,
namely: Uy vs. Contreras, et al., Torres vs. Arranz, Bercero vs. De Guzman, and
Advincula vs. Legaspi, et al. As we have further stated in Cuaresma: `. . . . A direct
invocation of the Supreme Court's original jurisdiction to issue these writs should be
allowed only when there are special and important reasons therefore, clearly and
specifically set out in the petition. This is established policy. It is a policy that is
necessary to prevent inordinate demands upon the Court's time and attention which are
better devoted to those matters within its exclusive jurisdiction, and to prevent further
overcrowding of the Court's docket.' Pursuant to said judicial policy, we resolve to take
primary jurisdiction over the present petition in the interest of speedy justice and to avoid
future litigations (sic) so as to promptly put an end to the present controversy which, as
correctly observed by petitioners, has sparked national interest because of the magnitude
of the problem created by the issuance of the assailed resolution. Moreover, as will be
discussed later, we find the assailed resolution wholly void and requiring the petitioners
to file their petition first with the Court of Appeals would only result in a waste of time
and money. That the Court has the power to set aside its own rules in the higher interests
of justice is well-entrenched in our jurisprudence. We reiterate what we said in Piczon v.
Court of Appeals: 'Be it remembered that rules of procedure are but mere tools designed
to facilitate the attainment of justice. Their strict and rigid application, which would
result in technicalities that tend to frustrate rather than promote substantial justice, must
always be avoided. Time and again, this Court has suspended its own rules and excepted
a particular case from their operation whenever the higher interests of justice so require.
In the instant petition, we forego a lengthy disquisition of the proper procedure that
should have been taken by the parties involved and proceed directly to the merits of the
case."'
2. POLITICAL LAW; LOCAL GOVERNMENT CODE; REALIGNMENT;
APPROPRIATION WHICH FALLS UNDER CONTINUING APPROPRIATION AND
CONTINUING OUTLAYS CANNOT BE THE SUBJECT OF REALIGNMENT. —
Based on the above provision, the OP reached the determination that Ordinance No.
0254, S. 1998 could not have lawfully realigned the amount of P39,352,047.75 which
was previously appropriated for the expropriation of Lot 26 of the Maysilo Estate since
such appropriation was in the nature of a capital outlay until fully spent, reverted; or the
project for which it is earmarked is completed. The question, however, is not whether the
appropriation of P39,352,047.75 could fall under the definitions of continuing
appropriation and capital outlays, considering that such amount was not the subject of the
realignment made by Ordinance No. 0254, Series of 1998. Rather, the issue is whether
petitioners are liable for their actions in regard to said ordinance which actually realigned
a position of the P50 million which was simply denominated in a general manner as
"Expropriation of Properties" and classified under "Current Operating Expenditures in the
1998 Annual Budget of Caloocan City". Clearly, these are two distinct amounts separate
from each other. That this is the case has likewise been clarified in the pleadings and
during the oral argument where petitioners adequately explained that the P50 million was
NOT appropriated for the purpose of purchasing Lot 26 of the Maysilo Estate but rather
for expenses incidental to expropriation such as relocation of squatters, appraissal fee,
expenses for publication, mobilization fees, and expenses for preliminary studies. This
position appears to us more convincing than that of the interpretation of respondents. The
appropriation of P39,352,047.75 under Ordinance No. 0246, S. 1997 is, we believe, still a
subsisting appropriation that has never been lumped together with other funds to arrive at
the sum of P50 million allocated in the 1998 budget. To be sure, denomination of the P50
million amount as "Expropriation of Properties" left much to be desired and would have
been confused with the appropriation for expropriation under Ordinance No. 0246, S,
1997, but had respondents probed deeper into the actual intention for which said amount
was allocated, then they would have reached an accurate characterization of the P50
million. Bearing in mind, therefore, the fact that it is the P50 million which is now being
realigned, the next logical question to ask is whether such amount is capable of being
lawfully realigned. To this, we answer in the affirmative. EIAaDC
3. STATUTORY CONSTRUCTION; WHEN THERE IS AMBIGUITY, SUCH
INTERPRETATION AS WILL AVOID INCONVENIENCE AND ABSURDITY IS TO
BE ADOPTED. — Moreover, adoption or updating of house rules would necessarily
entail work beyond the day of the first regular session. In fact, it took the members of the
Sangguniang Panlungsod of Caloocan City until July 23, 1998 to complete the task of
adopting their house rules. Does this mean that prior thereto, the local council's hands
were tied and could not act on any other matter? That would certainly be absurd for it
would result in a hiatus and a paralysis in the local legislature's work which could not
have been intended by the law. Interpretatio talis in ambiguis semper frienda est, ut
evitatur inconveniens et absurdum. Where there is ambiguity, such interpretation as will
avoid inconvenience and absurdity is to be adopted. We believe that there has been
sufficient compliance with the Code when on the first regular session, the Sanggunian
took up the matter of adopting a set of house rules as duly evidenced by the
"KATITIKAN NG KARANIWANG PULONG NG SANGGUNIANG PANLUNGSOD
NA GINANAP NOONG IKA-2 NG HULYO, 1998 SA BAGONG GUSALI NG
PAMAHALAANG LUNGSOD NG CALOOCAN" where Item No. 3 thereof specifically
mentioned the request for the creation of an ad hoc committee to study the existing house
rules.
4. POLITICAL LAW; ADMINISTRATIVE LAW; MISCONDUCT; PETITIONER
NOT GUILTY THEREOF. — Misconduct, being a grave administrative offense for
which petitioners stood charged, cannot be treated cavalierly. There must be clear and
convincing proof on record that petitioners were motivated by wrongful intent,
committed unlawful behavior in relation to their respective offices, or transgressed some
established and definite rules of action. But as we have stressed above, petitioners were
acting within legal bounds. Respondents seem to have turned a blind eye or simply
refused to consider facts that would have enlightened them and exculpated herein
petitioners to such an extent that they arrived at their erroneous conclusion. In view
hereof, this Court is justified in striking down the impugned act of the Office of the
President.
KAPUNAN, J.: dissenting opinion:
1. POLITICAL LAW; LOCAL GOVERNMENT CODE; REALIGNMENT;
CAPITAL OUTLAY CANNOT BE THE SUBJECT OF REALIGNMENT.— The
majority opinion states with great emphasis that the amount of P39,352,047.75
appropriated under Ordinance No. 246, S. 1997 was not the subject of the realignment
made under Ordinance No. 254, S. 1998 and that said amount is separate and distinct
from the P39,343,028.00 appropriated in the supplemental budget. I believe this is plainly
an erroneous conclusion. It is noteworthy that petitioners, by their own admission in the
Consolidated Answer to the complaint filed against them before the OP, categorically
declared that the amount of P39,352,047.75 is part of the P50,000,000.00 appropriated in
the Annual Budget, generally denominated as "Expropriation of Properties." It was only
before this Court, by their own pleadings and during the oral argument, that petitioners
took a different stand and contended that the amount of P39,352,047.75 is not part of the
P50,000,000.00 and that the latter amount was intended for expenses incidental to
expropriation. Clearly, the amount realigned is part of capital outlay and is a continuing
expropriation which cannot be subject of realignment under the law. Consequently, the
amount of P39,352,047.75 appropriated under Ordinance No. 0246, S. 1997 which is part
of the P50,000,000.00 appropriated in the annual budget constituted capital outlay since
the benefits from the said expropriation extended beyond the fiscal year. Said amount
therefore cannot be the subject of realignment as such appropriation shall continue and
remain valid until fully spent or the project is completed. As previously stated, the project
(expropriation) was never completed nor really completely abandoned or withdrawn.
2. ID.; ID.; ID.; ENACTMENT OF ORDINANCE NO. 0254, S. 1998 IS
IRREGULAR. — Moreover, the circumstances that preceded the enactment of Ordinance
No. 0254, S. 1998 are irregular, to say the least. First, there was undue haste in
conducting the three (3) readings in one session day, especially so when said session day
was in the first day of the regular session preceding the elections. Although this is not
prohibited by law, separate readings were contrived to give local legislators, or national
legislators for that matter, ample time for cool reflection and circumspection before a bill
is passed into law. Second, no new rules have been adopted by the Sanggunian and no
new committees have yet been formed at the time of the enactment of the ordinance, so it
is difficult to imagine how petitioners could have passed the ordinance in an orderly,
mature and deliberative manner. The argument that if no new rules were adopted by the
new council, the old ones could have been availed of is unconvincing considering that
petitioners did not ever bother to show what the old rules were. Third, the supplemental
budget enacted was not submitted to the Department of Budget and Management (DBM)
for review within the prescribed period in accordance with Sections 326 and 327 of the
Local Government Code, in relation to Article 422 of its Implementing Rules. It was after
the case was filed against petitioners when, as a blatant afterthought, they submitted the
ordinance to the DBM and now, tongue-in-cheek, lamely contend that action thereon by
the DBM constitutes a prejudicial question.
3. ID.; ID.; ID.; DISREGARDING THE PROPER PROCEDURE FOR THE
ENACTMENT OF ORDINANCE INVOLVING CHANGES IN THE ANNUAL
BUDGET CONSTITUTES MISCONDUCT. — The unusual haste in the enactment of
SP Ordinance No. 0254, S. 1998 diverting an allotted appropriation for essential public
purposes to fund non-essential expenditures described as "lump sum appropriation for
emergency" amounting to P25,000,000.00, "cash gifts," repair and renovation of the
offices of the incoming councilors and hiring of additional personnel, and the manifest
disregard in the observance of the proper procedure for the enactment of ordinances
involving changes in the annual budget all point to acts constituting misconduct which
warrants appropriate disciplinary action. Simply put, there was an abuse here in the
utilization of local funds. Misconduct is defined as an unlawful behavior by a public
officer in relation to public office. In view of the foregoing considerations, I find the
Office of the President did not commit grave abuse of discretion in rendering the assailed
decision. I, therefore, vote to dismiss the petition. However, the penalty of suspension of
three months, without pay, imposed upon petitioners by said Office is too severe. It
should be decreased to only twenty (20) days, the time already served by the petitioners.
THaDAE
DECISION
ROMERO, Acting C.J p:
Consistent with the doctrine that local government does not mean the creation of
imperium in imperii or a state within a State, the Constitution has vested the President of
the Philippines the power of general supervision over local government units. 1 Such
grant of power includes the power of discipline over local officials, keeping them
accountable to the public, and seeing to it that their acts are kept within the bounds of
law. Needless to say, this awesome supervisory power, however, must be exercised
judiciously and with utmost circumspection so as not to transgress the avowed
constitutional policy of local autonomy. As the facts unfold, the issue that obtrudes in our
minds is: Should the national government be too strong vis-a-vis its local counterpart to
the point of subverting the principle of local autonomy enshrined and zealously protected
under the Constitution? It is in this light that the instant case shall now be resolved.
prcd
During the incumbency of then Mayor Macario A. Asistio, Jr., the Sangguniang
Panlungsod of Caloocan City passed Ordinance No. 0168, S. 1994, 2 authorizing the City
Mayor to initiate proceedings for the expropriation of Lot 26 of the Maysilo Estate
registered in the name of CLT Realty Development Corporation (CLT). The lot, covering
an area of 799,955 square meters, was intended for low-cost housing and the construction
of an integrated bus terminal, parks and playgrounds, and related support facilities and
utilities. For this purpose, the said ordinance appropriated the amount of P35,997,975.00,
3 representing 15% of the fair market value of Lot 26 that would be required of the city
government as a deposit prior to entry into the premises to be expropriated.
It turned out, however, that the Maysilo Estate straddled the City of Caloocan and the
Municipality of Malabon, prompting CLT to file a special civil action 4 for Interpleader
with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction on August 6, 1997, before the Caloocan City Regional Trial
Court, Branch 124. The complaint specifically sought to restrain the defendants City of
Caloocan and Municipality of Malabon from assessing and collecting real property taxes
from CLT and to interplead and litigate among themselves their conflicting rights to
claim such taxes.
On December 11, 1997, the Caloocan City Sangguniang Panlungsod, under the
stewardship of incumbent Mayor Reynaldo O. Malonzo, enacted Ordinance No. 0246, S.
1997, 5 entitled "AN ORDINANCE AMENDING AND SUPPLEMENTING THE
PROVISIONS OF CITY ORDINANCE NO. 0168, SERIES OF 1994 AND FOR
OTHER RELATED PURPOSES." 6 Under this ordinance, certain amendments were
introduced, foremost of which was the city council's decision to increase the appropriated
amount of P35,997,975.00 in the previous ordinance to P39,352,047.75, taking into
account the subject property's current fair market value. cdphil
After failing to conclude a voluntary sale of Lot 26, the city government commenced on
March 23, 1998, a suit for eminent domain 7 against CLT before the Caloocan City
Regional Trial Court, Branch 126, to implement the subject property's expropriation.
Apparently disturbed by this development, the Caloocan City Legal Officer informed the
City Mayor through a letter-memorandum 8 dated April 7, 1998, of the pending
interpleader case covering Lot 26 and that the same was "a 'Prejudicial Question' which
must be resolved first by the proper court in order not to put the expropriation
proceedings in question." He therefore recommended that "pending the final
determination and resolution of the court on the issue (territorial jurisdiction) raised in
Civil Case No. C-18019 before Branch 124 of the Regional Trial Court of Caloocan City,
the expropriation of the subject property be cancelled and/or abandoned."
In the meantime, after the successful re-election bid of Malonzo, Vice-Mayor Oscar G.
Malapitan wrote him a letter 9 dated June 4, 1998, requesting the immediate repair and
renovation of the offices of the incoming councilors, as well as the hiring of additional
personnel and the retention of those currently employed in the offices of the councilors.
Malonzo acted on said letter and endorsed the same to the Office of the City Treasurer.
The latter in turn manifested through a memorandum 10 dated June 26, 1998, that "since
the expropriation of CLT Property is discontinued, the appropriation for expropriation of
FIFTY MILLION PESOS (P50M) 11 can be reverted for use in a supplemental budget"
stating further that he certifies "(F)or its reversion since it is not yet obligated, and for its
availability for re-appropriation in a supplemental budget."
Pursuant to the treasurer's certification on the availability of funds to accommodate Vice-
Mayor Malapitan's request, Malonzo subsequently endorsed to the Sangguniang
Panlungsod Supplemental Budget No. 01, Series of 1998, appropriating the amount of
P39,343,028.00. The city council acted favorably on Malonzo's endorsement and, thus,
passed Ordinance No. 0254, S. 1998 12 entitled "AN ORDINANCE PROVIDING
PAYMENTS FOR APPROVED ITEMS IN THE SUPPLEMENTAL BUDGET NO. 1
CALENDAR YEAR 1998 AND APPROPRIATING CORRESPONDING AMOUNT
WHICH SHALL BE TAKEN FROM THE GENERAL FUND (REVERSION OF
APPROPRIATION-EXPROPRIATION OF PROPERTIES)." cda
Alleging, however, that petitioners conspired and confederated in willfully violating
certain provisions of the Local Government Code of 1991 (hereinafter the "Code")
through the passage of Ordinance No. 0254, S. 1998, a certain Eduardo Tibor, by himself
and as a taxpayer, filed on July 15, 1998, an administrative complaint for Dishonesty,
Misconduct in Office, and Abuse of Authority against petitioners before the Office of the
President (OP). 13
After the complaint was given due course, petitioners filed on October 15, 1998 their
Consolidated Answer, 14 pointing out, among other things, that said complaint
constituted a collateral attack of a validly enacted ordinance whose validity should only
be determined in a judicial forum. They also claimed that the assailed ordinance was
enacted strictly in accordance with Article 417 of the Rules and Regulations
Implementing the Local Government Code of 1991 (hereinafter, the "Rules"), as
amended by Administrative Order No. 47 dated April 12, 1993.
After several exchanges of pleadings, 15 petitioners, citing Section 326 of the Code and
Article 422, Rule XXXIV of the Rules, filed on February 7, 1999, a Motion to Refer the
Case to the Department of Budget and Management (DBM) on the ground that the DBM
has been granted power under the Code to review ordinances authorizing the annual or
supplemental appropriations of, among other things, highly urbanized cities such as
Caloocan City. This motion, however, remained unresolved.
Two days later, after learning that a certain Teotimo de Guzman Gajudo had filed an
action for the Declaration of Nullity of Ordinance No. 0254, Series of 1998, before the
Caloocan City Regional Trial Court, 16 petitioners filed with the OP a Manifestation and
Very Urgent Motion to Suspend Proceedings on the ground that the determination of the
validity of said ordinance was a prejudicial question. Likewise, this motion was not acted
upon by the OP. prLL
Thus, without resolving the foregoing motions of petitioners, the OP rendered its assailed
judgment 17 on March 15, 1999, the decretal portion of which reads:
"WHEREFORE, herein respondents Mayor Reynaldo Malonzo, Vice-Mayor Oscar G.
Malapitan and Councilors Chito Abel, Benjamin Manlapig, Edgar Erice, Dennis Padilla,
Zaldy Dolatre, Susana Punzalan, Henry Camayo, and Luis Tito Varela, all of Caloocan
City, are hereby adjudged guilty of misconduct and each is meted the penalty of
SUSPENSION 18 from office for a period of three (3) months without pay to commence
upon receipt of this Decision. This Decision is immediately executory.
SO ORDERED."
On even date, the Department of Interior and Local Government (DILG) administered
Macario E. Asistio III's oath of office as Acting Mayor of Caloocan City. cdphil
Without moving for reconsideration of the OP's decision, petitioners filed before this
Court on March 22, 1999, the instant Petition for Certiorari and Prohibition With
Application for Preliminary Injunction and Prayer for Restraining Order, With
Alternative Prayer for Preliminary Mandatory Injunction. 19
In a resolution of this Court dated April 5, 1999, we resolved to set the case for oral
argument 20 on April 20, 1999 while at the same time directed the parties to maintain the
status quo before March 15, 1999.
To support their petition, petitioners contend that on account of the filing of an action for
interpleader by CLT, the expropriation proceedings had to be suspended pending final
resolution of the boundary dispute between Malabon and Caloocan City. Due to this
dispute, the P50 million appropriation for the expropriation of properties under current
operating expenses had not been obligated and no security deposit was forthcoming. It
was not at the time a continuing appropriation. This unavoidable discontinuance of the
purpose for which the appropriation was made effectively converted the earlier
expropriation of P39,352,047.75 into savings as defined by law.
They argue further that there is no truth in the allegation that Ordinance No. 0254, S.
1998 was passed without complying with Sections 50 and 52 of the Local Government
Code requiring that on the first regular session following the election of its members and
within 90 days thereafter, the Sanggunian concerned shall adopt or update its existing
rules of procedure. According to them, the minutes of the session held on July 2, 1998
would reveal that the matter of adoption or updating of the house rules was taken up and
that the council arrived at a decision to create an ad hoc committee to study the rules. 21
Moreover, even if the Sanggunian failed to approve the new rules of procedure for the
ensuing year, the rules which were applied in the previous year shall be deemed in force
and effect until new ones are adopted. cdasia
With respect to the OP's assumption of jurisdiction, petitioners maintained that the OP
effectively arrogated unto itself judicial power when it entertained a collateral attack on
the validity of Ordinance No. 0254, S. 1998. Furthermore, primary jurisdiction over the
administrative complaint of Tibor should have pertained to the Office of the
Ombudsman, as prescribed by Article XI, Sections 13 and 15 of the Constitution. They
also asserted that the declaration in the OP's decision to the effect that Ordinance No.
0254, S. 1998 was irregularly passed constituted a usurpation of the DBM's power of
review over ordinances authorizing annual or supplemental appropriations of, among
others, highly-urbanized cities like Caloocan City as provided under Section 326 of the
Local Government Code of 1991. In light of said statutory provision, petitioners opined
that respondents should have deferred passing upon the validity of the subject ordinance
until after the DBM shall have made a review thereof.
Finally, petitioners complained that respondents violated the right to equal protection of
the laws when Vice-Mayor Oscar Malapitan was placed in the same class as the rest of
the councilors when in truth and in fact, as Presiding Officer of the council, he did not
even vote nor participate in the deliberations. The violation of such right, according to
petitioners, made the OP's decision a nullity. They concluded that the administrative
complaint was anathema to the State's avowed policy of local autonomy as the threat of
harassment suits could become a sword of Damocles hanging over the heads of local
officials.
Contending that the OP decision judiciously applied existing laws and jurisprudence
under the facts obtaining in this case, the Office of the Solicitor General (OSG) 22
disputed petitioners' claims contending that the appropriation of P39,352,047.75
contained in an earlier ordinance (Ord. No. 0246 S. 1997) for the expropriation of Lot 26
of the Maysilo Estate was a capital outlay as defined under Article 306 (d) of the Code
and not current operating expenditures. Since it was a capital outlay, the same shall
continue and remain valid until fully spent or the project is completed, as provided under
Section 322 of the Code. prcd
The OSG asserted further that the filing on August 6, 1997 of an interpleader case by
CLT which owns Lot 26 should not be considered as an unavoidable discontinuance that
automatically converted the appropriated amount into savings which could be used for
supplemental budget. Since the said amount was not transformed into savings and, hence,
no funds were actually available, then the passage of Ordinance No. 0254, S. 1998 which
realigned the said amount on a supplemental budget violated Section 321 of the Code
requiring an ordinance providing for a supplemental budget to be supported by funds
actually available as certified by the local treasurer or by new revenue sources.
Petitioners were likewise faulted for violating Sections 50 and 52 of the Code requiring
the Sangguniang Panlungsod to adopt or update its existing rules of procedure within the
first 90 days following the election of its members. The Sanggunian allegedly conducted
three readings of Ordinance No. 0254, S. 1998 in one day and on the first day of its
session (July 2, 1998) without the Sanggunian having first organized itself and adopted
its rules of procedure. It was only on July 23, 1998 that the Sanggunian adopted its
internal rules of procedure.
As regard petitioners' contention that the administrative complaint of Tibor should have
been filed with the Office of the Ombudsman instead of the OP, the OSG pointed out that
under Section 60 and 61 of the Code, the OP is vested with jurisdiction to discipline,
remove or suspend a local elective official for, among other things, misconduct in office.
The Ombudsman has never been vested with original and exclusive jurisdiction regarding
administrative complaints involving government officials. prLL
Finally, the OSG sought to dismiss the petition on the grounds of non-exhaustion of
administrative remedies before the OP and for failure to follow Section 4, Rule 65 of the
1997 Rules of Civil Procedure which prescribes that "if it [the subject of the petition]
involves the acts or omissions of a quasi-judicial agency, and unless provided by law or
these Rules, the petition shall be filed in and cognizable only by the Court of Appeals."
The petition is impressed with merit.
Preliminarily, we find a need to resolve a couple of procedural issues which have a
bearing on the propriety of this Court's action on the petition, to wit: (1) whether the
Supreme Court is the proper forum which can take cognizance of this instant petition
assailing the decision of the OP, and (2) whether the Supreme Court may entertain the
instant petition despite the absence of a prior motion for reconsideration filed by
petitioners with the OP.
After a very careful and meticulous review of the parties' respective positions on these
matters, we find that this Court possesses the requisite power to assume jurisdiction and
rule on the petition. LibLex
It is not the first time that similar procedural challenges have been brought before this
Court. Just recently, in the case of Fortich, et al. v. Corona, et al., 23 we again had an
occasion to clarify our position on these questions. By way of backgrounder, said case
involved the so-called "Win-Win Resolution" of the OP which modified the approval of
the conversion to agro-industrial area of a 144-hectare land located in San Vicente,
Sumilao, Bukidnon. As in this case, the OSG opposed said petition on the ground that the
same should have been filed with the Court of Appeals since what was sought to be
reviewed was the OP's decision. Facing said issues squarely, we explained that we did
not find any reason why such petition should not have been filed in this Court, holding
that:
"But the Supreme Court has the full discretionary power to take cognizance of the
petition filed directly to it if compelling reasons, or the nature and importance of the
issues raised, warrant. This has been the judicial policy to be observed and which has
been reiterated in subsequent cases, namely: Uy vs. Contreras, et al., Torres vs. Arranz,
Bercero vs. De Guzman, and Advincula vs. Legaspi, et al. As we have further stated in
Cuaresma:
'. . . A direct invocation of the Supreme Court's original jurisdiction to issue these writs
should be allowed only when there are special and important reasons therefore, clearly
and specifically set out in the petition. This is established policy. It is a policy that is
necessary to prevent inordinate demands upon the Court's time and attention which are
better devoted to those matters within its exclusive jurisdiction, and to prevent further
over-crowding of the Court's docket.' llcd
Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present
petition in the interest of speedy justice and to avoid future litigations (sic) so as to
promptly put an end to the present controversy which, as correctly observed by
petitioners, has sparked national interest because of the magnitude of the problem created
by the issuance of the assailed resolution. Moreover, as will be discussed later, we find
the assailed resolution wholly void and requiring the petitioners to file their petition first
with the Court of Appeals would only result in a waste of time and money.
That the Court has the power to set aside its own rules in the higher interests of justice is
well-entrenched in our jurisprudence. We reiterate what we said in Piczon v. Court of
Appeals:
'Be it remembered that rules of procedure are but mere tools designed to facilitate the
attainment of justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote substantial justice, must always be
avoided. Time and again, this Court has suspended its own rules and excepted a particular
case from their operation whenever the higher interests of justice so require. In the instant
petition, we forego a lengthy disquisition of the proper procedure that should have been
taken by the parties involved and proceed directly to the merits of the case.'"
[Underscoring supplied, citations omitted]. Cdpr
In like manner, it is our considered view now that the instant petition has been properly
brought before us in light of the importance of the subject matter and the transcendental
nature of the issues raised. Realignment, as explained in the pleadings, is a common
practice borne out of necessity and sanctioned by law. Just how such a common practice
may be carried out within the bounds of law, considering the fact that public funds are at
stake, is, we believe, an issue that is not only one of first impression, but likewise of
considerable significance as a guide to local governance. Furthermore, as will be
discussed later, the assailed decision of the OP has been tainted with grave abuse of
discretion, thus, requiring the immediate exercise of this Court's corrective power lest
public welfare, more particularly that of the Caloocan City constituents, be jeopardized
by a more circumlocutory procedure which respondents are now insisting upon.
With respect to the alleged non-exhaustion of administrative remedies, we do not see the
same as a fatal procedural lapse that would prevent us from entertaining the more
pressing questions raised in this case. In any event, jurisprudence is replete with instances
instructing us that a motion for reconsideration is neither always a prerequisite nor a
hard-and-fast rule to be followed where there are particularly exceptional attendant
circumstances such as, in the instant case, patent nullity of the questioned act and the
necessity of resolving the issues without further delay. 24
Having therefore disposed of the procedural questions, we now turn our attention to the
more crucial substantive issues, namely: Cdpr
1. Whether the Office of the President gravely abused its discretion when it found
petitioners guilty of misconduct for the reason that Ordinance No. 0254, Series of 1998,
was allegedly tainted with irregularity;
2. Whether Ordinance No. 0254, Series of 1998, violated Section 326 of the Local
Government Code of 1991 on reversion of unexpended balances of appropriations;
3. Whether Ordinance No. 0254, Series of 1998, complied with Section 321 of the
Local Government Code of 1991 requiring that changes in the annual budget should be
supported by funds actually available; and
4. Whether Ordinance No. 0254, Series of 1998, was valid considering that prior to
its passage there was as yet no formal adoption of rules of procedure by the Caloocan
City Sangguniang Panlungsod.
As stated earlier, the OP found petitioners guilty of misconduct on the ground that they
failed to strictly comply with certain provisions of the Code relating to the passage of the
ordinance in question. It justified its position, thus: Cdpr
"By respondents (sic) very own admission — and these facts are a matter of record — the
P39,352,047.75 appropriated in Ordinance 0254 to fund the approved items listed therein
was merely a portion of the P50 Million included and appropriated in the 1998 Annual
Budget for expropriation purpose and that the judicial action for expropriation — earlier
filed by the city and for which an allocation of P39,352,047.75 out of the P50 Million
appropriation for expropriation of properties — is still pending with the court. This being
so, the amount allocated for the expropriation cannot be reverted or be deemed as savings
to serve as funds actually available for the supplemental budget.
It cannot be argued that "the unexpected turn of events" mentioned by the respondents —
referring to the filing by CLT Realty on August 6, 1997 of a complaint against the
Municipality of Malabon and the City of Caloocan for interpleader amounts to an
unavoidable discontinuance of the expropriation project, and thus effectively converted
the earlier expropriation (sic) of P39,352,047.75 into "SAVINGS". For one, it was only
on March 23, 1998, that the City of Caloocan filed an expropriation case against CLT
Realty (docketed as Special Case No. 548 Regional Trial Court, Caloocan City). If, as
respondents argue, the August 6, 1997 interpleader suit amounted to the unavoidable
discontinuance of the expropriation project, thus effectively turning the earlier
appropriation of P39,352,047.75 into savings, then how explain the March 23, 1998
expropriation case? For another, the records do not indicate — not even an allegation to
this effect — that the City of Caloocan has withdrawn the expropriation case
aforementioned which is, ordinarily, the legal route taken in the event of abandonment of
discontinuance of the expropriation project. On the contrary, the city government, as
indicated in its judicial pleadings that now form part of the records, even sought the
issuance of a writ of possession. LLjur
In this light, it is all too clear that Ordinance No. 0254 was enacted without funds actually
available as required by Section 321 of the Local Government Code of 1991, which
pertinently reads —
xxx xxx xxx
The words "actually available" are so clear and certain that interpretation is neither
required nor permitted. The application of this legal standard to the facts of this case
compels the conclusion that, there being no reversion, as above-explained, the
supplemental budget was not supported by funds actually available, by funds really in the
custody or possession of the treasurer.
Stated differently, it may be that the City Treasurer of Caloocan, vis-a-vis Ordinance No.
0254, issued a certificate of availability of funds (Annex "9", Answer). The issuance,
however cannot alter the reality that the funds referred to therein are not funds actually
available because they are sourced or are to be sourced from an appropriation for a
capital outlay which cannot be validly reverted or "converted into savings," as
respondents put it, on ground of "unavoidable discontinuance of the expropriation
project." cdtai
Adding significance to the conclusion reached herein is the fact that the enactment by the
respondents of the supplemental budget was clearly tainted with undue haste. The
sangguniang panlungsod conducted the three (3) readings (the 1st the 2nd and 3rd ) on
the same day, July 2, 1998, its first day of session, adopted it on July 7, 1998 and
approved by respondent mayor on the following day, July 8, 1998, without first having
itself organized and its rules of procedure adopted and without first electing its officers
and chairmen and the members of the different committees in accordance with [the]
provisions of the LGC (see Secs. 50 & 52, RA 7162). This undue haste implies willful
failure to respond to or comply with what the law requires which is the essence of bad
faith.
xxx xxx xxx
We are thus one with the DILG in finding respondents guilty of violating Section 321 in
relation to Section 332 of the Local Government Code of 1991. This violation constitutes
misconduct, an offense implying a wrongful intent, an unlawful behavior in relation to
the office, one that usually involves a transgression of some established and definite rule
of action, more particularly unlawful behavior by the public officer. [Citations omitted].
25
We cannot, however, agree with the above disquisition.
The OP's premise, in our opinion, rests upon an erroneous appreciation of the facts on
record. The OP seems to have been confused as to the figures and amounts actually
involved. A meticulous analysis of the records would show that there is really no basis to
support the OP's contention that the amount of P39,352,047.75 was appropriated under
Ordinance No. 0254, S. 1998, since in truth and in fact, what was appropriated in said
ordinance was the amount of P39,343,028.00. The allocation of P39,352,047.75 is to be
found in the earlier Ordinance No. 0246, S. 1997 which is a separate and distinct
ordinance. This point of clarification is indeed very critical and must be emphasized at
this juncture because any further discussion would have to depend upon the accuracy of
the figures and amounts being discussed. As will be explained below, this faulty
appreciation of the facts by the OP caused it to arrive at the wrong conclusion even if it
would have correctly interpreted and applied the pertinent statutory provisions. cda
Section 322 of the Code upon which the OP anchored its opinion that petitioners
breached a statutory mandate provides:
SECTION 322. Reversion of Unexpended Balances of Appropriations, Continuing
Appropriations. — Unexpended balances of appropriations authorized in the annual
appropriations ordinance shall revert to the unappropriated surplus of the general funds at
the end of the fiscal year and shall not thereafter be available for expenditure except by
subsequent enactment. However, appropriations for capital outlays shall continue and
remain valid until fully spent, reverted or the project is completed. Reversions of
continuing appropriations shall not be allowed unless obligations therefor have been fully
paid or otherwise settled.
Based on the above provision, the OP reached the determination that Ordinance No.
0254, S. 1998 could not have lawfully realigned the amount of P39,352,047.75 which
was previously appropriated for the expropriation of Lot 26 of the Maysilo Estate since
such appropriation was in the nature of a capital outlay until fully spent, reverted, or the
project for which it is earmarked is completed. Cdpr
The question, however, is not whether the appropriation of P39,352,047.75 could fall
under the definitions of continuing appropriation 26 and capital outlays, 27 considering
that such amount was not the subject of the realignment made by Ordinance No. 0254,
Series of 1998. Rather, the issue is whether petitioners are liable for their actions in
regard to said ordinance which actually realigned a position of the P50 million which was
simply denominated in a general manner as "Expropriation of Properties" and classified
under "Current Operating Expenditures in the 1998 Annual Budget of Caloocan City.
Clearly, these are two distinct amounts separate from each other. That this is the case has
likewise been clarified in the pleadings and during the oral argument where petitioners
adequately explained that the P50 million was NOT appropriated for the purpose of
purchasing Lot 26 of the Maysilo Estate but rather for expenses incidental to
expropriation such as relocation of squatters, appraisal fee, expenses for publication,
mobilization fees, and expenses for preliminary studies. 28 This position appears to us
more convincing than that of the interpretation of respondents. The appropriation of
P39,352,047.75 under Ordinance No. 0246, S. 1997 is, we believe, still a subsisting
appropriation that has never been lumped together with other funds to arrive at the sum of
P50 million allocated in the 1998 budget. To be sure, denomination of the P50 million
amount as "Expropriation of Properties" left much to be desired and would have been
confused with the appropriation for expropriation under Ordinance No. 0246, S. 1997,
but had respondents probed deeper into the actual intention for which said amount was
allocated, then they would have reached an accurate characterization of the P50 million.
prcd
Bearing in mind, therefore, the fact that it is the P50 million which is now being
realigned, the next logical question to ask is whether such amount is capable of being
lawfully realigned. To this, we answer in the affirmative.
No less than respondents themselves argued, citing Sections 321 and 322 in relation to
Section 306 (d) and (e) of the Code, that realignment shall not be allowed when what is
involved are continuing appropriations or capital outlays. But this argument becomes
clearly inapplicable in view of our disquisition above that the realignment being
complained of had nothing to do with the P39,352,047.75 appropriation for the purchase
of Lot 26 of the Maysilo Estate which is clearly the one that is classifiable as a capital
outlay or a continuing appropriation. The realignment, as we have earlier discussed,
pertained to the P50 million which was classified as "Current Operating Expenditures."
Having been determined as such by the local council upon which legislative discretion is
granted, then the statutory proscription does not, therefore, apply and respondents cannot
insist that it should.
Moreover, in view of the fact that what is being realigned is the P50 million appropriation
which is classified, neither as a capital outlay nor a continuing appropriation, then
respondents' position that Ordinance No. 0254, S. 1998 was enacted without funds
actually available and in violation of Section 321 of the Code likewise falls flat on its
face. This is notwithstanding respondents' assertion that the "unavoidable discontinuance"
of the expropriation proceedings for Lot 26 could not have automatically converted the
appropriated amount therefor into "savings." For one thing, the Code appears silent and
respondents themselves have not shown how unexpected balances of appropriations
revert to the general fund. Likewise, it would be pointless to belabor this matter because
it has been brought out precisely on the assumption that the amount of P39,352,047.75,
has no more leg to stand on, as explained earlier. cdtai
As to the alleged violation of Sections 50 and 52 of the Code requiring the adoption of
house rules and the organization of the council, we believe that the same hardly merits
even cursory consideration. We cannot infer the mandate of the Code that no other
business may be transacted on the first regular session except to take up the matter of
adopting or updating rules. All that the law requires is that "on the first regular
session . . . the sanggunian concerned shall adopt or update its existing rules or
procedure." There is nothing in the language thereof that restricts the matters to be taken
up during the first regular session merely to the adoption or updating of the house rules.
If it were the intent of Congress to limit the business of the local council to such matters,
then it would have done so in clear and unequivocal terms. But as it is, there is no such
intent.
Moreover, adoption or updating of house rules would necessarily entail work beyond the
day of the first regular session. In fact, it took the members of the Sangguniang
Panlungsod of Caloocan City until July 23, 1998 to complete the task of adopting their
house rules. Does this mean that prior thereto, the local council's hands were tied and
could not act on any other matter? That would certainly be absurd for it would result in a
hiatus and a paralysis in the local legislature's work which could not have been intended
by the law. Interpretatio talis in ambiguis semper frienda est, ut evitatur inconveniens et
absurdum. Where there is ambiguity, such interpretation as will avoid inconvenience and
absurdity is to be adopted. 29 We believe that there has been sufficient compliance with
the Code when on the first regular session, the Sanggunian took up the matter of adopting
a set of house rules as duly evidenced by the "KATITIKAN NG KARANIWANG
PULONG NG SANGGUNIANG PANLUNGSOD NA GINANAP NOONG IKA-2 NG
HULYO, 1998 SA BAGONG GUSALI NG PAMAHALAANG LUNGSOD NG
CALOOCAN" 30 where Item No. 3 thereof specifically mentioned the request for the
creation of an ad hoc committee to study the existing house rules.
The foregoing explanation leads us to the ineluctable conclusion that, indeed, respondents
committed grave abuse of discretion. 31 Not only are their reasoning flawed but are
likewise lacking in factual and legal support. Misconduct, being a grave administrative
offense for which petitioners stood charged, cannot be treated cavalierly. There must be
clear and convincing proof on record that petitioners were motivated by wrongful intent,
32 committed unlawful behavior in relation to their respective offices, 33 or transgressed
some established and definite rules of action. 34 But as we have stressed above,
petitioners were acting within legal bounds. Respondents seem to have turned a blind eye
or simply refused to consider facts that would have enlightened them and exculpated
herein petitioners to such an extent that they arrived at their erroneous conclusion. In
view hereof, this Court is justified in striking down the impugned act of the Office of the
President. prcd
Two motions filed in accordance with procedural rules were ignored by the Office of the
President and left unresolved: first, the February 7, 1999 Motion to Refer the Case to the
DBM and second, the Manifestation and Very Urgent Motion to Suspend Proceedings on
the ground that the determination of the validity of said ordinance was a prejudicial
question. Motions need not necessarily grant what movant is asking for, but they must be
acknowledged and resolved. The Office of the President, being the powerful office that
law and tradition have endowed it, needs no mighty blows on the anvil of authority to
ensure obedience to its pronouncements. It would be more in keeping with its exalted
stature if its actions could safeguard the very freedoms so sedulously nurtured by the
people. Even what it may deem minor lapses, emanating as it does from such an exalted
office, should not be allowed to go unchecked lest our democratic institutions be
gradually eroded.
WHEREFORE, the instant petition is hereby GRANTED. The assailed decision of the
Office of the President in O.P. Case No. 98-H-8520 dated March 15, 1999 is
ANNULLED and SET ASIDE for having been rendered with grave abuse of discretion
amounting to lack and/or excess of jurisdiction. Consequently, respondents, their
subordinates, agents, representatives, and successors-in-interest are permanently enjoined
from enforcing or causing the execution in any manner of the aforesaid decision against
herein petitioners. prcd
No pronouncement as to costs.
SO ORDERED.

[G.R. No. 78239. February 9, 1989.]

SALVACION A. MONSANTO, petitioner, vs. FULGENCIO S. FACTORAN, JR.,
respondent.
SYLLABUS
1. REMEDIAL LAW; ACCESSORY PENALTY; REMAINS ENFORCEABLE
UNLESS EXPRESSLY REMITTED BY PARDON. — It is well to remember that
petitioner had been convicted of the complex crime of estafa thru falsification of public
documents and sentenced to imprisonment of four years, two months and one day of
prision correccional as minimum, to ten years and one day of prision mayor as
maximum. The penalty of prision mayor carries the accessory penalties of temporary
absolute disqualification and perpetual special disqualification from the right of suffrage,
enforceable during the term of the principal penalty. Temporary absolute disqualification
bars the convict from public office or employment, such disqualification to last during the
term of the sentence. Even if the offender be pardoned, as to the principal penalty, the
accessory penalties remain unless the same have been expressly remitted by the pardon.
The penalty of prision correccional carries, as one of its accessory penalties, suspension
from public office.
2. CRIMINAL LAW; EXTINCTION OF CRIMINAL LIABILITY; PARDON
EXPLAINED. — Pardon is defined as "an act of grace, proceeding from the power
entrusted with the execution of the laws, which exempts the individual, on whom it is
bestowed, from the punishment the law inflicts for a crime he has committed. It is the
private, though official act of the executive magistrate, delivered to the individual for
whose benefit it is intended, and not communicated officially to the Court . . . A pardon is
a deed, to the validity of which delivery is essential, and delivery is not complete without
acceptance."
3. ID.; ID.; ID.; COULD BE EXTENDED ONLY UPON FINAL CONVICTION.
— The 1981 amendments had deleted the earlier rule that clemency could be extended
only upon final conviction, implying that clemency could be given even before
conviction. Thus, petitioner's unconditional pardon was granted even as her appeal was
pending in the High Court. It is worth mentioning that under the 1987 Constitution, the
former limitation of final conviction was restored.
4. ID.; ID.; ID.; ACCEPTANCE THEREOF HAS THE EFFECT OF
ABANDONING THE APPEAL; CASE AT BAR. — It is our view that in the present
case, it is not material when the pardon was bestowed, whether before or after conviction,
for the result would still be the same. Having accepted the pardon, petitioner is deemed to
have abandoned her appeal and her unreversed conviction by the Sandiganbayan assumed
the character of finality.
5. ID.; ID.; ID.; ESSENCE. — The modern trend of authorities now rejects the
unduly broad language of the Garland case [4 Wall, 333 18 L.ED. 366] (reputed to be
perhaps the most extreme statement which has been made on the effects of a pardon). To
our mind, this is the more realistic approach. While a pardon has generally been regarded
as blotting out the existence of guilt so that in the eye of the law the offender is as
innocent as though he never Committed the offense, it does not operate for all purposes.
The very essence of a pardon is forgiveness or remission of guilt. Pardon implies guilt. It
does not erase the fact of the commission of the crime and the conviction thereof. It does
not wash out the moral stain. It involves forgiveness and not forgetfulness. The better
considered cases regard full pardon (at least one not based on the offender's innocence) as
relieving the party from all the punitive consequences of his criminal act, including the
disqualifications or disabilities based on the finding of guilt. But it relieves him from
nothing more. "To say, however, that the offender is a 'new man', and 'as innocent as if he
had never committed the offense;' is to ignore the difference between the crime and the
criminal. A person adjudged guilty of an offense is a convicted criminal, though
pardoned; he may be deserving of punishment, though left unpunished; and the law may
regard him as more dangerous to society than one never found guilty of crime, though it
places no restraints upon him following his conviction." A pardon looks to the future. It is
not retrospective. It makes no amends for the past. It affords no relief for what has been
suffered by the offender. It does not impose upon the government any obligation to make
reparation for what has been suffered. "Since the offense has been established by judicial
proceedings, that which has been done or suffered while they were in force is presumed
to have been rightfully done and justly suffered, and no satisfaction for it can be
required." This would explain why petitioner, though pardoned, cannot be entitled to
receive backpay for lost earnings and benefits.
6. ID.; ID.; ID.; EFFECTS. — In this ponencia, the Court wishes to stress one vital
point: While we are prepared to concede that pardon may remit all the penal
consequences of a criminal indictment if only to give meaning to the fiat that a pardon,
being a presidential prerogative, should not be circumscribed by legislative action, we do
not subscribe to the fictitious belief that pardon blots out the guilt of an individual and
that once he is absolved, he should be treated as if he were innocent. For whatever may
have been the judicial dicta in the past, we cannot perceive how pardon can produce such
"moral changes" as to equate a pardoned convict in character and conduct with one who
has constantly maintained the mark of a good, law-abiding citizen. Pardon cannot mask
the acts constituting the crime. These are "historical" facts which, despite the public
manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men will
take into account in their subsequent dealings with the actor." Pardon granted after
conviction frees the individual from all the penalties and legal disabilities and restores
him to all his civil rights. But unless expressly grounded on the person's innocence
(which is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing.
This must be constantly kept in mind lest we lose track of the true character and purpose
of the privilege.
7. ID.; ID.; ID.; DOES NOT IPSO FACTO RESTORE RIGHT OF CONVICT TO
HOLD PUBLIC OFFICE. — Notwithstanding the expansive and effusive language of the
Garland case, we are in full agreement with the commonly-held opinion that pardon does
not ipso facto restore a convicted felon to public office necessarily relinquished or
forfeited by reason of the conviction although such pardon undoubtedly restores his
eligibility for appointment to that office. The rationale is plainly evident. Public offices
are intended primarily for the collective protection, safety and benefit of the common
good. They cannot be compromised to favor private interests. To insist on automatic
reinstatement because of a mistaken notion that the pardon virtually acquitted one from
the offense of estafa would be grossly untenable. A pardon, albeit full and plenary,
cannot preclude the appointing power from refusing appointment to anyone deemed to be
of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned
conviction.
8. ID.; CIVIL LIABILITY ARISING FROM FELONY; HOW EXTINGUISHED.
— Petitioner has sought exemption from the payment of the civil indemnity imposed
upon her by the sentence. The Court cannot oblige her. Civil liability arising from crime
is governed by the Revised Penal Code. It subsists notwithstanding service of sentence,
or for any reason the sentence is not served by pardon, amnesty or commutation of
sentence. Petitioner's civil liability may only be extinguished by the same causes
recognized in the Civil Code, namely: payment, loss of the thing due, remission of the
debt, merger of the rights of creditor and debtor, compensation and novation.
DECISION
FERNAN, C.J p:
The principal question raised in this petition for review is whether or not a public officer,
who has been granted an absolute pardon by the Chief Executive, is entitled to
reinstatement to her former position without need of a new appointment.
In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner
Salvacion A. Monsanto (then assistant treasurer of Calbayog City) and three other
accused, of the complex crime of estafa thru falsification of public documents and
sentenced them to imprisonment of four (4) years, two (2) months and one (1) day of
prision correccional as minimum, to ten (10) years and one (1) day of prision mayor as
maximum, and to pay a fine of P3,500. They were further ordered to jointly and severally
indemnify the government in the sum of P4,892.50 representing the balance of the
amount defrauded and to pay the costs proportionately.
Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed
the same. She then filed a motion for reconsideration but while said motion was pending,
she was extended on December 17, 1984 by then President Marcos absolute pardon
which she accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she
be restored to her former post as assistant city treasurer since the same was still vacant.
Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of
the provision of the Local Government Code transferring the power of appointment of
treasurers from the city governments to the said Ministry. In its 4th Indorsement dated
March 1, 1985, the Finance Ministry ruled that petitioner may be reinstated to her
position without the necessity of a new appointment not earlier than the date she was
extended the absolute pardon. It also directed the city treasurer to see to it that the amount
of P4,892.50 which the Sandiganbayan had required to be indemnified in favor of the
government as well as the costs of the litigation, be satisfied. 1
Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April
17, 1985 stressing that the full pardon bestowed on her has wiped out the crime which
implies that her service in the government has never been interrupted and therefore the
date of her reinstatement should correspond to the date of her preventive suspension
which is August 1, 1982; that she is entitled to backpay for the entire period of her
suspension; and that she should not be required to pay the proportionate share of the
amount of P4,892.50. 2
The Ministry of Finance, however, referred petitioner's letter to the Office of the
President for further review and action. On April 15, 1986, said Office, through Deputy
Executive Secretary Fulgencio S. Factoran, Jr. held:
"We disagree with both the Ministry of Finance and the petitioner because, as borne out
by the records, petitioner was convicted of the crime for which she was accused. In line
with the government's crusade to restore absolute honesty in public service, this Office
adopts, as a juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the
Sandiganbayan, 2nd Division, in People v. Lising, Crim. Case No. 6675, October 4,
1985, that acquittal, not absolute pardon, of a former public officer is the only ground for
reinstatement to his former position and entitlement to payment of his salaries, benefits
and emoluments due to him during the period of his suspension pendente lite.
"In fact, in such a situation, the former public official must secure a reappointment before
he can reassume his former position.
"Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that `a
pardon shall in no case exempt the culprit from payment of the civil indemnity imposed
upon him by the sentence.' (Sec. 36, par. 2).
"IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not
entitled to an automatic reinstatement on the basis of the absolute pardon granted her but
must secure an appointment to her former position and that, notwithstanding said
absolute pardon, she is liable for the civil liability concomitant to her previous
conviction." 3
Her subsequent motion for reconsideration having been denied, petitioner filed the
present petition in her behalf. We gave due course on October 13, 1987.
Petitioner's basic theory is that the general rules on pardon cannot apply to her case by
reason of the fact that she was extended executive clemency while her conviction was
still pending appeal in this Court. There having been no final judgment of conviction, her
employment therefore as assistant city treasurer could not be said to have been terminated
or forfeited. In other words, without that final judgment of conviction, the accessory
penalty of forfeiture of office did not attach and the status of her employment remained
"suspended." More importantly, when pardon was issued before the final verdict of guilt,
it was an acquittal because there was no offense to speak of. In effect, the President has
declared her not guilty of the crime charged and has accordingly dismissed the same. 4
It is well to remember that petitioner had been convicted of the complex crime of estafa
thru falsification of public documents and sentenced to imprisonment of four years, two
months and one day of prision correccional as minimum, to ten years and one day of
prision mayor as maximum. The penalty of prision mayor carries the accessory penalties
of temporary absolute disqualification and perpetual special disqualification from the
right of suffrage, enforceable during the term of the principal penalty. 5 Temporary
absolute disqualification bars the convict from public office or employment, such
disqualification to last during the term of the sentence. 6 Even if the offender be
pardoned, as to the principal penalty, the accessory penalties remain unless the same have
been expressly remitted by the pardon. 7 The penalty of prision correccional carries, as
one of its accessory penalties, suspension from public office. 8
The propositions earlier advanced by petitioner reveal her inadequate understanding of
the nature of pardon and its legal consequences. This is not totally unexpected
considering that the authorities on the subject have not been wholly consistent
particularly in describing the effects of pardon.
The benign mercy of pardon is of British origin, conceived to temper the gravity of the
King's wrath. But Philippine jurisprudence on the subject has been largely influenced by
American case law.
Pardon is defined as "an act of grace, proceeding from the power entrusted with the
execution of the laws, which exempts the individual, on whom it is bestowed, from the
punishment the law inflicts for a crime he has committed. It is the private, though official
act of the executive magistrate, delivered to the individual for whose benefit it is
intended, and not communicated officially to the Court. . . . A pardon is a deed, to the
validity of which delivery is essential, and delivery is not complete without acceptance.
8a
At the time the antecedents of the present case took place, the pardoning power was
governed by the 1973 Constitution as amended in the April 7, 1981 plebiscite. The
pertinent provision reads:
"The President may, except in cases of impeachment, grant reprieves, commutations and
pardon, remit fines and forfeitures, and with the concurrence of the Batasang Pambansa,
grant amnesty." 9
The 1981 amendments had deleted the earlier rule that clemency could be extended only
upon final conviction, implying that clemency could be given even before conviction.
Thus, petitioner's unconditional pardon was granted even as her appeal was pending in
the High Court. It is worth mentioning that under the 1987 Constitution, the former
limitation of final conviction was restored. But be that as it may, it is our view that in the
present case, it is not material when the pardon was bestowed, whether before or after
conviction, for the result would still be the same. Having accepted the pardon, petitioner
is deemed to have abandoned her appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.
Having disposed of that preliminary point, we proceed to discuss the effects of a full and
absolute pardon in relation to the decisive question of whether or not the plenary pardon
had the effect of removing the disqualifications prescribed by the Revised Penal Code.
cdll
In Pelobello v. Palatino, 10 we find a reiteration of the stand consistently adopted by the
courts on the various consequences of pardon: ". . . we adopt the broad view expressed in
Cristobal v. Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations
imposed by the Constitution, the pardoning power cannot be restricted or controlled by
legislative action; that an absolute pardon not only blots out the crime committed but
removes all disabilities resulting from the conviction. . . . (W)e are of the opinion that the
better view in the light of the constitutional grant in this jurisdiction is not to
unnecessarily restrict or impair the power of the Chief Executive who, after an inquiry
into the environmental facts, should be at liberty to atone the rigidity of the law to the
extent of relieving completely the party . . . concerned from the accessory and resultant
disabilities of criminal conviction."
The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show
the unmistakable application of the doctrinal case of Ex Parte Garland, 13 whose
sweeping generalizations to this day continue to hold sway in our jurisprudence despite
the fact that much of its relevance has been downplayed by later American decisions.
Consider the following broad statements:
"A pardon reaches both the punishment prescribed for the offense and the guilt of the
offender; and when the pardon is full, it releases the punishment and blots out of
existence the guilt, so that in the eye of the law the offender If as innocent as if he had
never committed the offense. If granted before conviction, it prevents any of the penalties
and disabilities, consequent upon conviction, from attaching, if granted after conviction,
it removes the penalties and disabilities and restores him to all his civil rights; it makes
him, as it were, a new man, and gives him a new credit and capacity." 14
Such generalities have not been universally accepted, recognized or approved. 15 The
modern trend of authorities now rejects the unduly broad language of the Garland case
(reputed to be perhaps the most extreme statement which has been made on the effects of
a pardon). To our mind, this is the more realistic approach. While a pardon has generally
been regarded as blotting out the existence of guilt so that in the eye of the law the
offender is as innocent as though he never Committed the offense, it does not operate for
all purposes. The very essence of a pardon is forgiveness or remission of guilt. Pardon
implies guilt. It does not erase the fact of the commission of the crime and the conviction
thereof. It does not wash out the moral stain. It involves forgiveness and not
forgetfulness. 16
The better considered cases regard full pardon (at least one not based on the offender's
innocence) as relieving the party from all the punitive consequences of his criminal act,
including the disqualifications or disabilities based on the finding of guilt. 17 But it
relieves him from nothing more. "To say, however, that the offender is a `new man', and
`as innocent as if he had never committed the offense;' is to ignore the difference between
the crime and the criminal. A person adjudged guilty of an offense is a convicted
criminal, though pardoned; he may be deserving of punishment, though left unpunished;
and the law may regard him as more dangerous to society than one never found guilty of
crime, though it places no restraints upon him following his conviction." 18
A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It
affords no relief for what has been suffered by the offender. It does not impose upon the
government any obligation to make reparation for what has been suffered. "Since the
offense has been established by judicial proceedings, that which has been done or
suffered while they were in force is presumed to have been rightfully done and justly
suffered, and no satisfaction for it can be required." 20 This would explain why
petitioner, though pardoned, cannot be entitled to receive backpay for lost earnings and
benefits.
Petitioner maintains that when she was issued absolute pardon, the Chief Executive
declared her not guilty of the crime for which she was convicted. In the case of State v.
Hazzard, 21 we find this strong observation: "To assume that all or even a major number
of pardons are issued because of innocence of the recipients is not only to indict our
judicial system, but requires us to assume that which we all know to be untrue. The very
act of forgiveness implies the commission of wrong, and that wrong has been established
by the most complete method known to modern civilization. Pardons may relieve from
the disability of fines and forfeitures attendant upon a conviction, but they cannot erase
the stain of bad character, which has been definitely fixed." 22
In this ponencia, the Court wishes to stress one vital point: While we are prepared to
concede that pardon may remit all the penal consequences of a criminal indictment if
only to give meaning to the fiat that a pardon, being a presidential prerogative, should not
be circumscribed by legislative action, we do not subscribe to the fictitious belief that
pardon blots out the guilt of an individual and that once he is absolved, he should be
treated as if he were innocent. For whatever may have been the judicial dicta in the past,
we cannot perceive how pardon can produce such "moral changes" as to equate a
pardoned convict in character and conduct with one who has constantly maintained the
mark of a good, law-abiding citizen.
Pardon cannot mask the acts constituting the crime. These are "historical" facts which,
despite the public manifestation of mercy and forgiveness implicit in pardon, "ordinary,
prudent men will take into account in their subsequent dealings with the actor." 23
Pardon granted after conviction frees the individual from all the penalties and legal
disabilities and restores him to all his civil rights. But unless expressly grounded on the
person's innocence (which is rare), it cannot bring back lost reputation for honesty,
integrity and fair dealing. 24 This must be constantly kept in mind lest we lose track of
the true character and purpose of the privilege. Cdpr
Thus, notwithstanding the expansive and effusive language of the Garland case, we are in
full agreement with the commonly-held opinion that pardon does not ipso facto restore a
convicted felon to public office necessarily relinquished or forfeited by reason of the
conviction 25 although such pardon undoubtedly restores his eligibility for appointment
to that office. 26
The rationale is plainly evident. Public offices are intended primarily for the collective
protection, safety and benefit of the common good. They cannot be compromised to favor
private interests. To insist on automatic reinstatement because of a mistaken notion that
the pardon virtually acquitted one from the offense of estafa would be grossly untenable.
A pardon, albeit full and plenary, cannot preclude the appointing power from refusing
appointment to anyone deemed to be of bad character, a poor moral risk, or who is
unsuitable by reason of the pardoned conviction.
For petitioner Monsanto, this is the bottom line: the absolute disqualification or
ineligibility from public office forms part of the punishment prescribed by the Revised
Penal Code for estafa thru falsification of public documents. It is clear from the
authorities referred to that when her guilt and punishment were expunged by her pardon,
this particular disability was likewise removed. Henceforth, petitioner may apply for
reappointment to the office which was forfeited by reason of her conviction. And in
considering her qualifications and suitability for the public post, the facts constituting her
offense must be and should be evaluated and taken into account to determine ultimately
whether she can once again be entrusted with public funds. Stated differently, the pardon
granted to petitioner has resulted in removing her disqualification from holding public
employment but it cannot go beyond that. To regain her former post as assistant city
treasurer, she must reapply and undergo the usual procedure required for a new
appointment.
Finally, petitioner has sought exemption from the payment of the civil indemnity
imposed upon her by the sentence. The Court cannot oblige her. Civil liability arising
from crime is governed by the Revised Penal Code. It subsists notwithstanding service of
sentence, or for any reason the sentence is not served by pardon, amnesty or commutation
of sentence. Petitioner's civil liability may only be extinguished by the same causes
recognized in the Civil Code, namely: payment, loss of the thing due, remission of the
debt, merger of the rights of creditor and debtor, compensation and novation. 27
WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio
S. Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs.
So ordered.