EN BANC

[G.R. No. 148334. January 21, 2004]

ARTURO M. TOLENTINO and ARTURO C. MOJICA, petitioners, vs. COMMISSION ON ELECTIONS,
SENATOR RALPH G. RECTO and SENATOR GREGORIO B. HONASAN, respondents.
D E C I S I O N
CARPIO, J.:
The Case
This is a petition for prohibition to set aside Resolution No. NBC 01-005 dated 5 June 2001
(Resolution No. 01-005) and Resolution No. NBC 01-006 dated 20 July 2001 (Resolution No. 01-
006) of respondent Commission on Elections (COMELEC). Resolution No. 01-005 proclaimed the
13 candidates elected as Senators in the 14 May 2001 elections while Resolution No. 01-006
declared official and final the ranking of the 13 Senators proclaimed in Resolution No. 01-005.
The Facts
Shortly after her succession to the Presidency in January 2001, President Gloria Macapagal-
Arroyo nominated then Senator Teofisto T. Guingona, Jr. (Senator Guingona) as Vice-
President. Congress confirmed the nomination of Senator Guingona who took his oath as Vice-
President on 9 February 2001.
Following Senator Guingonas confirmation, the Senate on 8 February 2001 passed Resolution
No. 84 (Resolution No. 84) certifying to the existence of a vacancy in the Senate. Resolution No. 84
called on COMELEC to fill the vacancy through a special election to be held simultaneously with the
regular elections on 14 May 2001. Twelve Senators, with a 6-year term each, were due to be elected
in that election.
[1]
Resolution No. 84 further provided that the Senatorial candidate garnering the
13
th
highest number of votes shall serve only for the unexpired term of former Senator Teofisto T.
Guingona, Jr., which ends on 30 June 2004.
[2]

On 5 June 2001, after COMELEC had canvassed the election results from all the provinces but
one (Lanao del Norte), COMELEC issued Resolution No. 01-005 provisionally proclaiming 13
candidates as the elected Senators. Resolution No. 01-005 also provided that the first twelve (12)
Senators shall serve for a term of six (6) years and the thirteenth (13
th
) Senator shall serve the
unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr. who was appointed Vice-
President.
[3]
Respondents Ralph Recto (Recto) and Gregorio Honasan (Honasan) ranked
12
th
and 13
th
, respectively, in Resolution No. 01-005.
On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica (petitioners), as voters and
taxpayers, filed the instant petition for prohibition, impleading only COMELEC as respondent.
Petitioners sought to enjoin COMELEC from proclaiming with finality the candidate for Senator
receiving the 13
th
highest number of votes as the winner in the special election for a single three-
year term seat. Accordingly, petitioners prayed for the nullification of Resolution No. 01-005 in so
far as it makes a proclamation to such effect.
Petitioners contend that COMELEC issued Resolution No. 01-005 without jurisdiction because:
(1) it failed to notify the electorate of the position to be filled in the special election as required
under Section 2 of Republic Act No. 6645 (R.A. No. 6645);
[4]
(2) it failed to require senatorial
candidates to indicate in their certificates of candidacy whether they seek election under the special
or regular elections as allegedly required under Section 73 of Batas Pambansa Blg. 881;
[5]
and,
consequently, (3) it failed to specify in the Voters Information Sheet the candidates seeking
election under the special or regular senatorial elections as purportedly required under Section 4,
paragraph 4 of Republic Act No. 6646 (R.A. No. 6646).
[6]
Petitioners add that because of these
omissions, COMELEC canvassed all the votes cast for the senatorial candidates in the 14 May 2001
elections without distinction such that there were no two separate Senate elections held
simultaneously but just a single election for thirteen seats, irrespective of term.
[7]

Stated otherwise, petitioners claim that if held simultaneously, a special and a regular election
must be distinguished in the documentation as well as in the canvassing of their results. To support
their claim, petitioners cite the special elections simultaneously held with the regular elections of
13 November 1951 and 8 November 1955 to fill the seats vacated by Senators Fernando Lopez and
Carlos P. Garcia, respectively, who became Vice-Presidents during their tenures in the
Senate.
[8]
Petitioners point out that in those elections, COMELEC separately canvassed the votes cast
for the senatorial candidates running under the regular elections from the votes cast for the
candidates running under the special elections. COMELEC also separately proclaimed the winners
in each of those elections.
[9]

Petitioners sought the issuance of a temporary restraining order during the pendency of their
petition.
Without issuing any restraining order, we required COMELEC to Comment on the petition.
On 20 July 2001, after COMELEC had canvassed the results from all the provinces, it issued
Resolution No. 01-006 declaring official and final the ranking of the 13 Senators proclaimed in
Resolution No. 01-005. The 13 Senators took their oaths of office on 23 July 2001.
In view of the issuance of Resolution No. 01-006, the Court required petitioners to file an
amended petition impleading Recto and Honasan as additional respondents. Petitioners
accordingly filed an amended petition in which they reiterated the contentions raised in their
original petition and, in addition, sought the nullification of Resolution No. 01-006.
In their Comments, COMELEC, Honasan, and Recto all claim that a special election to fill the
seat vacated by Senator Guingona was validly held on 14 May 2001. COMELEC and Honasan further
raise preliminary issues on the mootness of the petition and on petitioners standing to litigate.
Honasan also claims that the petition, which seeks the nullity of his proclamation as Senator, is
actually a quo warranto petition and the Court should dismiss the same for lack of jurisdiction. For
his part, Recto, as the 12
th
ranking Senator, contends he is not a proper party to this case because
the petition only involves the validity of the proclamation of the 13
th
placer in the 14 May 2001
senatorial elections.
The Issues
The following are the issues presented for resolution:
(1) Procedurally
(a) whether the petition is in fact a petition for quo warranto over which the Senate Electoral
Tribunal is the sole judge;
(b) whether the petition is moot; and
(c) whether petitioners have standing to litigate.
(2) On the merits, whether a special election to fill a vacant three-year term Senate seat was
validly held on 14 May 2001.
The Ruling of the Court
The petition has no merit.
On the Preliminary Matters
The Nature of the Petition and the Courts Jurisdiction
A quo warranto proceeding is, among others, one to determine the right of a public officer in
the exercise of his office and to oust him from its enjoyment if his claim is not well-
founded.
[10]
Under Section 17, Article VI of the Constitution, the Senate Electoral Tribunal is the sole
judge of all contests relating to the qualifications of the members of the Senate.
A perusal of the allegations contained in the instant petition shows, however, that what
petitioners are questioning is the validity of the special election on 14 May 2001 in which Honasan
was elected. Petitioners various prayers are, namely: (1) a declaration that no special election
was held simultaneously with the general elections on 14 May 2001; (2) to enjoin COMELEC from
declaring anyone as having won in the special election; and (3) to annul Resolution Nos. 01-005 and
01-006 in so far as these Resolutions proclaim Honasan as the winner in the special
election. Petitioners anchor their prayers on COMELECs alleged failure to comply with certain
requirements pertaining to the conduct of that special election. Clearly then, the petition does not
seek to determine Honasans right in the exercise of his office as Senator. Petitioners prayer for the
annulment of Honasans proclamation and, ultimately, election is merely incidental to petitioners
cause of action. Consequently, the Court can properly exercise jurisdiction over the instant petition.
On the Mootness of the Petition
COMELEC contends that its proclamation on 5 June 2001 of the 13 Senators and its
subsequent confirmation on 20 July 2001 of the ranking of the 13 Senators render the instant
petition to set aside Resolutions Nos. 01-005 and 01-006 moot and academic.
Admittedly, the office of the writ of prohibition is to command a tribunal or board to desist
from committing an act threatened to be done without jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.
[11]
Consequently, the writ will not lie to enjoin
acts already done.
[12]
However, as an exception to the rule on mootness, courts will decide a
question otherwise moot if it is capable of repetition yet evading review.
[13]
Thus, in Alunan III v.
Mirasol,
[14]
we took cognizance of a petition to set aside an order canceling the general elections for
the Sangguniang Kabataan (SK) on 4 December 1992 despite that at the time the petition was
filed, the SK election had already taken place. We noted in Alunan that since the question of the
validity of the order sought to be annulled is likely to arise in every SK elections and yet the
question may not be decided before the date of such elections, the mootness of the petition is no
bar to its resolution. This observation squarely applies to the instant case. The question of the
validity of a special election to fill a vacancy in the Senate in relation to COMELECs failure to
comply with requirements on the conduct of such special election is likely to arise in every such
election. Such question, however, may not be decided before the date of the election.
On Petitioners Standing
Honasan questions petitioners standing to bring the instant petition as taxpayers and voters
because petitioners do not claim that COMELEC illegally disbursed public funds. Neither do
petitioners claim that they sustained personal injury because of the issuance of Resolution Nos. 01-
005 and 01-006.
Legal standing or locus standi refers to a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury because of the challenged governmental
act.
[15]
The requirement of standing, which necessarily sharpens the presentation of
issues,
[16]
relates to the constitutional mandate that this Court settle only actual cases or
controversies.
[17]
Thus, generally, a party will be allowed to litigate only when (1) he can show that
he has personally suffered some actual or threatened injury because of the allegedly illegal conduct
of the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is
likely to be redressed by a favorable action.
[18]

Applied strictly, the doctrine of standing to litigate will indeed bar the instant petition. In
questioning, in their capacity as voters, the validity of the special election on 14 May 2001,
petitioners assert a harm classified as a generalized grievance. This generalized grievance is
shared in substantially equal measure by a large class of voters, if not all the voters, who voted in
that election.
[19]
Neither have petitioners alleged, in their capacity as taxpayers, that the Court
should give due course to the petition because in the special election held on 14 May 2001 tax
money [was] x x x extracted and spent in violation of specific constitutional protections against
abuses of legislative power or that there [was] misapplication of such funds by COMELEC or that
public money [was] deflected to any improper purpose.
[20]

On the other hand, we have relaxed the requirement on standing and exercised our discretion
to give due course to voters suits involving the right of suffrage.
[21]
Also, in the recent case
ofIntegrated Bar of the Philippines v. Zamora,
[22]
we gave the same liberal treatment to a petition
filed by the Integrated Bar of the Philippines (IBP). The IBP questioned the validity of a
Presidential directive deploying elements of the Philippine National Police and the Philippine
Marines in Metro Manila to conduct patrols even though the IBP presented too general an
interest. We held:
[T]he 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 x x x.
Having stated the foregoing, 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. 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. Thus, when the
issues raised are of paramount importance to the public, the Court may brush aside technicalities of
procedure. 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.
[23]
(Emphasis supplied)
We accord the same treatment to petitioners in the instant case in their capacity as voters since
they raise important issues involving their right of suffrage, considering that the issue raised in this
petition is likely to arise again.
Whether a Special Election for a Single, Three-Year Term
Senatorial Seat was Validly Held on 14 May 2001
Under Section 9, Article VI of the Constitution, a special election may be called to fill any
vacancy in the Senate and the House of Representatives in the manner prescribed by law, thus:
In case of vacancy in the Senate or in the House of Representatives, a special election may be called
to fill such vacancy in the manner prescribed by law, but the Senator or Member of the House of
Representatives thus elected shall serve only for the unexpired term. (Emphasis supplied)
To implement this provision of the Constitution, Congress passed R.A. No. 6645, which provides in
pertinent parts:
SECTION 1. In case a vacancy arises in the Senate at least eighteen (18) months or in the House of
Representatives at least one (1) year before the next regular election for Members of Congress, the
Commission on Elections, upon receipt of a resolution of the Senate or the House of
Representatives, as the case may be, certifying to the existence of such vacancy and calling for a
special election, shall hold a special election to fill such vacancy. If Congress is in recess, an official
communication on the existence of the vacancy and call for a special election by the President of the
Senate or by the Speaker of the House of Representatives, as the case may be, shall be sufficient for
such purpose. The Senator or Member of the House of Representatives thus elected shall serve only
for the unexpired term.
SECTION 2. The Commission on Elections shall fix the date of the special election, which shall not be
earlier than forty-five (45) days nor later than ninety (90) days from the date of such resolution or
communication,stating among other things the office or offices to be voted for: Provided, however,
That if within the said period a general election is scheduled to be held, the special election shall be
held simultaneously with such general election. (Emphasis supplied)
Section 4 of Republic Act No. 7166 subsequently amended Section 2 of R.A. No. 6645, as
follows:
Postponement, Failure of Election and Special Elections. x x x In case a permanent vacancy shall
occur in the Senate or House of Representatives at least one (1) year before the expiration of the
term, the Commission shall call and hold a special election to fill the vacancy not earlier than sixty
(60) days nor longer than ninety (90) days after the occurrence of the vacancy. However, in case of
such vacancy in the Senate, the special election shall be held simultaneously with the next
succeeding regular election. (Emphasis supplied)
Thus, in case a vacancy arises in Congress at least one year before the expiration of the term,
Section 2 of R.A. No. 6645, as amended, requires COMELEC: (1) to call a special election by fixing the
date of the special election, which shall not be earlier than sixty (60) days nor later than ninety (90)
after the occurrence of the vacancy but in case of a vacancy in the Senate, the special election shall
be held simultaneously with the next succeeding regular election; and (2) to give notice to the
voters of, among other things, the office or offices to be voted for.
Did COMELEC, in conducting the special senatorial election simultaneously with the 14 May
2001 regular elections, comply with the requirements in Section 2 of R.A. No. 6645?
A survey of COMELECs resolutions relating to the conduct of the 14 May 2001 elections
reveals that they contain nothing which would amount to a compliance, either strict or substantial,
with the requirements in Section 2 of R.A. No. 6645, as amended. Thus, nowhere in its
resolutions
[24]
or even in its press releases
[25]
did COMELEC state that it would hold a special
election for a single three-year term Senate seat simultaneously with the regular elections on 14
May 2001. Nor did COMELEC give formal notice that it would proclaim as winner the senatorial
candidate receiving the 13
th
highest number of votes in the special election.
The controversy thus turns on whether COMELECs failure, assuming it did fail, to comply with
the requirements in Section 2 of R.A. No. 6645, as amended, invalidated the conduct of the special
senatorial election on 14 May 2001 and accordingly rendered Honasans proclamation as the
winner in that special election void. More precisely, the question is whether the special election is
invalid for lack of a call for such election and for lack of notice as to the office to be filled and the
manner by which the winner in the special election is to be determined. For reasons stated below,
the Court answers in the negative.
COMELECs Failure to Give Notice
of the Time of the Special Election Did Not
Negate the Calling of such Election
The calling of an election, that is, the giving notice of the time and place of its occurrence,
whether made by the legislature directly or by the body with the duty to give such call, is
indispensable to the elections validity.
[26]
In a general election, where the law fixes the date of the
election, the election is valid without any call by the body charged to administer the election.
[27]

In a special election to fill a vacancy, the rule is that a statute that expressly provides that an
election to fill a vacancy shall be held at the next general elections fixes the date at which the special
election is to be held and operates as the call for that election. Consequently, an election held at the
time thus prescribed is not invalidated by the fact that the body charged by law with the duty of
calling the election failed to do so.
[28]
This is because the right and duty to hold the election emanate
from the statute and not from any call for the election by some authority
[29]
and the law thus
charges voters with knowledge of the time and place of the election.
[30]

Conversely, where the law does not fix the time and place for holding a special election but
empowers some authority to fix the time and place after the happening of a condition precedent,
the statutory provision on the giving of notice is considered mandatory, and failure to do so will
render the election a nullity.
[31]

In the instant case, Section 2 of R.A. No. 6645 itself provides that in case of vacancy in the
Senate, the special election to fill such vacancy shall be held simultaneously with the next
succeeding regular election. Accordingly, the special election to fill the vacancy in the Senate
arising from Senator Guingonas appointment as Vice-President in February 2001 could not be held
at any other time but must be held simultaneously with the next succeeding regular elections on 14
May 2001. The law charges the voters with knowledge of this statutory notice and COMELECs
failure to give the additional notice did not negate the calling of such special election, much less
invalidate it.
Our conclusion might be different had the present case involved a special election to fill a
vacancy in the House of Representatives. In such a case, the holding of the special election is
subject to a condition precedent, that is, the vacancy should take place at least one year before the
expiration of the term. The time of the election is left to the discretion of COMELEC subject only to
the limitation that it holds the special election within the range of time provided in Section 2 of R.A.
No. 6645, as amended. This makes mandatory the requirement in Section 2 of R.A. No. 6645, as
amended, for COMELEC to call x x x a special election x x x not earlier than 60 days nor longer than
90 days after the occurrence of the vacancy and give notice of the office to be filled. The
COMELECs failure to so call and give notice will nullify any attempt to hold a special election to fill
the vacancy. Indeed, it will be well-nigh impossible for the voters in the congressional district
involved to know the time and place of the special election and the office to be filled unless the
COMELEC so notifies them.
No Proof that COMELECs
Failure to Give Notice of the Office
to be Filled and the Manner of
Determining the Winner in the Special
Election Misled Voters
The test in determining the validity of a special election in relation to the failure to give notice
of the special election is whether the want of notice has resulted in misleading a sufficient number
of voters as would change the result of the special election. If the lack of official notice misled a
substantial number of voters who wrongly believed that there was no special election to fill a
vacancy, a choice by a small percentage of voters would be void.
[32]

The required notice to the voters in the 14 May 2001 special senatorial election covers two
matters. First, that COMELEC will hold a special election to fill a vacant single three-year term
Senate seat simultaneously with the regular elections scheduled on the same date. Second, that
COMELEC will proclaim as winner the senatorial candidate receiving the 13
th
highest number of
votes in the special election. Petitioners have neither claimed nor proved that COMELECs failure to
give this required notice misled a sufficient number of voters as would change the result of the
special senatorial election or led them to believe that there was no such special election.
Instead, what petitioners did is conclude that since COMELEC failed to give such notice, no
special election took place. This bare assertion carries no value. Section 2 of R.A. No. 6645, as
amended, charged those who voted in the elections of 14 May 2001 with the knowledge that the
vacancy in the Senate arising from Senator Guingonas appointment as Vice-President in February
2001 was to be filled in the next succeeding regular election of 14 May 2001. Similarly, the absence
of formal notice from COMELEC does not preclude the possibility that the voters had actual notice
of the special election, the office to be voted in that election, and the manner by which COMELEC
would determine the winner. Such actual notice could come from many sources, such as media
reports of the enactment of R.A. No. 6645 and election propaganda during the campaign.
[33]

More than 10 million voters cast their votes in favor of Honasan, the party who stands most
prejudiced by the instant petition. We simply cannot disenfranchise those who voted for Honasan,
in the absence of proof that COMELECs omission prejudiced voters in the exercise of their right of
suffrage so as to negate the holding of the special election. Indeed, this Court is loathe to annul
elections and will only do so when it is impossible to distinguish what votes are lawful and what
are unlawful, or to arrive at any certain result whatever, or that the great body of the voters have
been prevented by violence, intimidation, and threats from exercising their franchise.
[34]

Otherwise, the consistent rule has been to respect the electorates will and let the results of the
election stand, despite irregularities that may have attended the conduct of the elections.
[35]
This is
but to acknowledge the purpose and role of elections in a democratic society such as ours, which
is:
to give the voters a direct participation in the affairs of their government, either in determining who
shall be their public officials or in deciding some question of public interest; and for that purpose all
of the legal voters should be permitted, unhampered and unmolested, to cast their ballot. When
that is done and no frauds have been committed, the ballots should be counted and the election should
not be declared null. Innocent voters should not be deprived of their participation in the affairs of
their government for mere irregularities on the part of the election officers, for which they are in no
way responsible. A different rule would make the manner and method of performing a public duty
of greater importance than the duty itself.
[36]
(Emphasis in the original)
Separate Documentation and Canvassing
not Required under Section 2 of R.A. No. 6645,
Neither is there basis in petitioners claim that the manner by which COMELEC conducted the
special senatorial election on 14 May 2001 is a nullity because COMELEC failed to document
separately the candidates and to canvass separately the votes cast for the special election. No such
requirements exist in our election laws. What is mandatory under Section 2 of R.A. No. 6645 is that
COMELEC fix the date of the election, if necessary, and state, among others, the office or offices to
be voted for. Similarly, petitioners reliance on Section 73 of B.P. Blg. 881 on the filing of
certificates of candidacy, and on Section 4(4) of R.A. No. 6646 on the printing of election returns
and tally sheets, to support their claim is misplaced. These provisions govern elections in general
and in no way require separate documentation of candidates or separate canvass of votes in a
jointly held regular and special elections.
Significantly, the method adopted by COMELEC in conducting the special election on 14 May
2001 merely implemented the procedure specified by the Senate in Resolution No. 84. Initially, the
original draft of Resolution No. 84 as introduced by Senator Francisco Tatad (Senator Tatad)
made no mention of the manner by which the seat vacated by former Senator Guingona would be
filled. However, upon the suggestion of Senator Raul Roco (Senator Roco), the Senate agreed to
amend Resolution No. 84 by providing, as it now appears, that the senatorial candidate garnering
the thirteenth (13
th
) highest number of votes shall serve only for the unexpired term of former
Senator Teofisto T. Guingona, Jr. Senator Roco introduced the amendment to spare COMELEC and
the candidates needless expenditures and the voters further inconvenience, thus:
S[ENATOR] T[ATAD]. Mr. President, I move that we now consider Proposed Senate Resolution No.
934 [later converted to Resolution No. 84].
T[HE] P[RESIDENT]. Is there any objection? [Silence] There being none, the motion is approved.
Consideration of Proposed Senate Resolution No. 934 is now in order. With the permission of the
Body, the Secretary will read only the title and text of the resolution.
T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled
RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY IN THE SENATE AND CALLING ON
THE COMMISSION ON ELECTIONS (COMELEC) TO FILL UP SUCH VACANCY THROUGH ELECTION
TO BE HELD SIMULTANEOUSLY WITH THE REGULAR ELECTION ON MAY 14, 2001 AND THE
SENATOR THUS ELECTED TO SERVE ONLY FOR THE UNEXPIRED TERM
WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected Senator of the Philippines in 1998
for a term which will expire on June 30, 2004;
WHEREAS, on February 6, 2001, Her Excellency President Gloria Macapagal Arroyo nominated
Senator Guingona as Vice-President of the Philippines;
WHEREAS, the nomination of Senator Guingona has been confirmed by a majority vote of all the
members of both House of Congress, voting separately;
WHEREAS, Senator Guingona will take his Oath of Office as Vice-President of the Philippines on
February 9, 2001;
WHEREAS, Republic Act No. 7166 provides that the election for twelve (12) Senators, all elective
Members of the House of Representatives, and all elective provincial city and municipal officials
shall be held on the second Monday and every three years thereafter; Now, therefore, be it
RESOLVED by the Senate, as it is hereby resolved, to certify, as it hereby certifies, the existence of a
vacancy in the Senate and calling the Commission on Elections (COMELEC) to fill up such vacancy
through election to be held simultaneously with the regular election on May 14, 2001 and the
Senator thus elected to serve only for the unexpired term.
Adopted,
(Sgd.) FRANCISCO S. TATAD
Senator
S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this resolution.
S[ENATOR] O[SMEA] (J). Mr. President.
T[HE] P[RESIDENT]. Sen. John H. Osmea is recognized.
S[ENATOR] O[SMEA] (J). Thank you, Mr. President. Will the distinguished Majority Leader,
Chairman of the Committee on Rules, author of this resolution, yield for a few questions?
S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]
S[ENATOR] O[SMEA] (J). What a way of flattery. [Laughter]
Mr. President, I think I recall that sometime in 1951 or 1953, there was a special election for a
vacant seat in the Senate. As a matter of fact, the one who was elected in that special election was
then Congressman, later Senator Feli[s]berto Verano.
In that election, Mr. President, the candidates contested the seat. In other words, the electorate had
to cast a vote for a ninth senator because at that time there were only eight to elect a member or
rather, a candidate to that particular seat.
Then I remember, Mr. President, that when we ran after the EDSA revolution, twice there were 24
candidates and the first 12 were elected to a six-year term and the next 12 were elected to a three-
year term.
My question therefore is, how is this going to be done in this election? Is the candidate with the
13
th
largest number of votes going to be the one to take a three-year term? Or is there going to be
an election for a position of senator for the unexpired term of Sen. Teofisto Guingona?
S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the mechanics to the
Commission on Elections. But personally, I would like to suggest that probably, the candidate
obtaining the 13
th
largest number of votes be declared as elected to fill up the unexpired term of
Senator Guingona.
S[ENATOR] O[SMEA] (J). Is there a law that would allow the Comelec to conduct such an
election? Is it not the case that the vacancy is for a specific office? I am really at a loss. I am rising
here because I think it is something that we should consider. I do not know if we can No, this is
not a Concurrent Resolution.
S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate President.
T[HE] P[RESIDENT]. May I share this information that under Republic Act No. 6645, what is
needed is a resolution of this Chamber calling attention to the need for the holding of a special
election to fill up the vacancy created, in this particular case, by the appointment of our colleague,
Senator Guingona, as Vice President.
It can be managed in the Commission on Elections so that a slot for the particular candidate to fill
up would be that reserved for Mr. Guingonas unexpired term. In other words, it can be arranged in
such a manner.
x x x x
S[ENATOR] R[OCO]. Mr. President.
T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.
S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus, wordings to the effect that in
the simultaneous elections, the 13
th
placer be therefore deemed to be the special election for this
purpose. So we just nominate 13 and it is good for our colleagues. It is better for the candidates. It
is also less expensive because the ballot will be printed and there will be less disfranchisement.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. If we can just deem it therefore under this resolution to be such a special
election, maybe, we satisfy the requirement of the law.
T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the Comelec.
S[ENATOR] R[OCO]. Yes.
T[HE] P[RESIDENT]. to implement.
S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. We will already consider the 13
th
placer of the forthcoming elections that will
be held simultaneously as a special election under this law as we understand it.
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco.
S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will be better, Mr.
President.
T[HE] P[RESIDENT]. What does the sponsor say?
S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory proposal because I do not believe
that there will be anyone running specifically
T[HE] P[RESIDENT]. Correct.
S[ENATOR] T[ATAD]. to fill up this position for three years and campaigning nationwide.
T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13
th
candidate will be running
with specific groups.
S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.
T[HE] P[RESIDENT]. I think we can specifically define that as the intent of this resolution.
S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there will be no other
amendment, I move for the adoption of this resolution.
x x x x
ADOPTION OF S. RES. NO. 934
If there are no other proposed amendments, I move that we adopt this resolution.
T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any
objection? [Silence] There being none, the motion is approved.
[37]

Evidently, COMELEC, in the exercise of its discretion to use means and methods to conduct the
special election within the confines of R.A. No. 6645, merely chose to adopt the Senates proposal,
as embodied in Resolution No. 84. This Court has consistently acknowledged and affirmed
COMELECs wide latitude of discretion in adopting means to carry out its mandate of ensuring free,
orderly, and honest elections subject only to the limitation that the means so adopted are not illegal
or do not constitute grave abuse of discretion.
[38]
COMELECs decision to abandon the means it
employed in the 13 November 1951 and 8 November 1955 special elections and adopt the method
embodied in Resolution No. 84 is but a legitimate exercise of its discretion. Conversely, this Court
will not interfere should COMELEC, in subsequent special senatorial elections, choose to revert to
the means it followed in the 13 November 1951 and 8 November 1955 elections. That COMELEC
adopts means that are novel or even disagreeable is no reason to adjudge it liable for grave abuse of
discretion. As we have earlier noted:
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.
[39]

A Word to COMELEC
The calling of a special election, if necessary, and the giving of notice to the electorate of
necessary information regarding a special election, are central to an informed exercise of the right
of suffrage. While the circumstances attendant to the present case have led us to conclude
that COMELECs failure to so call and give notice did not invalidate the special senatorial election
held on 14 May 2001, COMELEC should not take chances in future elections. We remind COMELEC
to comply strictly with all the requirements under applicable laws relative to the conduct of regular
elections in general and special elections in particular.
WHEREFORE, we DISMISS the petition for lack of merit.
SO ORDERED.
Panganiban, Quisumbing, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr., and Azcuna, JJ., concur.
Davide, Jr., C.J., joins Mr. Justice Puno in his dissent.
Puno, J., please see dissenting opinion.
Vitug, J., joins the dissent.
Ynares-Santiago, J., joins J. Punos dissent.
Tinga, J., joins Justice Punos dissent.



[1]
As provided under Section 2 of Republic Act. No. 7166, as amended.
[2]
Resolution No. 84 reads:
WHEREAS, the Honorable Teofisto Guingona, Jr. was elected Senator of the Philippines in 1998 for a
term which will expire on June 30, 2004;
WHEREAS, on February 6, 2001, Her Excellency President Gloria Macapagal-Arroyo nominated
Senator Guingona as Vice-President of the Philippines;
WHEREAS, the nomination of Senator Guingona has been conferred by a majority vote of all the
members of both Houses of Congress, voting separately;
WHEREAS, Senator Guingona will take his Oath of Office as Vice-President of the Philippines on
February 9, 2001;
WHEREAS, Republic Act No. 7166 provides that the election for twelve (12) Senators, all elective
Members of the House of Representatives, and all elective provincial, city and
municipal officials shall be held on the second Monday of May and every three years
thereafter. Now, therefore be it Resolved by the Senate, as it is hereby resolved to certify as
it hereby certifies, the existence of a vacancy in the Senate and calling the Commission on
Elections (COMELEC) to fill up said vacancy through election to be held simultaneously with
the regular election on May 14, 2001 and the senatorial candidate garnering the thirteenth
(13
th
) highest number of votes shall serve only for the unexpired term of former Senator
Teofisto T. Guingona, Jr. (Emphasis supplied)
[3]
Resolution No. 01-005 reads:
WHEREAS, the Commission on Elections, sitting [E]n [B]anc as the National Board of Canvassers for
the election of Senators of the Philippines, officially canvassed in open and public
proceedings the certificates of canvass of votes cast nationwide for senators in the national
and local elections conducted on May 14, 2001.
Based on the canvass of the Certificates of Canvass submitted by seventy-eight (78) out of seventy-
nine (79) Provincial Boards of Canvassers, twenty (20) City Boards of Canvassers of cities
comprising one (1) or more legislative districts, two (2) District Boards of Canvassers of
Metro Manila, and one (1) Absentee Voting, and the remaining uncanvassed certificate of
canvass which will not anymore affect the results, the Commission on Elections sitting En
Banc as the National Board of Canvassers finds that the following candidates for senators in
said elections obtained as of June 04, 2001 the following number of votes as indicated
opposite their names:
Name Votes Garnered
(as of 4 June 2001)
NOLI DE CASTRO 16,157,811
JUAN M. FLAVIER 11,676,129
SERGIO R. OSMEA, III 11,531,427
FRANKLIN M. DRILON 11,223,020
RAMON B. MAGSAYSAY, JR. 11,187,447
JOKER P. ARROYO 11,163,801
MANUEL B. VILLAR, JR. 11,084,884
FRANCIS N. PANGILINAN 10,877,989
EDGARDO J. ANGARA 10,746,843
PANFILO M. LACSON 10,481,755
LUISA P. EJERCITO ESTRADA 10,456,674
RALPH G. RECTO 10,387,108
GREGORIO G. HONASAN 10,364,272
NOW, THEREFORE, by virtue of the powers vested in it under the Constitution, the Omnibus
Election Code and other election laws, the Commission on Elections sitting En Banc as the
National Board of Canvassers hereby PROCLAIMS the above-named thirteen (13)
candidates as the duly elected Senators of the Philippines in the May 14, 2001
elections. Based on the certificates of canvass finally tabulated, the first twelve (12)
Senators shall serve for a term of six (6) years and the thirteenth (13
th
) Senator shall serve
the unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr. who was
appointed Vice-President of the Philippines pursuant to Section 9, Article VII of the
Constitution, in relation to Section 9, Article VI thereof, as implemented under Republic Act
No. 6645. (Emphasis supplied)
[4]
This provision states: The Commission on Elections shall fix the date of the special election,
which shall not be earlier than forty-five (45) days nor later than ninety (90) days from the
date of such resolution or communication, stating among other things the office or offices to
be voted for: Provided, however, That if within the said period a general election is
scheduled to be held, the special election shall be held simultaneously with such general
election.
[5]
This provision reads: Certificate of candidacy. No person shall be eligible for any elective public
office unless he files a sworn certificate of candidacy within the period fixed herein.
A person who has filed a certificate of candidacy may, prior to the election, withdraw the same by
submitting to the office concerned a written declaration under oath.
No person shall be eligible for more than one office to be filled in the same election, and if he files
his certificate of candidacy for more than one office, he shall not be eligible for any of
them. However, before the expiration of the period for the filing of certificates of candidacy,
the person who has filed more than one certificate of candidacy may declare under oath the
office for which he desires to be eligible and cancel the certificate of candidacy for the other
office or offices.
The filing or withdrawal of a certificate of candidacy shall not affect whatever civil, criminal or
administrative liabilities which a candidate may have incurred.
[6]
This provision reads: Certificates of Candidacy; Certified List of Candidates. x x x The names
of all registered candidates immediately followed by the nickname or stage name shall also
be printed in the election returns and tally sheets.
[7]
Rollo, pp. 5-7, 12-14.
[8]
Senator Roseller T. Lim was elected in the special election of 13 November 1951 while Senator
Felisberto Verano was elected in the special election of 8 November 1955.
[9]
Rollo, pp. 8-12.
[10]
Castro v. Del Rosario, 25 Phil. 611 (1967); Section 1(a), Rule 66, THE 1997 RULES OF CIVIL
PROCEDURE.
[11]
Sections 1-2, Rule 65, THE 1997 RULES OF CIVIL PROCEDURE.
[12]
Gil v. Benipayo, G.R. No. 148179, 26 June 2001 (minute resolution).
[13]
Acop v. Guingona, G.R. No. 134856, 2 July 2002, 383 SCRA 577; Viola v. Hon. Alunan III, 343 Phil.
184 (1997); Alunan III v. Mirasol, 342 Phil. 467 (1997).
[14]
342 Phil. 467 (1997).
[15]
Joya v. Presidential Commission on Good Government, G.R. No. 96541, 24 August 1993,
225 SCRA 568.
[16]
Kilosbayan, Incorporated v. Morato, 316 Phil. 652 (1995).
[17]
CONST., art. VIII, secs. 1 and 5(2).
[18]
Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Commission on
Elections, 352 Phil. 153 (1998).
[19]
See Warth v. Seldin, 442 U.S. 490, 45 L.Ed.2d 343 (1975).
[20]
Dumlao v. COMELEC, G.R. No. L-52245, 22 January 1980, 95 SCRA 392 (internal citations
omitted).
[21]
De Guia v. COMELEC, G.R. No. 104712, 6 May 1992, 208 SCRA 420; Gonzales v. COMELEC, 129
Phil. 7 (1967). See also Telecom & Broadcast Attys. of the Phils., Inc. v. COMELEC, 352 Phil.
153 (1998).
[22]
G.R. No. 141284, 15 August 2000, 338 SCRA 81.
[23]
Integrated Bar of the Philippines vs. Zamora, G.R. No. 141284, 15 August 2000, 338 SCRA 81.
[24]
E.g. Resolution No. 3258, dated 28 September 2000 (providing for the calendar of activities and
periods of prohibited acts in connection with the 14 May 2001 elections as amended by
Resolution Nos. 3322, dated 5 October 2000; 3284, dated 20 October 2000; 3306, dated 7
November 2000; 3426, dated 22 December 2000; and 3359, dated 6 February 2001);
Resolution No. 3632, dated 1 March 2001 (canceling the certificates of candidacy of
nuisance senatorial candidates); and Resolution No. 3743, dated 12 March 2001 (providing
for the general instructions to the Boards of Election Inspectors on the casting and counting
of votes).
[25]
E.g. undated COMELEC pamphlet entitled Frequently Asked Questions on the May 14, 2001
Elections.
[26]
26 AM. JUR. 2d Elections 281 (1996); 29 C.J.S. Elections 70 (1965).
[27]
Ibid; ibid.
[28]
26 AM. JUR. 2d Elections 282 (1996).
[29]
Ibid.
[30]
McCoy v. Fisher, 67 S.E. 2d 543 (1951).
[31]
26 AM. JUR. 2d Elections 281 (1996); 29 C.J.S. Elections 70 (1965).
[32]
See 26 AM. JUR. 2d Elections 292 (1996); 29 C.J.S. Elections 72 (1965).
[33]
Indeed, the fact that 13 senators were due to be elected in the 14 May 2001 elections and
that the senator elected to the 13
th
place will serve the remaining term of Senator Guingona
was published in news reports (see Philippine Star, 9 February 2001, pp. 1, 6 and Daily
Tribune, 9 February 2001, pp. 1, 8; Philippine Daily Inquirer, 12 February 2001, pp. 1, 10; 14
February 2001, pp. 1, A20; Today, 8 February 2001, p. 10; Manila Bulletin, 9 February 2001,
pp. 3, 8). Furthermore, the fact that the administration and opposition coalitions each
fielded 13 senatorial candidates (and not only 12) was similarly given extensive coverage
by news publications (see Philippine Daily Inquirer, 12 February 2001, pp. 1, 10; 13
February 2001, pp. 1, A14; 14 February 2001, pp. 1, A20; Philippine Star, 13 February 2001,
pp. 1, 4; 14 February 2001, pp. 1, 6; Today, 9 February 2001, pp. 1, 4; 12 February 2001, pp.
1, 10; 13 February 2001, pp. 1, 10; Manila Standard, 13 February 2001, pp. 1, 2; Malaya, 13
February 2001, pp. 1, 6; 14 February 2001, pp. 1, 4; Daily Tribune 14 February 2001, pp. 1,
6; Manila Times, 14 February 2001, pp. 1, 2A; Philippine Star Ngayon, 13 February 2001, pp.
1, 4).
[34]
Florendo, Sr. vs. Buyser, 129 Phil. 353 (1967); Capalla v. Tabiana, 63 Phil.
95 (1936); Kiamzon v. Pugeda, 54 Phil. 755 (1930); Cailles v. Gomez, 42 Phil. 852 (1924).
Batas Pambansa Blg. 881, as amended, (Omnibus Election Code), on failure of elections
(resulting to the annulment of elections), provides: SEC. 6. Failure of election. If, on
account of force majeure, violence, terrorism, fraud, or other analogous causes the election
in any polling place had not been held on the date fixed, or had been suspended before the
hour fixed by law for the closing of the voting, or after the voting and during the preparation
and the transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or suspension of
election would affect the result of the election, the Commission shall, on the basis of a
verified petition by an interested party and after due notice and hearing, call for the holding
or continuation of the election not held, suspended or which resulted in a failure to elect on
a date reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
[35]
Alcala v. Commission on Elections, 218 Phil. 322 (1984); Villareal v. Fornier, 84 Phil. 756
(1949); Lucero v. De Guzman, 45 Phil. 852 (1924).
[36]
Lino Luna vs. Rodriguez, 39 Phil. 208 (1918).
[37]
Transcript of Session Proceedings of the Philippine Senate, 8 February 2001, pp. 49-54.
(Emphasis supplied)
[38]
E.g. Cauton v. COMELEC, 126 Phil. 291 (1967).
[39]
Pugutan v. Abubakar, 150 Phil. 1 (1972) citing Sumulong v. Commission on Elections, 73 Phil.
237 (1941).












Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO
TORALBA, Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO
ARANAS, MELVILLE S. HUSSEY and ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for
respondents.
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The Philippines during a period covering 19433 and
19444 who is now charged before a military Commission convened by the Chief of Staff of the
Armed forces of the Philippines with having unlawfully disregarded and failed "to discharge his
duties as such command, permitting them to commit brutal atrocities and other high crimes against
noncombatant civilians and prisoners of the Imperial Japanese Forces in violation of the laws and
customs of war" comes before this Court seeking to establish the illegality of Executive Order No.
68 of the President of the Philippines: to enjoin and prohibit respondents Melville S. Hussey and
Robert Port from participating in the prosecution of petitioner's case before the Military
Commission and to permanently prohibit respondents from proceeding with the case of petitioners.
In support of his case petitioner tenders the following principal arguments.
First. "That Executive Order No. 68 is illegal on the ground that it violates not only the provision
of our constitutional law but also our local laws to say nothing of the fact (that) the Philippines is
not a signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land
Warfare and therefore petitioners is charged of 'crimes' not based on law, national and
international." Hence petitioner argues "That in view off the fact that this commission has been
empanelled by virtue of an unconstitutional law an illegal order this commission is without
jurisdiction to try herein petitioner."
Second. That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert Port
who are not attorneys authorized by the Supreme Court to practice law in the Philippines is a
diminution of our personality as an independent state and their appointment as prosecutor are a
violation of our Constitution for the reason that they are not qualified to practice law in the
Philippines.
Third. That Attorneys Hussey and Port have no personality as prosecution the United State not
being a party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation
governing the trial of accused war criminals, was issued by the President of the Philippines on the
29th days of July, 1947 This Court holds that this order is valid and constitutional. Article 2 of our
Constitution provides in its section 3, that
The Philippines renounces war as an instrument of national policy and adopts the generally
accepted principles of international law as part of the of the nation.
In accordance with the generally accepted principle of international law of the present day
including the Hague Convention the Geneva Convention and significant precedents of international
jurisprudence established by the United Nation all those person military or civilian who have been
guilty of planning preparing or waging a war of aggression and of the commission of crimes and
offenses consequential and incidental thereto in violation of the laws and customs of war, of
humanity and civilization are held accountable therefor. Consequently in the promulgation and
enforcement of Execution Order No. 68 the President of the Philippines has acted in conformity
with the generally accepted and policies of international law which are part of the our Constitution.
The promulgation of said executive order is an exercise by the President of his power as
Commander in chief of all our armed forces as upheld by this Court in the case of
Yamashita vs. Styer (L-129, 42 Off. Gaz., 664) 1 when we said
War is not ended simply because hostilities have ceased. After cessation of armed hostilities
incident of war may remain pending which should be disposed of as in time of war. An
importance incident to a conduct of war is the adoption of measure by the military
command not only to repel and defeat the enemies but to seize and subject to disciplinary
measure those enemies who in their attempt to thwart or impede our military effort have
violated the law of war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to
create a military commission for the trial and punishment of war criminals is an aspect of
waging war. And in the language of a writer a military commission has jurisdiction so long
as a technical state of war continues. This includes the period of an armistice or military
occupation up to the effective of a treaty of peace and may extend beyond by treaty
agreement. (Cowles Trial of War Criminals by Military Tribunals, America Bar Association
Journal June, 1944.)
Consequently, the President as Commander in Chief is fully empowered to consummate this
unfinished aspect of war namely the trial and punishment of war criminal through the issuance and
enforcement of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts
committed in violation of the Hague Convention and the Geneva Convention because the
Philippines is not a signatory to the first and signed the second only in 1947. It cannot be denied
that the rules and regulation of the Hague and Geneva conventions form, part of and are wholly
based on the generally accepted principals of international law. In facts these rules and principles
were accepted by the two belligerent nation the United State and Japan who were signatories to the
two Convention, Such rule and principles therefore form part of the law of our nation even if the
Philippines was not a signatory to the conventions embodying them for our Constitution has been
deliberately general and extensive in its scope and is not confined to the recognition of rule and
principle of international law as continued inn treaties to which our government may have been or
shall be a signatory.
Furthermore when the crimes charged against petitioner were allegedly committed the Philippines
was under the sovereignty of United States and thus we were equally bound together with the
United States and with Japan to the right and obligation contained in the treaties between the
belligerent countries. These rights and obligation were not erased by our assumption of full
sovereignty. If at all our emergency as a free state entitles us to enforce the right on our own of
trying and punishing those who committed crimes against crimes against our people. In this
connection it is well to remember what we have said in the case of Laurel vs. Misa (76 Phil., 372):
. . . The change of our form government from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason committed during then
Commonwealth because it is an offense against the same sovereign people. . . .
By the same token war crimes committed against our people and our government while we were a
Commonwealth are triable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and
Robert Port in the prosecution of his case on the ground that said attorney's are not qualified to
practice law in Philippines in accordance with our Rules of court and the appointment of said
attorneys as prosecutors is violative of our national sovereignty.
In the first place respondent Military Commission is a special military tribunal governed by a
special law and not by the Rules of court which govern ordinary civil court. It has already been
shown that Executive Order No. 68 which provides for the organization of such military
commission is a valid and constitutional law. There is nothing in said executive order which
requires that counsel appearing before said commission must be attorneys qualified to practice law
in the Philippines in accordance with the Rules of Court. In facts it is common in military tribunals
that counsel for the parties are usually military personnel who are neither attorneys nor even
possessed of legal training.
Secondly the appointment of the two American attorneys is not violative of our nation sovereignty.
It is only fair and proper that United States, which has submitted the vindication of crimes against
her government and her people to a tribunal of our nation should be allowed representation in the
trial of those very crimes. If there has been any relinquishment of sovereignty it has not been by our
government but by the United State Government which has yielded to us the trial and punishment
of her enemies. The least that we could do in the spirit of comity is to allow them representation in
said trials.
Alleging that the United State is not a party in interest in the case petitioner challenges the
personality of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United
State and its people have been equally if not more greatly aggrieved by the crimes with which
petitioner stands charged before the Military Commission. It can be considered a privilege for our
Republic that a leader nation should submit the vindication of the honor of its citizens and its
government to a military tribunal of our country.
The Military Commission having been convened by virtue of a valid law with jurisdiction over the
crimes charged which fall under the provisions of Executive Order No. 68, and having said
petitioner in its custody, this Court will not interfere with the due process of such Military
commission.
For all the foregoing the petition is denied with costs de oficio.
Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions
PERFECTO, J., dissenting:
A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for
Violation of the laws and customs of land warfare.
Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to
practice law were appointed prosecutor representing the American CIC in the trial of the case.
The commission was empanelled under the authority of Executive Order No. 68 of the President of
the Philippines the validity of which is challenged by petitioner on constitutional grounds.
Petitioner has also challenged the personality of Attorneys Hussey and Port to appear as
prosecutors before the commission.
The charges against petitioner has been filed since June 26, 1948 in the name of the people of the
Philippines as accusers.
We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port. It
appearing that they are aliens and have not been authorized by the Supreme Court to practice law
there could not be any question that said person cannot appear as prosecutors in petitioner case as
with such appearance they would be practicing law against the law.
Said violation vanishes however into insignificance at the side of the momentous question involved
in the challenge against the validity of Executive Order No. 68. Said order is challenged on several
constitutional ground. To get a clear idea of the question raised it is necessary to read the whole
context of said order which is reproduced as follows:
EXECUTIVE ORDER NO. 68.
ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND
REGULATION GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL.
I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the
Constitution and laws of the Philippines do hereby establish a National War Crimes Office
charged with the responsibility of accomplishing the speedy trial of all Japanese accused of
war crimes committed in the Philippines and prescribe the rules and regulation such trial.
The National War crimes office is established within the office of the Judge Advocate
General of the Army of the Philippines and shall function under the direction supervision
and control of the Judge Advocate General. It shall proceed to collect from all available
sources evidence of war crimes committed in the Philippines from the commencement of
hostilities by Japan in December 1941, maintain a record thereof and bring about the
prompt trial maintain a record thereof and bring about the prompt trial of the accused.
The National War Crimes Office shall maintain direct liaison with the Legal Section General
Headquarters, Supreme Commander for the Allied power and shall exchange with the said
Office information and evidence of war crimes.
The following rules and regulation shall govern the trial off person accused as war
criminals:
ESTABLISHMENT OF MILITARY COMMISSIONS
(a) General. person accused as war criminal shall be tried by military commission to be
convened by or under the authority of the Philippines.
II. JURISDICTION
(a) Over Person. Thee military commission appointed hereunder shall have jurisdiction
over all persons charged with war crimes who are in the custody of the convening authority
at the time of the trial.
(b) Over Offenses. The military commission established hereunder shall have jurisdiction
over all offenses including but not limited to the following:
(1) The planning preparation initiation or waging of a war of aggression or a war in
violation of international treaties agreement or assurance or participation in a common
plan or conspiracy for the accomplishment of any of the foregoing.
(2) Violation of the laws or customs of war. Such violation shall include but not be limited to
murder ill-treatment or deportation to slave labor or for other purpose of civilian
population of or in occupied territory; murder or ill-treatment of prisoners of war or
internees or person on the seas or elsewhere; improper treatment of hostage; plunder of
public or private property wanton destruction of cities towns or village; or devastation not
justified by military necessity.
(3) Murder extermination enslavement deportation and other inhuman acts committed
against civilian population before or during the war or persecution on political racial or
religion ground in executive of or in connection with any crime defined herein whether or
not in violation of the local laws.
III. MEMBERSHIP OF COMMISSIONS
(a) Appointment. The members of each military commission shall be appointed by the
President of the Philippines or under authority delegated by him. Alternates may be
appointed by the convening authority. Such shall attend all session of the commission, and
in case of illness or other incapacity of any principal member, an alternate shall take the
place of that member. Any vacancy among the members or alternates, occurring after a trial
has begun, may be filled by the convening authority but the substance of all proceeding had
evidence taken in that case shall be made known to the said new member or alternate. This
facts shall be announced by the president of the commission in open court.
(b) Number of Members. Each commission shall consist of not less than three (3)
members.
(c) Qualifications. The convening authority shall appoint to the commission persons
whom he determines to be competent to perform the duties involved and not disqualified
by personal interest or prejudice, provided that no person shall be appointed to hear a case
in which he personally investigated or wherein his presence as a witness is required. One
specially qualified member whose ruling is final in so far as concerns the commission on an
objection to the admissibility of evidence offered during the trial.
(d) Voting. Except as to the admissibility of evidence all rulings and finding of the
Commission shall be by majority vote except that conviction and sentence shall be by the
affirmative vote of not less than conviction and sentence shall be by the affirmative vote of
not less than two-thirds (2\3) of the member present.
(e) Presiding Member. In the event that the convening authority does not name one of the
member as the presiding member, the senior officer among the member of the Commission
present shall preside.
IV. PROSECUTORS
(a) Appointment. The convening authority shall designate one or more person to conduct
the prosecution before each commission.
(b) Duties. The duties of the prosecutor are:
(1) To prepare and present charges and specifications for reference to a commission.
(2) To prepare cases for trial and to conduct the prosecution before the commission of all
cases referred for trial.
V. POWER AND PROCEDURE OF COMMISSION
(a) Conduct of the Trial. A Commission shall:
(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the
charges, excluding irrelevant issues or evidence and preventing any unnecessary delay or
interference.
(2) Deal summarily with any contumacy or contempt, imposing any appropriate
punishment therefor.
(3) Hold public session when otherwise decided by the commission.
(4) Hold each session at such time and place as it shall determine, or as may be directed by
the convening authority.
(b) Rights of the Accused. The accused shall be entitled:
(1) To have in advance of the trial a copy of the charges and specifications clearly worded so
as to apprise the accused of each offense charged.
(2) To be represented, prior to and during trial, by counsel appointed by the convening
authority or counsel of his own choice, or to conduct his own defense.
(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in
support of his defense, and cross-examine each adverse witness who personally appears
before the commission.
(4) To have the substance of the charges and specifications, the proceedings and any
documentary evidence translated, when he is unable otherwise to understand them.
(c) Witnesses. The Commission shall have power:
(1) To summon witnesses and require their attendance and testimony; to administer oaths
or affirmations to witnesses and other persons and to question witnesses.
(2) To require the production of documents and other evidentiary material.
(3) To delegate the Prosecutors appointed by the convening authority the powers and
duties set forth in (1) and (2) above.
(4) To have evidence taken by a special commissioner appointed by the commission.
(d) Evidence.
(1) The commission shall admit such evidence as in its opinion shall be of assistance in
proving or disproving the charge, or such as in the commission's opinion would have
probative value in the mind of a reasonable man. The commission shall apply the rules of
evidence and pleading set forth herein with the greatest liberality to achieve expeditious
procedure. In particular, and without limiting in any way the scope of the foregoing general
rules, the following evidence may be admitted:
(a) Any document, irrespective of its classification, which appears to the commission to
have been signed or issued by any officer, department, agency or member of the armed
forces of any Government without proof of the signature or of the issuance of the document.
(b) Any report which appears to the commission to have been signed or issued by the
International Red Cross or a member of any medical service personnel, or by any
investigator or intelligence officer, or by any other person whom commission considers as
possessing knowledge of the matters contained in the report.
(c) Affidavits, depositions or other signed statements.
(d) Any diary, letter to other document, including sworn statements, appearing to the
commission to contain information relating to the charge.
(e) A copy of any document or other secondary evidence of the contents, if the original is
not immediately available.
(2) The commission shall take judicial notice of facts of common knowledge, official
government documents of any nation, and the proceedings, records and findings of military
or other agencies of any of the United Nation.
(3) A commission may require the prosecution and the defense to make a preliminary offer
of proof whereupon the commission may rule in advance on the admissibility of such
evidence.
(4) The official position of the accused shall not absolve him from responsibility nor be
considered in mitigation of punishment. Further action pursuant to an order of the
accused's superior, or of his Government, shall not constitute a defense, but may be
considered in mitigation of punishment if the commission determines that justice so
requires.
(5) All purposed confessions or statements of the accused shall bee admissible in evidence
without any showing that they were voluntarily made. If it is shown that such confession or
statement was procured by mean which the commission believe to have been of such a
character that may have caused the accused to make a false statement the commission may
strike out or disregard any such portion thereof as was so procured.
(e) Trial Procedure. The proceedings of each trial shall be conducted substantially as
follows unless modified by the commission to suit the particular circumstances:
(1) Each charge and specification shall be read or its substance stated in open court.
(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty."
(3) The prosecution shall make its opening statement."(4) The presiding member may at
this or any other time require the prosecutor to state what evidence he proposes to submit
to the commission and the commission thereupon may rule upon the admissibility of such
evidence.
(4) The witnesses and other evidence for the prosecution shall be heard or presented. At
the close of the case for the prosecution, the commission may, on motion of the defense for a
finding of not guilty, consider and rule whether he evidence before the commission may
defer action on any such motion and permit or require the prosecution to reopen its case
and produce any further available evidence.
(5) The defense may make an opening statement prior to presenting its case. The presiding
member may, at this any other time require the defense to state what evidence it proposes
to submit to the commission where upon the commission may rule upon the admissibility of
such evidence.
(6) The witnesses and other evidence for the defense shall be heard or presented.
Thereafter, the prosecution and defense may introduce such evidence in rebuttal as the
commission may rule as being admissible.
(7) The defense and thereafter the prosecution shall address the commission.
(8) The commission thereafter shall consider the case in closed session and unless
otherwise directed by the convening authority, announce in open court its judgment and
sentence if any. The commission may state the reason on which judgment is based.
( f ) Record of Proceedings. Each commission shall make a separate record of its
proceeding in the trial of each case brought before it. The record shall be prepared by the
prosecutor under the direction of the commission and submitted to the defense counsel.
The commission shall be responsible for its accuracy. Such record, certified by the presiding
member of the commission or his successor, shall be delivered to the convening authority as
soon as possible after the trial.
(g) Sentence. The commission may sentence an accused, upon conviction to death by
hanging or shooting, imprisonment for life or for any less term, fine or such other
punishment as the commission shall determine to be proper.
(h) Approval of Sentence. No. sentence of a military commission shall be carried into
effect until approved by the chief off Staff: Provided, That no sentence of death or life
imprisonment shall be carried into execution until confirmed by the President of the
Philippines. For the purpose of his review the Chief of Staff shall create a Board of Review to
be composed of not more than three officers none of whom shall be on duty with or
assigned to the Judge Advocate General's Office. The Chief of Staff shall have authority to
approve, mitigate remit in whole or in part, commute, suspend, reduce or otherwise alter
the sentence imposed, or (without prejudice to the accused) remand the case for rehearing
before a new military commission; but he shall not have authority to increase the severity of
the sentence. Except as herein otherwise provided the judgment and sentence of a
commission shall final and not subject to review by any other tribunal.
VI. RULE-MAKING POWER
Supplementary Rule and Forms. Each commission shall adopt rules and forms to govern
its procedure, not inconsistent with the provision of this Order, or such rules and forms as
may be prescribed by the convening authority]or by the President of the Philippines.
VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of the
appropriations for the Army of the Philippines for use by the National War Crimes Office in
the accomplishment of its mission as hereinabove set forth, and shall be expended in
accordance with the recommendation of the Judge Advocate General as approved by the
President. The buildings, fixtures, installations, messing, and billeting equipment and other
property herefore used by then Legal Section, Manila Branch, of the General Headquarters,
Supreme Commander for the Allied Power, which will be turned over by the United States
Army to the Philippines Government through the Foreign Liquidation Commission and the
Surplus Property Commission are hereby specification reserved for use off the National War
Crimes Office.
Executive Order No. 64, dated August 16, 1945, is hereby repealed.
Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred
and forty-seven, and of the Independence of the Philippines, the second.
MANUEL ROXAS
President of the Philippines
By the President:
EMILIO ABELLO
Chief of the Executive Office
EXECUTIVE LEGISLATION
Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of
congressional enactment.
The first question that is trust at our face spearheading a group of other no less important question,
is whether or not the President of the Philippines may exercise the legislative power expressly
vested in Congress by the Constitution. .
The Constitution provides:
The Legislative powers shall be vested in a Congress of the Philippines which shall consist
of a Senate and House of Representatives. (Section 1, Article VI.)
While there is no express provision in the fundamental law prohibiting the exercise of legislative
power by agencies other than Congress, a reading of the whole context of the Constitution would
dispel any doubt as to the constitutional intent that the legislative power is to be exercised
exclusively by Congress, subject only to the veto power of the President of the President of the
Philippines, to the specific provision which allow the president of the Philippines to suspend the
privileges of the writ of habeas corpus and to place any part of the Philippines under martial law,
and to the rule-making power expressly vested by the Constitution in the Supreme Court.
There cannot be any question that the member of the Constitutional Convention were believers in
the tripartite system of government as originally enunciated by Aristotle, further elaborated by
Montequieu and accepted and practiced by modern democracies, especially the United State of
America, whose Constitution, after which ours has been patterned, has allocated the three power of
government legislative, executive, judicial to distinct and separate department of government.
Because the power vested by our Constitution to the several department of the government are in
the nature of grants, not recognition of pre-existing power, no department of government may
exercise any power or authority not expressly granted by the Constitution or by law by virtue
express authority of the Constitution.
Executive Order No. 68 establishes a National War Crimes Office and the power to establish
government office is essentially legislative.
The order provides that person accused as war criminals shall be tried by military commissions.
Whether such a provision is substantive or adjective, it is clearly legislative in nature. It confers
upon military commissions jurisdiction to try all persons charge with war crimes. The power to
define and allocate jurisdiction for the prosecution of person accused of any crime is exclusively
vested by the Constitution in Congress. .
It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject
constitutes a usurpation of the rule-making power vested by Constitution in the Supreme Court.
It authorized military commission to adopt additional rule of procedure. If the President of the
Philippines cannot exercise the rule -making power vested by the Constitution in the Supreme
Court, he cannot, with more reason, delegate that power to military commission.
It appropriates the sum of P7000,000 for the expenses of the National War Crimes office
established by the said Executive Order No. 68. This constitutes another usurpation of legislative
power as the power to vote appropriations belongs to Congress.
Executive Order No. 68., is, therefore, null and void, because, though it the President of the
Philippines usurped power expressly vested by the Constitution in Congress and in the Supreme
Court.
Challenged to show the constitutional or legal authority under which the President issued Executive
Order No. 68, respondent could not give any definite answer. They attempted, however, to suggest
that the President of the Philippines issued Executive Order No. 68 under the emergency power
granted to him by Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and
Commonwealth Act No. 671, both of which are transcribed below:

COMMONWEALTH ACT NO. 600.
AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT
TO PROMULGATE RULES AND REGULATION TO SAFEGUARD THE INTEGRITY OF
THE PHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS INHABITANTS.
Be it enacted by the National Assembly of the Philippines:
SECTION 1. The existence of war in many parts of the world has created a national
emergency which makes it necessary to invest the President of the Philippines with
extraordinary power in order to safeguard the integrity of the Philippines and to insure the
tranquility of its inhabitants, by suppressing espionage, lawlessness, and all subversive to
the people adequate shelter and clothing and sufficient food supply, and by providing
means for the speedy evacuation of the civilian population the establishment of an air
protective service and the organization of volunteer guard units, and to adopt such other
measures as he may deem necessary for the interest of the public. To carry out this policy
the President is authorized to promulgate rules and regulations which shall have the force
and effect off law until the date of adjournment of the next regulation which shall have the
force and effect of law until the date of adjournment of the next regular session of the First
Congress of the Philippines, unless sooner amended or repealed by the Congress of
Philippines. Such rules and regulation may embrace the following objects: (1) to suppress
espionage and other subversive activities; (2) to require all able-bodied citizens (a) when
not engaged in any lawful occupation, to engage in farming or other productive activities or
(b) to perform such services as may bee necessary in the public interest; (3) to take over
farm lands in order to prevent or shortage of crops and hunger and destitution; (4) to take
over industrial establishment in order to insure adequate production, controlling wages and
profits therein; (5) to prohibit lockouts and strikes whenever necessary to prevent the
unwarranted suspension of work in productive enterprises or in the interest of national
security; (6) to regulate the normal hours of work for wage-earning and salaried employees
in industrial or business undertakings of all kinds; (7) to insure an even distribution of
labor among the productive enterprises; (8) to commandership and other means of
transportation in order to maintain, as much as possible, adequate and continued
transportation facilities; (9) to requisition and take over any public service or enterprise for
use or operation by the Government;(10) to regulate rents and the prices of articles or
commodities of prime necessity, both imported and locally produced or manufactured; and
(11) to prevent, locally or generally, scarcity, monopolization, hoarding injurious
speculations, and private control affecting the supply, distribution and movement of foods,
clothing, fuel, fertilizer, chemical, building, material, implements, machinery, and equipment
required in agriculture and industry, with power to requisition these commodities subject
to the payment of just compensation. (As amended by Com. Act No. 620.)
SEC. 2. For the purpose of administering this Act and carrying out its objective, the
President may designate any officer, without additional compensation, or any department,
bureau, office, or instrumentality of the National Government.
SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this
Act or of this Act or any of the rules or regulations promulgated by the President under the
authority of section one of this Act shall be punished by imprisonment of not more than ten
years or by a fine of not more than ten thousand pesos, or by both. If such violation is
committed by a firm or corporation, the manager, managing director, or person charge with
the management of the business of such firm, or corporation shall be criminally responsible
therefor.
SEC. 4. The President shall report to the national Assembly within the first ten days from the
date of the opening of its next regular session whatever action has been taken by him under
the authority herein granted.
SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such
amounts as may be necessary from the sum appropriated under section five
Commonwealth Act Numbered four hundred and ninety-eight.
SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction to
be unconstitutional and void, such declaration shall not invalidate the remainder of this Act.
SEC. 7. This Act shall take upon its approval.
Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671
AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR
INVOLVING THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO
PROMULGATE RULE AND REGULATIONS TO MEET SUCH EMERGENCY.
Be it enacted the National Assembly of the Philippines;
SECTION 1. The existed of war between the United State and other countries of Europe and
Asia, which involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency.
SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President
is hereby authorized, during the existence of the emergency, to promulgate such rules and
regulation as he may deem necessary to carry out the national policy declared in section 1
hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the
Government or any of its subdivisions, branches, department, offices, agencies or
instrumentalities; (b) to reorganize the Government of the Commonwealth including the
determination of the order of precedence of the heads of the Executive Department; (c) to
create new subdivision, branches, departments, offices, agency or instrumentalities of
government and to abolish any of those already existing; (d) to continue in force laws and
appropriation which would lapse or otherwise became inoperative, and to modify or
suspend the operation or application of those of an administrative character; (e) to imposed
new taxes or to increase, reduce, suspend, or abolish those in existence; (f) to raise funds
through the issuance of bonds or otherwise, and to authorize the expensive of the proceeds
thereof; (g) to authorize the National, provincial, city or municipal governments to incur in
overdrafts for purposes that he may approve; (h) to declare the suspension of the collection
of credits or the payment of debts; and (i) to exercise such other power as he may deem
necessary to enable the Government to fulfill its responsibilities and to maintain and
enforce its authority.
SEC. 3. The President of the Philippines report thereto all the rules and regulation
promulgated by him under the power herein granted.
SEC. 4. This Act shall take effect upon its approval and the rules and regulations.
promulgated hereunder shall be in force and effect until the Congress of the Philippines
shall otherwise provide.
Approved December 16, 1941.
The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947. Said
Acts had elapsed upon the liberation of the Philippines form the Japanese forces or, at the latest,
when the surrender of Japan was signed in Tokyo on September 2, 1945.
When both Acts were enacted by the Second National Assembly, we happened to have taken direct
part in their consideration and passage, not only as one of the members of said legislative body as
chairman of the Committee on Third Reading population Known as the "Little Senate." We are,
therefore in a position to state that said measures were enacted by the second national Assembly
for the purpose of facing the emergency of impending war and of the Pacific War that finally broke
out with the attack of Pearl Harbor on December 7, 1941. We approved said extraordinary
measures, by which under the exceptional circumstances then prevailing legislative power were
delegated to the President of the Philippines, by virtue of the following provisions of the
Constitution:
In time 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
promulgate rules and regulations to carry out declared national policy. (Article VI, section
26.)
It has never been the purpose of the National Assembly to extend the delegation beyond the
emergency created by the war as to extend it farther would be violative of the express provision of
the Constitution. We are of the opinion that there is no doubt on this question.; but if there could
still be any the same should be resolved in favor of the presumption that the National Assembly did
not intend to violate the fundamental law.
The absurdity of the contention that the emergency Acts continued in effect even after the
surrender of Japan can not be gainsaid. Only a few months after liberation and even before the
surrender of Japan, or since the middle of 1945, the Congress started to function normally. In the
hypothesis that the contention can prevail, then, since 1945, that is, four years ago, even after the
Commonwealth was already replaced by the Republic of the Philippines with the proclamation of
our Independence, two district, separate and independence legislative organs, Congress and the
President of the Philippines would have been and would continue enacting laws, the former to
enact laws of every nature including those of emergency character, and the latter to enact laws, in
the form of executive orders, under the so-called emergency powers. The situation would be
pregnant with dangers to peace and order to the rights and liberties of the people and to
Philippines democracy.
Should there be any disagreement between Congress and the President of the Philippines, a
possibility that no one can dispute the President of the Philippines may take advantage of he long
recess of Congress (two-thirds of every year ) to repeal and overrule legislative enactments of
Congress, and may set up a veritable system of dictatorship, absolutely repugnant to the letter and
spirit of the Constitution.
Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental
guarantees of the due process and equal protection of the law. It is especially so, because it permit
the admission of many kinds evidence by which no innocent person can afford to get acquittal and
by which it is impossible to determine whether an accused is guilty or not beyond all reasonable
doubt.
The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation
governing the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in Chief
of the United State Armed Forces in Western Pacific, for the purpose of trying among other, General
Yamashita and Homma. What we said in our concurring and dissenting opinion to the decision
promulgated on December 19, 1945, in the Yamashita case, L-129, and in our concurring and
dissenting opinion to the resolution of January 23, 1946 in disposing the Homma case, L-244, are
perfectly applicable to the offensive rules of evidence in Executive Order No. 68. Said rules of
evidence are repugnant to conscience as under them no justice can expected.
For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to
declare Executive Order No. 68 null and void and to grant petition.















Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-49112 February 2, 1979
LEOVILLO C. AGUSTIN, petitioner,
vs.
HON. ROMEO F. EDU, in his capacity as Land Transportation Commissioner; HON. JUAN
PONCE ENRILE, in his capacity as Minister of National Defense; HON. ALFREDO L. JUINIO, in
his capacity as Minister Of Public Works, Transportation and Communications; and HON:
BALTAZAR AQUINO, in his capacity as Minister of Public Highways, respondents.
Leovillo C. Agustin Law Office for petitioner.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ruben E. Agpalo and Solicitor Amado
D. Aquino for respondents.

FERNANDO, J.:
The validity of a letter of Instruction
1
providing for an early seaming device for motor vehicles is
assailed in this prohibition proceeding as being violative of the constitutional guarantee of due
process and, insofar as the rules and regulations for its implementation are concerned, for
transgressing the fundamental principle of non- delegation of legislative power. The Letter of
Instruction is stigmatized by petitioner who is possessed of the requisite standing, as being
arbitrary and oppressive. A temporary restraining order as issued and respondents Romeo F. Edu,
Land Transportation Commissioner Juan Ponce Enrile, Minister of National Defense; Alfredo L.
Juinio, Minister of Public Works, Transportation and Communications; and Baltazar Aquino,
Minister of Public Highways; were to answer. That they did in a pleading submitted by Solicitor
General Estelito P. Mendoza.
2
Impressed with a highly persuasive quality, it makes devoid clear
that the imputation of a constitutional infirmity is devoid of justification The Letter of Instruction
on is a valid police power measure. Nor could the implementing rules and regulations issued by
respondent Edu be considered as amounting to an exercise of legislative power. Accordingly, the
petition must be dismissed.
The facts are undisputed. The assailed Letter of Instruction No. 229 of President Marcos, issued on
December 2, 1974, reads in full: "[Whereas], statistics show that one of the major causes of fatal or
serious accidents in land transportation is the presence of disabled, stalled or parked motor
vehicles along streets or highways without any appropriate early warning device to signal
approaching motorists of their presence; [Whereas], the hazards posed by such obstructions to
traffic have been recognized by international bodies concerned with traffic safety, the 1968 Vienna
Convention on Road Signs and Signals and the United Nations Organization (U.N.); [Whereas], the
said Vienna Convention which was ratified by the Philippine Government under P.D. No. 207,
recommended the enactment of local legislation for the installation of road safety signs and devices;
[Now, therefore, I, Ferdinand E. Marcos], President of the Philippines, in the interest of safety on all
streets and highways, including expressways or limited access roads, do hereby direct: 1. That all
owners, users or drivers of motor vehicles shall have at all times in their motor vehicles at least one
(1) pair of early warning device consisting of triangular, collapsible reflectorized plates in red and
yellow colors at least 15 cms. at the base and 40 cms. at the sides. 2. Whenever any motor vehicle is
stalled or disabled or is parked for thirty (30) minutes or more on any street or highway, including
expressways or limited access roads, the owner, user or driver thereof shall cause the warning
device mentioned herein to be installed at least four meters away to the front and rear of the motor
vehicle staged, disabled or parked. 3. The Land Transportation Commissioner shall cause
Reflectorized Triangular Early Warning Devices, as herein described, to be prepared and issued to
registered owners of motor vehicles, except motorcycles and trailers, charging for each piece not
more than 15 % of the acquisition cost. He shall also promulgate such rules and regulations as are
appropriate to effectively implement this order. 4. All hereby concerned shall closely coordinate
and take such measures as are necessary or appropriate to carry into effect then
instruction.
3
Thereafter, on November 15, 1976, it was amended by Letter of Instruction No. 479 in
this wise. "Paragraph 3 of Letter of Instruction No. 229 is hereby amended to read as follows: 3. The
Land transportation Commissioner shall require every motor vehicle owner to procure from any
and present at the registration of his vehicle, one pair of a reflectorized early warning device, as d
bed of any brand or make chosen by mid motor vehicle . The Land Transportation Commissioner
shall also promulgate such rule and regulations as are appropriate to effectively implement this
order.'"
4
There was issued accordingly, by respondent Edu, the implementing rules and regulations
on December 10, 1976.
5
They were not enforced as President Marcos on January 25, 1977, ordered
a six-month period of suspension insofar as the installation of early warning device as a pre-
registration requirement for motor vehicle was concerned.
6
Then on June 30, 1978, another Letter
of Instruction
7
the lifting of such suspension and directed the immediate implementation of Letter
of Instruction No. 229 as amended.
8
It was not until August 29, 1978 that respondent Edu issued
Memorandum Circular No. 32, worded thus: "In pursuance of Letter of Instruction No. 716, dated
June 30, 1978, the implementation of Letter of Instruction No. 229, as amended by Letter of
Instructions No. 479, requiring the use of Early Warning Devices (EWD) on motor vehicle, the
following rules and regulations are hereby issued: 1. LTC Administrative Order No. 1, dated
December 10, 1976; shall now be implemented provided that the device may come from whatever
source and that it shall have substantially complied with the EWD specifications contained in
Section 2 of said administrative order; 2. In order to insure that every motor vehicle , except
motorcycles, is equipped with the device, a pair of serially numbered stickers, to be issued free of
charge by this Commission, shall be attached to each EWD. The EWD. serial number shall be
indicated on the registration certificate and official receipt of payment of current registration fees
of the motor vehicle concerned. All Orders, Circulars, and Memoranda in conflict herewith are
hereby superseded, This Order shall take effect immediately.
9
It was for immediate
implementation by respondent Alfredo L. Juinio, as Minister of Public Works, transportation, and
Communications.
10

Petitioner, after setting forth that he "is the owner of a Volkswagen Beetle Car, Model 13035,
already properly equipped when it came out from the assembly lines with blinking lights fore and
aft, which could very well serve as an early warning device in case of the emergencies mentioned in
Letter of Instructions No. 229, as amended, as well as the implementing rules and regulations in
Administrative Order No. 1 issued by the land transportation Commission,"
11
alleged that said
Letter of Instruction No. 229, as amended, "clearly violates the provisions and delegation of police
power, [sic] * * *: " For him they are "oppressive, unreasonable, arbitrary, confiscatory, nay
unconstitutional and contrary to the precepts of our compassionate New Society."
12
He contended
that they are "infected with arbitrariness because it is harsh, cruel and unconscionable to the
motoring public;"
13
are "one-sided, onerous and patently illegal and immoral because [they] will
make manufacturers and dealers instant millionaires at the expense of car owners who are
compelled to buy a set of the so-called early warning device at the rate of P 56.00 to P72.00 per
set."
14
are unlawful and unconstitutional and contrary to the precepts of a compassionate New
Society [as being] compulsory and confiscatory on the part of the motorists who could very well
provide a practical alternative road safety device, or a better substitute to the specified set of
EWD's."
15
He therefore prayed for a judgment both the assailed Letters of Instructions and
Memorandum Circular void and unconstitutional and for a restraining order in the meanwhile.
A resolution to this effect was handed down by this Court on October 19, 1978: "L-49112 (Leovillo
C. Agustin v. Hon. Romeo F. Edu, etc., et al.) Considering the allegations contained, the issues
raised and the arguments adduced in the petition for prohibition with writ of p prohibitory and/or
mandatory injunction, the Court Resolved to (require) the respondents to file an answer thereto
within ton (10) days from notice and not to move to dismiss the petition. The Court further
Resolved to [issue] a [temporary restraining order] effective as of this date and continuing until
otherwise ordered by this Court.
16

Two motions for extension were filed by the Office of the Solicitor General and granted. Then on
November 15, 1978, he Answer for respondents was submitted. After admitting the factual
allegations and stating that they lacked knowledge or information sufficient to form a belief as to
petitioner owning a Volkswagen Beetle car," they "specifically deny the allegations and stating they
lacked knowledge or information sufficient to form a belief as to petitioner owning a Volkswagen
Beetle Car,
17
they specifically deny the allegations in paragraphs X and XI (including its
subparagraphs 1, 2, 3, 4) of Petition to the effect that Letter of Instruction No. 229 as amended by
Letters of Instructions Nos. 479 and 716 as well as Land transportation Commission Administrative
Order No. 1 and its Memorandum Circular No. 32 violates the constitutional provisions on due
process of law, equal protection of law and undue delegation of police power, and that the same are
likewise oppressive, arbitrary, confiscatory, one-sided, onerous, immoral unreasonable and illegal
the truth being that said allegations are without legal and factual basis and for the reasons alleged
in the Special and Affirmative Defenses of this Answer."
18
Unlike petitioner who contented himself
with a rhetorical recital of his litany of grievances and merely invoked the sacramental phrases of
constitutional litigation, the Answer, in demonstrating that the assailed Letter of Instruction was a
valid exercise of the police power and implementing rules and regulations of respondent Edu not
susceptible to the charge that there was unlawful delegation of legislative power, there was in the
portion captioned Special and Affirmative Defenses, a citation of what respondents believed to be
the authoritative decisions of this Tribunal calling for application. They are Calalang v.
Williams,
19
Morfe v. Mutuc,
20
and Edu v. Ericta.
21
Reference was likewise made to the 1968 Vienna
Conventions of the United Nations on road traffic, road signs, and signals, of which the Philippines
was a signatory and which was duly ratified.
22
Solicitor General Mendoza took pains to refute in
detail, in language calm and dispassionate, the vigorous, at times intemperate, accusation of
petitioner that the assailed Letter of Instruction and the implementing rules and regulations cannot
survive the test of rigorous scrutiny. To repeat, its highly-persuasive quality cannot be denied.
This Court thus considered the petition submitted for decision, the issues being clearly joined. As
noted at the outset, it is far from meritorious and must be dismissed.
1. The Letter of Instruction in question was issued in the exercise of the police power. That is
conceded by petitioner and is the main reliance of respondents. It is the submission of the former,
however, that while embraced in such a category, it has offended against the due process and equal
protection safeguards of the Constitution, although the latter point was mentioned only in passing.
The broad and expansive scope of the police power which was originally Identified by Chief Justice
Taney of the American Supreme Court in an 1847 decision as "nothing more or less than the powers
of government inherent in every sovereignty"
23
was stressed in the aforementioned case of Edu v.
Ericta thus: "Justice Laurel, in the first leading decision after the Constitution came into
force, Calalang v. Williams, Identified police power with state authority to enact legislation that may
interfere with personal liberty or property in order to promote the general welfare. Persons and
property could thus 'be subjected to all kinds of restraints and burdens in order to we the general
comfort, health and prosperity of the state.' Shortly after independence in 1948, Primicias v.
Fugosoreiterated the doctrine, such a competence being referred to as 'the power to prescribe
regulations to promote the health, morals, peace, education, good order or safety, and general
welfare of the people. The concept was set forth in negative terms by Justice Malcolm in a pre-
Commonwealth decision as 'that inherent and plenary power in the State which enables it to
prohibit all things hurtful to the comfort, safety and welfare of society. In that sense it could be
hardly distinguishable as noted by this Court in Morfe v. Mutuc with the totality of legislative
power. It is in the above sense the greatest and most powerful at. tribute of government. It is, to
quote Justice Malcolm anew, 'the most essential, insistent, and at least table powers, I extending as
Justice Holmes aptly pointed out 'to all the great public needs.' Its scope, ever-expanding to meet
the exigencies of the times, even to anticipate the future where it could be done, provides enough
room for an efficient and flexible response to conditions and circumstances thus assuring the
greatest benefits. In the language of Justice Cardozo: 'Needs that were narrow or parochial in the
past may be interwoven in the present with the well-being of the nation. What is critical or urgent
changes with the time.' The police power is thus a dynamic agency, suitably vague and far from
precisely defined, rooted in the conception that men in organizing the state and imposing upon its
government limitations to safeguard constitutional rights did not intend thereby to enable an
individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary
measures calculated to communal peace, safety, good order, and welfare."
24

2. It was thus a heavy burden to be shouldered by petitioner, compounded by the fact that the
particular police power measure challenged was clearly intended to promote public safety. It would
be a rare occurrence indeed for this Court to invalidate a legislative or executive act of that
character. None has been called to our attention, an indication of its being non-existent. The latest
decision in point, Edu v. Ericta, sustained the validity of the Reflector Law,
25
an enactment
conceived with the same end in view. Calalang v. Williams found nothing objectionable in a statute,
the purpose of which was: "To promote safe transit upon, and. avoid obstruction on roads and
streets designated as national roads * * *.
26
As a matter of fact, the first law sought to be nullified
after the effectivity of the 1935 Constitution, the National Defense Act,
27
with petitioner failing in
his quest, was likewise prompted by the imperative demands of public safety.
3. The futility of petitioner's effort to nullify both the Letter of Instruction and the implementing
rules and regulations becomes even more apparent considering his failure to lay the necessary
factual foundation to rebut the presumption of validity. So it was held in Ermita-Malate Hotel and
Motel Operators Association, Inc. v. City Mayor of Manila.
28
The rationale was clearly set forth in an
excerpt from a decision of Justice Branders of the American Supreme Court, quoted in the opinion:
"The statute here questioned deals with a subject clearly within the scope of the police power. We
are asked to declare it void on the ground that the specific method of regulation prescribed is
unreasonable and hence deprives the plaintiff of due process of law. As underlying questions of fact
may condition the constitutionality of legislation of this character, the presumption of
constitutionality must prevail in the absence of some factual foundation of record in overthrowing
the statute.
29

4. Nor did the Solicitor General as he very well could, rely solely on such rebutted presumption of
validity. As was pointed out in his Answer "The President certainly had in his possession the
necessary statistical information and data at the time he issued said letter of instructions, and such
factual foundation cannot be defeated by petitioner's naked assertion that early warning devices
'are not too vital to the prevention of nighttime vehicular accidents' because allegedly only 390 or
1.5 per cent of the supposed 26,000 motor vehicle accidents that in 1976 involved rear-end
collisions (p. 12 of petition). Petitioner's statistics is not backed up by demonstrable data on record.
As aptly stated by this Honorable Court: Further: "It admits of no doubt therefore that there being a
presumption of validity, the necessity for evidence to rebut it is unavoidable, unless the statute or
ordinance is void on its face, which is not the case here"' * * *. But even as g the verity of petitioner's
statistics, is that not reason enough to require the installation of early warning devices to prevent
another 390 rear-end collisions that could mean the death of 390 or more Filipinos and the deaths
that could likewise result from head-on or frontal collisions with stalled vehicles?"
30
It is quite
manifest then that the issuance of such Letter of Instruction is encased in the armor of prior, careful
study by the Executive Department. To set it aside for alleged repugnancy to the due process clause
is to give sanction to conjectural claims that exceeded even the broadest permissible limits of a
pleader's well known penchant for exaggeration.
5. The rather wild and fantastic nature of the charge of oppressiveness of this Letter of Instruction
was exposed in the Answer of the Solicitor General thus: "Such early warning device requirement is
not an expensive redundancy, nor oppressive, for car owners whose cars are already equipped with
1) blinking lights in the fore and aft of said motor vehicles,' 2) "battery-powered blinking lights
inside motor vehicles," 3) "built-in reflectorized tapes on front and rear bumpers of motor
vehicles," or 4) "well-lighted two (2) petroleum lamps (the Kinke) * * * because: Being universal
among the signatory countries to the said 1968 Vienna Conventions, and visible even under adverse
conditions at a distance of at least 400 meters, any motorist from this country or from any part of
the world, who sees a reflectorized rectangular early seaming device installed on the roads,
highways or expressways, will conclude, without thinking, that somewhere along the travelled
portion of that road, highway, or expressway, there is a motor vehicle which is stationary, stalled or
disabled which obstructs or endangers passing traffic. On the other hand, a motorist who sees any
of the aforementioned other built in warning devices or the petroleum lamps will not immediately
get adequate advance warning because he will still think what that blinking light is all about. Is it an
emergency vehicle? Is it a law enforcement car? Is it an ambulance? Such confusion or uncertainty
in the mind of the motorist will thus increase, rather than decrease, the danger of collision.
31

6. Nor did the other extravagant assertions of constitutional deficiency go unrefuted in the Answer
of the Solicitor General "There is nothing in the questioned Letter of Instruction No. 229, as
amended, or in Administrative Order No. 1, which requires or compels motor vehicle owners to
purchase the early warning device prescribed thereby. All that is required is for motor vehicle
owners concerned like petitioner, to equip their motor vehicles with a pair of this early warning
device in question, procuring or obtaining the same from whatever source. In fact, with a little of
industry and practical ingenuity, motor vehicle owners can even personally make or produce this
early warning device so long as the same substantially conforms with the specifications laid down
in said letter of instruction and administrative order. Accordingly the early warning device
requirement can neither be oppressive, onerous, immoral, nor confiscatory, much less does it make
manufacturers and dealers of said devices 'instant millionaires at the expense of car owners' as
petitioner so sweepingly concludes * * *. Petitioner's fear that with the early warning device
requirement 'a more subtle racket may be committed by those called upon to enforce it * * * is an
unfounded speculation. Besides, that unscrupulous officials may try to enforce said requirement in
an unreasonable manner or to an unreasonable degree, does not render the same illegal or immoral
where, as in the instant case, the challenged Letter of Instruction No. 229 and implementing order
disclose none of the constitutional defects alleged against it.
32

7 It does appear clearly that petitioner's objection to this Letter of Instruction is not premised on
lack of power, the justification for a finding of unconstitutionality, but on the pessimistic, not to say
negative, view he entertains as to its wisdom. That approach, it put it at its mildest, is distinguished,
if that is the appropriate word, by its unorthodoxy. It bears repeating "that this Court, in the
language of Justice Laurel, 'does not pass upon questions of wisdom justice or expediency of
legislation.' As expressed by Justice Tuason: 'It is not the province of the courts to supervise
legislation and keep it within the bounds of propriety and common sense. That is primarily and
exclusively a legislative concern.' There can be no possible objection then to the observation of
Justice Montemayor. 'As long as laws do not violate any Constitutional provision, the Courts merely
interpret and apply them regardless of whether or not they are wise or salutary. For they, according
to Justice Labrador, 'are not supposed to override legitimate policy and * * * never inquire into the
wisdom of the law.' It is thus settled, to paraphrase Chief Justice Concepcion in Gonzales v.
Commission on Elections, that only congressional power or competence, not the wisdom of the
action taken, may be the basis for declaring a statute invalid. This is as it ought to be. The principle
of separation of powers has in the main wisely allocated the respective authority of each
department and confined its jurisdiction to such a sphere. There would then be intrusion not
allowable under the Constitution if on a matter left to the discretion of a coordinate branch, the
judiciary would substitute its own. If there be adherence to the rule of law, as there ought to be, the
last offender should be courts of justice, to which rightly litigants submit their controversy
precisely to maintain unimpaired the supremacy of legal norms and prescriptions. The attack on
the validity of the challenged provision likewise insofar as there may be objections, even if valid and
cogent on is wisdom cannot be sustained.
33

8. The alleged infringement of the fundamental principle of non-delegation of legislative power is
equally without any support well-settled legal doctrines. Had petitioner taken the trouble to
acquaint himself with authoritative pronouncements from this Tribunal, he would not have the
temerity to make such an assertion. An exempt from the aforecited decision of Edu v. Ericta sheds
light on the matter: "To avoid the taint of unlawful delegation, there must be a standard, which
implies at the very least that the legislature itself determines matters of principle and lays down
fundamental policy. Otherwise, the charge of complete abdication may be hard to repel A standard
thus defines legislative policy, marks its maps out its boundaries and specifies the public agency to
apply it. It indicates the circumstances under which the legislative command is to be effected. It is
the criterion by which legislative purpose may be carried out. Thereafter, the executive or
administrative office designated may in pursuance of the above guidelines promulgate
supplemental rules and regulations. The standard may be either express or implied. If the former,
the non-delegation objection is easily met. The standard though does not have to be spelled out
specifically. It could be implied from the policy and purpose of the act considered as a whole. In the
Reflector Law clearly, the legislative objective is public safety. What is sought to be attained as
in Calalang v. Williams is "safe transit upon the roads.' This is to adhere to the recognition given
expression by Justice Laurel in a decision announced not too long after the Constitution came into
force and effect that the principle of non-delegation "has been made to adapt itself to the
complexities of modern governments, giving rise to the adoption, within certain limits, of the
principle of "subordinate legislation" not only in the United States and England but in practically all
modern governments.' He continued: 'Accordingly, with the growing complexity of modern life, the
multiplication of the subjects of governmental regulation, and the increased difficulty of
administering the laws, there is a constantly growing tendency toward the delegation of greater
powers by the legislature and toward the approval of the practice by the courts.' Consistency with
the conceptual approach requires the reminder that what is delegated is authority non-legislative in
character, the completeness of the statute when it leaves the hands of Congress being assumed."
34

9. The conclusion reached by this Court that this petition must be dismissed is reinforced by this
consideration. The petition itself quoted these two whereas clauses of the assailed Letter of
Instruction: "[Whereas], the hazards posed by such obstructions to traffic have been recognized by
international bodies concerned with traffic safety, the 1968 Vienna Convention on Road Signs and
Signals and the United Nations Organization (U.N.); [Whereas], the said Vionna Convention, which
was ratified by the Philippine Government under P.D. No. 207, recommended the enactment of local
legislation for the installation of road safety signs and devices; * * * "
35
It cannot be disputed then
that this Declaration of Principle found in the Constitution possesses relevance: "The Philippines * *
* adopts the generally accepted principles of international law as part of the law of the land * *
*."
36
The 1968 Vienna Convention on Road Signs and Signals is impressed with such a character. It
is not for this country to repudiate a commitment to which it had pledged its word. The concept
of Pacta sunt servanda stands in the way of such an attitude, which is, moreover, at war with the
principle of international morality.
10. That is about all that needs be said. The rather court reference to equal protection did not even
elicit any attempt on the Part of Petitioner to substantiate in a manner clear, positive, and
categorical why such a casual observation should be taken seriously. In no case is there a more
appropriate occasion for insistence on what was referred to as "the general rule" in Santiago v. Far
Eastern Broadcasting Co.,
37
namely, "that the constitutionality of a law wig not be considered unless
the point is specially pleaded, insisted upon, and adequately argued."
38
"Equal protection" is not a
talismanic formula at the mere invocation of which a party to a lawsuit can rightfully expect that
success will crown his efforts. The law is anything but that.
WHEREFORE, this petition is dismissed. The restraining order is lifted. This decision is immediately
executory. No costs.
Castro, C.J., Barredo, Antonio, Santos, Fernandez, Guerrero, Abad Santos, De Castro and Melencio-
Herrera, concur.
Makasiar, J, reserves the right to file a separate opinion.
Aquino J., took no part.
Concepcion J., is on leave.
Castro, C.J., certifies that Justice Concepcion concurs in their decision.


Separate Opinions

TEEHANKEE, J., dissenting:
I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining
order issued on October 19, 1978 against the blanket enforcement of the requirement that all
motor vehicles be equipped with the so-called early warning device, without even hearing the
parties in oral argument as generally required by the Court in original cases of far-reaching
consequence such as the case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that the petition advances
grave and serious grounds of assailing "the rules and regulations issued by the Land Transportation
Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not
reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by
Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary,
confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society,"
because of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in
and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor
vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on
front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged
administrative order, whose effectivity and utility have yet to be demonstrated.
2. The public necessity for the challenged order has yet to be shown. No valid refutation has been
made of petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime
vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in
1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and
installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion
that "as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S
and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P
48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less burdensome alternative
road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum
lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways;
and
5. There is no imperative need for imposing such a bet requirement on all vehicles. The
respondents have not shown that they have availed of the powers and prerogatives vested in their
offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of
the deplorable -highway accidents due to stoned vehicles, establishing an honest and foolproof
system of examination and licensing of motor vehicle drivers so as to ban the reckless and
irresponsible and a sustained education campaign to instill safe driving habits and attitudes that
can be carried out for much less than the P 50 million burden that would be imposed by the
challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for
his civic mindedness in having filed the present petition g as capricious and unreasonable the "all
pervading police power" of the State instead of throwing the case out of court and leaving the
wrong impression that the exercise of police power insofar as it may affect the life, liberty and
property of any person is no longer subject to judicial inquiry.


# Separate Opinions
TEEHANKEE, J., dissenting:
I dissent from the majority's peremptory dismissal of the petition and lifting of the restraining
order issued on October 19, 1978 against the blanket enforcement of the requirement that all
motor vehicles be equipped with the so-called early warning device, without even hearing the
parties in oral argument as generally required by the Court in original cases of far-reaching
consequence such as the case at bar.
Lack of time presents my filing an extended dissent. I only wish to state that the petition advances
grave and serious grounds of assailing "the rules and regulations issued by the Land Transportation
Commission under Administrative Order No. 1 and Memorandum Circular No. 32 [which] do not
reflect the real intent, noble objectives and spirit of Letter of Instructions No. 229, as amended by
Letter of Instructions Nos. 479 and 716, because it is oppressive, unreasonable, arbitrary,
confiscatory, nay unconstitutional and contrary to the precepts of our compassionate New Society,"
because of the following considerations, inter alia:
1. It is oppressive, arbitrary and discriminatory to require owners of motor vehicles with built-in
and more effective and efficient E.W.D.'S such as "a) blinking lights in the fore and aft of said motor
vehicles, 1)) battery-powered blinking lights inside motor vehicles, c) built-in reflectorized tapes on
front and rear bumpers of motor vehicles....... to purchase the E.W.D. specified in the challenged
administrative order, whose effectivity and utility have yet to be demonstrated.
2. The public necessity for the challenged order has yet to be shown. No valid refutation has been
made of petitioner's assertion that the "E.W.D.'s are not too vital to the prevention of nighttime
vehicular accidents. Statistics shows that of the 26,000 motor vehicle accidents that occurred in
1976, only 390 or 1.5 per cent involved rear-end collisions," as to require the purchase and
installation of the questioned E.W.D. for almost 900,000 vehicles throughout the country;
3. The big financial burden to be imposed on all motorists is staggering, and petitioner's assertion
that "as of 1975, there were at least 865,037 motor vehicles all over the country requiring E.W.D.'S
and at the minimum price of 1156.00 per set, this would mean a consumer outlay of P
48,451,872.00, or close to P 50 million for the questioned E.W.D.'S "stands unchallenged;
4. No real effort has been made to show that there can be practical and less burdensome alternative
road safety devices for stalled vehicles than the prescribed E.W.D., such as the common petroleum
lamps "kinke" which can be placed just as effectively in front of stalled vehicles on the highways;
and
5. There is no imperative need for imposing such a bet requirement on all vehicles. The
respondents have not shown that they have availed of the powers and prerogatives vested in their
offices such as ridding the country of dilapidated trucks and vehicles which are the main cause of
the deplorable -highway accidents due to stoned vehicles, establishing an honest and foolproof
system of examination and licensing of motor vehicle drivers so as to ban the reckless and
irresponsible and a sustained education campaign to instill safe driving habits and attitudes that
can be carried out for much less than the P 50 million burden that would be imposed by the
challenged order.
I do feel that a greater "degree of receptivity and sympathy" could be extended to the petitioner for
his civic mindedness in having filed the present petition g as capricious and unreasonable the "all
pervading police power" of the State instead of throwing the case out of court and leaving the
wrong impression that the exercise of police power insofar as it may affect the life, liberty and
property of any person is no longer subject to judicial inquiry.














Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45892 July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
TRANQUILINO LAGMAN, defendant-appellant.
-----------------------------
G.R. No. L-45893 July 13, 1938
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
PRIMITIVO DE SOSA, defendant-appellant.
Severino P. Izon for appellants.
Office of the Solicitor-General Tuason for appellee.
AVANCEA, J.:
In these two cases (G.R. Nos. L-45892 and 45893), the appellants Tranquilino and Primitivo de Sosa
are charged with a violation of section 60 of Commonwealth Act No. 1, known as the National
Defense Law. It is alleged that these two appellants, being Filipinos and having reached the age of
twenty years in 1936, willfully and unlawfully refused to register in the military service between
the 1st and 7th of April of said year, notwithstanding the fact that they had been required to do so.
The evidence shows that these two appellants were duly notified by the corresponding authorities
to appear before the Acceptance Board in order to register for military service in accordance with
law, and that the said appellants, in spite of these notices, had not registered up to the date of the
filing of the information.
The appellants do not deny these facts, but they allege in defense that they have not registered in
the military service because Primitivo de Sosa is fatherless and has a mother and a brother eight
years old to support, and Tranquilino Lagman also has a father to support, has no military
learnings, and does not wish to kill or be killed.
Each of these appellants was sentenced by the Court of First Instance to one month and one day of
imprisonment, with the costs.
In this instance, the validity of the National Defense Law, under which the accused were sentenced,
is impugned on the ground that it is unconstitutional. Section 2, Article II of the Constitution of the
Philippines provides as follows:
SEC. 2. The defense of the state is a prime duty of government, and in the fulfillment of this
duty all citizens may be required by law to render personal military or civil service.
The National Defense Law, in so far as it establishes compulsory military service, does not go
against this constitutional provision but is, on the contrary, in faithful compliance therewith. The
duty of the Government to defend the State cannot be performed except through an army. To leave
the organization of an army to the will of the citizens would be to make this duty of the Government
excusable should there be no sufficient men who volunteer to enlist therein.1vvphl.nt
In the United States the courts have held in a series of decisions that the compulsory military
service adopted by reason of the civil war and the world war does not violate the Constitution,
because the power to establish it is derived from that granted to Congress to declare war and to
organize and maintain an army. This is so because the right of the Government to require
compulsory military service is a consequence of its duty to defend the State and is reciprocal with
its duty to defend the life, liberty, and property of the citizen. In the case of Jacobson vs.
Massachusetts (197 U.S., 11; 25 Sup. Ct. Rep., 385), it was said that, without violating the
Constitution, a person may be compelled by force, if need be, against his will, against his pecuniary
interests, and even against his religious or political convictions, to take his place in the ranks of the
army of his country, and risk the chance of being shot down in its defense. In the case of United
States vs. Olson (253 Fed., 233), it was also said that this is not deprivation of property without due
process of law, because, in its just sense, there is no right of property to an office or employment.
The circumstance that these decisions refer to laws enacted by reason on the actual existence of
war does not make our case any different, inasmuch as, in the last analysis, what justifies
compulsory military service is the defense of the State, whether actual or whether in preparation to
make it more effective, in case of need. The circumstance that the appellants have dependent
families to support does not excuse them from their duty to present themselves before the
Acceptance Board because, if such circumstance exists, they can ask for determent in complying
with their duty and, at all events, they can obtain the proper pecuniary allowance to attend to these
family responsibilities (secs. 65 and 69 of Commonwealth Act No. 1).
The appealed judgment rendered in these two cases is affirmed, with the costs to the appellants. So
ordered.
Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.









Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 119673 July 26, 1996
IGLESIA NI CRISTO, (INC.), petitioner,
vs.
THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOVING PICTURES AND
TELEVISION and HONORABLE HENRIETTA S. MENDOZA, respondents.

PUNO, J.:p
This is a petition for review of the Decision dated March 24, 1995 of the respondent Court of
Appeals affirming the action of the respondent Board of Review for Moving Pictures and Television
which x-rated the TV Program "Ang Iglesia ni Cristo."
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program
entitled "Ang Iglesia ni Cristo" aired on Channel 2 every Saturday and on Channel 13 every Sunday.
The program presents and propagates petitioner's religious beliefs, doctrines and practices often
times in comparative studies with other religions.
Sometime in the months of September, October and November 1992 petitioner submitted to the
respondent Board of Review for Moving Pictures and Television the VTR tapes of its TV program
Series Nos. 116, 119, 121 and 128. The Board classified the series as "X" or not for public viewing
on the ground that they "offend and constitute an attack against other religions which is expressly
prohibited by law."
Petitioner pursued two (2) courses of action against the respondent Board. On November 28, 1992,
it appealed to the Office of the President the classification of its TV Series No. 128. It succeeded in
its appeal for on December 18, 1992, the Office of the President reversed the decision of the
respondent Board. Forthwith, the Board allowed Series No. 128 to be publicly telecast.
On December 14, 1992, petitioner also filed against the respondent Board Civil Case No. Q-92-
14280, with the RTC, NCR Quezon City.
1
Petitioner alleged that the respondent Board acted without
jurisdiction or with grave abuse of discretion in requiring petitioner to submit the VTR tapes of its
TV program and in x-rating them. It cited its TV Program Series Nos. 115, 119, 121 and 128. In their
Answer, respondent Board invoked its power under PD No. 1986 in relation to Article 201 of the
Revised Penal Code.
On January 4, 1993, the trial court held a hearing on petitioner's prayer for a writ of preliminary
injunction. The parties orally argued and then marked their documentary evidence. Petitioner
submitted the following as its exhibits, viz.:
(1) Exhibit "A," respondent Board's Voting Slip for Television showing its September
9, 1992 action on petitioner's Series No. 115 as follows:
2

REMARKS:
There are some inconsistencies in the particular program as it is very surprising for
this program to show series of Catholic ceremonies and also some religious sects
and using it in their discussion about the bible. There are remarks which are direct
criticism which affect other religions.
Need more opinions for this particular program. Please subject to more opinions.
(2) Exhibit "A-1," respondent Board's Voting Slip for Television showing its
September 11, 1992 subsequent action on petitioner's Series No. 115 as follows:
3

REMARKS:
This program is criticizing different religions, based on their own interpretation of
the Bible.
We suggest that the program should delve on explaining their own faith and beliefs
and avoid attacks on other faith.
(3) Exhibit "B," respondent Board's Voting Slip for Television showing its October 9,
1992 action on petitioner's Series No. 119, as follows:
4

REMARKS:
The Iglesia ni Cristo insists on the literal translation of the bible and says that our
(Catholic) veneration of the Virgin Mary is not to be condoned because nowhere it is
found in the bible that we should do so.
This is intolerance and robs off all sects of freedom of choice, worship and decision.
(4) Exhibit "C," respondent Board's Voting Slip for Television showing its October
20, 1992 action on petitioner's Series No. 121 as follows:
5

REMARKS:
I refuse to approve the telecast of this episode for reasons of the attacks, they do on,
specifically, the Catholic religion.
I refuse to admit that they can tell, dictate any other religion that they are right and
the rest are wrong, which they clearly present in this episode.
(5) Exhibit "D," respondent Board's Voting Slip for Television showing its November
20, 1992 action on petitioner's Series No. 128 as follows:
6

REMARKS:
The episode presented criticizes the religious beliefs of the Catholic and Protestant's
beliefs.
We suggest a second review.
(6) Exhibits "E," "E-1," petitioner's block time contract with ABS-CBN Broadcasting
Corporation dated September 1, 1992.
7

(7) Exhibit "F," petitioner's Airtime Contract with Island Broadcasting Corporation.
8

(8) Exhibit "G," letter dated December 18, 1992 of former Executive Secretary
Edelmiro A. Amante, Sr., addressed for Henrietta S. Mendez reversing the decision of
the respondent Board which x-rated the showing of petitioner's Series No. 129. The
letter reads in part:
xxx xxx xxx
The television episode in question is protected by the constitutional
guarantee of free speech and expression under Article III, section 4
of the 1987 Constitution.
We have viewed a tape of the television episode in question, as well
as studied the passages found by MTRCB to be objectionable and we
find no indication that the episode poses any clear and present
danger sufficient to limit the said constitutional guarantee.
(9) Exhibits "H," "H-1," letter dated November 26, 1992 of Teofilo C. Ramos, Sr.,
addressed to President Fidel V. Ramos appealing the action of the respondent Board
x-rating petitioner's Series No. 128.
On its part, respondent Board submitted the following exhibits, viz.:
(1) Exhibit "1," Permit Certificate for Television Exhibition No. 15181 dated
December 18, 1992 allowing the showing of Series No. 128 under parental guidance.
(2) Exhibit "2," which is Exhibit "G" of petitioner.
(3) Exhibit "3," letter dated October 12, 1992 of Henrietta S. Mendez, addressed to
the Christian Era Broadcasting Service which reads in part:
xxx xxx xxx
In the matter of your television show "Ang Iglesia ni Cristo" Series
No. 119, please be informed that the Board was constrained to deny
your show a permit to exhibit. The material involved constitute an
attack against another religion which is expressly prohibited by
law. Please be guided in the submission of future shows.
After evaluating the evidence of the parties, the trial court issued a writ of preliminary
injunction on petitioner's bond o P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs.
9
The pre-
trial briefs show that the parties' evidence is basically the evidence they submitted in the hearing of
the issue of preliminary injunction. The trial of the case was set and reset several times as the
parties tried to reach an amicable accord. Their efforts failed and the records show that after
submission of memoranda, the trial court rendered a Judgment,
10
on December 15, 1993, the
dispositive portion of which reads:
xxx xxx xxx
WHEREFORE, judgment is hereby rendered ordering respondent Board of Review
for Moving Pictures and Television (BRMPT) to grant petitioner Iglesia ni Cristo the
necessary permit for all the series of "Ang Iglesia ni Cristo" program.
Petitioner Iglesia ni Cristo, however, is directed to refrain from offending and
attacking other existing religions in showing "Ang Iglesia ni Cristo" program.
SO ORDERED.
Petitioner moved for reconsideration
11
praying: (a) for the deletion of the second paragraph of the
dispositive portion of the Decision, and (b) for the Board to be perpetually enjoined from requiring
petitioner to submit for review the tapes of its program. The respondent Board opposed the
motion.
12
On March 7, 1993, the trial court granted petitioner's Motion for Reconsideration. It
ordered:
13

xxx xxx xxx
WHEREFORE, the Motion for Reconsideration is granted. The second portion of the
Court's Order dated December 15, 1993, directing petitioner to refrain from
offending and attacking other existing religions in showing "Ang Iglesia ni Cristo"
program is hereby deleted and set aside. Respondents are further prohibited from
requiring petitioner Iglesia ni Cristo to submit for review VTR tapes of its religious
program "Ang Iglesia ni Cristo."
Respondent Board appealed to the Court of Appeals after its motion for reconsideration was
denied.
14

On March 5, 1995, the respondent Court of Appeals
15
reversed the trial court. It ruled that: (1) the
respondent board has jurisdiction and power to review the TV program "Ang Iglesia ni Cristo," and
(2) the respondent Board did not act with grave abuse of discretion when it denied permit for the
exhibition on TV of the three series of "Ang Iglesia ni Cristo" on the ground that the materials
constitute an attack against another religion. It also found the series "indecent, contrary to law and
contrary to good customs.
In this petition for review on certiorari under Rule 45, petitioner raises the following issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT THE "ANG IGLESIA NI CRISTO" PROGRAM IS NOT CONSTITUTIONALLY
PROTECTED AS A FORM OF RELIGIOUS EXERCISE AND EXPRESSION.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT
HOLDING THAT BEING AN EXERCISE OF RELIGIOUS FREEDOM, THE "ANG IGLESIA
NI CRISTO" PROGRAM IS SUBJECT TO THE POLICE POWER OF THE STATE ONLY IN
THE EXTREME CASE THAT IT POSES A CLEAR AND PRESENT DANGER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT THE MTRCB IS VESTED WITH THE POWER TO CENSOR RELIGIOUS
PROGRAMS.
IV
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING
THAT THE "ANG IGLESIA NI CRISTO," A PURELY RELIGIOUS PROGRAM IS
INDECENT AND CONTRARY TO LAW AND GOOD CUSTOMS.
The basic issues can be reduced into two: (1) first, whether the respondent Board has the power to
review petitioner's TV program "Ang Iglesia ni Cristo," and (2) second, assuming it has the power,
whether it gravely abused its discretion when it prohibited the airing of petitioner's religious
program, series Nos. 115, 119 and 121, for the reason that they constitute an attack against other
religions and that they are indecent, contrary to law and good customs.
The first issue can be resolved by examining the powers of the Board under PD No. 1986. Its section
3 pertinently provides:
Sec. 3 Powers and Functions. -- The BOARD shall have the following functions,
powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-
theatrical distribution for television broadcast or for general viewing, imported or
produced in the Philippines and in the latter case, whether they be for local viewing
or for export.
c) To approve, delete objectionable portion from and/or prohibit the importation,
exportation, production, copying, distribution, sale, lease, exhibition and/or
television broadcast of the motion pictures, television programs and publicity
materials, subject of the preceding paragraph, which, in the judgment of the BOARD
applying contemporary Filipino cultural values as standard, are objectionable for
being immoral, indecent, contrary to law and/or good customs, injurious to the
prestige of the Republic of the Philippines and its people, or with a dangerous
tendency to encourage the commission of violence or of a wrong or crime, such as
but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or
sedition against the State, or otherwise threaten the economic
and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the
people, their government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for
violence or pornography;
v) Those which tend to abet the traffic in and use of prohibited
drugs;
vi) Those which are libelous or defamatory to the good name and
reputation of any person, whether living or dead;
vii) Those which may constitute contempt of court or of any quasi-
judicial tribunal, or pertain to matters which are subjudice in nature
(emphasis ours).
The law gives the Board the power to screen, review and examine all "television programs."
By the clear terms of the law, the Board has the power to "approve, delete . . . and/or
prohibit the . . . exhibition and/or television broadcast of . . . television programs . . ." The
law also directs the Board to apply "contemporary Filipino cultural values as standard" to
determine those which are objectionable for being "immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the Republic of the Philippines and its
people, or with a dangerous tendency to encourage the commission of violence or of a
wrong or crime."
Petitioner contends that the term "television program" should not include religious programs like
its program "Ang Iglesia ni Cristo." A contrary interpretation, it is urged, will contravene section 5,
Article III of the Constitution which guarantees that "no law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment
of religious profession and worship, without discrimination or preference, shall forever be
allowed."
We reject petitioner's submission which need not set us adrift in a constitutional voyage towards an
uncharted sea. Freedom of religion has been accorded a preferred status by the framers of our
fundamental laws, past and present. We have affirmed this preferred status well aware that it is
"designed to protect the broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good."
16
We have also laboriously defined in our
jurisprudence the intersecting umbras and penumbras of the right to religious profession and
worship. To quote the summation of Mr. Justice Isagani Cruz, our well-known constitutionalist:
1
7
Religious Profession and Worship
The right to religious profession and worship has a two-fold aspect, viz., freedom to
believe and freedom to act on one's beliefs. The first is absolute as long as the belief
is confined within the realm of thought. The second is subject to regulation where the
belief is translated into external acts that affect the public welfare.
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the
hereafter. He may indulge his own theories about life and death; worship any god he
chooses, or none at all; embrace or reject any religion; acknowledge the divinity of
God or of any being that appeals to his reverence; recognize or deny the immortality
of his soul -- in fact, cherish any religious conviction as he and he alone sees fit.
However absurd his beliefs may be to others, even if they be hostile and heretical to
the majority, he has full freedom to believe as he pleases. He may not be required to
prove his beliefs. He may not be punished for his inability to do so. Religion, after all,
is a matter of faith. "Men may believe what they cannot prove." Every one has a right
to his beliefs and he may not be called to account because he cannot prove what he
believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions that affect the
public, his freedom to do so becomes subject to the authority of the State. As great as
this liberty may be, religious freedom, like all the other rights guaranteed in the
Constitution, can be enjoyed only with a proper regard for the rights of others. It is
error to think that the mere invocation of religious freedom will stalemate the State
and render it impotent in protecting the general welfare. The inherent police power
can be exercised to prevent religious practices inimical to society. And this is true
even if such practices are pursued out of sincere religious conviction and not merely
for the purpose of evading the reasonable requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: "The constitutional provision on religious
freedom terminated disabilities, it did not create new privileges. It gave religious
liberty, not civil immunity. Its essence is freedom from conformity to religious dogma,
not freedom from conformity to law because of religious dogma.
Accordingly, while one has lull freedom to believe in Satan, he may not offer the
object of his piety a human sacrifice, as this would be murder. Those who literally
interpret the Biblical command to "go forth and multiply" are nevertheless not
allowed to contract plural marriages in violation of the laws against bigamy. A
person cannot refuse to pay taxes on the ground that it would be against his
religious tenets to recognize any authority except that of God alone. An atheist
cannot express in his disbelief in act of derision that wound the feelings of the
faithful. The police power can validly asserted against the Indian practice of
the suttee, born of deep religious conviction, that calls on the widow to immolate
herself at the funeral pile of her husband.
We thus reject petitioner's postulate that its religious program is per se beyond review by the
respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of
internal belief. Television is a medium that reaches even the eyes and ears of children. The Court
iterates the rule that the exercise of religious freedom can be regulated by the State when it will
bring about the clear and present danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or
public welfare. A laissez faire policy on the exercise of religion can be seductive to the liberal mind
but history counsels the Court against its blind adoption as religion is and continues to be a volatile
area of concern in our country today. Across the sea and in our shore, the bloodiest and bitterest
wars fought by men were caused by irreconcilable religious differences. Our country is still not safe
from the recurrence of this stultifying strife considering our warring religious beliefs and the
fanaticism with which some of us cling and claw to these beliefs. Even now, we have yet to settle the
near century old strife in Mindanao, the roots of which have been nourished by the mistrust and
misunderstanding between our Christian and Muslim brothers and sisters. The bewildering rise of
weird religious cults espousing violence as an article of faith also proves the wisdom of our rule
rejecting a strict let alone policy on the exercise of religion. For sure, we shall continue to subject any
act pinching the space for the free exercise of religion to a heightened scrutiny but we shall not leave
its rational exercise to the irrationality of man. For when religion divides and its exercise destroys, the
State should not stand still.
It is also petitioner's submission that the respondent appellate court gravely erred when it affirmed
the ruling of the respondent Board x-rating its TV Program Series Nos. 115, 119, 121 and 128. The
records show that the respondent Board disallowed the program series for "attacking" other
religions. Thus, Exhibits "A," "A-1," (respondent Board's Voting Slip for Television) reveal that its
reviewing members x-rated Series 115 for ". . . criticizing different religions, based on their own
interpretation of the Bible." They suggested that the program should only explain petitioner's ". . .
own faith and beliefs and avoid attacks on other faiths." Exhibit "B" shows that Series No. 119 was
x-rated because "the Iglesia ni Cristo insists on the literal translation of the bible and says that our
Catholic veneration of the Virgin Mary is not to be condoned because nowhere it is found in the
bible that we should do so. This is intolerance . . ." Exhibit "C" shows that Series No. 121 was x-rated
". . . for reasons of the attacks, they do on, specifically, the Catholic religion. . . . (T)hey can not tell,
dictate any other religion that they are right and the rest are wrong
. . ." Exhibit "D" also shows that Series No. 128 was not favorably recommended because it ". . .
outrages Catholic and Protestant's beliefs." On second review, it was x-rated because of its
"unbalanced interpretations of some parts of the bible."
18
In sum, the respondent Board x-rated
petitioner's TV program series Nos. 115, 119, 121 and 128 because of petitioner's controversial
biblical interpretations and its "attacks" against contrary religious beliefs. The respondent appellate
court agreed and even held that the said "attacks" are indecent, contrary to law and good customs.
We reverse the ruling of the appellate court.
First. Deeply ensconced in our fundamental law is its hostility against all prior restraints on speech,
including religious speech. Hence, any act that restrains speech is hobbled by the presumption of
invalidity and should be greeted with furrowed brows.
19
It is the burden of the respondent Board
to overthrow this presumption. If it fails to discharge this burden, its act of censorship will be
struck down. It failed in the case at bar.
Second. The evidence shows that the respondent Board x-rated petitioners TV series for "attacking"
either religions, especially the Catholic church. An examination of the evidence, especially Exhibits
"A," "A-1," "B," "C," and "D" will show that the so-called "attacks" are mere criticisms of some of the
deeply held dogmas and tenets of other religions. The videotapes were not viewed by the
respondent court as they were not presented as evidence. Yet they were considered by the
respondent court as indecent, contrary to law and good customs, hence, can be prohibited from
public viewing under section 3(c) of PD 1986. This ruling clearly suppresses petitioner's freedom of
speech and interferes with its right to free exercise of religion. It misappreciates the essence of
freedom to differ as delineated in the benchmark case of Cantwell v. Connecticut, so viz.:
20

xxx xxx xxx
In the realm of religious faith, and in that of political belief, sharp differences arise.
In both fields, the tenets of one man may seem the rankest error to his neighbor. To
persuade others to his own point of view, the pleader, as we know, at times, resorts
to exaggeration, to vilification of men who have been, or are prominent in church or
state or even to false statements. But the people of this nation have ordained in the
light of history that inspite of the probability of excesses and abuses, these liberties
are, in the long view, essential to enlightened opinion and right conduct on the part
of the citizens of democracy.
The respondent Board may disagree with the criticisms of other religions by petitioner but
that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our
constitutional scheme, it is not the task of the State to favor any religion by protecting it
against an attack by another religion. Religious dogmas and beliefs are often at war and to
preserve peace among their followers, especially the fanatics, the establishment clause of
freedom of religion prohibits the State from leaning towards any religion. Vis-a-vis religious
differences, the State enjoys no banquet of options. Neutrality alone is its fixed and
immovable stance. In fine, respondent board cannot squelch the speech of petitioner Iglesia
ni Cristo simply because it attacks other religions, even if said religion happens to be the
most numerous church in our country. In a State where there ought to be no difference
between the appearance and the reality of freedom of religion, the remedy against bad
theology is better theology. The bedrock of freedom of religion is freedom of thought and it
is best served by encouraging the marketplace of dueling ideas. When the luxury of time
permits, the marketplace of ideas demands that speech should be met by more speech for it
is the spark of opposite speech, the heat of colliding ideas that can fan the embers of truth.
Third. The respondents cannot also rely on the ground "attacks against another religion" in x-rating
the religious program of petitioner. Even a sideglance at section 3 of PD No. 1986 will reveal that it
is not among the grounds to justify an order prohibiting the broadcast of petitioner's television
program. The ground "attack against another religion" was merely added by the respondent Board
in its Rules.
21
This rule is void for it runs smack against the hoary doctrine that administrative rules
and regulations cannot expand the letter and spirit of the law they seek to enforce.
It is opined that the respondent board can still utilize" attack against any religion" as a ground
allegedly ". . . because section 3 (c) of PD No. 1986 prohibits the showing of motion pictures,
television programs and publicity materials which are contrary to law and Article 201 (2) (b) (3) of
the Revised Penal Code punishes anyone who exhibits "shows which offend any race or religion."
We respectfully disagree for it is plain that the word "attack" is not synonymous with the word
"offend." Moreover, Article 201 (2) (b) (3) of the Revised Penal Code should be invoked to justify
the subsequent punishment of a show which offends any religion. It cannot be utilized to justifyprior
censorship of speech. It must be emphasized that E.O. 876, the law prior to PD 1986, included
"attack against any religion" as a ground for censorship. The ground was not, however, carried over
by PD 1986. Its deletion is a decree to disuse it. There can be no other intent. Indeed, even the
Executive Department espouses this view.
Thus, in an Opinion dated November 28, 1985 then Minister of Justice, now President of the
Senate, Neptali Gonzales explained:
xxx xxx xxx
However, the question whether the BRMPT (now MTRCB) may preview and censor
the subject television program of INC should be viewed in the light of the provision
of Section 3, paragraph (c) of PD 1986, which is substantially the same as the
provision of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the
standards of censorship, to wit: "immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines or its people or
with dangerous tendency to encourage the commission of violence, or of a wrong"
as determined by the Board, "applying contemporary Filipino cultural values as
standard." As stated, the intention of the Board to subject the INC's television
program to "previewing and censorship is prompted by the fact that its religious
program makes mention of beliefs and practices of other religion." On the face of the
law itself, there can conceivably be no basis for censorship of said program by the
Board as much as the alleged reason cited by the Board does not appear to he within
the contemplation of the standards of censorship set by law. (Emphasis supplied).
Fourth. In x-rating the TV program of the petitioner, the respondents failed to apply the clear and
present danger rule. In American Bible Society v. City of Manila,
22
this Court held: "The constitutional
guaranty of free exercise and enjoyment of religious profession and worship carries with it the right
to disseminate religious information. Any restraint of such right can be justified like other
restraints on freedom of expression on the ground that there is a clear and present danger of any
substantive evil which the State has the right to prevent." In Victoriano vs. Elizalde Rope Workers
Union,
23
we further ruled that ". . . it is only where it is unavoidably necessary to prevent
an immediate and grave danger to the security and welfare of the community that infringement of
religious freedom may be justified, and only to the smallest extent necessary to avoid the danger."
The records show that the decision of the respondent Board, affirmed by the respondent appellate
court, is completely bereft of findings of facts to justify the conclusion that the subject video tapes
constitute impermissible attacks against another religion. There is no showing whatsoever of
the type of harm the tapes will bring about especially the gravity and imminence of the threatened
harm. Prior restraint on speech, including religious speech, cannot be justified by hypothetical fears
but only by the showing of a substantive and imminent evil which has taken the life of a reality already
on ground.
It is suggested that we re-examine the application of clear and present danger rule to the case at
bar. In the United States, it is true that the clear and present danger test has undergone
permutations. It was Mr. Justice Holmes who formulated the test in Schenck v. US,
24
as follows: ". . .
the question in every case is whether the words used are used in such circumstances and are of
such a nature as to create a clear and present danger that they will bring about the substantive evils
that Congress has a right to prevent." Admittedly, the test was originally designed to determine the
latitude which should be given to speech that espouses anti-government action. Bannered by
Justices Holmes and Brandeis, the test attained its full flowering in the decade of the forties, when
its umbrella was used to protect speech other than subversive speech.
25
Thus, for instance, the test
was applied to annul a total ban on labor picketing.
26
The use of the test took a downswing in the
1950's when the US Supreme Court decided Dennis v. United States involving communist
conspiracy.
2
7 In Dennis, the components of the test were altered as the High Court adopted Judge
Learned Hand's formulation that ". . . in each case [courts] must ask whether the gravity of the 'evil,'
discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the
danger." The imminence requirement of the test was thus diminished and to that extent, the
protection of the rule was weakened. In 1969, however, the strength of the test was reinstated in
Brandenburg v. Ohio,
28
when the High Court restored in the test the imminence requirement, and
even added an intent requirement which according to a noted commentator ensured that only
speech directed at inciting lawlessness could be punished.
29
Presently in the United States, the clear
and present danger test is not applied to protect low value speeches such as obscene speech,
commercial speech and defamation. Be that as it may, the test is still applied to four types of speech:
speech that advocates dangerous ideas, speech that provokes a hostile audience reaction, out of
court contempt and release of information that endangers a fair trial.
30
Hence, even following the
drift of American jurisprudence, there is reason to apply the clear and present danger test to the
case at bar which concerns speech that attacks other religions and could readily provoke hostile
audience reaction. It cannot be doubted that religious truths disturb and disturb tenribly.
It is also opined that it is inappropriate to apply the clear and present danger test to the case at bar
because the issue involves the content of speech and not the time, place or manner of speech.
Allegedly, unless the speech is first allowed, its impact cannot be measured, and the causal
connection between the speech and the evil apprehended cannot be established. The contention
overlooks the fact that the case at bar involves videotapes that are pre-taped and hence, their
speech content is known and not an X quantity. Given the specific content of the speech, it is not
unreasonable to assume that the respondent Board, with its expertise, can determine whether its
sulphur will bring about the substantive evil feared by the law.
Finally, it is also opined by Mr. Justice Kapunan that ". . . the determination of the question as to
whether or not such vilification, exaggeration or fabrication falls within or lies outside the
boundaries of protected speech or expression is a judicial function which cannot be arrogated by an
administrative body such as a Board of Censors." He submits that a "system of prior restraint
may only be validly administered by judges and not left to administrative agencies. "The same
submission is made by Mr. Justice Mendoza.
This thoughtful thesis is an attempt to transplant another American rule in our jurisdiction. Its
seedbed was laid down by Mr. Justice Brennan in his concurring opinion in the 1962 case of Manual
Enterprise v. Day
31
By 1965, the US Supreme Court in Freedman v. Maryland
32
was ready to hold
that "the teaching of cases is that, because only a judicial determination in an adversary proceeding
ensures the necessary sensitivity to freedom of expression only a procedure requiring a judicial
determination suffices to impose a valid final restraint."
33

While the thesis has a lot to commend itself, we are not ready to hold that it is unconstitutional for
Congress to grant an administrative body quasi-judicial power to preview and classify TV programs
and enforce its decisionsubject to review by our courts. As far back as 1921, we upheld this set-up
in Sotto vs. Ruiz,
34
viz.:
The use of the mails by private persons is in the nature of a privilege which can be
regulated in order to avoid its abuse. Persons posses no absolute right to put into
the mail anything they please, regardless of its character.
On the other hand, the exclusion of newspaper and other publications from the
mails, in the exercise of executive power, is extremely delicate in nature and can
only be justified where the statute is unequivocably applicable to the supposed
objectionable publication. In excluding any publication for the mails, the object
should be not to interfere with the freedom of the press or with any other
fundamental right of the people. This is the more true with reference to articles
supposedly libelous than to other particulars of the law, since whether an article is
or is not libelous, is fundamentally a legal question. In order for there to be due
process of law, the action of the Director of Posts must be subject to revision by the
courts in case he had abused his discretion or exceeded his authority. (Ex
parte Jackson [1878], 96 U.S., 727;
Public Cleaning House vs. Coyne [1903], 194 U.S., 497; Post Publishing
Co. vs. Murray [1916]. 23 - Fed., 773)
As has been said, the performance of the duty of determining whether a publication
contains printed matter of a libelous character rests with the Director of Posts and
involves the exercise of his judgment and discretion. Every intendment of the law is in
favor of the correctness of his action. The rule is (and we go only to those cases
coming from the United States Supreme Court and pertaining to the United States
Postmaster-General), that the courts will not interfere with the decision of the
Director of Posts unless clearly of opinion that it was wrong. (Bates & Guilid Co. vs.
Payne [1904], 194 U.S., 106; Smith vs. Hitchcock [1912], 226 U.S., 63; Masses Pub.
Co. vs. Patten [1917], 246 Fed., 24. But see David vs. Brown [1900], 103 Fed., 909,
announcing a somewhat different doctrine and relied upon by the Attorney-
General).
To be sure, legal scholars in the United States are still debating the proposition whether or
not courts aloneare competent to decide whether speech is constitutionally
protected.
35
The issue involves highly arguable policy considerations and can be better
addressed by our legislators.
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals dated March 24, 1995 is
affirmed insofar as it sustained the jurisdiction of the respondent MTRCB to review petitioner's TV
program entitled "Ang Iglesia ni Cristo," and is reversed and set aside insofar as it sustained the
action of the respondent MTRCB x-rating petitioner's TV Program Series Nos. 115, 119, and 121. No
costs.
SO ORDERED.
Regalado, Davide, Jr., Romero and Francisco, JJ., concur.
Narvasa, C.J., concurs in the result.



Separate Opinions

PANGANIBAN, J., concurring:
I think the basic issues in this case are:
A. What is the statutory extent and the constitutional limitation of the powers of the Movies and
Television Review and Classification Board (MTRCB)? More specifically, does the MTRCB have the
power to prohibit/ censor television shows?
B. In banning the television showing of the Iglesia ni Cristo videotape series, did the respondent
Board exercise its powers correctly and properly?
The first question deals with the general legal concepts and principles underlying the functions and
prerogatives of the MTRCB while the second calls for a juridical evaluation of the specific act of the
Board in classifying as "X" (or not for public viewing) specific pre-taped or canned programs,
identified as Series 115, 119, 121 and 128, for the reason that they allegedly constituted an "attack
against another religion." The first involves doctrine; the second, application.
A. EXTENT AND LIMIT OF
MTRCB'S POWERS
The statutory powers of the MTRCB are set forth in Sec. 3 of P.D.
1986.
1

In implementing P.D. 1986. the MTRCB issued its own Rules and Regulations. At issue in this case is
Section 4
2
of such Rules.
On the other hand, these statutory powers and internally generated regulations are limited by the
Bill of Rights. Art. III of the 1987 Constitution, particularly the rights to free speech and religion.
Mr. Justice Mendoza connects the above constitutional rights with the present controversy by
saying that "expression . . . by means of television broadcast is included in the free speech and free
press guarantee of the Constitution" and by Mr. Justice Kapunan by writing that this "case uniquely
interphases questions of religious expression and censorship laws in the context of the
constitution's guarantees of freedom of religion and of speech and expression."
Here before us therefore is a classic constitutional law case wherein the inherent power of the state
to safeguard the peace, well-being and general welfare of the people collide and clash with the
constitutional rights of individuals and religious institutions to evangelize, preach, promote, teach,
and even proselytize.
Religious Freedom -- A Cherished Right
FIRST, I agree with the ponencia that "(f)reedom of religion has been accorded a preferred status by
the framers of our fundamental laws, past and present." Religious freedom is absolute when it is
confined within the realm of thought to a private, personal relationship between a man's
conscience and his God, but it is subject to regulation when religious belief is transformed into
external acts that affect or afflict others. The mere invocation of religious freedom will not
stalemate the State and ipso facto render it incompetent in preserving the rights of others and in
protecting the general welfare.
MTRCB's Power to Review and to Censor is Valid
SECOND, I believe that as an agency of the State created to promote the general welfare, the MTRCB
under P.D. 1986 has the basic initiatory authority and power to -
"approve or disapprove,
delete objectionable portion from
and/or prohibit
the importation, exportation, production, copying, distribution, sale, lease, exhibition
and/or television broadcast" of pre-taped or canned (as contra-distinguished from "live")
video-audio/film/television programs and publicity materials. I regret I cannot go along
with Mr. Justice Mendoza's avante garde thesis that Section 3-c of P.D. 1986, from where the
above-quoted words were taken, is "upon its face and as applied, unconstitutional." I note
the extensive materials, particularly from American cases, buttressing his cogent stand, but,
after reflection, prayer and discernment. I am thoroughly convinced that the situation in our
country, particularly the totality of our cultural and religious milieu is far different from that
in America.
Petitioner INC contends that the MTRCB's authority extends only to non-religious video materials
but not to religious programs, particularly those of INC, which it claims are neither "immoral" nor
"indecent". This position presents more problems than solutions. For who will determine whether a
given canned material is religious or not, and therefore whether it can be publicly exhibited or not
without its passing through the Board? I would prefer that the State, which is constitutionally
mandated to be neutral, continue to exercise the power to make such determination, rather than
leave it up to the producer, maker or exhibitor of such material, who/which, because of vested
interests would, in the normal course, be understandably biased in his/its own favor. I feel less
discomfort with the idea of maintaining the censors' quasi-judicial authority to review such film
materials, subject to appeal to the proper courts by aggrieved parties, than with the prospect and
consequences of doing away with such power altogether. I agree with Mr. Justice Vitug in finding "it
more prudent to have a deferment of an exhibition that may be perceived (by the Board) to be
contrary to decency, morality, good custom or the law until, at least, the courts are given an
opportunity to pass upon the matter . . ." A contrary ruling would most regrettably remove
meaningful and necessary safeguards against a veritable floodtide of prurient, violence-prone and
values-eroding television shows and programs.
In Gonzales vs. Kalaw Katigbak
4
and Eastern Broadcasting Corp. (DYRE) vs. Dans, Jr.,
5
this Court
early on acknowledged the uniquely pervasive presence of broadcast and electronic media in the
lives of everyone, and the easy accessibility of television and radio to just about anyone, especially
children. Everyone is susceptible to their influence, even "the indifferent or unwilling who happen
to be within reach of a blaring radio or television set."
6
And these audiences have less opportunity
to cogitate, analyze and reject the utterances, compared to readers of printed material.
7
It is
precisely because the State as parens patriae is "called upon to manifest an attitude of caring for the
welfare of the young"
8
that I vote for the retention of the State's power of review and prohibition
via the MTRCB. High-minded idealism in the staunch defense of the much-vaunted freedoms cannot
but be admired. Yet, no matter how devoutly we may wish it, not all the people share the same
mindset and views nor, needless to say, the same viewpoint, i.e., the ivory tower window. Hence, we
must prudently anticipate that abuses against the public weal are likely to be committed where
absolute permissiveness is the norm. Would that, with the total absence of censorship or review,
there occur a significant increase in religious, spiritual or morally uplifting prime-time
programming! But realistically and pragmatically speaking, we see mostly the prospect of more
explicit sex-oriented advertising, unadulterated violence and outright pandering to phone-sex
addicts and the simply curious. The fact that even the Net is not free of pornographic slime is no
excuse to let down all reasonable barriers against broadcast media offerings of muck, moral
depravity and mayhem. And definitely, there is no good and sensible reason for the State to
abdicate its vital role as parens patriae, in the guise of copying American constitutional precedents,
which I respectfully submit, are inapplicable in our factual context and time.
MTRCB Must Use Constitutional Standard
THIRD. In exercising its prerogatives, the MTRCB cannot act absolutely or whimsically. It must
act prudently. And it can do so ONLY if it exercizes its powers of review and prohibition according to
a standard and/or a limit.
I believe that the phrase "with a dangerous tendency" in Sec. 3-c of P.D. 1986 should be struck
down as an unconstitutional standard. This is martial law vintage and should be replaced with the
more libertarian "clear and present danger rule" which is eloquently esplained by JJ. Kapunan, Puno
and Mendoza (and which explanation I shall not repeat here).
Having said that, may I respectfully point out however that there is an even more appropriate
standard in thePhilippine context proffered by the law itself, and that is "contemporary Philippine
cultural values." This standard under the law, should be used in determining whether a film or
video program is "(a) immoral, (b) indecent, (c) contrary to law and/or good custom, and (d)
injurious to the prestige of the Republic of the Philippines or its people." On the other hand, when
the question is whether the material being reviewed "encourages the commission of violence or of a
wrong or crime" per the enumeration contained in Sec. 3-c, the "clear and present danger" principle
should be applied as the standard in place of the "dangerous tendency" rule.
Just a word edgewise about cultural values. Our cultural ideals and core values of galang,
pagbabahala, pananagutan, balikatan, malasakit, asal, halaga, diwa, damdamin, dangal, kapwa,
pakikitungo, hiya, delikadesa, awa, tiwala, maka-Diyos, maka-tao, maka-buhay and so forth, define us
as a people, as Filipinos. We are who and what we are because of these values and ideals. They
delimit the areas of individual and social behavior and conduct deemed acceptable or tolerable, and
ultimately they determine the way we as individuals uniquely conduct our relationships and
express ourselves. According to Mr. Justice Kapunan, applying contemporary Filipino values to
religious thought and expression will permit an "overarching" into a constitutionally protected
area, and provides the MTRCB with a veiled excuse for clamping down against unorthodox religious
thought and expression. But such fear is highly speculative and totally unsupported by empirical
evidence. I would like to add that where a mode of religious expression runs counter to such core
values, serious questions have to be raised about the ultimate redeeming worth of such expression.
An example is in order. Not too long ago, the so-called "Children of God" blew into town, and, under
the guise of proselytizing, practised "flirty-fishing" (free sex). I wonder how many of us will simply
sit on our hands if these "Children" were to telecast their religious programs for OUR children to
watch, or conduct seminars over the airwaves on the hows of free sex . . . Another example: satanic
cults involve blood sacrifices . . . In brief, I am in agreement with the ponencia that the practice of
religion cannot be totally abandoned to the market place and governed by the policy of laissez faire.
Validity of MTRCB's Internal Rule
FOURTH. Anent the validity of Sec. 4 of the Board's Rules and Regulation authorizing MTRCB to
prohibit the showing of materials "which clearly constitute an attack against any race, creed or
religion . . .", I agree with Mr. Justice Vitug that the phrase "contrary to law" in Sec. 3-c "should be
read together with other existing laws such as, for instance, the provisions of the Revised Penal
Code, particularly Article 201, which prohibit the exhibition of shows that 'offend another race or
religion.'" Indeed, where it can be shown that there is a clear and present danger that a religious
program could agitate or spark a religious strife of such extent and magnitude as to be injurious to
the general welfare, the Board may "X-rate" it or delete such portions as may reasonably be
necessary. The debilitating armed conflicts in Bosnia, Northern Ireland and in some Middle East
countries due to exacerbated religious antagonisms should be enough lesson for all of us. Religious
wars can be more ravaging and damaging than ordinary crimes. If it is legal and in fact
praiseworthy to prevent the commission of, say, the felony of murder in the name of public welfare
why should the prevention of a crime punishable by Art. 201 of the Penal Code be any less legal and
less praiseworthy.
I note, in this connection, the caveat raised by the ponencia that the MTRCB Rule bans shows which
"attack" a religion, whereas Art. 201 merely penalize; those who exhibit programs which "offend"
such religion. Subject to changing the word "attack" with the more accurate "offend". I believe
Section 4 of the Rules can stand.
In sum, I respectfully submit (1) that P.D. 1986 is constitutional, subject to the substitution (or
interpretation) of the words "dangerous tendency" with the phrase (or as meaning) "clear and
present danger" in Sec. 3-c: and (2) that Sec. 4 of the Board's Rules would be likewise valid,
providcd the words "constitute an attack" are changed with "offend"
B. WAS THE BANNING OF THE IGLESIA
PROGRAMS PROPER?
We now come to the immediate question: Did the respondent Board correctly apply Section 3 of
P.D. 1986 in prohibiting the public telecasting of the Iglesia program. In short, did the INC series
"offend" a religion? Juridically stated, did the respondent MTRCB use "contemporary Filipino
cultural values" in determining that said series offended another religion such as to constitute a
clear and present danger of a religions strife which is injurious to public welfare? [Note: I advisedly
used both the "values" and "clear and present" standards in framing the question because the INC
program was apparently "x-rated" for being both "contrary to law" and violative of Art. 201, a
"crime".]
Unfortunately, we cannot answer this question directly because the tape in question was never
submitted to the Court for viewing. Neither was there a detailed description of its objectionable
contents in the assailed Decision of the Court of Appeals or Regional Trial Court. Nor is there extant
a detailed justification prepared by respondent Board on why it banned the program - other than
its bare conclusion that the material constituted an attack against the Catholic and Protestant
religions.
In no wise can the "remarks" in the voting slips presented before the trial court be considered
sufficient justification for banning the showing of any material.
In the face of such inadequacy of evidence and basis, I see no way that this Court could authorize a
suppression of a species of the freedom of speech on the say-so of anyone - not even of the MRTCB.
Paraphrasing People v.Fernando,
9
the disputable presumption (which is of statutory origin) that
official duties have been regularly performed must yield to the constitutionally enshrined freedoms
of expression and of religion. If courts are required to state the factual and legal bases of their
conclusions and judicial dispositions, with more reason must quasi-judicial officers such as censors,
especially when they curtail a fundamental right which is "entitled to the highest priority and
amplest protection."
FOR THIS REASON AND THIS REASON ALONE, i.e., that the respondent Board failed to justify its
conclusion thru the use of the proper standards that the tapes in question offended another
religion, I vote to GRANT the petition insofar as it prays for the showing of said programs. However,
I vote to DENY the petition insofar as allowing the INC to show its pretaped programs without first
submitting them forreview by the MTRCB.

PADILLA, J., concurring and dissenting:
I concur with the majority opinion insofar as it removes the ban against the showing of petitioner's
TV Program Series Nos. 115, 119 and 121. However, I disagree with that part of the majority
opinion which upholds the power of respondent Board to subject to prior restraint petitioner's
religious television programs.
It should by now be undisputably recognized and firmly rooted in this country that there can be no
prior restraints on the exercise of free speech expression or religion unless such exercise poses a clear
and present danger of a substantive evil which the State has the right and even the duty to prevent.
The ban against such prior restraints will result, as it has resulted in the past, in occasional abuses
of free speech and expression but it is immeasurably preferable to experience such occasional
abuses of speech and expression than to arm a governmental administrative agency with the
authority to censor speech and expression in accordance with legislativev standards which albeit
apparently laudable in their nature, can very well be bent or stretched by such agency to
convenient latitudes as to frustrate and eviscerate the precious freedoms of speech and expression.
Besides, any person who may feel aggrieved by the exercise of free speech, expression and religion,
is afforded, under our system, the remedy of redress in the courts of law, justice and equity.
In short, it is far better for the individual to live in a climate of free speech and free expression,
devoid of prior restraints, even at the risk of occasional excesses of such freedoms than to exist in
an ambiance of censorship which is always a step closer to autocracy and dictatorship.

MENDOZA, J., concurring:
I concur in the decision to allow the showing of certain video tapes of petitioner's program, "Ang
Iglesia Ni Cristo," and for this purpose to reverse the contrary ruling of the Court of Appeals. I am
constrained to file this separate opinion, however, because, while the majority opinion invokes
general principles of free speech and religion to which I subscribe, it regrettably fails to apply these
principles to the law (P.D. No. 1986 and its implementing rules) under which the Board has acted.
My position will be spelled out presently but, in brief, it is this: Censorship may be allowed only in
anarrow class of cases involving pornography, excessive violence, and danger to national security.
Even in these cases, only courts can prohibit the showing of a film or the broadcast of a program. In
all other cases, the only remedy against speech which creates a clear and present danger to public
interests is through subsequent punishment. Considering the potentiality for harm which motion
pictures and TV programs may have especially on the young, all materials may validly be required
to be submitted for review before they may be shown or broadcast. However, the final
determination of the character of the materials cannot be left to an administrative agency. That
judicial review of administrative action is available does not obviate the constitutional objection to
censorship. For these reasons, I would hold 3(b) of P.D. No. 1986, which gives to the Board limited
time for review, to be valid, while finding 3(c), under which the Board acted in this case in
censoring petitioner's materials, to be, on its face and as applied, unconstitutional.
I. "At the very least, free speech and free press may be identified with the liberty to discuss publicly
and truthfully any matter of public interest without censorship or punishment. There is to be . . . no
previous restraint on the communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings, unless there be a clear
and present danger of substantive evil that Congress has a right to prevent."
1
"Because of the
preferred character of the constitutional rights of freedom of speech and expression, a weighty
presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms."
2

Authoritative interpretations of the free speech clause consider as invalid two types of prior
restraints, namely, those which are imposed prior to the dissemination of any matter and those
imposed prior to an adequate determination that the expression is not constitutionally protected.
As the Wisconsin Supreme Court put the matter, "[A] prohibited "prior restraint" is not limited to
the suppression of a thing before it is released to the public. Rather, an invalid prior restraint is an
infringement upon the constitutional right to disseminate matters that are ordinarily protected by
the first amendment without there first being a judicial determination that the material does not
qualify for first amendment protection."
3

Our own cases furnish illustrations of these types of prior restraints. In Ayer Productions
Pty. Ltd. v. Capulong,
4
we held that an injunction stopping the production of a documentary film was
an invalid prior restraint on freedom of speech and of expression. In Mutuc v. COMELEC,
5
we struck
down, also as an invalid prior restraint, a COMELEC rule prohibiting the use in political campaigns
of taped jingles blared through loudspeakers which were mounted on mobile units. "[T]he
constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but not
perpetuating what is uttered by him through tape or other mechanical contrivances."
6

On the other hand, the fact that the material may have seen print or been taped, as in the case of the
TV series in question, cannot justify restriction on its circulation in the absence of a judicial
determination that the material does not constitute protected expression. In Sotto v. Ruiz, we
denied finality to the authority of the Director of Posts to exclude newspapers and other
publications from the mails "since whether an article is or is not libelous, is fundamentally a legal
question. In order for there to be due process of law, the action of the Director of Posts must be
subject to revision by the courts in case he has abused his discretion or exceeded authority."
8

II. P.D. No . 1986, 3(b) requires motion pictures, television programs and publicity materials to be
submitted to the Board for review, while 7 makes it unlawful for any person or entity to exhibit or
cause to be exhibited in any moviehouse, theater or public place or by television any motion
picture, television program or publicity material unless it has been approved by the Board. Anyone
who violates the prohibition is liable to prosecution and, in case of conviction, to punishment by
imprisonment ranging from 3 months and 1 day to 1 year, plus a fine of not less than P50,000.00
but not more than P100,000.00. In addition, the moviehouse, theater or television station violating
the provision faces a revocation of its license.
9

In Burstyn v. Wilson,
10
it was held that expression by means of motion pictures -- and, it may be
added, by means of television broadcasts - is included in the free speech and free press guarantee of
the Constitution. This ruling is now part our constitutional law, which has assimilated into the
constitutional guarantee not only motion pictures but also radio and television shows because of
the importance of movie, radio and television both as a vehicle of communication and as a medium
of expression.
11

Does 3(b) impermissibly impose a prior restraint because of its requirement that films and TV
programs must be submitted to the Board for review before they can be shown or broadcast? In my
view it does not. The Burstyncase, in declaring motion pictures to be protected under the free
expression clause, was careful to add: "It does not follow that the Constitution requires absolute
freedom to exhibit every motion picture of every kind at all times and all places . . . Nor does it
follow that motion pictures are necessarily subject to the precise rules governing any other
particular method of expression. Each method tends to present its own peculiar problems."
12
With
reference to television, this Court is on record that "a less liberal approach calls for observance.
This is so because unlike motion pictures where patrons have to pay their way, television reaches
every home where there is a [TV]
set. Children then will likely be among the avid viewers of programs therein shown. . . . [T]he State
as parens patriae is called upon to manifest an attitude of caring for the welfare of the young."
13

While newspapers may not be required to submit manuscripts for review as a condition for their
publication, except during wartime, such a requirement is justified when applied to motion pictures
or television programs (other than newsreels and commentaries) because of unique considerations
involved in their operation. "First, broadcast media have established a uniquely pervasive presence
in the livesof all citizens. Material presented over the airwaves confronts the citizen, not only in
public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children.
Bookstores and motion picture theaters may be prohibited from making certain material available
to children, but the same selectivity cannot be done in radio or television, where the listener or
viewer is constantly tuning in and out."
14
The State may thus constitutionally require the advance
submission of all films and TV programs as a means
of enabling it effectively to bar the showing of unprotected films and TV programs.
15

For these reasons, I hold 3(b) to be a valid exercise of the State's power to protect legitimate
public interests. The purpose of this restraint - temporary in character -- is to allow the Board time
to screen materials and to seek an injunction from the courts against those which it believes to be
harmful.
III. I reach a different conclusion, however, with respect to 3(c). This provision authorizes the
Board to prohibit, among other things, the exhibition or broadcast of motion pictures, television
programs and publicity materials which, in its opinion, are "immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or
[which have] a dangerous tendency to encourage the commission of violence or of a wrong or
crime," such as the following:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against
the State, or otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people in their
government and/or the duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence or
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal,
or pertain to matters which are sub judice in nature.
Under this authority, the Board can determine what can be shown or broadcast and what cannot. It
is not true, as the Board claims, that under P.D. No. 1986 its power is limited to the classification of
motion pictures and TV programs. The power to classify includes the power to censor. The Board
can x-rate films and TV programs and thus ban their public exhibition or broadcast. And once it
declares that a motion picture or television program is, for example, indecent or contrary to law, as
in the case of the INC program in question, its declaration becomes the law. Unless the producer or
exhibitor is willing to go to court, shouldering not only the burden of showing that his movie or
television program is constitutionally protected but also the cost of litigation, the ban stays.
16
This
is censorship in its baldest form. This is contrary to the fundamental tenet of our law that until and
unless speech is found by the courts to be unprotected its expression must be allowed.
In an effort to save this provision from constitutional attack, it is alleged that the TV program in
question was disallowed pursuant to the rules of the Board which prohibit the showing of motion
pictures or TV programs containing "malicious attack[s] against any race, creed or religion." It is
contended that this rule impermissibly broadens the prohibition in 3(c), because this ground
("malicious attack[s] against any race, creed or religion") is not among those provided therein.
However, 3(c) gives the Board authority to stop the showing of motion pictures, television
programs and publicity materials which are "contrary to law," and Art. 201(2) (b) (3) of the Revised
Penal Code makes it a crime for anyone to exhibit "shows which offend any race or religion." It is
true that Art. 201 (2) (b) (3) refers to subsequent punishment, whereas we are dealing here with
prior restraint. However, by authorizing the censorship of materials which in the opinion of the
Board are "contrary to law," 3(c) makes what is only a ground for subsequent punishment also a
ground for prior restraint on expression. It is 3(c) of P.D. No. 1986, and not only the rules
implementing it, which is unconstitutional.
1
7
While I think the Board may be granted the power to preview materials, it is only for the purpose of
enabling the Board to decide whether to seek their prohibition by the court in the interest of
safeguarding morality, good order and public safety, considering the pervasive influence of
broadcast media compared to that of the print media. But concern with possible deleterious effects
of movies and television shows cannot and should not be allowed to overshadow the equally
important concern for freedom of expression and blind us to the danger of leaving the ultimate
determination of what expression is protected and what is not to a board of censors. The protection
of the youth should be in the first place the concern of parents, schools and other institutions. I do
not think that society is so morally impoverished that we have to draw on a group of censors for
ultimate moral lesson and leading.
If we have to call on the assistance of any agency at all, it must be the courts.
18
There are many
reasons why a system of prior restraint (in those cases where it may validly be imposed) may only
be administered by judges. First is that the censor's bias is to censor. Second is that "only a
determination in an adversary proceeding ensures the necessary sensitivity to freedom of
expression."
19
As has been observed, "Central to the first amendment due process is the notion that
a judicial rather than an administrative determination of the character of the speech is necessary. . .
. [C]ourts alone are competent to decide whether speech is constitutionally protected."
20
Third, the
members of the Board do not have the security of tenure and of fiscal autonomy necessary to secure
their independence.
Indeed, I cannot understand why, after ruling that the valuation of property in eminent domain is
essentially a judicial function which cannot be vested in administrative agencies,
21
this Court
should be willing to leave the valuation of that priceless commodity - expression, whether by means
of motion picture or television - to administrative agencies with only occasional review by the
courts. The trend may be toward greater delegation of judicial authority to administrative agencies
in matters requiring technical knowledge and as a means of relieving courts of cases which such
agencies can very well attend to.
22
There is no justification, however, for such delegation in the
area of our essential freedoms, particularly freedom of expression, where "only a judicial
determination in an adversary proceeding [can] ensure the necessary sensitivity to freedom of
expression."
23

We have witnessed such distinct possibility in the past to need any more lesson in the future to
make us realize the danger of leaving freedom of expression and religion - the essential freedom of
the mind - in the care of an administrative agency.
To the extent therefore that P.D. No. 1986, 3(c) vests in the Board the final authority to determine
whether expression by motion picture or television is constitutionally protected, I find it
unconstitutional.
IV. The majority limit themselves to a determination of the correctness of the Board's finding that
the video tapes in question contain attacks on the Catholic religion, I find it difficult to pass upon
this question because the contents of the tapes are not in the record of this case.
24
The trial court
ruled that the tapes contain no attack against any religion but only a discussion of the doctrines
which the Iglesia Ni Cristo believes embody "superior and self evident truth." On the other hand, the
Court of Appeals, in reversing the trial court, found that the tapes "offend by verbal abuse other
religions" and are for that reason "indecent and contrary to good customs" within the meaning of
P.D. No, 1986, 3(c). Neither court, however, had any evidence to support its conclusions, because
this case was submitted by the parties solely on the basis of memoranda. What the majority of this
Court call facts (pp. 16-17) are simply the opinions of members of the Board that the video tapes
contain attacks on the Catholic religion.
There are no facts on which to base judgment on this question. Even if there are, the clear and
present danger test is inapplicable. To be sure, in Gonzales v. Kalaw Katigbak this Court said:
[W]here the movies, theatrical productions, radio scripts, television programs, and
other such media of expression are concerned -- included as they are in freedom of
expression - censorship, especially so if an entire production is banned, is allowable
only under the clearest proof of a clear and present danger of a substantive evil to
public safety, public morals, public health or any other legitimate public interest.
25

The clear and present danger test has been devised for use in criminal prosecutions for violations of
laws punishing certain types of utterances.
26
While the test has been applied to the regulation of
the use of streets and
parks
2
7 -- surely a form of prior restraint - its use in such context can be justified on the ground
that the content of the speech is not the issue. But when the regulation concerns not the time, place
or manner of speech but its content (i.e., it is content-based) the clear and present danger test
simply cannot be applied. This is because a determination whether an utterance has created a clear
and present danger to public interests requires a factual record.
The test itself states that the question in every case is "whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will bring
about the substantive evil that Congress has a right to prevent."
28
However it may have been
reformulated in later cases, the test essentially requires that the causal connection between the
speech and the evil apprehended be evident.
29
But how can this be shown unless the speech is first
allowed? It is not enough that the tapes have been made and only their broadcast banned. What
about the audience reaction to the tapes? Even if we know what the tapes in this case contain, we
cannot determine whether their public broadcast would create a clear and present danger to public
interests. The censorship board, trying to determine whether to issue a permit, must necessarily
speculate on impact which the words will have since the context in which they will be uttered - the
audience, the occasion, and the place - is totally lacking in the record. It is then forced to apply a
lesser standard of proof in deciding whether to impose a restraint on speech.
The majority claim that there is no need for a factual record in order to find that the Board in this
case exceeded its powers in disallowing the TV series in question. They argue that "acts of prior
restraint are hobbled by the presumption of invalidity and should be greeted with furrowed brews.
It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this
heavy burden, its act of censorship will be struck down. . . . In the case at bar, respondent board did
nothing to rebut the presumption." (p. 17)
That, however, is precisely the problem with the censorship law. It in effect places on the producer
or exhibitor the burden of going to court and of showing that his film or program is constitutionally
protected. To paraphrase Sotto v. Ruiz, which the majority cite as authority for sustaining the
validity of 3(c), "Every intendment of the law is in favor of the correctness of [the agency's]
action."
30
The Board would have this burden of justification if, as I believe it should, is made to go to
court instead and justify the banning of a film or TV program. That is why 3(c) should be
invalidated. One cannot defend the validity of the law and at the same time contend that in any
court proceeding for the review of the Board's decision the burden of justifying the ban should be
on the Board.
The teaching of Gonzales v. Kalaw Katigbak simply comes down to this: that the standard for
judging the validity of prior restraint on political expression is stricter than that for adjudging
restraints on materials alleged to be obscene, but not that the test of clear and present danger is
applicable in determining whether or not a permit may be granted.
In Gonzales v. Kalaw Katigbak
31
this Court echoed Justice Douglas's plea that "every writer, actor, or
producer, no matter what medium of expression he may use, should be freed from the censor." For
indeed the full flowering of local artistic talents and the development of the national intelligence
can take place only in a climate of free expression. A film producer, faced with the prospect of losing
on his investment as a result of the banning of his movie production, may well find himself
compelled to submit to the wishes of the Board or practice self-censorship. The expression of
unpopular opinions, whether religious, political or otherwise is imperilled under such a system.
We have long ago done away with controls on the print media, it is time we did the same with the
control on broadcast media, which for so long operated under restraints,
32
leaving the punishment
for violations of laws to be dealt with by subsequent prosecution.
For the foregoing reasons, I vote to declare 3(2) of P.D. No. 1986 unconstitutional and to reverse
the decision of the Court of Appeals, except in so far as it sustains the grant of power to the Board to
preview materials for showing or broadcast, consistent with my view that 3(b) is valid.

MELO, J., concurring and dissenting:
The enjoyment of the freedom of religion is always coupled with the freedom of expression. For the
profession of faith inevitably carries with it as a necessary appendage, the prerogative of
propagation. The constitutional guaranty of free exercise and enjoyment of religious profession and
worship thus denotes the right to disseminate religious information (American Bible Society vs.
City of Manila 101 Phil. 386 [1957]). Any prior restriction upon a religious expression would be a
restriction on the right of religion. We recognize the role and the deep influence that religion plays
in our community. No less than the fundamental law of the land acknowledges the elevating
influence of religion by imploring the aid of almighty God to build a just and humane society. Any
restriction that is to be placed upon this right must be applied with greatest caution.
Judicial notice must be taken of the fact that the Iglesia ni Cristo as an established religious
organization has been well with us for almost a century, with several millions of following quite a
number of imposing and elegantly constructed cathedrals and hundreds of chapels spread in many
parts of the country, injecting profound influence not only in the social and political aspect of the
community but upon its moral values as well. Respect must be afforded a well-established church,
especially on matters concerning morality and decency lest no concept of morality could ever be
accepted with deference. Such preeminence in the community deserves no less than the confident
expectation that it will act in accordance with its avowed mission of promoting religious guidance
and enlightenment. Its religious programs must be accorded the presumption that the same will
instill moral values that would be beneficial to its adherents and followers, and perhaps to the
community in general. The contrary must not be presumed. Its television programs, therefore,
should not be equated with ordinary movies and television shows which MTRCB is bound by the
law to monitor for possible abuse. One must recognize the power of State to protect its citizenry
from the danger of immorality and indecency motivated by the selfish desire of media
entrepreneurs to accumulate more wealth, or of bogus religious groups, for that matter, to mislead
and beguile the unlettered and uninformed. But considering all these circumstances, I see no cogent
reason for the application of such power to the present case.
Freedom of religion and expression is the rule and its restriction, the exception. Any prior
restriction on the exercise of the freedom to profess religious faith and the propagation thereof will
unduly diminish that religion's authority to spread what it believes to be the sacred truth. The State
can exercise no power to restrict such right until the exercise thereof traverses the point that will
endanger the order of civil society. Thus we have ruled in the case of Ebralinag vs. The Division
Superintendent of Schools of Cebu (219 SCRA 270 [1993]):
The sole justification for a given restraint or limitation on the exercise of religious
freedom is the existence of a grave and present danger of a character both grave and
imminent of a serious evil to public safety, public morals, public health or any other
legitimate public interest that the state has the right and duty to prevent.
Correspondingly, the MTRCB has no authority to use as standard, the dangerous tendency rule,
which we have long abandoned and for which reason, the dangerous tendency standard under
Subparagraph C, Section 3 of Presidential Decree No. 1986 has no place in our statute books.
I therefore, vote to grant the petition.

VITUG, J., dissenting:
I agree with those who support the view that religious freedom occupies an exalted position in our
hierarchy of rights and that the freedom to disseminate religious information is a constitutionally-
sanctioned prerogative that allows any legitimate religious denomination a free choice of media in
the propagation of its credo. Like any other right, however, the exercise of religious belief is not
without inherent and statutory limitations.
The Board disapproved the exhibition of a series of television programs of petitioner on the ground
that they tend to "offend and constitute an attack against other religions." An opinion has been
expressed that the non-inclusion in Section 3 of P.D. 1986 of an "attack against any religion," as a
standard for classification, and so the deletion of the phrase "offensive to other religions" found in
the old censorship law (Executive Order No. 876), should be clear enough to manifest a legislative
intent "to do away with the standard." A reading of Section 3 of P.D. 1986 shows that the Board is
empowered to "screen, review and examine all . . . television programs" and to "approve or
disprove, delete objectionable portion from and/or prohibit the . . . television broadcast of . . .
television programs . . . which, in the judgment of the BOARD (so) applying contemporary Filipino
cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or
good customs . . . ." I believe that the phrase "contrary to law" should be read together with other
existing laws such as, for instance, the provisions of the Revised Penal Code, particularly Article
201, which prohibits the exhibition of shows that "offend another race or religion." I see in this
provision a good and sound standard. Recent events indicate recurrent violent incidents between
and among communities with diverse religious beliefs and dogma. The danger is past mere
apprehension; it has become a virtual reality and now prevalent in some parts of the world.
In order not to infringe constitutional principles, any restriction by the Board must, of course, be for
legitimate and valid reasons. I certainly do not think that prior censorship should altogether be
rejected just because sanctions can later be imposed. Regulating the exercise of a right is not
necessarily an anathema to it; in fact, it can safeguard and secure that right.
When I particularly ponder on the magnitude of the power of a television set, I find it more prudent
to have a deferment of an exhibition that may be perceived to be contrary to decency, morality,
good customs or the law until, at least, the courts are given an opportunity to pass upon the matter
than rely merely on the availability of retribution for actual injury sustained. A delay is not too high
a price to pay for a possible damage to society that may well tum out to be incalculable and lasting.
In this instance, I vote for the dismissal of the petition.

KAPUNAN, J., concurring and dissenting:
While I concur in the result of the majority's decision reversing that of the Court of Appeals insofar
as it set aside the action of respondent MTRCB x-rating petitioner's TV Program Series Nos. 115,
119 and 121, with due respect, I cannot agree with its opinion that respondent Board of Review for
Motion pictures and Television (now MTRCB) has the power to review petitioner's TV program
"Ang Iglesia ni Cristo." The religious TV program enjoys the Constitution's guarantee of freedom of
religion,
1
and of speech and
expression.,
2
and cannot be subject to prior restraint by the Board by virtue of its powers and
functions under Section 3 of P.D. 1986 which provides as follows:
Sec. 3. Powers and Functions. -- The BOARD shall have the following functions,
powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-
theatrical distribution, for television broadcast or for general viewing, imported or
produced in the Philippines, and in the latter case, whether they be for local viewing
or for export.
c) To approve or disapprove, delete objectionable portion from and/or prohibit the
importation, exportation, production, copying, distribution, sale, lease, exhibition
and/or television broadcast of the motion pictures, television programs and
publicity materials subject of the preceding paragraph, which, in the judgment of the
BOARD applying contemporary Filipino cultural values as standard, are
objectionable for being immoral, indecent, contrary to law and/or good customs,
Injurious to the prestige of the Republic of the Philippines or its people, or with a
dangerous tendency to encourage the commission of violence or of a wrong or
crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or
sedition against the State, or otherwise threaten the economic
and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the
people, their government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for
violence and pornography;
v) Those which tend to abet the traffic in and use of prohibited
drugs;
vi) Those which are libelous or defamatory to the good name and
reputation of any person, whether living or dead; and,
vii) Those which may constitute contempt of court or of any quasi-
judicial tribunal, or pertain to matters which are subjudice in nature.
Under the aforequoted provisions, the MTRCB, while nominally a classification board, is granted the
power not only to classify, but also to approve or disapprove/prohibit exhibition of film or
television broadcasts of motion pictures and TV programs.
The freedom to disseminate religious information is a right protected by the free exercise clause of
the Constitution. It encompasses a wide range of ideas and takes many forms. In the process of
enlightening the adherents or convincing non-believers of the truth of its beliefs, a religious sect or
denomination is allowed the free choice of utilizing various media, including pulpit or podium,
print, television film, and the electronic mail.
The broad latitude of freedom afforded by the free exercise clause is an historic outgrowth of our
country's twin colonial experiences: our forefathers' aversion against the Spanish colonial
government's interference with religious belief and practice and the transplantation of American
Constitutional thinking into the mainstream of our political life, which brought with it the ideas of
Protestant dissent and humanistic rationalism dominant in the debates of the American
Constitutional Convention. These two poles conjoined to place the individual conscience beyond the
coercive power of government. Involving as it does the relationship of man to his Creator, respect
for the inviolability of conscience lay at the core of the free exercise clauses in our Constitutions
from 1935 to 1987.
3

It is, therefore, settled that religious freedom is a fundamental right entitled to the highest priority
and amplest protection among human rights. Because of its exalted position in our hierarchy of civil
rights, the realm of religious belief is generally insulated from state action, and state interference
with such belief is allowed only in extreme cases.
Free exercise encompasses all shades of expression of religious belief. It includes the right to
preach, proselyte and to perform other similar functions.
4
As oftentimes these aspects of the free
exercise clause fall within areas affected by government regulation, the importance of religious
freedom is such that the state must make special provisions to relieve religious liberty from
restrictions imposed by generally legitimate government regulations
5
Commenting on religious
freedom and other freedoms of conscience, this Court held in Reyes v. Bagatsing
6
that:
[O]n the judiciary -- even more so than on the other departments -- rests the grave
and delicate responsibility of assuring respect for and deference to such preferred
rights. No verbal formula, no sanctifying phrase can, of course dispense with what
has been felicitously termed by Justice Holmes "as the sovereign prerogative of
judgment. Nonetheless, the presumption must be to incline the weight of the scales
of justice on the side of such rights.
7

Even before film and television achieved the power and influence it has gained in the last few
decades, the U.S. Supreme Court, in the case of Burtsyn v. Wilson,
8
conceded that movies were a
significant medium for the dissemination of ideas, affecting "public attitudes and behavior in a
variety of ways, ranging from the direct espousal of a political or social doctrine to the subtle
shaping of thought which characterizes artistic expression."
9
The U.S. Supreme Court emphasized
that the significance of motion pictures as an organ of public opinion is not diluted by the fact that
films are "designed to entertain as well as to inform,"
10
thus, recognizing that motion pictures fell
within the sphere of constitutionally protected speech and expression. Responding to the question
of censorship in the context of film as protected expression, the U.S. Supreme Court, in the case of
Freedman v. Maryland
11
held that:
The administration of a censorship system for motion pictures presents peculiar
dangers to constitutionally protected speech. Unlike a prosecution for obscenity, a
censorship proceeding puts the initial burden on the exhibitor or distributor.
Because the censor's business is to censor, there is an inherent danger that he may
be less responsive than a court part of an independent branch of government -- to
constitutionally protected interests in free expression.
12

In American Bible Society v. City of Manila,
13
this Court held that any restraint on the right to
disseminate religious information "can only be justified like other restraints of freedom of
expression on the grounds that there is a clear and present danger of any substantive evil which the
State has the right to prevent."
14
Affirming the use of this "clear and present danger" standard in
cases involving religious freedom and worship, the late Chief Justice Claudio Teehankee warned
that "[t]he sole justification for a prior restraint or limitation on the exercise of religious freedom is
the existence of a grave and present danger of a character both grave and imminent of a serious evil
to public safety, public morals, public health or any other legitimate public interest, that the State
has a right (and duty) to prevent."
15

Religious freedom is not of course an absolute right. However, given its exalted position in our
hierarchy of civil rights, the essence of all that has been said and written about the subject is that
only those interests of the highest order and those not otherwise served can overbalance claims to
free exercise of religion.
16
In a highly sensitive constitutional area, only the gravest situation
endangering paramount govemmental interests give occasion for permissible limitation. And even
in such rare cases, government may justify an inroad into religious liberty only by showing that it is
the least restrictive means of achieving the compelling state interest. A facially neutral regulation
apparently evenhandedly applied to all religious sects and denominations would be constitutionally
suspect when it imposes an undue burden on the exercise of religious freedom. "Rules are rules" is
not by itself a sufficient justification for infringing religious liberty.
1
7
It is my submission that the government, under the guise of its regulatory powers in the censorship
law (P.D. 1986 and its corresponding implementing rules and regulations), does not have the power
to interfere with the exercise of religious expression in film or television by requiring the
submission of the video tapes of petitioner's religious program before their public viewing, absent a
showing of a compelling state interest that overrides the constitutional protection of the freedom of
expression and worship. Even if government can demonstrate a compelling state interest, it would
only burden such fundamental right like the free exercise of religion by the least intrusive means
possible.
18
There is no demonstration here of any sufficient state interest to justify the
infringement.
In any case, petitioner's religious programs, which in their very essence and characterization are
the exercise of religious freedom, cannot possibly come under the category of the objectionable
matters enumerated in Section 3(c) of P.D. 1986 or analogous thereto. It is not likely that
propagation of religion which has been spoken of as "a profession of faith that binds and elevates
man to his Creator"
19
will involve pornography excessive violence or danger to national security.
Significantly, the enumeration in Section 3(c) does not include the standard "attack against any
religion" as among those considered objectionable and subject to censorship. Respondents justify
this omission by stating that any form of expression "contrary to law" could be subject to regulation
because the enumeration is in any case not exclusive, and that the phrase "contrary to law" should,
in the Solicitor General's words in behalf of respondents, be construed "in relation to Article 201 of
the Revised Penal Code which proscribes the exhibition of shows that "offend any race or
religion."
20
Respondents moreover argue that the Rules and Regulations of the MTRCB issued
pursuant to P.D. 1986 in any case explicitly furnish the standard left out in the enumeration when it
provides:
Sec. 4. GOVERNING STANDARD. -- a) The BOARD shall judge the motion pictures
and television programs and publicity materials submitted to it for review, using as
standard contemporary Filipino cultural values to abate what are legally
objectionable for being immoral, indecent, contrary to law and good customs,
injurious to the prestige of the Republic of the Philipines or its people, or with a
dangerous tendency to encourage the commission of violence or of a wrong or crime
such as but not limited to:
xxx xxx xxx
vii) Those which clearly constitute an attack against any race, creed, or religion as
distinguished from individual members thereof; . . .
There are several reasons why I cannot agree with respondent Board's contention that it may add
the standard "attack against any religion" among those enumerated by P.D. 1986. While the law's
enumeration is concededly not exclusive, inclusion of other standards should be made in the strict
context of the words "immoral, indecent, contrary to law and/or good customs." Specific standards
following a general enumeration cannot go beyond the scope of the latter.
In the first place, the word "indecent" in censorship law has a narrow meaning, confined to
obscenity regulation.
12
It cannot be conveniently employed as a catch-all term embracing all forms
of expression considered noxious by the Board. On the other hand, "contrary to law," had particular
significance in the old censorship laws because those laws explicitly included anything "offensive to
other religions" among their enumerated standards. In the light of what the Solicitor General
describes as the "transitional" nature of P.D. 1986, the better view would be that the omission of
"attack against any religion" among the enumerated standards was intentional and part of the
evolving process of fashioning a system of strict classification of films and television programs as
opposed to censorship. As this phrase was ubiquitous in the old censorship laws (particularly E.O.
868 and E.O. 876), its elimination in P.D. 1986 expresses the manifest intention of the law-making
authority to do away with the standard. This view is supported by the Executive Branch itself,
through the Opinion of then Minister of Justice Neptali Gonzales who stated, when the case came up
before his office for review, that:
[T]he question whether the BRMPT (now MTRCB) may preview and censor the
subject television program of INC should be viewed in the light of the provision of
Section 3, paragraph (c) of P.D. 1986, which is substantially the same as the
provision of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the
standards for censorship, to wit: "immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines or its people, or
with dangerous tendency to encourage the commission of violence, or a wrong" as
determined by the Board, "applying contemporary Filipino cultural values as
standard". As stated, the intention of the Board to subject the INC's television
program to "previewing and censorship is prompted by the fact that its religious
program" makes mention of beliefs and practices of other religion". On the face of
the law itself, there can conceivably be no basis for censorship of said program by the
Board as much as the alleged reason cited by the Board does not appear to be within
the contemplation of the standards of censorship set by law.
22

Additionally, the phrase "contrary to law" cannot and should not be understood to refer to Article
201
23
of the Revised Penal Code, as respondents mistakenly suggest. Article 201 deals with the
subject of subsequent punishment; P.D. 1986 clearly treats with an altogether different matter --
prior restraint and censorship. The two laws stand at opposite poles in the continuum of regulation
and punishment.
Thus, the censor's cut poses a peculiar danger because it altogether skirts time-honored judicial
tests and standards utilized in determining those forms of expression that fall within the area of
protected speech or expression, and because, as between prior restraints and the subsequent
sanctions meted after proof of violation of specific penal statutes, the former prevents the speech or
expression from entering the marketplace of ideas.
24
That is exactly the effect of the orders assailed
by petitioner in the instant case. More significantly, under the specific facts and circumstances of
the case confronting us, what is sought to be kept out of the marketplace of ideas is not only
ordinary speech or expression, two constitutional values which already enjoy primacy among our
civil rights, but also religious speech or expression utilizing the medium of television.
It is claimed that the provisions of P.D. 1986 in any case provide for a neutral standard applicable to
all religious sects and denominations. I cannot agree. The "neutrality" standard has been raised in
numerous free exercise cases before the courts, the most recent having been the Flag Salute
cases.
25
However, a regulation neutral on its face poses free exercise problems when it creates or
has the potential of imposing undue burdens on religion. "Democratic government acts to reinforce
the generally accepted values of a given society and not merely the fundamental ones which relate
to its political structure."
26
Facially neutral standards are a facet of prevailing concensus. The old
flag salute cases are testaments to the natural preference for the prevailing political and social
morality over the religious liberty of minorities. The prevalent view tends to impose its idea of what
is religious and what is not over and above the protests of the other religions, sects and
denominations.
2
7 Applying "contemporary Filipino standards" and values (the general test in P.D.
1986) to religious thought and expression allows an "overarching" into a constitutionally protected
area and potentially would simply provide the Board with a veiled excuse for clamping down
against unorthodox religious thought and expression. Measured in terms of the historic purpose of
the guarantee, the free exercise provision in our Constitution not only insulates religion against
governmental power, but when taken together with the Establishment clause, affords protection to
religious minorities by preventing the use of that power in imposing the majority's will.
We are faced with a case of censorship and restraint which, I stated earlier, touches upon one of the
most private and sensitive of domains: the realm of religious freedom, thought and expression. In
this domain, sharp differences may arise such that the tenets of one individual may seem the
"rankest error" to his neighbor.
28
In the process of persuading others about the validity of his point
of view, the preacher sometimes resorts to exaggeration and vilification. However, the
determination of the question as to whether or not such vilification, exaggeration or fabrication
falls within or lies outside the boundaries of protected speech or expression is a judicial function
which cannot be arrogated by an administrative body such as a Board of censors.
29
Even if the
exercise of the liberties protected by the speech, expression and religion clauses of our Constitution
are regarded as neither absolute nor unlimited, there are appropriate laws which deal with such
excesses. The least restrictive alternative would be to impose subsequent sanctions for proven
violations of laws, rather than inflict prior restraints on religious expression.
Our penal law punishes libel, or acts or speeches offensive to other religions, and awards damages
whenever warranted. In our legal scheme, courts essentially remain the arbiters of the
controversies affecting the civil and political rights of persons. It is our courts which determine
whether or not certain forms of speech and expression have exceeded the bounds of correctness,
propriety or decency as to fall outside the area of protected speech. In the meantime, the liberties
protected by the speech and expression and free exercise clauses are so essential to our society that
they should be allowed to flourish unobstructed and unmolested.
30

The majority opinion professes fealty to freedom of religion which it openly admits, has been
accorded a preferred status by the framers of our fundamental laws, and affirms that "(D)eeply
ensconced in our fundamental
law is its hostility against all prior restraints on speech, including religious speech."
31
The majority
then adds pointedly that "acts of prior restraint are hobbled by the presumption of invalidity and
should be greeted with furrowed brews. It is the burden of the respondent Board to overthrow this
presumption. If it fails to discharge this heavy burden, its acts of censorship will be struck down. It
failed in the case at bar."
32

And yet, the majority at the same time would grant MTRCB the power to review the TV religious
programs because "with its expertise," it "can determine whether its sulphur will bring about the
substantive evil feared by the law."
33
The majority thus would uphold the power of the Board as an
administrative body with quasi-judicial power to preview and classify TV programs, citing with
favor the 1921 decision of this Court in Sotto vs. Ruiz
34
wherein it was held that:
As has been said, the performance of the duty of determining whether a publication
contains printed matter of a libelous character rests with the Director of Posts and
involves the exercise of his judgment and discretion. Every intendment of the law is
in favor of the correctness of his action. The rule is (and we go only to those cases
coming from the United States Supreme Court and pertaining to the United States
Postmaster-General), that the courts will not interfere with the decision of the
Director of Posts unless clearly of opinion that it was wrong.
I share with Justice Mendoza's view that the majority's pronouncement would in effect place on the
producer or exhibitor the burden of going to court and of showing that his film or program is
constitutionally protected. This throws overboard the fundamental tenet that any act that restrains
speech is presumed invalid and it is the burden of the censor to overthrow this presumption. In the
context of the present case, if the Board disapproves a TV religious program or deletes a portion
thereof, it is the exhibitor or producer who will go to court to prove that the Board is wrong and the
court will not interfere with the Board's decision unless it can be clearly shown that it is wrong,
following the ruling in Sotto vs. Ruiz.
The majority's ruling, I am afraid, constitutes a threat to constitutionally protected speech and
expression and supplants a judicjal standard for determining constitutionally protected speech and
expression with the censor's standard. The heavy burden on the imposition of prior restraints is
shifted away from the state by imposing upon the exhibitor the obligation of proving that the
religious programs fall within the realm of protected expression. This leaves the exhibitor with only
two unwanted options: either 1) he himself deletes the portions which he anticipates the Board
might possibly object to prior to submission to that body and thereby obtains the censor's nod, or
2) submits the Video tapes in their entirety and risks disapproval or deletion, in which case he may
go to court and show that the Video tapes contain constitutionally protected speech and expression.
In the first situation, the message loses its essence and substance. The second scenario may entail
tremendous amount of money, time and effort in a prolonged litigation. Either case constitutes
grievous assault on the freedom of speech and religion.
The ruling in Sotto vs. Ruiz cannot be invoked as authority to allow MTRCB to review petitioner's TV
programs. In that case, the Court held that the Acting Director of the Bureau of Posts is vested with
authority to determine what mail matter is obscene, lewd, filthy or libelous, pursuant to Section
1954 of the old Administrative Code which provides, among others, that no lewd, lascivious, filthy,
indecent or libelous character shall be deposited in, or carried by, the mails of the Philippine Island,
or be delivered to its addressee by any officer or employee of the Bureau of Posts. Petitioner's
programs which are televised in the exercise of freedom of worship cannot be placed in the
category of the printed matter proscribed in the old Administrative Code. Freedom of worship is
such a precious commodity in our hierarchy of civil liberties that it cannot be derogated
peremptorily by an administrative body or officer who determines, without judicial safeguards,
whether or not to allow the exercise of such freedom.
The rights of free expression and free exercise of religion occupy a unique and special place in our
constellation of civil rights. The primacy our society accords these freedoms determines the mode it
chooses to regulate their expression. But the idea that an ordinary statute or decree could, by its
effects, nullify both the freedom of religion and the freedom of expression puts an ominous gloss on
these liberties. Censorship law as a means of regulation and as a form of prior restraint is anathema
to a society which places high significance to these values.
WHEREFORE, premises considered, I vote to grant the petition.

Separate Opinions
PANGANIBAN, J., concurring:
I think the basic issues in this case are:
A. What is the statutory extent and the constitutional limitation of the powers of the Movies and
Television Review and Classification Board (MTRCB)? More specifically, does the MTRCB have the
power to prohibit/ censor television shows?
B. In banning the television showing of the Iglesia ni Cristo videotape series, did the respondent
Board exercise its powers correctly and properly?
The first question deals with the general legal concepts and principles underlying the functions and
prerogatives of the MTRCB while the second calls for a juridical evaluation of the specific act of the
Board in classifying as "X" (or not for public viewing) specific pre-taped or canned programs,
identified as Series 115, 119, 121 and 128, for the reason that they allegedly constituted an "attack
against another religion." The first involves doctrine; the second, application.
A. EXTENT AND LIMIT OF
MTRCB'S POWERS
The statutory powers of the MTRCB are set forth in Sec. 3 of P.D.
1986.
1

In implementing P.D. 1986. the MTRCB issued its own Rules and Regulations. At issue in this case is
Section 4
2
of such Rules.
On the other hand, these statutory powers and internally generated regulations are limited by the
Bill of Rights. Art. III of the 1987 Constitution, particularly the rights to free speech and religion.
Mr. Justice Mendoza connects the above constitutional rights with the present controversy by
saying that "expression . . . by means of television broadcast is included in the free speech and free
press guarantee of the Constitution" and by Mr. Justice Kapunan by writing that this "case uniquely
interphases questions of religious expression and censorship laws in the context of the
constitution's guarantees of freedom of religion and of speech and expression."
Here before us therefore is a classic constitutional law case wherein the inherent power of the state
to safeguard the peace, well-being and general welfare of the people collide and clash with the
constitutional rights of individuals and religious institutions to evangelize, preach, promote, teach,
and even proselytize.
Religious Freedom -- A Cherished Right
FIRST, I agree with the ponencia that "(f)reedom of religion has been accorded a preferred status by
the framers of our fundamental laws, past and present." Religious freedom is absolute when it is
confined within the realm of thought to a private, personal relationship between a man's
conscience and his God, but it is subject to regulation when religious belief is transformed into
external acts that affect or afflict others. The mere invocation of religious freedom will not
stalemate the State and ipso facto render it incompetent in preserving the rights of others and in
protecting the general welfare.
MTRCB's Power to Review and to Censor is Valid
SECOND, I believe that as an agency of the State created to promote the general welfare, the MTRCB
under P.D. 1986 has the basic initiatory authority and power to -
"approve or disapprove,
delete objectionable portion from
and/or prohibit
the importation, exportation, production, copying, distribution, sale, lease, exhibition
and/or television broadcast" of pre-taped or canned (as contra-distinguished from "live")
video-audio/film/television programs and publicity materials. I regret I cannot go along
with Mr. Justice Mendoza's avante garde thesis that Section 3-c of P.D. 1986, from where the
above-quoted words were taken, is "upon its face and as applied, unconstitutional." I note
the extensive materials, particularly from American cases, buttressing his cogent stand, but,
after reflection, prayer and discernment. I am thoroughly convinced that the situation in our
country, particularly the totality of our cultural and religious milieu is far different from that
in America.
Petitioner INC contends that the MTRCB's authority extends only to non-religious video materials
but not to religious programs, particularly those of INC, which it claims are neither "immoral" nor
"indecent". This position presents more problems than solutions. For who will determine whether a
given canned material is religious or not, and therefore whether it can be publicly exhibited or not
without its passing through the Board? I would prefer that the State, which is constitutionally
mandated to be neutral, continue to exercise the power to make such determination, rather than
leave it up to the producer, maker or exhibitor of such material, who/which, because of vested
interests would, in the normal course, be understandably biased in his/its own favor. I feel less
discomfort with the idea of maintaining the censors' quasi-judicial authority to review such film
materials, subject to appeal to the proper courts by aggrieved parties, than with the prospect and
consequences of doing away with such power altogether. I agree with Mr. Justice Vitug in finding "it
more prudent to have a deferment of an exhibition that may be perceived (by the Board) to be
contrary to decency, morality, good custom or the law until, at least, the courts are given an
opportunity to pass upon the matter . . ." A contrary ruling would most regrettably remove
meaningful and necessary safeguards against a veritable floodtide of prurient, violence-prone and
values-eroding television shows and programs.
In Gonzales vs. Kalaw Katigbak
4
and Eastern Broadcasting Corp. (DYRE) vs. Dans, Jr.,
5
this Court
early on acknowledged the uniquely pervasive presence of broadcast and electronic media in the
lives of everyone, and the easy accessibility of television and radio to just about anyone, especially
children. Everyone is susceptible to their influence, even "the indifferent or unwilling who happen
to be within reach of a blaring radio or television set."
6
And these audiences have less opportunity
to cogitate, analyze and reject the utterances, compared to readers of printed material.
7
It is
precisely because the State as parens patriae is "called upon to manifest an attitude of caring for the
welfare of the young"
8
that I vote for the retention of the State's power of review and prohibition
via the MTRCB. High-minded idealism in the staunch defense of the much-vaunted freedoms cannot
but be admired. Yet, no matter how devoutly we may wish it, not all the people share the same
mindset and views nor, needless to say, the same viewpoint, i.e., the ivory tower window. Hence, we
must prudently anticipate that abuses against the public weal are likely to be committed where
absolute permissiveness is the norm. Would that, with the total absence of censorship or review,
there occur a significant increase in religious, spiritual or morally uplifting prime-time
programming! But realistically and pragmatically speaking, we see mostly the prospect of more
explicit sex-oriented advertising, unadulterated violence and outright pandering to phone-sex
addicts and the simply curious. The fact that even the Net is not free of pornographic slime is no
excuse to let down all reasonable barriers against broadcast media offerings of muck, moral
depravity and mayhem. And definitely, there is no good and sensible reason for the State to
abdicate its vital role as parens patriae, in the guise of copying American constitutional precedents,
which I respectfully submit, are inapplicable in our factual context and time.
MTRCB Must Use Constitutional Standard
THIRD. In exercising its prerogatives, the MTRCB cannot act absolutely or whimsically. It must
act prudently. And it can do so ONLY if it exercizes its powers of review and prohibition according to
a standard and/or a limit.
I believe that the phrase "with a dangerous tendency" in Sec. 3-c of P.D. 1986 should be struck
down as an unconstitutional standard. This is martial law vintage and should be replaced with the
more libertarian "clear and present danger rule" which is eloquently esplained by JJ. Kapunan, Puno
and Mendoza (and which explanation I shall not repeat here).
Having said that, may I respectfully point out however that there is an even more appropriate
standard in thePhilippine context proffered by the law itself, and that is "contemporary Philippine
cultural values." This standard under the law, should be used in determining whether a film or
video program is "(a) immoral, (b) indecent, (c) contrary to law and/or good custom, and (d)
injurious to the prestige of the Republic of the Philippines or its people." On the other hand, when
the question is whether the material being reviewed "encourages the commission of violence or of a
wrong or crime" per the enumeration contained in Sec. 3-c, the "clear and present danger" principle
should be applied as the standard in place of the "dangerous tendency" rule.
Just a word edgewise about cultural values. Our cultural ideals and core values of galang,
pagbabahala, pananagutan, balikatan, malasakit, asal, halaga, diwa, damdamin, dangal, kapwa,
pakikitungo, hiya, delikadesa, awa, tiwala, maka-Diyos, maka-tao, maka-buhay and so forth, define us
as a people, as Filipinos. We are who and what we are because of these values and ideals. They
delimit the areas of individual and social behavior and conduct deemed acceptable or tolerable, and
ultimately they determine the way we as individuals uniquely conduct our relationships and
express ourselves. According to Mr. Justice Kapunan, applying contemporary Filipino values to
religious thought and expression will permit an "overarching" into a constitutionally protected
area, and provides the MTRCB with a veiled excuse for clamping down against unorthodox religious
thought and expression. But such fear is highly speculative and totally unsupported by empirical
evidence. I would like to add that where a mode of religious expression runs counter to such core
values, serious questions have to be raised about the ultimate redeeming worth of such expression.
An example is in order. Not too long ago, the so-called "Children of God" blew into town, and, under
the guise of proselytizing, practised "flirty-fishing" (free sex). I wonder how many of us will simply
sit on our hands if these "Children" were to telecast their religious programs for OUR children to
watch, or conduct seminars over the airwaves on the hows of free sex . . . Another example: satanic
cults involve blood sacrifices . . . In brief, I am in agreement with the ponencia that the practice of
religion cannot be totally abandoned to the market place and governed by the policy of laissez faire.
Validity of MTRCB's Internal Rule
FOURTH. Anent the validity of Sec. 4 of the Board's Rules and Regulation authorizing MTRCB to
prohibit the showing of materials "which clearly constitute an attack against any race, creed or
religion . . .", I agree with Mr. Justice Vitug that the phrase "contrary to law" in Sec. 3-c "should be
read together with other existing laws such as, for instance, the provisions of the Revised Penal
Code, particularly Article 201, which prohibit the exhibition of shows that 'offend another race or
religion.'" Indeed, where it can be shown that there is a clear and present danger that a religious
program could agitate or spark a religious strife of such extent and magnitude as to be injurious to
the general welfare, the Board may "X-rate" it or delete such portions as may reasonably be
necessary. The debilitating armed conflicts in Bosnia, Northern Ireland and in some Middle East
countries due to exacerbated religious antagonisms should be enough lesson for all of us. Religious
wars can be more ravaging and damaging than ordinary crimes. If it is legal and in fact
praiseworthy to prevent the commission of, say, the felony of murder in the name of public welfare
why should the prevention of a crime punishable by Art. 201 of the Penal Code be any less legal and
less praiseworthy.
I note, in this connection, the caveat raised by the ponencia that the MTRCB Rule bans shows which
"attack" a religion, whereas Art. 201 merely penalize; those who exhibit programs which "offend"
such religion. Subject to changing the word "attack" with the more accurate "offend". I believe
Section 4 of the Rules can stand.
In sum, I respectfully submit (1) that P.D. 1986 is constitutional, subject to the substitution (or
interpretation) of the words "dangerous tendency" with the phrase (or as meaning) "clear and
present danger" in Sec. 3-c: and (2) that Sec. 4 of the Board's Rules would be likewise valid,
providcd the words "constitute an attack" are changed with "offend"
B. WAS THE BANNING OF THE IGLESIA
PROGRAMS PROPER?
We now come to the immediate question: Did the respondent Board correctly apply Section 3 of
P.D. 1986 in prohibiting the public telecasting of the Iglesia program. In short, did the INC series
"offend" a religion? Juridically stated, did the respondent MTRCB use "contemporary Filipino
cultural values" in determining that said series offended another religion such as to constitute a
clear and present danger of a religions strife which is injurious to public welfare? [Note: I advisedly
used both the "values" and "clear and present" standards in framing the question because the INC
program was apparently "x-rated" for being both "contrary to law" and violative of Art. 201, a
"crime".]
Unfortunately, we cannot answer this question directly because the tape in question was never
submitted to the Court for viewing. Neither was there a detailed description of its objectionable
contents in the assailed Decision of the Court of Appeals or Regional Trial Court. Nor is there extant
a detailed justification prepared by respondent Board on why it banned the program - other than
its bare conclusion that the material constituted an attack against the Catholic and Protestant
religions.
In no wise can the "remarks" in the voting slips presented before the trial court be considered
sufficient justification for banning the showing of any material.
In the face of such inadequacy of evidence and basis, I see no way that this Court could authorize a
suppression of a species of the freedom of speech on the say-so of anyone - not even of the MRTCB.
Paraphrasing People v.Fernando,
9
the disputable presumption (which is of statutory origin) that
official duties have been regularly performed must yield to the constitutionally enshrined freedoms
of expression and of religion. If courts are required to state the factual and legal bases of their
conclusions and judicial dispositions, with more reason must quasi-judicial officers such as censors,
especially when they curtail a fundamental right which is "entitled to the highest priority and
amplest protection."
FOR THIS REASON AND THIS REASON ALONE, i.e., that the respondent Board failed to justify its
conclusion thru the use of the proper standards that the tapes in question offended another
religion, I vote to GRANT the petition insofar as it prays for the showing of said programs. However,
I vote to DENY the petition insofar as allowing the INC to show its pretaped programs without first
submitting them forreview by the MTRCB.

PADILLA, J., concurring and dissenting:
I concur with the majority opinion insofar as it removes the ban against the showing of petitioner's
TV Program Series Nos. 115, 119 and 121. However, I disagree with that part of the majority
opinion which upholds the power of respondent Board to subject to prior restraint petitioner's
religious television programs.
It should by now be undisputably recognized and firmly rooted in this country that there can be no
prior restraints on the exercise of free speech expression or religion unless such exercise poses a clear
and present danger of a substantive evil which the State has the right and even the duty to prevent.
The ban against such prior restraints will result, as it has resulted in the past, in occasional abuses
of free speech and expression but it is immeasurably preferable to experience such occasional
abuses of speech and expression than to arm a governmental administrative agency with the
authority to censor speech and expression in accordance with legislativev standards which albeit
apparently laudable in their nature, can very well be bent or stretched by such agency to
convenient latitudes as to frustrate and eviscerate the precious freedoms of speech and expression.
Besides, any person who may feel aggrieved by the exercise of free speech, expression and religion,
is afforded, under our system, the remedy of redress in the courts of law, justice and equity.
In short, it is far better for the individual to live in a climate of free speech and free expression,
devoid of prior restraints, even at the risk of occasional excesses of such freedoms than to exist in
an ambiance of censorship which is always a step closer to autocracy and dictatorship.

MENDOZA, J., concurring:
I concur in the decision to allow the showing of certain video tapes of petitioner's program, "Ang
Iglesia Ni Cristo," and for this purpose to reverse the contrary ruling of the Court of Appeals. I am
constrained to file this separate opinion, however, because, while the majority opinion invokes
general principles of free speech and religion to which I subscribe, it regrettably fails to apply these
principles to the law (P.D. No. 1986 and its implementing rules) under which the Board has acted.
My position will be spelled out presently but, in brief, it is this: Censorship may be allowed only in
anarrow class of cases involving pornography, excessive violence, and danger to national security.
Even in these cases, only courts can prohibit the showing of a film or the broadcast of a program. In
all other cases, the only remedy against speech which creates a clear and present danger to public
interests is through subsequent punishment. Considering the potentiality for harm which motion
pictures and TV programs may have especially on the young, all materials may validly be required
to be submitted for review before they may be shown or broadcast. However, the final
determination of the character of the materials cannot be left to an administrative agency. That
judicial review of administrative action is available does not obviate the constitutional objection to
censorship. For these reasons, I would hold 3(b) of P.D. No. 1986, which gives to the Board limited
time for review, to be valid, while finding 3(c), under which the Board acted in this case in
censoring petitioner's materials, to be, on its face and as applied, unconstitutional.
I. "At the very least, free speech and free press may be identified with the liberty to discuss publicly
and truthfully any matter of public interest without censorship or punishment. There is to be . . . no
previous restraint on the communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings, unless there be a clear
and present danger of substantive evil that Congress has a right to prevent."
1
"Because of the
preferred character of the constitutional rights of freedom of speech and expression, a weighty
presumption of invalidity vitiates measures of prior restraint upon the exercise of such freedoms."
2

Authoritative interpretations of the free speech clause consider as invalid two types of prior
restraints, namely, those which are imposed prior to the dissemination of any matter and those
imposed prior to an adequate determination that the expression is not constitutionally protected.
As the Wisconsin Supreme Court put the matter, "[A] prohibited "prior restraint" is not limited to
the suppression of a thing before it is released to the public. Rather, an invalid prior restraint is an
infringement upon the constitutional right to disseminate matters that are ordinarily protected by
the first amendment without there first being a judicial determination that the material does not
qualify for first amendment protection."
3

Our own cases furnish illustrations of these types of prior restraints. In Ayer Productions
Pty. Ltd. v. Capulong,
4
we held that an injunction stopping the production of a documentary film was
an invalid prior restraint on freedom of speech and of expression. In Mutuc v. COMELEC,
5
we struck
down, also as an invalid prior restraint, a COMELEC rule prohibiting the use in political campaigns
of taped jingles blared through loudspeakers which were mounted on mobile units. "[T]he
constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but not
perpetuating what is uttered by him through tape or other mechanical contrivances."
6

On the other hand, the fact that the material may have seen print or been taped, as in the case of the
TV series in question, cannot justify restriction on its circulation in the absence of a judicial
determination that the material does not constitute protected expression. In Sotto v. Ruiz, we
denied finality to the authority of the Director of Posts to exclude newspapers and other
publications from the mails "since whether an article is or is not libelous, is fundamentally a legal
question. In order for there to be due process of law, the action of the Director of Posts must be
subject to revision by the courts in case he has abused his discretion or exceeded authority."
8

II. P.D. No . 1986, 3(b) requires motion pictures, television programs and publicity materials to be
submitted to the Board for review, while 7 makes it unlawful for any person or entity to exhibit or
cause to be exhibited in any moviehouse, theater or public place or by television any motion
picture, television program or publicity material unless it has been approved by the Board. Anyone
who violates the prohibition is liable to prosecution and, in case of conviction, to punishment by
imprisonment ranging from 3 months and 1 day to 1 year, plus a fine of not less than P50,000.00
but not more than P100,000.00. In addition, the moviehouse, theater or television station violating
the provision faces a revocation of its license.
9

In Burstyn v. Wilson,
10
it was held that expression by means of motion pictures -- and, it may be
added, by means of television broadcasts - is included in the free speech and free press guarantee of
the Constitution. This ruling is now part our constitutional law, which has assimilated into the
constitutional guarantee not only motion pictures but also radio and television shows because of
the importance of movie, radio and television both as a vehicle of communication and as a medium
of expression.
11

Does 3(b) impermissibly impose a prior restraint because of its requirement that films and TV
programs must be submitted to the Board for review before they can be shown or broadcast? In my
view it does not. The Burstyncase, in declaring motion pictures to be protected under the free
expression clause, was careful to add: "It does not follow that the Constitution requires absolute
freedom to exhibit every motion picture of every kind at all times and all places . . . Nor does it
follow that motion pictures are necessarily subject to the precise rules governing any other
particular method of expression. Each method tends to present its own peculiar problems."
12
With
reference to television, this Court is on record that "a less liberal approach calls for observance.
This is so because unlike motion pictures where patrons have to pay their way, television reaches
every home where there is a [TV]
set. Children then will likely be among the avid viewers of programs therein shown. . . . [T]he State
as parens patriae is called upon to manifest an attitude of caring for the welfare of the young."
13

While newspapers may not be required to submit manuscripts for review as a condition for their
publication, except during wartime, such a requirement is justified when applied to motion pictures
or television programs (other than newsreels and commentaries) because of unique considerations
involved in their operation. "First, broadcast media have established a uniquely pervasive presence
in the livesof all citizens. Material presented over the airwaves confronts the citizen, not only in
public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children.
Bookstores and motion picture theaters may be prohibited from making certain material available
to children, but the same selectivity cannot be done in radio or television, where the listener or
viewer is constantly tuning in and out."
14
The State may thus constitutionally require the advance
submission of all films and TV programs as a means
of enabling it effectively to bar the showing of unprotected films and TV programs.
15

For these reasons, I hold 3(b) to be a valid exercise of the State's power to protect legitimate
public interests. The purpose of this restraint - temporary in character -- is to allow the Board time
to screen materials and to seek an injunction from the courts against those which it believes to be
harmful.
III. I reach a different conclusion, however, with respect to 3(c). This provision authorizes the
Board to prohibit, among other things, the exhibition or broadcast of motion pictures, television
programs and publicity materials which, in its opinion, are "immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or
[which have] a dangerous tendency to encourage the commission of violence or of a wrong or
crime," such as the following:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against
the State, or otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people in their
government and/or the duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence or
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any
person, whether living or dead; and
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal,
or pertain to matters which are sub judice in nature.
Under this authority, the Board can determine what can be shown or broadcast and what cannot. It
is not true, as the Board claims, that under P.D. No. 1986 its power is limited to the classification of
motion pictures and TV programs. The power to classify includes the power to censor. The Board
can x-rate films and TV programs and thus ban their public exhibition or broadcast. And once it
declares that a motion picture or television program is, for example, indecent or contrary to law, as
in the case of the INC program in question, its declaration becomes the law. Unless the producer or
exhibitor is willing to go to court, shouldering not only the burden of showing that his movie or
television program is constitutionally protected but also the cost of litigation, the ban stays.
16
This
is censorship in its baldest form. This is contrary to the fundamental tenet of our law that until and
unless speech is found by the courts to be unprotected its expression must be allowed.
In an effort to save this provision from constitutional attack, it is alleged that the TV program in
question was disallowed pursuant to the rules of the Board which prohibit the showing of motion
pictures or TV programs containing "malicious attack[s] against any race, creed or religion." It is
contended that this rule impermissibly broadens the prohibition in 3(c), because this ground
("malicious attack[s] against any race, creed or religion") is not among those provided therein.
However, 3(c) gives the Board authority to stop the showing of motion pictures, television
programs and publicity materials which are "contrary to law," and Art. 201(2) (b) (3) of the Revised
Penal Code makes it a crime for anyone to exhibit "shows which offend any race or religion." It is
true that Art. 201 (2) (b) (3) refers to subsequent punishment, whereas we are dealing here with
prior restraint. However, by authorizing the censorship of materials which in the opinion of the
Board are "contrary to law," 3(c) makes what is only a ground for subsequent punishment also a
ground for prior restraint on expression. It is 3(c) of P.D. No. 1986, and not only the rules
implementing it, which is unconstitutional.
1
7
While I think the Board may be granted the power to preview materials, it is only for the purpose of
enabling the Board to decide whether to seek their prohibition by the court in the interest of
safeguarding morality, good order and public safety, considering the pervasive influence of
broadcast media compared to that of the print media. But concern with possible deleterious effects
of movies and television shows cannot and should not be allowed to overshadow the equally
important concern for freedom of expression and blind us to the danger of leaving the ultimate
determination of what expression is protected and what is not to a board of censors. The protection
of the youth should be in the first place the concern of parents, schools and other institutions. I do
not think that society is so morally impoverished that we have to draw on a group of censors for
ultimate moral lesson and leading.
If we have to call on the assistance of any agency at all, it must be the courts.
18
There are many
reasons why a system of prior restraint (in those cases where it may validly be imposed) may only
be administered by judges. First is that the censor's bias is to censor. Second is that "only a
determination in an adversary proceeding ensures the necessary sensitivity to freedom of
expression."
19
As has been observed, "Central to the first amendment due process is the notion that
a judicial rather than an administrative determination of the character of the speech is necessary. . .
. [C]ourts alone are competent to decide whether speech is constitutionally protected."
20
Third, the
members of the Board do not have the security of tenure and of fiscal autonomy necessary to secure
their independence.
Indeed, I cannot understand why, after ruling that the valuation of property in eminent domain is
essentially a judicial function which cannot be vested in administrative agencies,
21
this Court
should be willing to leave the valuation of that priceless commodity - expression, whether by means
of motion picture or television - to administrative agencies with only occasional review by the
courts. The trend may be toward greater delegation of judicial authority to administrative agencies
in matters requiring technical knowledge and as a means of relieving courts of cases which such
agencies can very well attend to.
22
There is no justification, however, for such delegation in the
area of our essential freedoms, particularly freedom of expression, where "only a judicial
determination in an adversary proceeding [can] ensure the necessary sensitivity to freedom of
expression."
23

We have witnessed such distinct possibility in the past to need any more lesson in the future to
make us realize the danger of leaving freedom of expression and religion - the essential freedom of
the mind - in the care of an administrative agency.
To the extent therefore that P.D. No. 1986, 3(c) vests in the Board the final authority to determine
whether expression by motion picture or television is constitutionally protected, I find it
unconstitutional.
IV. The majority limit themselves to a determination of the correctness of the Board's finding that
the video tapes in question contain attacks on the Catholic religion, I find it difficult to pass upon
this question because the contents of the tapes are not in the record of this case.
24
The trial court
ruled that the tapes contain no attack against any religion but only a discussion of the doctrines
which the Iglesia Ni Cristo believes embody "superior and self evident truth." On the other hand, the
Court of Appeals, in reversing the trial court, found that the tapes "offend by verbal abuse other
religions" and are for that reason "indecent and contrary to good customs" within the meaning of
P.D. No, 1986, 3(c). Neither court, however, had any evidence to support its conclusions, because
this case was submitted by the parties solely on the basis of memoranda. What the majority of this
Court call facts (pp. 16-17) are simply the opinions of members of the Board that the video tapes
contain attacks on the Catholic religion.
There are no facts on which to base judgment on this question. Even if there are, the clear and
present danger test is inapplicable. To be sure, in Gonzales v. Kalaw Katigbak this Court said:
[W]here the movies, theatrical productions, radio scripts, television programs, and
other such media of expression are concerned -- included as they are in freedom of
expression - censorship, especially so if an entire production is banned, is allowable
only under the clearest proof of a clear and present danger of a substantive evil to
public safety, public morals, public health or any other legitimate public interest.
25

The clear and present danger test has been devised for use in criminal prosecutions for violations of
laws punishing certain types of utterances.
26
While the test has been applied to the regulation of
the use of streets and
parks
2
7 -- surely a form of prior restraint - its use in such context can be justified on the ground
that the content of the speech is not the issue. But when the regulation concerns not the time, place
or manner of speech but its content (i.e., it is content-based) the clear and present danger test
simply cannot be applied. This is because a determination whether an utterance has created a clear
and present danger to public interests requires a factual record.
The test itself states that the question in every case is "whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will bring
about the substantive evil that Congress has a right to prevent."
28
However it may have been
reformulated in later cases, the test essentially requires that the causal connection between the
speech and the evil apprehended be evident.
29
But how can this be shown unless the speech is first
allowed? It is not enough that the tapes have been made and only their broadcast banned. What
about the audience reaction to the tapes? Even if we know what the tapes in this case contain, we
cannot determine whether their public broadcast would create a clear and present danger to public
interests. The censorship board, trying to determine whether to issue a permit, must necessarily
speculate on impact which the words will have since the context in which they will be uttered - the
audience, the occasion, and the place - is totally lacking in the record. It is then forced to apply a
lesser standard of proof in deciding whether to impose a restraint on speech.
The majority claim that there is no need for a factual record in order to find that the Board in this
case exceeded its powers in disallowing the TV series in question. They argue that "acts of prior
restraint are hobbled by the presumption of invalidity and should be greeted with furrowed brews.
It is the burden of the respondent Board to overthrow this presumption. If it fails to discharge this
heavy burden, its act of censorship will be struck down. . . . In the case at bar, respondent board did
nothing to rebut the presumption." (p. 17)
That, however, is precisely the problem with the censorship law. It in effect places on the producer
or exhibitor the burden of going to court and of showing that his film or program is constitutionally
protected. To paraphrase Sotto v. Ruiz, which the majority cite as authority for sustaining the
validity of 3(c), "Every intendment of the law is in favor of the correctness of [the agency's]
action."
30
The Board would have this burden of justification if, as I believe it should, is made to go to
court instead and justify the banning of a film or TV program. That is why 3(c) should be
invalidated. One cannot defend the validity of the law and at the same time contend that in any
court proceeding for the review of the Board's decision the burden of justifying the ban should be
on the Board.
The teaching of Gonzales v. Kalaw Katigbak simply comes down to this: that the standard for
judging the validity of prior restraint on political expression is stricter than that for adjudging
restraints on materials alleged to be obscene, but not that the test of clear and present danger is
applicable in determining whether or not a permit may be granted.
In Gonzales v. Kalaw Katigbak
31
this Court echoed Justice Douglas's plea that "every writer, actor, or
producer, no matter what medium of expression he may use, should be freed from the censor." For
indeed the full flowering of local artistic talents and the development of the national intelligence
can take place only in a climate of free expression. A film producer, faced with the prospect of losing
on his investment as a result of the banning of his movie production, may well find himself
compelled to submit to the wishes of the Board or practice self-censorship. The expression of
unpopular opinions, whether religious, political or otherwise is imperilled under such a system.
We have long ago done away with controls on the print media, it is time we did the same with the
control on broadcast media, which for so long operated under restraints,
32
leaving the punishment
for violations of laws to be dealt with by subsequent prosecution.
For the foregoing reasons, I vote to declare 3(2) of P.D. No. 1986 unconstitutional and to reverse
the decision of the Court of Appeals, except in so far as it sustains the grant of power to the Board to
preview materials for showing or broadcast, consistent with my view that 3(b) is valid.

MELO, J., concurring and dissenting:
The enjoyment of the freedom of religion is always coupled with the freedom of expression. For the
profession of faith inevitably carries with it as a necessary appendage, the prerogative of
propagation. The constitutional guaranty of free exercise and enjoyment of religious profession and
worship thus denotes the right to disseminate religious information (American Bible Society vs.
City of Manila 101 Phil. 386 [1957]). Any prior restriction upon a religious expression would be a
restriction on the right of religion. We recognize the role and the deep influence that religion plays
in our community. No less than the fundamental law of the land acknowledges the elevating
influence of religion by imploring the aid of almighty God to build a just and humane society. Any
restriction that is to be placed upon this right must be applied with greatest caution.
Judicial notice must be taken of the fact that the Iglesia ni Cristo as an established religious
organization has been well with us for almost a century, with several millions of following quite a
number of imposing and elegantly constructed cathedrals and hundreds of chapels spread in many
parts of the country, injecting profound influence not only in the social and political aspect of the
community but upon its moral values as well. Respect must be afforded a well-established church,
especially on matters concerning morality and decency lest no concept of morality could ever be
accepted with deference. Such preeminence in the community deserves no less than the confident
expectation that it will act in accordance with its avowed mission of promoting religious guidance
and enlightenment. Its religious programs must be accorded the presumption that the same will
instill moral values that would be beneficial to its adherents and followers, and perhaps to the
community in general. The contrary must not be presumed. Its television programs, therefore,
should not be equated with ordinary movies and television shows which MTRCB is bound by the
law to monitor for possible abuse. One must recognize the power of State to protect its citizenry
from the danger of immorality and indecency motivated by the selfish desire of media
entrepreneurs to accumulate more wealth, or of bogus religious groups, for that matter, to mislead
and beguile the unlettered and uninformed. But considering all these circumstances, I see no cogent
reason for the application of such power to the present case.
Freedom of religion and expression is the rule and its restriction, the exception. Any prior
restriction on the exercise of the freedom to profess religious faith and the propagation thereof will
unduly diminish that religion's authority to spread what it believes to be the sacred truth. The State
can exercise no power to restrict such right until the exercise thereof traverses the point that will
endanger the order of civil society. Thus we have ruled in the case of Ebralinag vs. The Division
Superintendent of Schools of Cebu (219 SCRA 270 [1993]):
The sole justification for a given restraint or limitation on the exercise of religious
freedom is the existence of a grave and present danger of a character both grave and
imminent of a serious evil to public safety, public morals, public health or any other
legitimate public interest that the state has the right and duty to prevent.
Correspondingly, the MTRCB has no authority to use as standard, the dangerous tendency rule,
which we have long abandoned and for which reason, the dangerous tendency standard under
Subparagraph C, Section 3 of Presidential Decree No. 1986 has no place in our statute books.
I therefore, vote to grant the petition.

VITUG, J., dissenting:
I agree with those who support the view that religious freedom occupies an exalted position in our
hierarchy of rights and that the freedom to disseminate religious information is a constitutionally-
sanctioned prerogative that allows any legitimate religious denomination a free choice of media in
the propagation of its credo. Like any other right, however, the exercise of religious belief is not
without inherent and statutory limitations.
The Board disapproved the exhibition of a series of television programs of petitioner on the ground
that they tend to "offend and constitute an attack against other religions." An opinion has been
expressed that the non-inclusion in Section 3 of P.D. 1986 of an "attack against any religion," as a
standard for classification, and so the deletion of the phrase "offensive to other religions" found in
the old censorship law (Executive Order No. 876), should be clear enough to manifest a legislative
intent "to do away with the standard." A reading of Section 3 of P.D. 1986 shows that the Board is
empowered to "screen, review and examine all . . . television programs" and to "approve or
disprove, delete objectionable portion from and/or prohibit the . . . television broadcast of . . .
television programs . . . which, in the judgment of the BOARD (so) applying contemporary Filipino
cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or
good customs . . . ." I believe that the phrase "contrary to law" should be read together with other
existing laws such as, for instance, the provisions of the Revised Penal Code, particularly Article
201, which prohibits the exhibition of shows that "offend another race or religion." I see in this
provision a good and sound standard. Recent events indicate recurrent violent incidents between
and among communities with diverse religious beliefs and dogma. The danger is past mere
apprehension; it has become a virtual reality and now prevalent in some parts of the world.
In order not to infringe constitutional principles, any restriction by the Board must, of course, be for
legitimate and valid reasons. I certainly do not think that prior censorship should altogether be
rejected just because sanctions can later be imposed. Regulating the exercise of a right is not
necessarily an anathema to it; in fact, it can safeguard and secure that right.
When I particularly ponder on the magnitude of the power of a television set, I find it more prudent
to have a deferment of an exhibition that may be perceived to be contrary to decency, morality,
good customs or the law until, at least, the courts are given an opportunity to pass upon the matter
than rely merely on the availability of retribution for actual injury sustained. A delay is not too high
a price to pay for a possible damage to society that may well tum out to be incalculable and lasting.
In this instance, I vote for the dismissal of the petition.

KAPUNAN, J., concurring and dissenting:
While I concur in the result of the majority's decision reversing that of the Court of Appeals insofar
as it set aside the action of respondent MTRCB x-rating petitioner's TV Program Series Nos. 115,
119 and 121, with due respect, I cannot agree with its opinion that respondent Board of Review for
Motion pictures and Television (now MTRCB) has the power to review petitioner's TV program
"Ang Iglesia ni Cristo." The religious TV program enjoys the Constitution's guarantee of freedom of
religion,
1
and of speech and
expression.,
2
and cannot be subject to prior restraint by the Board by virtue of its powers and
functions under Section 3 of P.D. 1986 which provides as follows:
Sec. 3. Powers and Functions. -- The BOARD shall have the following functions,
powers and duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-
theatrical distribution, for television broadcast or for general viewing, imported or
produced in the Philippines, and in the latter case, whether they be for local viewing
or for export.
c) To approve or disapprove, delete objectionable portion from and/or prohibit the
importation, exportation, production, copying, distribution, sale, lease, exhibition
and/or television broadcast of the motion pictures, television programs and
publicity materials subject of the preceding paragraph, which, in the judgment of the
BOARD applying contemporary Filipino cultural values as standard, are
objectionable for being immoral, indecent, contrary to law and/or good customs,
Injurious to the prestige of the Republic of the Philippines or its people, or with a
dangerous tendency to encourage the commission of violence or of a wrong or
crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or
sedition against the State, or otherwise threaten the economic
and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the
people, their government and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for
violence and pornography;
v) Those which tend to abet the traffic in and use of prohibited
drugs;
vi) Those which are libelous or defamatory to the good name and
reputation of any person, whether living or dead; and,
vii) Those which may constitute contempt of court or of any quasi-
judicial tribunal, or pertain to matters which are subjudice in nature.
Under the aforequoted provisions, the MTRCB, while nominally a classification board, is granted the
power not only to classify, but also to approve or disapprove/prohibit exhibition of film or
television broadcasts of motion pictures and TV programs.
The freedom to disseminate religious information is a right protected by the free exercise clause of
the Constitution. It encompasses a wide range of ideas and takes many forms. In the process of
enlightening the adherents or convincing non-believers of the truth of its beliefs, a religious sect or
denomination is allowed the free choice of utilizing various media, including pulpit or podium,
print, television film, and the electronic mail.
The broad latitude of freedom afforded by the free exercise clause is an historic outgrowth of our
country's twin colonial experiences: our forefathers' aversion against the Spanish colonial
government's interference with religious belief and practice and the transplantation of American
Constitutional thinking into the mainstream of our political life, which brought with it the ideas of
Protestant dissent and humanistic rationalism dominant in the debates of the American
Constitutional Convention. These two poles conjoined to place the individual conscience beyond the
coercive power of government. Involving as it does the relationship of man to his Creator, respect
for the inviolability of conscience lay at the core of the free exercise clauses in our Constitutions
from 1935 to 1987.
3

It is, therefore, settled that religious freedom is a fundamental right entitled to the highest priority
and amplest protection among human rights. Because of its exalted position in our hierarchy of civil
rights, the realm of religious belief is generally insulated from state action, and state interference
with such belief is allowed only in extreme cases.
Free exercise encompasses all shades of expression of religious belief. It includes the right to
preach, proselyte and to perform other similar functions.
4
As oftentimes these aspects of the free
exercise clause fall within areas affected by government regulation, the importance of religious
freedom is such that the state must make special provisions to relieve religious liberty from
restrictions imposed by generally legitimate government regulations
5
Commenting on religious
freedom and other freedoms of conscience, this Court held in Reyes v. Bagatsing
6
that:
[O]n the judiciary -- even more so than on the other departments -- rests the grave
and delicate responsibility of assuring respect for and deference to such preferred
rights. No verbal formula, no sanctifying phrase can, of course dispense with what
has been felicitously termed by Justice Holmes "as the sovereign prerogative of
judgment. Nonetheless, the presumption must be to incline the weight of the scales
of justice on the side of such rights.
7

Even before film and television achieved the power and influence it has gained in the last few
decades, the U.S. Supreme Court, in the case of Burtsyn v. Wilson,
8
conceded that movies were a
significant medium for the dissemination of ideas, affecting "public attitudes and behavior in a
variety of ways, ranging from the direct espousal of a political or social doctrine to the subtle
shaping of thought which characterizes artistic expression."
9
The U.S. Supreme Court emphasized
that the significance of motion pictures as an organ of public opinion is not diluted by the fact that
films are "designed to entertain as well as to inform,"
10
thus, recognizing that motion pictures fell
within the sphere of constitutionally protected speech and expression. Responding to the question
of censorship in the context of film as protected expression, the U.S. Supreme Court, in the case of
Freedman v. Maryland
11
held that:
The administration of a censorship system for motion pictures presents peculiar
dangers to constitutionally protected speech. Unlike a prosecution for obscenity, a
censorship proceeding puts the initial burden on the exhibitor or distributor.
Because the censor's business is to censor, there is an inherent danger that he may
be less responsive than a court part of an independent branch of government -- to
constitutionally protected interests in free expression.
12

In American Bible Society v. City of Manila,
13
this Court held that any restraint on the right to
disseminate religious information "can only be justified like other restraints of freedom of
expression on the grounds that there is a clear and present danger of any substantive evil which the
State has the right to prevent."
14
Affirming the use of this "clear and present danger" standard in
cases involving religious freedom and worship, the late Chief Justice Claudio Teehankee warned
that "[t]he sole justification for a prior restraint or limitation on the exercise of religious freedom is
the existence of a grave and present danger of a character both grave and imminent of a serious evil
to public safety, public morals, public health or any other legitimate public interest, that the State
has a right (and duty) to prevent."
15

Religious freedom is not of course an absolute right. However, given its exalted position in our
hierarchy of civil rights, the essence of all that has been said and written about the subject is that
only those interests of the highest order and those not otherwise served can overbalance claims to
free exercise of religion.
16
In a highly sensitive constitutional area, only the gravest situation
endangering paramount govemmental interests give occasion for permissible limitation. And even
in such rare cases, government may justify an inroad into religious liberty only by showing that it is
the least restrictive means of achieving the compelling state interest. A facially neutral regulation
apparently evenhandedly applied to all religious sects and denominations would be constitutionally
suspect when it imposes an undue burden on the exercise of religious freedom. "Rules are rules" is
not by itself a sufficient justification for infringing religious liberty.
1
7
It is my submission that the government, under the guise of its regulatory powers in the censorship
law (P.D. 1986 and its corresponding implementing rules and regulations), does not have the power
to interfere with the exercise of religious expression in film or television by requiring the
submission of the video tapes of petitioner's religious program before their public viewing, absent a
showing of a compelling state interest that overrides the constitutional protection of the freedom of
expression and worship. Even if government can demonstrate a compelling state interest, it would
only burden such fundamental right like the free exercise of religion by the least intrusive means
possible.
18
There is no demonstration here of any sufficient state interest to justify the
infringement.
In any case, petitioner's religious programs, which in their very essence and characterization are
the exercise of religious freedom, cannot possibly come under the category of the objectionable
matters enumerated in Section 3(c) of P.D. 1986 or analogous thereto. It is not likely that
propagation of religion which has been spoken of as "a profession of faith that binds and elevates
man to his Creator"
19
will involve pornography excessive violence or danger to national security.
Significantly, the enumeration in Section 3(c) does not include the standard "attack against any
religion" as among those considered objectionable and subject to censorship. Respondents justify
this omission by stating that any form of expression "contrary to law" could be subject to regulation
because the enumeration is in any case not exclusive, and that the phrase "contrary to law" should,
in the Solicitor General's words in behalf of respondents, be construed "in relation to Article 201 of
the Revised Penal Code which proscribes the exhibition of shows that "offend any race or
religion."
20
Respondents moreover argue that the Rules and Regulations of the MTRCB issued
pursuant to P.D. 1986 in any case explicitly furnish the standard left out in the enumeration when it
provides:
Sec. 4. GOVERNING STANDARD. -- a) The BOARD shall judge the motion pictures
and television programs and publicity materials submitted to it for review, using as
standard contemporary Filipino cultural values to abate what are legally
objectionable for being immoral, indecent, contrary to law and good customs,
injurious to the prestige of the Republic of the Philipines or its people, or with a
dangerous tendency to encourage the commission of violence or of a wrong or crime
such as but not limited to:
xxx xxx xxx
vii) Those which clearly constitute an attack against any race, creed, or religion as
distinguished from individual members thereof; . . .
There are several reasons why I cannot agree with respondent Board's contention that it may add
the standard "attack against any religion" among those enumerated by P.D. 1986. While the law's
enumeration is concededly not exclusive, inclusion of other standards should be made in the strict
context of the words "immoral, indecent, contrary to law and/or good customs." Specific standards
following a general enumeration cannot go beyond the scope of the latter.
In the first place, the word "indecent" in censorship law has a narrow meaning, confined to
obscenity regulation.
12
It cannot be conveniently employed as a catch-all term embracing all forms
of expression considered noxious by the Board. On the other hand, "contrary to law," had particular
significance in the old censorship laws because those laws explicitly included anything "offensive to
other religions" among their enumerated standards. In the light of what the Solicitor General
describes as the "transitional" nature of P.D. 1986, the better view would be that the omission of
"attack against any religion" among the enumerated standards was intentional and part of the
evolving process of fashioning a system of strict classification of films and television programs as
opposed to censorship. As this phrase was ubiquitous in the old censorship laws (particularly E.O.
868 and E.O. 876), its elimination in P.D. 1986 expresses the manifest intention of the law-making
authority to do away with the standard. This view is supported by the Executive Branch itself,
through the Opinion of then Minister of Justice Neptali Gonzales who stated, when the case came up
before his office for review, that:
[T]he question whether the BRMPT (now MTRCB) may preview and censor the
subject television program of INC should be viewed in the light of the provision of
Section 3, paragraph (c) of P.D. 1986, which is substantially the same as the
provision of Section 3, paragraph (c) of E.O. No. 876-A, which prescribes the
standards for censorship, to wit: "immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of the Philippines or its people, or
with dangerous tendency to encourage the commission of violence, or a wrong" as
determined by the Board, "applying contemporary Filipino cultural values as
standard". As stated, the intention of the Board to subject the INC's television
program to "previewing and censorship is prompted by the fact that its religious
program" makes mention of beliefs and practices of other religion". On the face of
the law itself, there can conceivably be no basis for censorship of said program by the
Board as much as the alleged reason cited by the Board does not appear to be within
the contemplation of the standards of censorship set by law.
22

Additionally, the phrase "contrary to law" cannot and should not be understood to refer to Article
201
23
of the Revised Penal Code, as respondents mistakenly suggest. Article 201 deals with the
subject of subsequent punishment; P.D. 1986 clearly treats with an altogether different matter --
prior restraint and censorship. The two laws stand at opposite poles in the continuum of regulation
and punishment.
Thus, the censor's cut poses a peculiar danger because it altogether skirts time-honored judicial
tests and standards utilized in determining those forms of expression that fall within the area of
protected speech or expression, and because, as between prior restraints and the subsequent
sanctions meted after proof of violation of specific penal statutes, the former prevents the speech or
expression from entering the marketplace of ideas.
24
That is exactly the effect of the orders assailed
by petitioner in the instant case. More significantly, under the specific facts and circumstances of
the case confronting us, what is sought to be kept out of the marketplace of ideas is not only
ordinary speech or expression, two constitutional values which already enjoy primacy among our
civil rights, but also religious speech or expression utilizing the medium of television.
It is claimed that the provisions of P.D. 1986 in any case provide for a neutral standard applicable to
all religious sects and denominations. I cannot agree. The "neutrality" standard has been raised in
numerous free exercise cases before the courts, the most recent having been the Flag Salute
cases.
25
However, a regulation neutral on its face poses free exercise problems when it creates or
has the potential of imposing undue burdens on religion. "Democratic government acts to reinforce
the generally accepted values of a given society and not merely the fundamental ones which relate
to its political structure."
26
Facially neutral standards are a facet of prevailing concensus. The old
flag salute cases are testaments to the natural preference for the prevailing political and social
morality over the religious liberty of minorities. The prevalent view tends to impose its idea of what
is religious and what is not over and above the protests of the other religions, sects and
denominations.
2
7 Applying "contemporary Filipino standards" and values (the general test in P.D.
1986) to religious thought and expression allows an "overarching" into a constitutionally protected
area and potentially would simply provide the Board with a veiled excuse for clamping down
against unorthodox religious thought and expression. Measured in terms of the historic purpose of
the guarantee, the free exercise provision in our Constitution not only insulates religion against
governmental power, but when taken together with the Establishment clause, affords protection to
religious minorities by preventing the use of that power in imposing the majority's will.
We are faced with a case of censorship and restraint which, I stated earlier, touches upon one of the
most private and sensitive of domains: the realm of religious freedom, thought and expression. In
this domain, sharp differences may arise such that the tenets of one individual may seem the
"rankest error" to his neighbor.
28
In the process of persuading others about the validity of his point
of view, the preacher sometimes resorts to exaggeration and vilification. However, the
determination of the question as to whether or not such vilification, exaggeration or fabrication
falls within or lies outside the boundaries of protected speech or expression is a judicial function
which cannot be arrogated by an administrative body such as a Board of censors.
29
Even if the
exercise of the liberties protected by the speech, expression and religion clauses of our Constitution
are regarded as neither absolute nor unlimited, there are appropriate laws which deal with such
excesses. The least restrictive alternative would be to impose subsequent sanctions for proven
violations of laws, rather than inflict prior restraints on religious expression.
Our penal law punishes libel, or acts or speeches offensive to other religions, and awards damages
whenever warranted. In our legal scheme, courts essentially remain the arbiters of the
controversies affecting the civil and political rights of persons. It is our courts which determine
whether or not certain forms of speech and expression have exceeded the bounds of correctness,
propriety or decency as to fall outside the area of protected speech. In the meantime, the liberties
protected by the speech and expression and free exercise clauses are so essential to our society that
they should be allowed to flourish unobstructed and unmolested.
30

The majority opinion professes fealty to freedom of religion which it openly admits, has been
accorded a preferred status by the framers of our fundamental laws, and affirms that "(D)eeply
ensconced in our fundamental
law is its hostility against all prior restraints on speech, including religious speech."
31
The majority
then adds pointedly that "acts of prior restraint are hobbled by the presumption of invalidity and
should be greeted with furrowed brews. It is the burden of the respondent Board to overthrow this
presumption. If it fails to discharge this heavy burden, its acts of censorship will be struck down. It
failed in the case at bar."
32

And yet, the majority at the same time would grant MTRCB the power to review the TV religious
programs because "with its expertise," it "can determine whether its sulphur will bring about the
substantive evil feared by the law."
33
The majority thus would uphold the power of the Board as an
administrative body with quasi-judicial power to preview and classify TV programs, citing with
favor the 1921 decision of this Court in Sotto vs. Ruiz
34
wherein it was held that:
As has been said, the performance of the duty of determining whether a publication
contains printed matter of a libelous character rests with the Director of Posts and
involves the exercise of his judgment and discretion. Every intendment of the law is
in favor of the correctness of his action. The rule is (and we go only to those cases
coming from the United States Supreme Court and pertaining to the United States
Postmaster-General), that the courts will not interfere with the decision of the
Director of Posts unless clearly of opinion that it was wrong.
I share with Justice Mendoza's view that the majority's pronouncement would in effect place on the
producer or exhibitor the burden of going to court and of showing that his film or program is
constitutionally protected. This throws overboard the fundamental tenet that any act that restrains
speech is presumed invalid and it is the burden of the censor to overthrow this presumption. In the
context of the present case, if the Board disapproves a TV religious program or deletes a portion
thereof, it is the exhibitor or producer who will go to court to prove that the Board is wrong and the
court will not interfere with the Board's decision unless it can be clearly shown that it is wrong,
following the ruling in Sotto vs. Ruiz.
The majority's ruling, I am afraid, constitutes a threat to constitutionally protected speech and
expression and supplants a judicjal standard for determining constitutionally protected speech and
expression with the censor's standard. The heavy burden on the imposition of prior restraints is
shifted away from the state by imposing upon the exhibitor the obligation of proving that the
religious programs fall within the realm of protected expression. This leaves the exhibitor with only
two unwanted options: either 1) he himself deletes the portions which he anticipates the Board
might possibly object to prior to submission to that body and thereby obtains the censor's nod, or
2) submits the Video tapes in their entirety and risks disapproval or deletion, in which case he may
go to court and show that the Video tapes contain constitutionally protected speech and expression.
In the first situation, the message loses its essence and substance. The second scenario may entail
tremendous amount of money, time and effort in a prolonged litigation. Either case constitutes
grievous assault on the freedom of speech and religion.
The ruling in Sotto vs. Ruiz cannot be invoked as authority to allow MTRCB to review petitioner's TV
programs. In that case, the Court held that the Acting Director of the Bureau of Posts is vested with
authority to determine what mail matter is obscene, lewd, filthy or libelous, pursuant to Section
1954 of the old Administrative Code which provides, among others, that no lewd, lascivious, filthy,
indecent or libelous character shall be deposited in, or carried by, the mails of the Philippine Island,
or be delivered to its addressee by any officer or employee of the Bureau of Posts. Petitioner's
programs which are televised in the exercise of freedom of worship cannot be placed in the
category of the printed matter proscribed in the old Administrative Code. Freedom of worship is
such a precious commodity in our hierarchy of civil liberties that it cannot be derogated
peremptorily by an administrative body or officer who determines, without judicial safeguards,
whether or not to allow the exercise of such freedom.
The rights of free expression and free exercise of religion occupy a unique and special place in our
constellation of civil rights. The primacy our society accords these freedoms determines the mode it
chooses to regulate their expression. But the idea that an ordinary statute or decree could, by its
effects, nullify both the freedom of religion and the freedom of expression puts an ominous gloss on
these liberties. Censorship law as a means of regulation and as a form of prior restraint is anathema
to a society which places high significance to these values.
WHEREFORE, premises considered, I vote to grant the petition.
Footnotes
1 A petition for certiorari, prohibition and injunction, the case was raffled to Br. 104, then
presided by Judge, now Associate Justice of the Court of Appeals Maximiano Asuncion.
2 Original Records, p. 24.
3 Original Records, p. 25.
4 Original Records, p. 27.
5 Original Records, p. 28.
6 Original Records, p. 29. The second review shows the following action of the respondent
Board:
REMARKS:
An unbalanced interpretation of some parts of the bible regarding Christmas. They (The
Iglesia ni Kristo) tackle/discuss only their own interpretations (and) while the sides of the
Protestants and the Catholics who they pick on in this episode are not heard of.
We feel that this topic of the Iglesia ni Kristo which is (?) of attacking other religious beliefs
does not merit public telecast.
(Original Records, p. 30)
7 Original Records, pp. 21-22.
8 Original Records, p. 23.
9 Original Records, pp. 121-120; pp. 144-149.
10 Original Records, pp. 219-220.
11 Original Records, pp. 223-230.
12 Original Records, pp. 233-242.
13 Original Records, pp. 245-250.
14 Original Records, pp. 379-381.
15 Tenth Division with Associate Justice Antonio P. Solano (ponente), Associate Justice
Alfredo Benipayo (chairman) and Associate Justice Ricardo Galvez (member).
16 Victoriano v. Elizalde Rope Worker Union, L-25246, September 12, 1974 per Mr. Justice
Calixto Zaldivar.
17 Cruz, Constitutional Law, 1991 ed., pp. 176-178.
18 Original Records, p. 30.
19 Near v. Minnesota, 283 US 697 (1931); Bantam Books Inc. v. Sullivan ,372 US 58 (1963);
New York Times v. United States , 403 US 713 (1971).
20 310 US 296.
21 Sec. 4. Governing Standard. -- a) the Board shall judge the motion pictures and television
programs and publicity materials submitted to it for review, using as standard
contemporary Filipino cultural values, to abate what are legally objectionable for being
immoral, indecent, contrary to law, and good customs . . . such as but not limited:
xxx xxx xxx
vii. Those which clearly constitute an attack against any race, creed, or religion as
distinguished from individual members thereof."
22 101 Phil. 386.
23 59 SCRA 54, 58.
24 249 US 47, 63 Led 470 (1919).
25 Bridges v. California, 314 US 252 262 where J. Black observed that the test "has afforded
a practical guidance in a variety of cases in which the scope of constitutional protections of
freedom of expression was an issue."
26 Thornhill v. Alabama, 310 US 88 (1940).
27 341 US 494 (1951).
28 Id., at p. 510.
29 Gunther, Learned Hand and the Origins of Modern First Amendment Doctrine, Some
Fragments of History, 27 Stan L. Rev. 719 (1975).
30 Hentoff, Speech, Harm and Self Government: Understanding the Ambit of the Clear and
Present Danger Test, 91 Col. Law Rev. No. 6, p. 1453 (1991).
31 370 US 478 (1962).
32 380 US 51 (1965).
33 Id. at p.58.
34 41 Phil. 468 (1921) per Justice Malcolm.
35 See Hunter, Toward a Better Understanding of the Prior Restraint Doctrine, A Reply to
Prof. Mayton, 67 Cornell L. Rev, 283 (1982) for the view that courts are no better than
administrative agencies in protecting First Amendment rights.
PANGANIBAN, J., concurring:
1 Sec. 3. Powers and Functions. - The BOARD shall have the following functions, powers and
duties:
xxx xxx xxx
b) To screen, review and examine all motion pictures as herein defined, television
programs, including publicity materials such as advertisements, trailers and stills, whether
such motion pictures and publicity materials be for theatrical or non-theatrical distribution,
for television broadcast or for general viewing, imported or produced in the Philippines,
and in the latter case, whether they be for local viewing or for export.
c) To approve or disprove, delete objectionable portion from and/or prohibit the
importation, exportation, production, copying, distribution, sale, lease exhibition and/or
television broadcast of the motion pictures, television programs and publicity materials
subject of the preceding paragraph, which, in the judgment of the BOARD applying
contemporary Filipino cultural values as standard, are objectionable for being immoral,
indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of
the Philippines or its people, or with a dangerous tendency to encourage the commission of
violence or of a wrong or crime, such as but not limited to:
i) Those which tend to incite subversion, insurrection, rebellion or sedition against the
State, or otherwise threaten the economic and/or political stability of the State;
ii) Those which tend to undermine the faith and confidence of the people, their government
and/or duly constituted authorities;
iii) Those which glorify criminals or condone crimes;
iv) Those which serve no other purpose but to satisfy the market for violence and
pornography;
v) Those which tend to abet the traffic in and use of prohibited drugs;
vi) Those which are libelous or defamatory to the good name and reputation of any person,
whether living or dead; and,
vii) Those which may constitute contempt of court or of any quasi-judicial tribunal, or
pertain to matters which are sub judice in nature.
2 Section 4, GOVERNING STANDARD. - a) The BOARD shall judge the motion pictures and
television programs and publicity materials submitted to it for review, using as standard
contemporary Filiping cultural values to abate what are legally objectionable for being
immoral, indecent, contrary to law and good customs, injurious to the prestige of the
Republic of the Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime such as but not limited to:
xxx xxx xxx
vii) Those which clearly constitute an attack against any race, creed, or religion as
distinguished from individual members thereof; . . .
3 Sec. 4. No law shall be passed abridging the freedom of speech, of expression . . .
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. . . .
4 137 SCRA 717 (July 22, 1985).
5 137 SCRA 628 (July 19, 1985).
6 Eastern, supra, at p. 636.
7 Id.
8 Gonzales, supra, at p. 729.
9 SCRA 151, 159 (October 21, 1986).
MENDOZA, J., concurring:
1 Gonzales v. COMELEC, 27 SCRA 835, 856 (1969); accord, Reyes v. Bagatsing, 125 SCRA
553 (1983); Gonzales v. Kalaw Katigbak, 137 SCRA 717 (1985).
2 Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA 861, 873 (1988).
3 State v. I, a Woman - Part II, 53 Wis. 102, 191 N.W. 2d 897, 902-903 (1971); see
also LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW, 1041-42 (1988).
4 160 SCRA 861 (1988).
5 36 SCRA 228 (1970).
6 Id., at 234.
7 41 Phil. 468 (1921).
8 Id. at 470.
9 11.
10 343 U.S. 495, 96 L.Ed. 1098 (1952).
11 See Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA at 869; Gonzales v. Kalaw Katigbak,
137 SCRA at 723; Eastern Broadcasting Corp. (DYRE) v. Dans, Jr., 137 SCRA 628, 635 (1985).
12 Burstyn v. Wilson, 343 U.S. at 502-503, 96 L. Ed. at 1106.
13 Gonzales v. Kalaw Katigbak, 137 SCRA at 729.
14 Eastern Broadcasting Corp. (DYRE) v. Dans, Jr., 137 SCRA at 635.
15 Freedman v. Maryland, 380 U.S. 51, 13 L.Ed. 2d 649 (1965).
16 PAUL A. FREUND, THE SUPREME COURT OF THE UNITED STATES, 66 (1961).
17 Thanks to Rule 4(VII) of the Board, "shows which offendany race or religion," as a
ground for prosecution, is translated into "clearly . . malicious attack against a race, creed or
religion," as a ground for censorship, thus limiting the Board's discretion in censoring films
and TV programs. This does not of course make the grant of censorial powers to the Board
any less invalid. There was a time when I thought that the problem was with overboard
standards. I am now convinced that the problem is with censorship per se.
18 See Freedman v. Maryland, 380 U.S. 51, 13 L.Ed.2d 649 (1965); Teitel Film Corp. v. Cusak,
390 U.S. 139, 19 L.Ed.2d 966 (1968); Blount v. Rizzi, 400 U.S. 410, 428 L.Ed.2d 498 (1971).
19 Freedman v. Maryland, 380 U.S. at 58, 13 L.Ed.2d at 654. For a discussion of the "vices" of
administrative censorship as opposed to judicial determination, see generally John Jeffries,
Jr., Rethinking Prior Restraint, 92 YALE L.J. 409, 421-426 (1983).
20 Henry Monaghan, First Amendment "Due Process," 83 HARV. L. REV. 518, 520 (1970).
21 EPZA v. Dulay, 149 SCRA 305 (1987); Sumulong v. Guerrero, 154 SCRA 461 (1987).
22 E.g., AntipolO Realty v. NHA, 153 SCRA 399 (1987); Tropical Homes, Inc. v. NHA, 152
SCRA 540 (1987).
23 Freedman v. Maryland, 380 U.S. at 58, 13 L.Ed.2d at 654.
24 Compare the following: "Knowledge is essential to understanding; and understanding
should precede judging," Jay Burns Baking Co. v. Bryan, 264 U.S. 504, 520, 68 L.Ed. 813, 829
(1924) (Brandeis, J., dissenting), which Professor Freund says was central to the thought of
Justice Brandeis. ON UNDERSTANDING THE SUPREME COURT 50 (1949).
25 137 SCRA at 725.
26 See, e.g., Schenck v. United States, 249 U.S. 47, 63 L.Ed. 470 (1919); Primicias v. Fugoso,
80 Phil. 71 (1948); Cabansag v. Fernandez, 102 Phil. 152 (1957); Vera v. Arca, 28 SCRA 351
(1969).
27 E.g., Reyes v. Bagatsing, 125 SCRA 553 (1983); Navarro v. Villegas, 31 SCRA 731
(1970); see also the Public Assembly Act of 1985 (B.P. Blg. 880), 6(a) of which makes it
mandatory for mayors to grant permits for the use of parks and streets unless there is "clear
and convincing evidence that the public assembly will create a clear and present danger to
public order, public safety, public convenience, public morals or public health."
28 Schenck v. United States, 249 U.S. at 52, 63 L.Ed at 473-74.
29 ENRIQUE M. FERNANDO, CONSTITUTION OF THE PHILIPPINES 569 (1977).
30 41 Phil. at 470.
31 137 SCRA at 725, quoting Justice Douglas's concurring opinion in Superior Films v.
Department of Education, 346 U.S. 587, 589, 98 L.Ed. 330, 331 (1954).
32 The first film censorship law, Act No. 3582 of the Philippine Legislature, was enacted on
November 29, 1929.
KAPUNAN, J., concurring and dissenting:
1 CONST., art. III, sec. 5.
2 CONST., art. III, sec. 4.
3 The 1987 Constitution provides:
Sec. 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed. No religious test shall be
required for the exercise of civil or political rights."
This provision retains the wording of both the 1935 and 1973 Constitution.
4 Mc Daniel v. Patty, 435 U.S. 618, 626 (1998); "Clearly, freedom of belief protected by the
free exercise clause embraces freedom to profess or practice that belief. Id., at 631
(Brennan, J., concurring).
5 Sherbert v. Vener, 374, U.S. 398 (1963).
6 125 SCRA 553 (1983).
7 Id., at 570.
8 343 U.S. 495 (1952).
9 Id., at 501.
10 Id.
11 380 U.S. 51 (1965).
12 Id., at 57.
13 101 Phil. 386 (1957).
14 Id., at 398.
15 Supra, note 11, at 534. (Dissenting).
16 The dichotomy between the freedom to believe and the freedom to act upon one's beliefs
was succinctly summed up by this Court in its flag ceremony decision, See Ebralinag v.
Division Superintendent of Schools of Cebu, 219 SCRA 270 (1993).
17 Goldman v. Weinberger, 54 LW 4298 (1986).
18 Sherbert v. Vener, 374 U.S. 333 [1963].
19 Aglipay v. Ruiz, 64 Phil. 201.
20 Rollo, p. 130.
21 See, Miller v. Califonia, 413 U.S. 15 (1973); Roth v. U.S., 354 U.S. 476 (1957); Memoirs v.
Massachusetts, 383 U.S. 413 (1966).
22 Rollo, p. 42. (Emphasis supplied).
Article 201 provides:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The
penalty ofprision mayor or a fine ranging from six thousand to twelve thousand pesos, or
both such imprisonment and fine, shall be imposed upon:
24 See Near v. Minnesota, 283 U.S. 697 (1931).
25 Supra, note 15. See also Motion for Reconsideration, G.R. No. 95770, December 29, 1995.
26 Gianella, Religious Liberty, Nonestablishment and Doctrinal Development: Part I The
Religious Liberty Guarantee, 80 Harvard L.R. 1381 (1967).
27 In any society, the most acculturated religion is that which exists in full harmony with
society's values and institutions. Normally, the acculturated religion rarely comes at odds
with society's legal norms in as much as those norms themselves are directly or indirectly
influenced by the acculturated or dominant religion. The thorniest legal issues arise when a
particular religion or sect advocates ideas separate from mainstream culture, or urges a
radical deviation from dominant thought which clashes with orthodox norms or
expectations. Notwithstanding the "acceptable" variety of expression which falls under the
rubric of bona fidereligious dogma, cross cultural religious clashes are bound to be
mediated from the standpoint of the dominant religion. See, H. RICHARD NEIBHUR, CHRIST
AND CULTURE (1951).
28 Cantwell v. Connecticut, 310 U.S. 296, at 310 (1939).
29 Whether or not administrative bodies might be more effective (and as suggested
"liberal" as opposed to the traditional "conservatism" of courts) in this regard or in terms of
protecting the constitutional rights of speech and expression, the process of assaying the
constitutional validity of the Board's acts with respect to these guarantees is a function
ultimately reposed by the constitution in the courts.
30 Id., at 310.
31 Majority opinion, pp. 13, 19.
32 Id. at 17.
33 Id., at 24.
34 41 Phi1. 468.

EN BANC
[G.R. No. 151445. April 11, 2002]

ARTHUR D. LIM and PAULINO R. ERSANDO, petitioners, vs. HONORABLE EXECUTIVE
SECRETARY as alter ego of HER EXCELLENCY GLORIA MACAPAGAL-ARROYO, and
HONORABLE ANGELO REYES in his capacity as Secretary of National Defense, respondents.
SANLAKAS and PARTIDO NG MANGGAGAWA, petitioners-intervenors, vs. GLORIA
MACAPAGAL-ARROYO, ALBERTO ROMULO, ANGELO REYES, respondents.
D E C I S I O N
DE LEON, JR., J.:

This case involves a petition for certiorari and prohibition as well as a petition-in-
intervention, praying that respondents be restrained from proceeding with the so-called
Balikatan 02-1 and that after due notice and hearing, that judgment be rendered issuing a
permanent writ of injunction and/or prohibition against the deployment of U.S. troops in
Basilan and Mindanao for being illegal and in violation of the Constitution.

The facts are as follows:

Beginning January of this year 2002, personnel from the armed forces of the United States
of America started arriving in Mindanao to take part, in conjunction with the Philippine
military, in Balikatan 02-1. These so-called Balikatan exercises are the largest combined
training operations involving Filipino and American troops. In theory, they are a simulation
of joint military maneuvers pursuant to the Mutual Defense Treaty,[1] a bilateral defense
agreement entered into by the Philippines and the United States in 1951.

Prior to the year 2002, the last Balikatan was held in 1995. This was due to the paucity of
any formal agreement relative to the treatment of United States personnel visiting the
Philippines. In the meantime, the respective governments of the two countries agreed to
hold joint exercises on a reduced scale. The lack of consensus was eventually cured when
the two nations concluded the Visiting Forces Agreement (VFA) in 1999.

The entry of American troops into Philippine soil is proximately rooted in the international
anti-terrorism campaign declared by President George W. Bush in reaction to the tragic
events that occurred on September 11, 2001. On that day, three (3) commercial aircrafts
were hijacked, flown and smashed into the twin towers of the World Trade Center in New
York City and the Pentagon building in Washington, D.C. by terrorists with alleged links to
the al-Qaeda (the Base), a Muslim extremist organization headed by the infamous Osama
bin Laden. Of no comparable historical parallels, these acts caused billions of dollars worth
of destruction of property and incalculable loss of hundreds of lives.

On February 1, 2002, petitioners Arthur D. Lim and Paulino P. Ersando filed this petition for
certiorari and prohibition, attacking the constitutionality of the joint exercise.[2] They were
joined subsequently by SANLAKAS and PARTIDO NG MANGGAGAWA, both party-list
organizations, who filed a petition-in-intervention on February 11, 2002.

Lim and Ersando filed suit in their capacities as citizens, lawyers and taxpayers. SANLAKAS
and PARTIDO, on the other hand, aver that certain members of their organization are
residents of Zamboanga and Sulu, and hence will be directly affected by the operations
being conducted in Mindanao. They likewise pray for a relaxation on the rules relative to
locus standi citing the unprecedented importance of the issue involved.

On February 7, 2002 the Senate conducted a hearing on the Balikatan exercise wherein
Vice-President Teofisto T. Guingona, Jr., who is concurrently Secretary of Foreign Affairs,
presented the Draft Terms of Reference (TOR).[3] Five days later, he approved the TOR,
which we quote hereunder:

I. POLICY LEVEL

1. The Exercise shall be Consistent with the Philippine Constitution and all its activities
shall be in consonance with the laws of the land and the provisions of the RP-US Visiting
Forces Agreement (VFA).

2. The conduct of this training Exercise is in accordance with pertinent United Nations
resolutions against global terrorism as understood by the respective parties.

3. No permanent US basing and support facilities shall be established. Temporary
structures such as those for troop billeting, classroom instruction and messing may be set
up for use by RP and US Forces during the Exercise.

4. The Exercise shall be implemented jointly by RP and US Exercise Co-Directors under
the authority of the Chief of Staff, AFP. In no instance will US Forces operate independently
during field training exercises (FTX). AFP and US Unit Commanders will retain command
over their respective forces under the overall authority of the Exercise Co-Directors. RP and
US participants shall comply with operational instructions of the APP during the FTX.

5. The exercise shall be conducted and completed within a period of not more than six
months, with the projected participation of 660 US personnel and 3,800 RP Forces. The
Chief of Staff, AFP shall direct the Exercise Co-Directors to wind up and terminate the
Exercise and other activities within the six month Exercise period.

6. The Exercise is a mutual counter-terrorism advising, assisting and training Exercise
relative to Philippine efforts against the ASG, and will be conducted on the Island of Basilan.
Further advising, assisting and training exercises shall be conducted in Malagutay and the
Zamboanga area. Related activities in Cebu will be for support of the Exercise.

7. Only 160 US Forces organized in 12-man Special Forces Teams shall be deployed with
AFP field commanders. The US teams shall remain at the Battalion Headquarters and, when
approved, Company Tactical headquarters where they can observe and assess the
performance of the APP Forces.

8. US exercise participants shall not engage in combat, without prejudice to their right of
self-defense.

9. These terms of Reference are for purposes of this Exercise only and do not create
additional legal obligations between the US Government and the Republic of the Philippines.

II. EXERCISE LEVEL

1. TRAINING

a. The Exercise shall involve the conduct of mutual military assisting, advising and
training of RP and US Forces with the primary objective of enhancing the operational
capabilities of both forces to combat terrorism.

b. At no time shall US Forces operate independently within RP territory.

c. Flight plans of all aircraft involved in the exercise will comply with the local air traffic
regulations.

2. ADMINISTRATION & LOGISTICS

a. RP and US participants shall be given a country and area briefing at the start of the
Exercise. This briefing shall acquaint US Forces on the culture and sensitivities of the
Filipinos and the provisions of the VFA. The briefing shall also promote the full cooperation
on the part of the RP and US participants for the successful conduct of the Exercise.

b. RP and US participating forces may share, in accordance with their respective laws
and regulations, in the use of their resources, equipment and other assets. They will use
their respective logistics channels.

c. Medical evaluation shall be jointly planned and executed utilizing RP and US assets
and resources.

d. Legal liaison officers from each respective party shall be appointed by the Exercise
Directors.

3. PUBLIC AFFAIRS

a. Combined RP-US Information Bureaus shall be established at the Exercise Directorate
in Zamboanga City and at GHQ, AFP in Camp Aguinaldo, Quezon City.

b. Local media relations will be the concern of the AFP and all public affairs guidelines
shall be jointly developed by RP and US Forces.

c. Socio-Economic Assistance Projects shall be planned and executed jointly by RP and
US Forces in accordance with their respective laws and regulations, and in consultation with
community and local government officials.

Contemporaneously, Assistant Secretary for American Affairs Minerva Jean A. Falcon and
United States Charge d Affaires Robert Fitts signed the Agreed Minutes of the discussion
between the Vice-President and Assistant Secretary Kelly.[4]

Petitioners Lim and Ersando present the following arguments:

I

THE PHILIPPINES AND THE UNITED STATES SIGNED THE MUTUAL DEFENSE TREATY
(MDT) in 1951 TO PROVIDE MUTUAL MILITARY ASSISTANCE IN ACCORDANCE WITH THE
CONSTITUTIONAL PROCESSES OF EACH COUNTRY ONLY IN THE CASE OF AN ARMED
ATTACK BY AN EXTERNAL AGGRESSOR, MEANING A THIRD COUNTRY AGAINST ONE OF
THEM.

BY NO STRETCH OF THE IMAGINATION CAN IT BE SAID THAT THE ABU SAYYAF BANDITS
IN BASILAN CONSTITUTE AN EXTERNAL ARMED FORCE THAT HAS SUBJECT THE
PHILIPPINES TO AN ARMED EXTERNAL ATTACK TO WARRANT U.S. MILITARY
ASSISTANCE UNDER THE MDT OF 1951.

II

NEITHER DOES THE VFA OF 1999 AUTHORIZE AMERICAN SOLDIERS TO ENGAGE IN
COMBAT OPERATIONS IN PHILIPPINE TERRITORY, NOT EVEN TO FIRE BACK IF FIRED
UPON.

Substantially the same points are advanced by petitioners SANLAKAS and PARTIDO.

In his Comment, the Solicitor General points to infirmities in the petitions regarding, inter
alia, Lim and Ersandos standing to file suit, the prematurity of the action, as well as the
impropriety of availing of certiorari to ascertain a question of fact. Anent their locus standi,
the Solicitor General argues that first, they may not file suit in their capacities as taxpayers
inasmuch as it has not been shown that Balikatan 02-1 involves the exercise of Congress
taxing or spending powers. Second, their being lawyers does not invest them with sufficient
personality to initiate the case, citing our ruling in Integrated Bar of the Philippines v.
Zamora.[5] Third, Lim and Ersando have failed to demonstrate the requisite showing of
direct personal injury. We agree.

It is also contended that the petitioners are indulging in speculation. The Solicitor General
is of the view that since the Terms of Reference are clear as to the extent and duration of
Balikatan 02-1, the issues raised by petitioners are premature, as they are based only on a
fear of future violation of the Terms of Reference. Even petitioners resort to a special civil
action for certiorari is assailed on the ground that the writ may only issue on the basis of
established facts.

Apart from these threshold issues, the Solicitor General claims that there is actually no
question of constitutionality involved. The true object of the instant suit, it is said, is to
obtain an interpretation of the VFA. The Solicitor General asks that we accord due
deference to the executive determination that Balikatan 02-1 is covered by the VFA,
considering the Presidents monopoly in the field of foreign relations and her role as
commander-in-chief of the Philippine armed forces.

Given the primordial importance of the issue involved, it will suffice to reiterate our view on
this point in a related case:

Notwithstanding, in view of the paramount importance and the constitutional significance
of the issues raised in the petitions, this Court, in the exercise of its sound discretion,
brushes aside the procedural barrier and takes cognizance of the petitions, as we have done
in the early Emergency Powers Cases, where we had occasion to rule:

x x x ordinary citizens and taxpayers were allowed to question the constitutionality of
several executive orders issued by President Quirino although they were involving only an
indirect and general interest shared in common with the public. The Court dismissed the
objection that they were not proper parties and ruled that transcendental importance to
the public of these cases demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure. We have since then applied the exception in
many other cases. [citation omitted]

This principle was reiterated in the subsequent cases of Gonzales vs. COMELEC, Daza vs.
Singson, and Basco vs. Phil. Amusement and Gaming Corporation, where we emphatically
held:

Considering however the importance to the public of the case at bar, and in keeping with
the Courts duty, under the 1987 Constitution, to determine whether or not the other
branches of the government have kept themselves within the limits of the Constitution and
the laws that they have not abused the discretion given to them, the Court has brushed
aside technicalities of procedure and has taken cognizance of this petition. xxx

Again, in the more recent case of Kilosbayan vs. Guingona, Jr., this Court ruled that in cases
of transcendental importance, the court may relax the standing requirements and allow a
suit to prosper even where there is no direct injury to the party claiming the right of judicial
review.

Although courts generally avoid having to decide a constitutional question based on the
doctrine of separation of powers, which enjoins upon the departments of the government a
becoming respect for each others acts, this Court nevertheless resolves to take cognizance
of the instant petitions.[6]

Hence, we treat with similar dispatch the general objection to the supposed prematurity of
the action. At any rate, petitioners' concerns on the lack of any specific regulation on the
latitude of activity US personnel may undertake and the duration of their stay has been
addressed in the Terms of Reference.

The holding of Balikatan 02-1 must be studied in the framework of the treaty antecedents
to which the Philippines bound itself. The first of these is the Mutual Defense Treaty (MDT,
for brevity). The MDT has been described as the core of the defense relationship between
the Philippines and its traditional ally, the United States. Its aim is to enhance the strategic
and technological capabilities of our armed forces through joint training with its American
counterparts; the Balikatan is the largest such training exercise directly supporting the
MDTs objectives. It is this treaty to which the VFA adverts and the obligations thereunder
which it seeks to reaffirm.

The lapse of the US-Philippine Bases Agreement in 1992 and the decision not to renew it
created a vacuum in US-Philippine defense relations, that is, until it was replaced by the
Visiting Forces Agreement. It should be recalled that on October 10, 2000, by a vote of
eleven to three, this court upheld the validity of the VFA.[7] The VFA provides the
regulatory mechanism by which United States military and civilian personnel [may visit]
temporarily in the Philippines in connection with activities approved by the Philippine
Government. It contains provisions relative to entry and departure of American personnel,
driving and vehicle registration, criminal jurisdiction, claims, importation and exportation,
movement of vessels and aircraft, as well as the duration of the agreement and its
termination. It is the VFA which gives continued relevance to the MDT despite the passage
of years. Its primary goal is to facilitate the promotion of optimal cooperation between
American and Philippine military forces in the event of an attack by a common foe.

The first question that should be addressed is whether Balikatan 02-1 is covered by the
Visiting Forces Agreement. To resolve this, it is necessary to refer to the VFA itself. Not
much help can be had therefrom, unfortunately, since the terminology employed is itself the
source of the problem. The VFA permits United States personnel to engage, on an
impermanent basis, in activities, the exact meaning of which was left undefined. The
expression is ambiguous, permitting a wide scope of undertakings subject only to the
approval of the Philippine government.[8] The sole encumbrance placed on its definition is
couched in the negative, in that United States personnel must abstain from any activity
inconsistent with the spirit of this agreement, and in particular, from any political
activity.[9] All other activities, in other words, are fair game.

We are not left completely unaided, however. The Vienna Convention on the Law of
Treaties, which contains provisos governing interpretations of international agreements,
state:

SECTION 3. INTERPRETATION OF TREATIES

Article 31

General rule of interpretation

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:

(a) any agreement relating to the treaty which was made between all the parties in
connexion with the conclusion of the treaty;

(b) any instrument which was made by one or more parties in connexion with the
conclusion of the treaty and accepted by the other parties as an instrument related to the
party.

3. There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;

(c) any relevant rules of international law applicable in the relations between the
parties.

4. A special meaning shall be given to a term if it is established that the parties so
intended.

Article 32

Supplementary means of interpretation

Recourse may be had to supplementary means of interpretation, including the preparatory
work of the treaty and the circumstances of its conclusion, in order to confirm the meaning
resulting from the application of article 31, or to determine the meaning when the
interpretation according to article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

It is clear from the foregoing that the cardinal rule of interpretation must involve an
examination of the text, which is presumed to verbalize the parties intentions. The
Convention likewise dictates what may be used as aids to deduce the meaning of terms,
which it refers to as the context of the treaty, as well as other elements may be taken into
account alongside the aforesaid context. As explained by a writer on the Convention,

[t]he Commissions proposals (which were adopted virtually without change by the
conference and are now reflected in Articles 31 and 32 of the Convention) were clearly
based on the view that the text of a treaty must be presumed to be the authentic expression
of the intentions of the parties; the Commission accordingly came down firmly in favour of
the view that the starting point of interpretation is the elucidation of the meaning of the
text, not an investigation ab initio into the intentions of the parties. This is not to say that
the travaux prparatoires of a treaty, or the circumstances of its conclusion, are relegated to
a subordinate, and wholly ineffective, role. As Professor Briggs points out, no rigid temporal
prohibition on resort to travaux prparatoires of a treaty was intended by the use of the
phrase supplementary means of interpretation in what is now Article 32 of the Vienna
Convention. The distinction between the general rule of interpretation and the
supplementary means of interpretation is intended rather to ensure that the supplementary
means do not constitute an alternative, autonomous method of interpretation divorced
from the general rule.[10]

The Terms of Reference rightly fall within the context of the VFA.

After studied reflection, it appeared farfetched that the ambiguity surrounding the meaning
of the word activities arose from accident. In our view, it was deliberately made that way
to give both parties a certain leeway in negotiation. In this manner, visiting US forces may
sojourn in Philippine territory for purposes other than military. As conceived, the joint
exercises may include training on new techniques of patrol and surveillance to protect the
nations marine resources, sea search-and-rescue operations to assist vessels in distress,
disaster relief operations, civic action projects such as the building of school houses,
medical and humanitarian missions, and the like.

Under these auspices, the VFA gives legitimacy to the current Balikatan exercises. It is only
logical to assume that Balikatan 02-1, a mutual anti-terrorism advising, assisting and
training exercise, falls under the umbrella of sanctioned or allowable activities in the
context of the agreement. Both the history and intent of the Mutual Defense Treaty and the
VFA support the conclusion that combat-related activities as opposed to combat itself
such as the one subject of the instant petition, are indeed authorized.

That is not the end of the matter, though. Granted that Balikatan 02-1 is permitted under
the terms of the VFA, what may US forces legitimately do in furtherance of their aim to
provide advice, assistance and training in the global effort against terrorism? Differently
phrased, may American troops actually engage in combat in Philippine territory? The Terms
of Reference are explicit enough. Paragraph 8 of section I stipulates that US exercise
participants may not engage in combat except in self-defense. We wryly note that this
sentiment is admirable in the abstract but difficult in implementation. The target of
Balikatan 02-1, the Abu Sayyaf, cannot reasonably be expected to sit idly while the battle
is brought to their very doorstep. They cannot be expected to pick and choose their targets
for they will not have the luxury of doing so. We state this point if only to signify our
awareness that the parties straddle a fine line, observing the honored legal maxim Nemo
potest facere per alium quod non potest facere per directum.[11] The indirect violation is
actually petitioners worry, that in reality, Balikatan 02-1 is actually a war principally
conducted by the United States government, and that the provision on self-defense serves
only as camouflage to conceal the true nature of the exercise. A clear pronouncement on
this matter thereby becomes crucial.

In our considered opinion, neither the MDT nor the VFA allow foreign troops to engage in
an offensive war on Philippine territory. We bear in mind the salutary proscription stated
in the Charter of the United Nations, to wit:

Article 2

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in
accordance with the following Principles.

xxx xxx xxx xxx

4. All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.

xxx xxx xxx xxx

In the same manner, both the Mutual Defense Treaty and the Visiting Forces Agreement, as
in all other treaties and international agreements to which the Philippines is a party, must
be read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty
was concluded way before the present Charter, though it nevertheless remains in effect as a
valid source of international obligation. The present Constitution contains key provisions
useful in determining the extent to which foreign military troops are allowed in Philippine
territory. Thus, in the Declaration of Principles and State Policies, it is provided that:

xxx xxx xxx xxx

SEC. 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and adheres
to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

xxx xxx xxx xxx

SEC. 7. The State shall pursue an independent foreign policy. In its relations with other
states the paramount consideration shall be national sovereignty, territorial integrity,
national interest, and the right to self-determination.

SEC. 8. The Philippines, consistent with the national interest, adopts and pursues a policy of
freedom from nuclear weapons in the country.

xxx xxx xxx xxx

The Constitution also regulates the foreign relations powers of the Chief Executive when it
provides that [n]o treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the members of the Senate.[12] Even more
pointedly, the Transitory Provisions state:

Sec. 25. After the expiration in 1991 of the Agreement between the Republic of 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.

The aforequoted provisions betray a marked antipathy towards foreign military presence in
the country, or of foreign influence in general. Hence, foreign troops are allowed entry into
the Philippines only by way of direct exception. Conflict arises then between the
fundamental law and our obligations arising from international agreements.

A rather recent formulation of the relation of international law vis--vis municipal law was
expressed in Philip Morris, Inc. v. Court of Appeals,[13] to wit:

xxx Withal, the fact that international law has been made part of the law of the land does not
by any means imply the primacy of international law over national law in the municipal
sphere. Under the doctrine of incorporation as applied in most countries, rules of
international law are given a standing equal, not superior, to national legislation.

This is not exactly helpful in solving the problem at hand since in trying to find a middle
ground, it favors neither one law nor the other, which only leaves the hapless seeker with
an unsolved dilemma. Other more traditional approaches may offer valuable insights.

From the perspective of public international law, a treaty is favored over municipal law
pursuant to the principle of pacta sunt servanda. Hence, [e]very treaty in force is binding
upon the parties to it and must be performed by them in good faith.[14] Further, a party to
a treaty is not allowed to invoke the provisions of its internal law as justification for its
failure to perform a treaty.[15]

Our Constitution espouses the opposing view. Witness our jurisdiction as stated in section
5 of Article VIII:

The Supreme Court shall have the following powers:

xxx xxx xxx xxx

(2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules
of Court may provide, final judgments and order of lower courts in:

(A) 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.

xxx xxx xxx xxx

In Ichong v. Hernandez,[16] we ruled that the provisions of a treaty are always subject to
qualification or amendment by a subsequent law, or that it is subject to the police power of
the State. In Gonzales v. Hechanova,[17]

xxx As regards the question whether an international agreement may be invalidated by our
courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the
affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may
not be deprived of its jurisdiction to review, revise, reverse, modify, or affirm on appeal,
certiorari, or writ of error as the law or the rules of court may provide, final judgments and
decrees of inferior courts in (1) All cases in which the constitutionality or validity of any
treaty, law, ordinance, or executive order or regulation is in question. In other words, our
Constitution authorizes the nullification of a treaty, not only when it conflicts with the
fundamental law, but, also, when it runs counter to an act of Congress.

The foregoing premises leave us no doubt that US forces are prohibited from engaging in an
offensive war on Philippine territory.

Yet a nagging question remains: are American troops actively engaged in combat alongside
Filipino soldiers under the guise of an alleged training and assistance exercise? Contrary to
what petitioners would have us do, we cannot take judicial notice of the events transpiring
down south,[18] as reported from the saturation coverage of the media. As a rule, we do
not take cognizance of newspaper or electronic reports per se, not because of any issue as to
their truth, accuracy, or impartiality, but for the simple reason that facts must be
established in accordance with the rules of evidence. As a result, we cannot accept, in the
absence of concrete proof, petitioners allegation that the Arroyo government is engaged in
doublespeak in trying to pass off as a mere training exercise an offensive effort by foreign
troops on native soil. The petitions invite us to speculate on what is really happening in
Mindanao, to issue, make factual findings on matters well beyond our immediate
perception, and this we are understandably loath to do.

It is all too apparent that the determination thereof involves basically a question of fact. On
this point, we must concur with the Solicitor General that the present subject matter is not a
fit topic for a special civil action for certiorari. We have held in too many instances that
questions of fact are not entertained in such a remedy. The sole object of the writ is to
correct errors of jurisdiction or grave abuse of discretion. The phrase grave abuse of
discretion has a precise meaning in law, denoting abuse of discretion too patent and gross
as to amount to an evasion of a positive duty, or a virtual refusal to perform the duty
enjoined or act in contemplation of law, or where the power is exercised in an arbitrary and
despotic manner by reason of passion and personal hostility.[19]

In this connection, it will not be amiss to add that the Supreme Court is not a trier of
facts.[20]

Under the expanded concept of judicial power under the Constitution, courts are charged
with the duty 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.[21] From the facts obtaining, we find that the holding of Balikatan 02-1
joint military exercise has not intruded into that penumbra of error that would otherwise
call for correction on our part. In other words, respondents in the case at bar have not
committed grave abuse of discretion amounting to lack or excess of jurisdiction.

WHEREFORE, the petition and the petition-in-intervention are hereby DISMISSED without
prejudice to the filing of a new petition sufficient in form and substance in the proper
Regional Trial Court.

SO ORDERED.

Bellosillo, Melo, Mendoza, Quisumbing, and Carpio, JJ., concur.
Davide, Jr., C.J., and Puno, J., join the main and separate opinion of J. Panganiban.
Vitug, J., in the result.
Kapunan, J., see dissenting opinion.
Panganiban, J., see separate opinion.
Ynares-Santiago, and Sandoval-Gutierrez, JJ., join the dissenting opinion of J. Kapunan.

[1] For ready reference, the text of the treaty is reproduced herein:

MUTUAL DEFENSE TREATY
BETWEEN THE REPUBLIC OF THE PHILIPPINES
AND THE UNITED STATES OF AMERICA
30 August 1951

The parties to 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,

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 United States of America and the Republic of the Philippines,

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 relations from the threat or use of force in any manner inconsistent
with the purpose of the United Nations.

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.

ARTICLE V.

For the purpose of Article IV, an armed attack on either of the Parties is deemed to
include an attack on the metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific or on its armed forces, public vessels or
aircraft used 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 United States of America and the Republic of the
Philippines 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.

IN WITNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.

DONE in duplicate at Washington this thirtieth day of August, 1951.

xxx xxx xxx xxx

[2] The day before, the first petition in connection with the joint military enterprise was
filed -- G.R. No. 151433, entitled In the Matter of Declaration as Constitutional and Legal
the Balikatan RP-US Military Exercises. Petitioner therein Atty. Eduardo B. Inlayo
manifested that he would be perfectly comfortable should the Court merely note his
petition. We did not oblige him; in a Resolution dated February 12, 2002, we dismissed his
petition on the grounds of insufficiency in form and substance and lack of jurisdiction. After
extending a hearty Valentines greeting to the Court en banc, Atty. Inlayo promised to
laminate the aforesaid resolution as a testimonial of his once upon a time participation in
an issue of national consequence.

[3] Annex 1 of the Comment.

[4] Annex 2 of the Comment. The Minutes state:

Secretary Guingona and Assistant Secretary Kelly welcomed the holding of
Balikatan 02-1 exercise (the Exercise) and the conclusion of the Terms of Reference for the
Exercise. Assistant Secretary Kelly thanked Secretary Guingona for Secretary Guingonas
personal approval of the Terms of Reference.

Both Secretary Guingona and Assistant Secretary Kelly emphasized the importance
of cooperating, within the bounds provided for by their respective constitutions and laws, in
the fight against international terrorism.

Both Secretary Guingona and Assistant Secretary Kelly expressed the belief that the
Exercise shall not in any way contribute to any escalation of other conflicts in Mindanao,
shall not adversely affect the progress of ongoing peace negotiations between the
Government of the Philippines and other parties, and shall not put at risk the friendly
relations between the Philippines and its neighbors as well as with other states. Secretary
Guingona stated that he had in mind the ongoing peace negotiations with the NDF and the
MILF and he emphasized that it is important to make sure that the Exercise shall not in any
way hinder those negotiations.

Both Secretary Guingona and Assistant Secretary Kelly stated that they look
forward to the realization of the nearly US$100 million in security assistance for fiscal years
2001-2002 agreed upon between H.E. President Gloria Macapagal-Arroyo and H.E.
President George W. Bush last November 2001.

Secretary Guingona stated that the Philippines welcomes the assistance that the
U.S. will be providing, saying that while Filipino soldier does not lack experience, courage
and determination, they could benefit from additional knowledge and updated military
technologies.

Assistant Secretary Kelly said that he is glad the U.S. is able to provide advice,
assistance and training and reiterated the policy position expressed by H.E. President
George W. Bush during his State of the Nation Address that U.S. forces are in the Philippines
to advise, assist and train Philippine military forces.

Both Secretary Guingona and Assistant Secretary Kelly reiterated that, as provided
in the Terms of Reference, U.S. Forces shall not engage in combat during the Exercise,
except in accordance with their right to act in self-defense.

Both Secretary Guingona and Assistant Secretary Kelly reiterated that, pursuant to
Article II of the Visiting Forces Agreement, U.S. forces are bound to respect the laws of the
Philippines during the Exercise.

Both Secretary Guingona and Assistant Secretary Kelly recognized that, pursuant to
Article VI of the Visiting Forces Agreement, both the U.S. and Philippine Governments waive
any and all claims against the other for any deaths or injuries to their military and civilian
personnel from the Exercise.

Secretary Guingona and Assistant Secretary Kelly designated Ambassador Minerva
Falcon and Charge d Affaires, a.i. Robert Fitts to initial these minutes.

Both secretary Guingona and Assistant Secretary Kelly agreed to consult from time
to time on matters relating to the Exercise as well as on other matters.

[5] 338 SCRA 81, 100-101 (2000).

[6] BAYAN, et. al. v. Zamora, 342 SCRA 449 (2000).

[7] BAYAN, et. al. v. Zamora, et. al., 342 SCRA 449 (2000).

[8] Article I [Definitions], VFA.

[9] Article II [Respect for Law], VFA.

[10] I.M. SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 71-72 (1973).

[11] No one is allowed to do indirectly what he is prohibited to do directly.

[12] Sec. 21, Art. VII.

[13] 224 SCRA 576, 593 (1993).

[14] Vienna Convention on the Law of Treaties, art. 26.

[15] Id, art. 27. However, this is without prejudice to the provisions of art. 46 of the
convention, which provides:

1. A State may not invoke the fact that its consent to be bound by a treaty has
been expressed in violation of a provision of its internal law regarding competence to
conclude treaties as invalidating its consent unless that violation was manifest and
concerned a rule of its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any State
conducting itself in the manner in accordance with normal practice and in good faith.

[16] 101 Phil. 1155, 1191 (1957).

[17] 9 SCRA 230, 242 (1963).

[18] Pertinent sections of Rule 129 provide: SECTION 1. Judicial notice, when
mandatory.A court shall take judicial notice, without the introduction of evidence, of the
existence and territorial extent of states, their political history, forms of government and
symbols of nationality, the law of nations, the admiralty and maritime courts of the world
and their seals, the political constitution and history of the Philippines, the official acts of
the legislative, executive and judicial departments of the Philippines, the laws of nature, the
measure of time, and the geographical divisions. Likewise, it is also provided in the next
succeeding section: SEC. 2. Judicial notice, when discretionary.A court may take judicial
notice of matters which are of public knowledge, or are capable of unquestionable
demonstration, or ought to be known to judges because of their judicial functions.

[19] Sanchez v. National Labor Relations Commission, 312 SCRA 727 (1999).

[20] Hervas v. Court of Appeals, 319 SCRA 776 (1999); Valmonte v. Court of Appeals, 303
SCRA 278 (1999).

[21] Article VIII, section 1.


EN BANC

GEN. AVELINO I. RAZON, JR., Chief, Philippine National Police (PNP); Police Chief
Superintendent RAUL CASTAEDA, Chief, Criminal Investigation and Detection Group
(CIDG); Police Senior Superintendent LEONARDO A. ESPINA, Chief, Police Anti-Crime and
Emergency Response (PACER); and GEN. JOEL R. GOLTIAO, Regional Director of ARMM,
PNP,
Petitioners,


- versus -


MARY JEAN B. TAGITIS, herein represented by ATTY. FELIPE P. ARCILLA, JR., Attorney-in-
Fact,
Respondent.

G.R. No. 182498
Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.



Promulgated:

December 3, 2009

x-----------------------------------------------------------------------------------------x
D E C I S I O N
BRION, J.:

We review in this petition for review on certiorari[1] the decision dated March 7, 2008 of
the Court of Appeals (CA) in C.A-G.R. AMPARO No. 00009.[2] This CA decision confirmed
the enforced disappearance of Engineer Morced N. Tagitis (Tagitis) and granted the Writ of
Amparo at the petition of his wife, Mary Jean B. Tagitis (respondent). The dispositive
portion of the CA decision reads:

WHEREFORE, premises considered, petition is hereby GRANTED. The Court hereby FINDS
that this is an enforced disappearance within the meaning of the United Nations
instruments, as used in the Amparo Rules. The privileges of the writ of amparo are hereby
extended to Engr. Morced Tagitis.

Consequently: (1) respondent GEN. EDGARDO M. DOROMAL, Chief, Criminal Investigation
and Detention Group (CIDG) who should order COL. JOSE VOLPANE PANTE, CIDG-9 Chief,
Zamboanga City, to aid him; (2) respondent GEN. AVELINO I. RAZON, Chief, PNP, who
should order his men, namely: (a) respondent GEN. JOEL GOLTIAO, Regional Director of
ARMM PNP, (b) COL. AHIRON AJIRIM, both head of TASK FORCE TAGITIS, and (c)
respondent SR. SUPERINTENDENT LEONARDO A. ESPINA, Chief, Police Anti-Crime and
Emergency Response, to aid him as their superior- are hereby DIRECTED to exert
extraordinary diligence and efforts, not only to protect the life, liberty and security of Engr.
Morced Tagitis, but also to extend the privileges of the writ of amparo to Engr. Morced
Tagitis and his family, and to submit a monthly report of their actions to this Court, as a way
of PERIODIC REVIEW to enable this Court to monitor the action of respondents.

This amparo case is hereby DISMISSED as to respondent LT. GEN. ALEXANDER YANO,
Commanding General, Philippine Army, and as to respondent GEN. RUBEN RAFAEL, Chief
Anti-Terror Task Force Comet, Zamboanga City, both being with the military, which is a
separate and distinct organization from the police and the CIDG, in terms of operations,
chain of command and budget.

This Decision reflects the nature of the Writ of Amparo a protective remedy against
violations or threats of violation against the rights to life, liberty and security.[3] It
embodies, as a remedy, the courts directive to police agencies to undertake specified
courses of action to address the disappearance of an individual, in this case, Engr. Morced N.
Tagitis. It does not determine guilt nor pinpoint criminal culpability for the disappearance;
rather, it determines responsibility, or at least accountability, for the enforced
disappearance for purposes of imposing the appropriate remedies to address the
disappearance. Responsibility refers to the extent the actors have been established by
substantial evidence to have participated in whatever way, by action or omission, in an
enforced disappearance, as a measure of the remedies this Court shall craft, among them,
the directive to file the appropriate criminal and civil cases against the responsible parties
in the proper courts. Accountability, on the other hand, refers to the measure of remedies
that should be addressed to those who exhibited involvement in the enforced
disappearance without bringing the level of their complicity to the level of responsibility
defined above; or who are imputed with knowledge relating to the enforced disappearance
and who carry the burden of disclosure; or those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the enforced disappearance. In all
these cases, the issuance of the Writ of Amparo is justified by our primary goal of
addressing the disappearance, so that the life of the victim is preserved and his liberty and
security are restored.

We highlight this nature of a Writ of Amparo case at the outset to stress that the unique
situations that call for the issuance of the writ, as well as the considerations and measures
necessary to address these situations, may not at all be the same as the standard measures
and procedures in ordinary court actions and proceedings. In this sense, the Rule on the
Writ of Amparo[4] (Amparo Rule) issued by this Court is unique. The Amparo Rule should
be read, too, as a work in progress, as its directions and finer points remain to evolve
through time and jurisprudence and through the substantive laws that Congress may
promulgate.

THE FACTUAL ANTECEDENTS

The background facts, based on the petition and the records of the case, are
summarized below.

The established facts show that Tagitis, a consultant for the World Bank and the Senior
Honorary Counselor for the Islamic Development Bank (IDB) Scholarship Programme, was
last seen in Jolo, Sulu. Together with Arsimin Kunnong (Kunnong), an IDB scholar, Tagitis
arrived in Jolo by boat in the early morning of October 31, 2007 from a seminar in
Zamboanga City. They immediately checked-in at ASY Pension House. Tagitis asked
Kunnong to buy him a boat ticket for his return trip the following day to Zamboanga. When
Kunnong returned from this errand, Tagitis was no longer around.[5] The receptionist
related that Tagitis went out to buy food at around 12:30 in the afternoon and even left his
room key with the desk.[6] Kunnong looked for Tagitis and even sent a text message to the
latters Manila-based secretary who did not know of Tagitis whereabouts and activities
either; she advised Kunnong to simply wait.[7]

On November 4, 2007, Kunnong and Muhammad Abdulnazeir N. Matli, a UP professor
of Muslim studies and Tagitis fellow student counselor at the IDB, reported Tagitis
disappearance to the Jolo Police Station.[8] On November 7, 2007, Kunnong executed a
sworn affidavit attesting to what he knew of the circumstances surrounding Tagitis
disappearance.[9]

More than a month later (on December 28, 2007), the respondent filed a Petition for
the Writ of Amparo (petition) with the CA through her Attorney-in-Fact, Atty. Felipe P.
Arcilla.[10] The petition was directed against Lt. Gen. Alexander Yano, Commanding
General, Philippine Army; Gen. Avelino I. Razon, Chief, Philippine National Police (PNP);
Gen. Edgardo M. Doromal, Chief, Criminal Investigation and Detention Group (CIDG); Sr.
Supt. Leonardo A. Espina, Chief, Police Anti-Crime and Emergency Response; Gen. Joel
Goltiao, Regional Director, ARMM-PNP; and Gen. Ruben Rafael, Chief, Anti-Terror Task
Force Comet [collectively referred to as petitioners]. After reciting Tagitis personal
circumstances and the facts outlined above, the petition went on to state:

x x x x

7. Soon after the student left the room, Engr. Tagitis went out of the pension house
to take his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle
then sped away without the knowledge of his student, Arsimin Kunnong;

8. As instructed, in the late afternoon of the same day, Kunnong returned to the
pension house, and was surprised to find out that subject Engr. Tagitis cannot [sic] be
contacted by phone and was not also around and his room was closed and locked;

9. Kunnong requested for the key from the desk of the pension house who [sic]
assisted him to open the room of Engr. Tagitis, where they discovered that the personal
belongings of Engr. Tagitis, including cell phones, documents and other personal belongings
were all intact inside the room;

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;

11. Arsimin Kunnong including his friends and companions in Jolo, exerted efforts
in trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the
police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could
have been abducted by the Abu Sayyaf group and other groups known to be fighting against
the government;

12. Being scared with [sic] these suggestions and insinuations of the police
officers, Kunnong reported the matter to the [respondent, wife of Engr. Tagitis] by phone
and other responsible officers and coordinators of the IDB Scholarship Programme in the
Philippines, who alerted the office of the Governor of ARMM who was then preparing to
attend the OIC meeting in Jeddah, Saudi Arabia;

13. [Respondent], on the other hand, approached some of her co-employees with
the Land Bank in Digos branch, Digos City, Davao del Sur who likewise sought help from
some of their friends in the military who could help them find/locate the whereabouts of
her husband;

14. All of these efforts of the [respondent] did not produce any positive results
except the information from persons in the military who do not want to be identified that
Engr. Tagitis is in the hands of the uniformed men;

15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest attempt of the police to involve
and connect Engr. Tagitis with the different terrorist groups;

x x x x

17. [Respondent] filed her complaint with the PNP Police Station in the ARMM in
Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband, but
[respondents] request and pleadings failed to produce any positive results;

18. Instead of helping the [respondent], she [sic] was told of an intriguing tale by
the police that her husband, subject of the petition, was not missing but was with another
woman having good time somewhere, which is a clear indication of the [petitioners] refusal
to help and provide police assistance in locating her missing husband;

19. The continued failure and refusal of the [petitioners] to release and/or turn-
over subject Engr. Tagitis to his family or even to provide truthful information to [the
respondent] of the subjects whereabouts, and/or allow [the respondent] to visit her
husband Engr. Morced Tagitis, caused so much sleepless nights and serious anxieties;

20. Lately, [the respondent] was again advised by one of the [petitioners] to go to
the ARMM Police Headquarters again in Cotobato City and also to the different Police
Headquarters including [those] in Davao City, in Zamboanga City, in Jolo, and in Camp
Crame, Quezon City, and all these places have been visited by the [respondent] in search for
her husband, which entailed expenses for her trips to these places thereby resorting her to
borrowings and beggings [sic] for financial help from friends and relatives only to try
complying [sic] to the different suggestions of these police officers, despite of which, her
efforts produced no positive results up to the present time;

21. In fact at times, some police officers, who [sympathized with] the sufferings
undergone by the [respondent], informed her that they are not the proper persons that she
should approach, but assured her not to worry because her husband is [sic] in good hands;

22. The unexplained uncooperative behavior of the [petitioners] to the
[respondents] request for help and failure and refusal of the [petitioners] to extend the
needed help, support and assistance in locating the whereabouts of Engr. Tagitis who had
been declared missing since October 30, 2007 which is almost two (2) months now, clearly
indicates that the [petitioners] are actually in physical possession and custody of
[respondents] husband, Engr. Tagitis;

x x x x

25. [The respondent] has exhausted all administrative avenues and remedies but to
no avail, and under the circumstances, [the respondent] has no other plain, speedy and
adequate remedy to protect and get the release of subject Engr. Morced Tagitis from the
illegal clutches of the [petitioners], their intelligence operatives and the like which are in
total violation of the subjects human and constitutional rights, except the issuance of a
WRIT OF AMPARO. [Emphasis supplied]


On the same day the petition was filed, the CA immediately issued the Writ of Amparo,
set the case for hearing on January 7, 2008, and directed the petitioners to file their verified
return within seventy-two (72) hours from service of the writ.[11]

In their verified Return filed during the hearing of January 27, 2008, the petitioners denied
any involvement in or knowledge of Tagitis alleged abduction. They argued that the
allegations of the petition were incomplete and did not constitute a cause of action against
them; were baseless, or at best speculative; and were merely based on hearsay evidence.
[12]

The affidavit of PNP Chief Gen. Avelino I. Razon, attached to the Return, stated that: he did
not have any personal knowledge of, or any participation in, the alleged disappearance; that
he had been designated by President Gloria Macapagal Arroyo as the head of a special body
called TASK FORCE USIG, to address concerns about extralegal killings and enforced
disappearances; the Task Force, inter alia, coordinated with the investigators and local
police, held case conferences, rendered legal advice in connection to these cases; and gave
the following summary:[13]

x x x x

4.
a) On November 5, 2007, the Regional Director, Police Regional Office ARMM
submitted a report on the alleged disappearance of one Engr. Morced Tagitis. According to
the said report, the victim checked-in at ASY Pension House on October 30, 2007 at about
6:00 in the morning and then roamed around Jolo, Sulu with an unidentified companion. It
was only after a few days when the said victim did not return that the matter was reported
to Jolo MPS. Afterwards, elements of Sulu PPO conducted a thorough investigation to trace
and locate the whereabouts of the said missing person, but to no avail. The said PPO is still
conducting investigation that will lead to the immediate findings of the whereabouts of the
person.

b) Likewise, the Regional Chief, 9RCIDU submitted a Progress Report to the
Director, CIDG. The said report stated among others that: subject person attended an
Education Development Seminar set on October 28, 2007 conducted at Ateneo de
Zamboanga, Zamboanga City together with a Prof. Matli. On October 30, 2007, at around
5:00 oclock in the morning, Engr. Tagitis reportedly arrived at Jolo Sulu wharf aboard M/V
Bounty Cruise, he was then billeted at ASY Pension House. At about 6:15 oclock in the
morning of the same date, he instructed his student to purchase a fast craft ticket bound for
Zamboanga City and will depart from Jolo, Sulu on October 31, 2007. That on or about
10:00 oclock in the morning, Engr. Tagitis left the premises of ASY Pension House as stated
by the cashier of the said pension house. Later in the afternoon, the student instructed to
purchase the ticket arrived at the pension house and waited for Engr. Tagitis, but the latter
did not return. On its part, the elements of 9RCIDU is now conducting a continuous case
build up and information gathering to locate the whereabouts of Engr. Tagitis.

c) That the Director, CIDG directed the conduct of the search in all divisions of the
CIDG to find Engr. Tagitis who was allegedly abducted or illegally detained by covert CIDG-
PNP Intelligence Operatives since October 30, 2007, but after diligent and thorough search,
records show that no such person is being detained in CIDG or any of its department or
divisions.

5. On this particular case, the Philippine National Police exhausted all possible efforts,
steps and actions available under the circumstances and continuously search and
investigate [sic] the instant case. This immense mandate, however, necessitates the
indispensable role of the citizenry, as the PNP cannot stand alone without the cooperation
of the victims and witnesses to identify the perpetrators to bring them before the bar of
justice and secure their conviction in court.




The petitioner PNP-CIDG Chief, Gen. Edgardo M. Doromal, submitted as well his
affidavit, also attached to the Return of the Writ, attesting that upon receipt of the Writ of
Amparo, he caused the following:[14]

x x x x
That immediately upon receipt on December 29, 2007 of the Resolution of the
Honorable Special Fourth Division of the Court of Appeals, I immediately directed the
Investigation Division of this Group [CIDG] to conduct urgent investigation on the alleged
enforced disappearance of Engineer Morced Tagitis.

That based on record, Engr. Morced N. Tagitis attended an Education Development
Seminar on October 28, 2007 at Ateneo de Zamboanga at Zamboanga City together with
Prof. Abdulnasser Matli. On October 30, 2007, at around six oclock in the morning he
arrived at Jolo, Sulu. He was assisted by his student identified as Arsimin Kunnong of the
Islamic Development Bank who was also one of the participants of the said seminar. He
checked in at ASY pension house located [sic] Kakuyagan, Patikul, Sulu on October 30, 2007
with [sic] unidentified companion. At around six oclock in the morning of even date, Engr.
Tagitis instructed his student to purchase a fast craft ticket for Zamboanga City. In the
afternoon of the same date, Kunnong arrived at the pension house carrying the ticket he
purchased for Engr. Tagitis, but the latter was nowhere to be found anymore. Kunnong
immediately informed Prof. Abdulnasser Matli who reported the incident to the police. The
CIDG is not involved in the disappearance of Engr. Morced Tagitis to make out a case of an
enforced disappearance which presupposes a direct or indirect involvement of the
government.

That herein [petitioner] searched all divisions and departments for a person named
Engr. Morced N. Tagitis, who was allegedly abducted or illegally detained by covert CIDG-
PNP Intelligence Operatives since October 30, 2007 and after a diligent and thorough
research records show that no such person is being detained in CIDG or any of its
department or divisions.

That nevertheless, in order to determine the circumstances surrounding Engr.
Morced Tagitis [sic] alleged enforced disappearance, the undersigned had undertaken
immediate investigation and will pursue investigations up to its full completion in order to
aid in the prosecution of the person or persons responsible therefore.

Likewise attached to the Return of the Writ was PNP-PACER[15] Chief PS Supt.
Leonardo A. Espinas affidavit which alleged that:[16]

x x x x

That, I and our men and women in PACER vehemently deny any participation in the
alleged abduction or illegally [sic] detention of ENGR. MORCED N. TAGITS on October 30,
2007. As a matter of fact, nowhere in the writ was mentioned that the alleged abduction
was perpetrated by elements of PACER nor was there any indication that the alleged
abduction or illegal detention of ENGR. TAGITIS was undertaken jointly by our men and by
the alleged covert CIDG-PNP intelligence operatives alleged to have abducted or illegally
detained ENGR. TAGITIS.

That I was shocked when I learned that I was implicated in the alleged disappearance
of ENGR. MORCED in my capacity as the chief PACER [sic] considering that our office, the
Police Anti-Crime and Emergency Response (PACER), a special task force created for the
purpose of neutralizing or eradicating kidnap-for-ransom groups which until now continue
to be one of the menace of our society is a respondent in kidnapping or illegal detention
case. Simply put, our task is to go after kidnappers and charge them in court and to abduct
or illegally detain or kidnap anyone is anathema to our mission.

That right after I learned of the receipt of the WRIT OF AMPARO, I directed the Chief
of PACER Mindanao Oriental (PACER-MOR) to conduct pro-active measures to investigate,
locate/search the subject, identify and apprehend the persons responsible, to recover and
preserve evidence related to the disappearance of ENGR. MORCED TAGITIS, which may aid
in the prosecution of the person or persons responsible, to identify witnesses and obtain
statements from them concerning the disappearance and to determine the cause, manner,
location and time of disappearance as well as any pattern or practice that may have brought
about the disappearance.

That I further directed the chief of PACER-MOR, Police Superintendent JOSE
ARNALDO BRIONES JR., to submit a written report regarding the disappearance of ENGR.
MORCED.

That in compliance with my directive, the chief of PACER-MOR sent through fax his
written report.

That the investigation and measures being undertaken to locate/search the subject in
coordination with Police Regional Office, Autonomous Region of Muslim Mindanao (PRO-
ARMM) and Jolo Police Provincial Office (PPO) and other AFP and PNP units/agencies in the
area are ongoing with the instruction not to leave any stone unturned so to speak in the
investigation until the perpetrators in the instant case are brought to the bar of justice.

That I have exercised EXTRAORDINARY DILIGENCE in dealing with the WRIT OF
AMPARO just issued.


Finally, the PNP PRO ARMM Regional Director PC Supt. Joel R. Goltiao (Gen. Goltiao),
also submitted his affidavit detailing the actions that he had taken upon receipt of the report
on Tagitis disappearance, viz:[17]

x x x x

3) For the record:

1. I am the Regional Director of Police Regional Office ARMM now and during the
time of the incident;

x x x x

4. It is my duty to look into and take appropriate measures on any cases of reported
enforced disappearances and when they are being alluded to my office;

5. On November 5, 2007, the Provincial Director of Sulu Police Provincial Office
reported to me through Radio Message Cite No. SPNP3-1105-07-2007 that on November 4,
2007 at around 3:30 p.m., a certain Abdulnasser Matli, an employee of Islamic Development
Bank, appeared before the Office of the Chief of Police, Jolo Police Station, and reported the
disappearance of Engr. Morced Tagitis, scholarship coordinator of Islamic Development
Bank, Manila;

6. There was no report that Engr. Tagibis was last seen in the company of or
taken by any member of the Philippine National Police but rather he just disappeared from
ASY Pension House situated at Kakuyagan Village, Village, Patikul, Sulu, on October 30,
2007, without any trace of forcible abduction or arrest;

7. The last known instance of communication with him was when Arsimin
Kunnong, a student scholar, was requested by him to purchase a vessel ticket at the Office of
Weezam Express, however, when the student returned back to ASY Pension House, he no
longer found Engr. Tagitis there and when he immediately inquired at the information
counter regarding his whereabouts [sic], the person in charge in the counter informed him
that Engr. Tagitis had left the premises on October 30, 2007 around 1 oclock p.m. and never
returned back to his room;

8. Immediately after learning the incident, I called and directed the Provincial
Director of Sulu Police Provincial Office and other units through phone call and text
messages to conduct investigation [sic] to determine the whereabouts of the aggrieved
party and the person or persons responsible for the threat, act or omission, to recover and
preserve evidence related to the disappearance of Engr. Tagitis, to identify witnesses and
obtain statements from them concerning his disappearance, to determine the cause and
manner of his disappearance, to identify and apprehend the person or persons involved in
the disappearance so that they shall be brought before a competent court;

9. Thereafter, through my Chief of the Regional Investigation and Detection
Management Division, I have caused the following directives:

a) Radio Message Cite No. RIDMD-1122-07-358 dated November 22, 2007 directing PD
Sulu PPO to conduct joint investigation with CIDG and CIDU ARMM on the matter;

b) Radio Message Cite No. RIDMD-1128-07-361 dated November 28, 2007 directing PD
Sulu PPO to expedite compliance to my previous directive;

c) Memorandum dated December 14, 2007 addressed to PD Sulu PPO reiterating our
series of directives for investigation and directing him to undertake exhaustive
coordination efforts with the owner of ASY Pension House and student scholars of IDB in
order to secure corroborative statements regarding the disappearance and whereabouts of
said personality;

d) Memorandum dated December 24, 2007 addressed to PD Sulu PPO directing him to
maximize efforts to establish clues on the whereabouts of Engr. Tagitis by seeking the
cooperation of Prof. Abdulnasser Matli and Arsimin Kunnong and/or whenever necessary,
for them to voluntarily submit for polygraph examination with the NBI so as to expunge all
clouds of doubt that they may somehow have knowledge or idea to his disappearance;

e) Memorandum dated December 27, 2007 addressed to the Regional Chief, Criminal
Investigation and Detection Group, Police Regional Office 9, Zamboanga City, requesting
assistance to investigate the cause and unknown disappearance of Engr. Tagitis considering
that it is within their area of operational jurisdiction;

f) Memorandum from Chief, Intelligence Division, PRO ARMM dated December 30, 2007
addressed to PD Sulu PPO requiring them to submit complete investigation report
regarding the case of Engr. Tagitis;

10. In compliance to our directives, PD Sulu PPO has exerted his [sic] efforts to
conduct investigation [sic] on the matter to determine the whereabouts of Engr. Tagitis and
the circumstances related to his disappearance and submitted the following:

a) Progress Report dated November 6, 2007 through Radio Message Cite No. SPNP3-
1106-10-2007;

b) Radio Message Cite No. SPIDMS-1205-47-07 informing this office that they are still
monitoring the whereabouts of Engr. Tagitis;

c) Investigation Report dated December 31, 2007 from the Chief of Police, Jolo Police
Station, Sulu PPO;

11. This incident was properly reported to the PNP Higher Headquarters as shown
in the following:

a) Memorandum dated November 6, 2007 addressed to the Chief, PNP informing him of
the facts of the disappearance and the action being taken by our office;

b) Memorandum dated November 6, 2007 addressed to the Director, Directorate for
Investigation and Detection Management, NHQ PNP;

c) Memorandum dated December 30, 2007 addressed to the Director, DIDM;

4) In spite of our exhaustive efforts, the whereabouts of Engr. Tagitis cannot be
determined but our office is continuously intensifying the conduct of information gathering,
monitoring and coordination for the immediate solution of the case.


Since the disappearance of Tagistis was practically admitted and taking note of
favorable actions so far taken on the disappearance, the CA directed Gen. Goltiao as the
officer in command of the area of disappearance to form TASK FORCE TAGITIS.[18]

Task Force Tagitis

On January 11, 2008, Gen. Goltiao designated PS Supt. Ahiron Ajirim (PS Supt. Ajirim)
to head TASK FORCE TAGITIS.[19] The CA subsequently set three hearings to monitor
whether TASK FORCE TAGITIS was exerting extraordinary efforts in handling the
disappearance of Tagitis.[20] As planned, (1) the first hearing would be to mobilize the
CIDG, Zamboanga City; (2) the second hearing would be to mobilize intelligence with Abu
Sayyaf and ARMM; and (3) the third hearing would be to mobilize the Chief of Police of Jolo,
Sulu and the Chief of Police of Zamboanga City and other police operatives.[21]

In the hearing on January 17, 2008, TASK FORCE TAGITIS submitted to the CA an
intelligence report from PSL Usman S. Pingay, the Chief of Police of the Jolo Police Station,
stating a possible motive for Tagitis disappearance.[22] The intelligence report was
apparently based on the sworn affidavit dated January 4, 2008 of Muhammad Abdulnazeir
N. Matli (Prof. Matli), Professor of Islamic Studies at the University of the Philippines and an
Honorary Student Counselor of the IDB Scholarship Program in the Philippines, who told
the Provincial Governor of Sulu that:[23]

[Based] on reliable information from the Office of Muslim Affairs in Manila, Tagitis has
reportedly taken and carried away more or less Five Million Pesos (P5,000,000.00)
deposited and entrusted to his [personal] bank accounts by the Central Office of IDB,
Jeddah, Kingdom of Saudi Arabia, which [was] intended for the IDB Scholarship Fund.

In the same hearing, PS Supt. Ajirim testified that since the CIDG was alleged to be
responsible, he personally went to the CIDG office in Zamboanga City to conduct an ocular
inspection/investigation, particularly of their detention cells.[24] PS Supt. Ajirim stated
that the CIDG, while helping TASK FORCE TAGITIS investigate the disappearance of Tagitis,
persistently denied any knowledge or complicity in any abduction.[25] He further testified
that prior to the hearing, he had already mobilized and given specific instructions to their
supporting units to perform their respective tasks; that they even talked to, but failed to get
any lead from the respondent in Jolo.[26] In his submitted investigation report dated
January 16, 2008, PS Supt. Ajirim concluded:[27]

9. Gleaned from the undersigned inspection and observation at the Headquarters
9 RCIDU and the documents at hand, it is my own initial conclusion that the 9RCIDU and
other PNP units in the area had no participation neither [sic] something to do with [sic]
mysterious disappearance of Engr. Morced Tagitis last October 30, 2007. Since doubt has
been raised regarding the emolument on the Islamic Development Bank Scholar program of
IDB that was reportedly deposited in the personal account of Engr. Tagitis by the IDB
central office in Jeddah, Kingdom of Saudi Arabia. Secondly, it could might [sic] be done by
resentment or sour grape among students who are applying for the scholar [sic] and were
denied which was allegedly conducted/screened by the subject being the coordinator of
said program.

20. It is also premature to conclude but it does or it may and [sic] presumed that
the motive behind the disappearance of the subject might be due to the funds he maliciously
spent for his personal interest and wanted to elude responsibilities from the institution
where he belong as well as to the Islamic student scholars should the statement of Prof.
Matli be true or there might be a professional jealousy among them.

x x x x

It is recommended that the Writ of Amparo filed against the respondents be dropped
and dismissed considering on [sic] the police and military actions in the area particularly
the CIDG are exerting their efforts and religiously doing their tasked [sic] in the conduct of
its intelligence monitoring and investigation for the early resolution of this instant case. But
rest assured, our office, in coordination with other law-enforcement agencies in the area,
are continuously and religiously conducting our investigation for the resolution of this case.

On February 4, 2008, the CA issued an ALARM WARNING that TASK FORCE TAGITIS
did not appear to be exerting extraordinary efforts in resolving Tagitis disappearance on
the following grounds:[28]

(1) This Court FOUND that it was only as late as January 28, 2008, after the hearing,
that GEN. JOEL GOLTIAO and COL. AHIRON AJIRIM had requested for clear photographs
when it should have been standard operating procedure in kidnappings or disappearances
that the first agenda was for the police to secure clear pictures of the missing person, Engr.
Morced Tagitis, for dissemination to all parts of the country and to neighboring countries. It
had been three (3) months since GEN. JOEL GOLTIAO admitted having been informed on
November 5, 2007 of the alleged abduction of Engr. Morced Tagitis by alleged bad elements
of the CIDG. It had been more than one (1) month since the Writ of Amparo had been issued
on December 28, 2007. It had been three (3) weeks when battle formation was ordered
through Task Force Tagitis, on January 17, 2008. It was only on January 28, 2008 when the
Task Force Tagitis requested for clear and recent photographs of the missing person, Engr.
Morced Tagitis, despite the Task Force Tagitis claim that they already had an all points
bulletin, since November 5, 2007, on the missing person, Engr. Morced Tagitis. How could
the police look for someone who disappeared if no clear photograph had been
disseminated?

(2) Furthermore, Task Force Tagitis COL. AHIROM AJIRIM informed this Court that
P/Supt KASIM was designated as Col. Ahirom Ajirims replacement in the latters official
designated post. Yet, P/Supt KASIMs subpoena was returned to this Court unserved. Since
this Court was made to understand that it was P/Supt KASIM who was the petitioners
unofficial source of the military intelligence information that Engr. Morced Tagitis was
abducted by bad elements of the CIDG (par. 15 of the Petition), the close contact between
P/Supt KASIM and Col. Ahirom Ajirim of TASK FORCE TAGITIS should have ensured the
appearance of Col. KASIM in response to this courts subpoena and COL. KASIM could have
confirmed the military intelligence information that bad elements of the CIDG had abducted
Engr. Morced Tagitis.



Testimonies for the Respondent

On January 7, 2008, the respondent, Mary Jean B. Tagitis, testified on direct
examination that she went to Jolo and Zamboanga in her efforts to locate her husband. She
said that a friend from Zamboanga holding a high position in the military (whom she did not
then identify) gave her information that allowed her to specify her allegations,
particularly paragraph 15 of the petition.[29] This friend also told her that her husband
[was] in good hands.[30] The respondent also testified that she sought the assistance of
her former boss in Davao City, Land Bank Bajada Branch Manager Rudy Salvador, who told
her that PNP CIDG is holding [her husband], Engineer Morced Tagitis.[31] The respondent
recounted that she went to Camp Katitipan in Davao City where she met Col. Julasirim
Ahadin Kasim (Col. Kasim/Sr. Supt Kasim) who read to her and her friends (who were then
with her) a highly confidential report that contained the alleged activities of Engineer
Tagitis and informed her that her husband was abducted because he is under custodial
investigation for being a liaison for J.I. or Jemaah Islamiah.[32]

On January 17, 2008, the respondent on cross-examination testified that she is Tagitis
second wife, and they have been married for thirteen years; Tagitis was divorced from his
first wife.[33] She last communicated with her husband on October 29, 2007 at around
7:31 p.m. through text messaging; Tagitis was then on his way to Jolo, Sulu, from
Zamboanga City.[34]

The respondent narrated that she learned of her husbands disappearance on October
30, 2007 when her stepdaughter, Zaynah Tagitis (Zaynah), informed her that she had not
heard from her father since the time they arranged to meet in Manila on October 31,
2007.[35] The respondent explained that it took her a few days (or on November 5, 2007)
to personally ask Kunnong to report her husbands disappearance to the Jolo Police Station,
since she had the impression that her husband could not communicate with her because his
cellular phones battery did not have enough power, and that he would call her when he had
fully-charged his cellular phones battery.[36]

The respondent also identified the high-ranking military friend, who gave her the
information found in paragraph 15 of her petition, as Lt. Col. Pedro L. Ancanan, Jr (Col.
Ancanan). She met him in Camp Karingal, Zamboanga through her boss.[37] She also
testified that she was with three other people, namely, Mrs. Marydel Martin Talbin and her
two friends from Mati City, Davao Oriental, when Col. Kasim read to them the contents of
the highly confidential report at Camp Katitipan, Davao City. The respondent further
narrated that the report indicated that her husband met with people belonging to a terrorist
group and that he was under custodial investigation. She then told Col. Kasim that her
husband was a diabetic taking maintenance medication, and asked that the Colonel relay to
the persons holding him the need to give him his medication.[38]

On February 11, 2008, TASK FORCE TAGITIS submitted two narrative reports,[39] signed
by the respondent, detailing her efforts to locate her husband which led to her meetings
with Col. Ancanan of the Philippine Army and Col. Kasim of the PNP. In her narrative
report concerning her meeting with Col. Ancanan, the respondent recounted, viz:[40]

On November 11, 2007, we went to Zamboanga City with my friend Mrs. Marydel
Talbin. Our flight from Davao City is 9:00 oclock in the morning; we arrived at Zamboanga
Airport at around 10:00 oclock. We [were] fetched by the two staffs of Col. Ancanan. We
immediately proceed [sic] to West Mindanao Command (WESTMINCOM).

On that same day, we had private conversation with Col. Ancanan. He interviewed me
and got information about the personal background of Engr. Morced N. Tagitis. After he
gathered all information, he revealed to us the contents of text messages they got from the
cellular phone of the subject Engr. Tagitis. One of the very important text messages of Engr.
Tagitis sent to his daughter Zaynah Tagitis was that she was not allowed to answer any
telephone calls in his condominium unit.

While we were there he did not tell us any information of the whereabouts of Engr.
Tagitis. After the said meeting with Col. Ancanan, he treated us as guests to the city. His
two staffs accompanied us to the mall to purchase our plane ticket going back to Davao City
on November 12, 2007.

When we arrived in Davao City on November 12, 2007 at 9:00 in the morning, Col.
Ancanan and I were discussing some points through phone calls. He assured me that my
husband is alive and hes last looked [sic] in Talipapao, Jolo, Sulu. Yet I did not believe his
given statements of the whereabouts of my husband, because I contacted some of my
friends who have access to the groups of MILF, MNLF and ASG. I called up Col. Ancanan
several times begging to tell me the exact location of my husband and who held him but he
refused.

While I was in Jolo, Sulu on November 30, 2007, I called him up again because the
PNP, Jolo did not give me any information of the whereabouts of my husband. Col. Ancanan
told me that Sana ngayon alam mo na kung saan ang kinalalagyan ng asawa mo. When I
was in Zamboanga, I was thinking of dropping by the office of Col. Ancanan, but I was
hesitant to pay him a visit for the reason that the Chief of Police of Jolo told me not to
contact any AFP officials and he promised me that he can solve the case of my husband
(Engr. Tagitis) within nine days.

I appreciate the effort of Col. Ancanan on trying to solve the case of my husband Engr.
Morced Tagitis, yet failed to do so.


The respondent also narrated her encounter with Col. Kasim, as follows:[41]
On November 7, 2007, I went to Land Bank of the Philippines, Bajada Branch, Davao
City to meet Mr. Rudy Salvador. I told him that my husband, Engineer Morced Tagitis was
presumed to be abducted in Jolo, Sulu on October 30, 2007. I asked him a favor to contact
his connections in the military in Jolo, Sulu where the abduction of Engr. Tagitis took place.
Mr. Salvador immediately called up Camp Katitipan located in Davao City looking for high-
ranking official who can help me gather reliable information behind the abduction of subject
Engineer Tagitis.

On that same day, Mr. Salvador and my friend, Anna Mendoza, Executive Secretary,
accompanied me to Camp Katitipan to meet Col. Kasim. Mr. Salvador introduced me to Col.
Kasim and we had a short conversation. And he assured me that hell do the best he can to
help me find my husband.

After a few weeks, Mr. Salvador called me up informing me up informing me that I am
to go to Camp Katitipan to meet Col. Kasim for he has an urgent, confidential information to
reveal.

On November 24, 2007, we went back to Camp Katitipan with my three friends. That
was the time that Col. Kasim read to us the confidential report that Engr. Tagitis was
allegedly connected [with] different terrorist [groups], one of which he mentioned in the
report was OMAR PATIK and a certain SANTOS - a Balik Islam.

It is also said that Engr. Tagitis is carrying boxes of medicines for the injured
terrorists as a supplier. These are the two information that I can still remember. It was
written in a long bond paper with PNP Letterhead. It was not shown to us, yet Col. Kasim
was the one who read it for us.

He asked a favor to me that Please dont quote my Name! Because this is a raw
report. He assured me that my husband is alive and he is in the custody of the military for
custodial investigation. I told him to please take care of my husband because he has
aliments and he recently took insulin for he is a diabetic patient.

In my petition for writ of amparo, I emphasized the information that I got from Kasim.

On February 11, 2008, the respondent presented Mrs. Marydel Martin Talbin (Mrs.
Talbin) to corroborate her testimony regarding her efforts to locate her husband, in relation
particularly with the information she received from Col. Kasim. Mrs. Talbin testified that
she was with the respondent when she went to Zamboanga to see Col. Ancanan, and to
Davao City at Camp Katitipan to meet Col. Kasim.[42]

In Zamboanga, Mrs. Talbin recounted that they met with Col. Ancanan, who told them
that there was a report and that he showed them a series of text messages from Tagitis
cellular phone, which showed that Tagitis and his daughter would meet in Manila on
October 30, 2007.[43]

She further narrated that sometime on November 24, 2007, she went with the
respondent together with two other companions, namely, Salvacion Serrano and Mini
Leong, to Camp Katitipan to talk to Col. Kasim.[44] The respondent asked Col. Kasim if he
knew the exact location of Engr. Tagitis. Col. Kasim told them that Tagitis was in good
hands, although he was not certain whether he was with the PNP or with the Armed Forces
of the Philippines (AFP). She further recounted that based on the report Col. Kasim read in
their presence, Tagitis was under custodial investigation because he was being charged
with terrorism; Tagitis in fact had been under surveillance since January 2007 up to the
time he was abducted when he was seen talking to Omar Patik and a certain Santos of
Bulacan, a Balik Islam charged with terrorism. Col. Kasim also told them that he could not
give a copy of the report because it was a raw report.[45] She also related that the Col.
Kasim did not tell them exactly where Tagitis was being kept, although he mentioned
Talipapao, Sulu.Prof., lalabas din yan.[50] Prof. Matli also emphasized that despite what his
January 4, 2008 affidavit indicated,[51] he never told PS Supt. Pingay, or made any
accusation, that Tagitis took away money entrusted to him.[52] Prof. Matli confirmed,
however, that that he had received an e-mail report[53] from Nuraya Lackian of the Office
of Muslim Affairs in Manila that the IDB was seeking assistance of the office in locating the
funds of IDB scholars deposited in Tagitis personal account.[54]

On cross-examination by the respondents counsel, Prof. Matli testified that his January
4, 2008 affidavit was already prepared when PS Supt. Pingay asked him to sign it.[55] Prof
Matli clarified that although he read the affidavit before signing it, he was not so much
aware of [its] contents.[56]

On February 11, 2008, the petitioners presented Col. Kasim to rebut material portions
of the respondents testimony, particularly the allegation that he had stated that Tagitis was
in the custody of either the military or the PNP.[57] Col. Kasim categorically denied the
statements made by the respondent in her narrative report, specifically: (1) that Tagitis was
seen carrying boxes of medicines as supplier for the injured terrorists; (2) that Tagitis was
under the custody of the military, since he merely said to the respondent that your
husband is in good hands and is probably taken cared of by his armed abductors; and (3)
that Tagitis was under custodial investigation by the military, the PNP or the CIDG
Zamboanga City.[58] Col. Kasim emphasized that the informal letter he received from his
informant in Sulu did not indicate that Tagitis was in the custody of the CIDG.[59] He also
stressed that the information he provided to the respondent was merely a raw report
sourced from barangay intelligence that still needed confirmation and follow-up as to its
veracity.[60]

On cross-examination, Col. Kasim testified that the information he gave the respondent
was given to him by his informant, who was a civilian asset, through a letter which he
considered as unofficial.[61] Col. Kasim stressed that the letter was only meant for his
consumption and not for reading by others.[62] He testified further that he destroyed the
letter right after he read it to the respondent and her companions because it was not
important to him and also because the information it contained had no importance in
relation with the abduction of Tagitis.[63] He explained that he did not keep the letter
because it did not contain any information regarding the whereabouts of Tagitis and the
person(s) responsible for his abduction.[64]

In the same hearing on February 11, 2008, the petitioners also presented Police Senior
Superintendent Jose Volpane Pante (Col. Pante), Chief of the CIDG-9, to disprove the
respondents allegation that Tagitis was in the custody of CIDG-Zamboanga City.[65] Col.
Pante clarified that the CIDG was the investigative arm of the PNP, and that the CIDG
investigates and prosecutes all cases involving violations in the Revised Penal Code
particularly those considered as heinous crimes.[66] Col. Pante further testified that the
allegation that 9 RCIDU personnel were involved in the disappearance of Tagitis was
baseless, since they did not conduct any operation in Jolo, Sulu before or after Tagitis
reported disappearance.[67] Col. Pante added that the four (4) personnel assigned to the
Sulu CIDT had no capability to conduct any operation, since they were only assigned to
investigate matters and to monitor the terrorism situation.[68] He denied that his office
conducted any surveillance on Tagitis prior to the latters disappearance.[69] Col. Pante
further testified that his investigation of Tagitis disappearance was unsuccessful; the
investigation was still facing a blank wall on the whereabouts of Tagitis.[70]

THE CA RULING

On March 7, 2008, the CA issued its decision[71] confirming that the disappearance of
Tagitis was an enforced disappearance under the United Nations (UN) Declaration on the
Protection of All Persons from Enforced Disappearances.[72] The CA ruled that when
military intelligence pinpointed the investigative arm of the PNP (CIDG) to be involved in
the abduction, the missing-person case qualified as an enforced disappearance. The
conclusion that the CIDG was involved was based on the respondents testimony,
corroborated by her companion, Mrs. Talbin. The CA noted that the information that the
CIDG, as the police intelligence arm, was involved in Tagitis abduction came from no less
than the military an independent agency of government. The CA thus greatly relied on the
raw report from Col. Kasims asset, pointing to the CIDGs involvement in Tagitis
abduction. The CA held that raw reports from an asset carried great weight in the
intelligence world. It also labeled as suspect Col. Kasims subsequent and belated
retraction of his statement that the military, the police, or the CIDG was involved in the
abduction of Tagitis.

The CA characterized as too farfetched and unbelievable and a bedlam of
speculation police theories painting the disappearance as intentional on the part of
Tagitis. He had no previous brushes with the law or any record of overstepping the bounds
of any trust regarding money entrusted to him; no student of the IDB scholarship program
ever came forward to complain that he or she did not get his or her stipend. The CA also
found no basis for the police theory that Tagitis was trying to escape from the clutches of
his second wife, on the basis of the respondents testimony that Tagitis was a Muslim who
could have many wives under the Muslim faith, and that there was no issue at all when the
latter divorced his first wife in order to marry the second. Finally, the CA also ruled out
kidnapping for ransom by the Abu Sayyaf or by the ARMM paramilitary as the cause for
Tagitis disappearance, since the respondent, the police and the military noted that there
was no acknowledgement of Tagitis abduction or demand for payment of ransom the
usual modus operandi of these terrorist groups.

Based on these considerations, the CA thus extended the privilege of the writ to Tagitis
and his family, and directed the CIDG Chief, Col. Jose Volpane Pante, PNP Chief Avelino I.
Razon, TASK FORCE TAGITIS heads Gen. Joel Goltiao and Col. Ahiron Ajirim, and PACER
Chief Sr. Supt. Leonardo A. Espina to exert extraordinary diligence and efforts to protect the
life, liberty and security of Tagitis, with the obligation to provide monthly reports of their
actions to the CA. At the same time, the CA dismissed the petition against the then
respondents from the military, Lt. Gen Alexander Yano and Gen. Ruben Rafael, based on the
finding that it was PNP-CIDG, not the military, that was involved.

On March 31, 2008, the petitioners moved to reconsider the CA decision, but the CA
denied the motion in its Resolution of April 9, 2008.[73]

THE PETITION

In this Rule 45 appeal questioning the CAs March 7, 2008 decision, the petitioners
mainly dispute the sufficiency in form and substance of the Amparo petition filed before the
CA; the sufficiency of the legal remedies the respondent took before petitioning for the writ;
the finding that the rights to life, liberty and security of Tagitis had been violated; the
sufficiency of evidence supporting the conclusion that Tagitis was abducted; the conclusion
that the CIDG Zamboanga was responsible for the abduction; and, generally, the ruling that
the respondent discharged the burden of proving the allegations of the petition by
substantial evidence.[74]

THE COURTS RULING

We do not find the petition meritorious.

Sufficiency in Form and Substance

In questioning the sufficiency in form and substance of the respondents Amparo petition,
the petitioners contend that the petition violated Section 5(c), (d), and (e) of the Amparo
Rule. Specifically, the petitioners allege that the respondent failed to:

1) allege any act or omission the petitioners committed in violation of Tagitis rights to life,
liberty and security;
2) allege in a complete manner how Tagitis was abducted, the persons responsible for his
disappearance, and the respondents source of information;
3) allege that the abduction was committed at the petitioners instructions or with their
consent;
4) implead the members of CIDG regional office in Zamboanga alleged to have custody
over her husband;
5) attach the affidavits of witnesses to support her accusations;
6) allege any action or inaction attributable to the petitioners in the performance of their
duties in the investigation of Tagitis disappearance; and
7) specify what legally available efforts she took to determine the fate or whereabouts of
her husband.

A petition for the Writ of Amparo shall be signed and verified and shall allege, among others
(in terms of the portions the petitioners cite):[75]

(c) The right to life, liberty and security of the aggrieved party violated or threatened with
violation by an unlawful act or omission of the respondent, and how such threat or violation
is committed with the attendant circumstances detailed in supporting affidavits;

(d) The investigation conducted, if any, specifying the names, personal circumstances, and
addresses of the investigating authority or individuals, as well as the manner and conduct of
the investigation, together with any report;

(e) The actions and recourses taken by the petitioner to determine the fate or whereabouts
of the aggrieved party and the identity of the person responsible for the threat, act or
omission; and


The framers of the Amparo Rule never intended Section 5(c) to be complete in every detail
in stating the threatened or actual violation of a victims rights. As in any other initiatory
pleading, the pleader must of course state the ultimate facts constituting the cause of action,
omitting the evidentiary details.[76] In an Amparo petition, however, this requirement must
be read in light of the nature and purpose of the proceeding, which addresses a situation of
uncertainty; the petitioner may not be able to describe with certainty how the victim exactly
disappeared, or who actually acted to kidnap, abduct or arrest him or her, or where the
victim is detained, because these information may purposely be hidden or covered up by
those who caused the disappearance. In this type of situation, to require the level of
specificity, detail and precision that the petitioners apparently want to read into the
Amparo Rule is to make this Rule a token gesture of judicial concern for violations of the
constitutional rights to life, liberty and security.

To read the Rules of Court requirement on pleadings while addressing the unique Amparo
situation, the test in reading the petition should be to determine whether it contains the
details available to the petitioner under the circumstances, while presenting a cause of
action showing a violation of the victims rights to life, liberty and security through State or
private party action. The petition should likewise be read in its totality, rather than in terms
of its isolated component parts, to determine if the required elements namely, of the
disappearance, the State or private action, and the actual or threatened violations of the
rights to life, liberty or security are present.

In the present case, the petition amply recites in its paragraphs 4 to 11 the circumstances
under which Tagitis suddenly dropped out of sight after engaging in normal activities, and
thereafter was nowhere to be found despite efforts to locate him. The petition alleged, too,
under its paragraph 7, in relation to paragraphs 15 and 16, that according to reliable
information, police operatives were the perpetrators of the abduction. It also clearly alleged
how Tagitis rights to life, liberty and security were violated when he was forcibly taken
and boarded on a motor vehicle by a couple of burly men believed to be police intelligence
operatives, and then taken into custody by the respondents police intelligence operatives
since October 30, 2007, specifically by the CIDG, PNP Zamboanga City, x x x held against his
will in an earnest attempt of the police to involve and connect [him] with different terrorist
groups.[77]

These allegations, in our view, properly pleaded ultimate facts within the pleaders
knowledge about Tagitis disappearance, the participation by agents of the State in this
disappearance, the failure of the State to release Tagitis or to provide sufficient information
about his whereabouts, as well as the actual violation of his right to liberty. Thus, the
petition cannot be faulted for any failure in its statement of a cause of action.

If a defect can at all be attributed to the petition, this defect is its lack of supporting affidavit,
as required by Section 5(c) of the Amparo Rule. Owing to the summary nature of the
proceedings for the writ and to facilitate the resolution of the petition, the Amparo Rule
incorporated the requirement for supporting affidavits, with the annotation that these can
be used as the affiants direct testimony.[78] This requirement, however, should not be
read as an absolute one that necessarily leads to the dismissal of the petition if not strictly
followed. Where, as in this case, the petitioner has substantially complied with the
requirement by submitting a verified petition sufficiently detailing the facts relied upon, the
strict need for the sworn statement that an affidavit represents is essentially fulfilled. We
note that the failure to attach the required affidavits was fully cured when the respondent
and her witness (Mrs. Talbin) personally testified in the CA hearings held on January 7 and
17 and February 18, 2008 to swear to and flesh out the allegations of the petition. Thus,
even on this point, the petition cannot be faulted.

Section 5(d) of the Amparo Rule requires that prior investigation of an alleged
disappearance must have been made, specifying the manner and results of the investigation.
Effectively, this requirement seeks to establish at the earliest opportunity the level of
diligence the public authorities undertook in relation with the reported disappearance.[79]
We reject the petitioners argument that the respondents petition did not comply with the
Section 5(d) requirements of the Amparo Rule, as the petition specifies in its paragraph 11
that Kunnong and his companions immediately reported Tagitis disappearance to the
police authorities in Jolo, Sulu as soon as they were relatively certain that he indeed had
disappeared. The police, however, gave them the ready answer that Tagitis could have
been abducted by the Abu Sayyaf group or other anti-government groups. The respondent
also alleged in paragraphs 17 and 18 of her petition that she filed a complaint with the
PNP Police Station in Cotobato and in Jolo, but she was told of an intriguing tale by the
police that her husband was having a good time with another woman. The disappearance
was alleged to have been reported, too, to no less than the Governor of the ARMM, followed
by the respondents personal inquiries that yielded the factual bases for her petition.[80]

These allegations, to our mind, sufficiently specify that reports have been made to the police
authorities, and that investigations should have followed. That the petition did not state the
manner and results of the investigation that the Amparo Rule requires, but rather generally
stated the inaction of the police, their failure to perform their duty to investigate, or at the
very least, their reported failed efforts, should not be a reflection on the completeness of the
petition. To require the respondent to elaborately specify the names, personal
circumstances, and addresses of the investigating authority, as well the manner and conduct
of the investigation is an overly strict interpretation of Section 5(d), given the respondents
frustrations in securing an investigation with meaningful results. Under these
circumstances, we are more than satisfied that the allegations of the petition on the
investigations undertaken are sufficiently complete for purposes of bringing the petition
forward.

Section 5(e) is in the Amparo Rule to prevent the use of a petition that otherwise is not
supported by sufficient allegations to constitute a proper cause of action as a means to
fish for evidence.[81] The petitioners contend that the respondents petition did not
specify what legally available efforts were taken by the respondent, and that there was an
undue haste in the filing of the petition when, instead of cooperating with authorities, the
respondent immediately invoked the Courts intervention.

We do not see the respondents petition as the petitioners view it.

Section 5(e) merely requires that the Amparo petitioner (the respondent in the present
case) allege the actions and recourses taken to determine the fate or whereabouts of the
aggrieved party and the identity of the person responsible for the threat, act or omission.
The following allegations of the respondents petition duly outlined the actions she had
taken and the frustrations she encountered, thus compelling her to file her petition.

x x x x

7. Soon after the student left the room, Engr. Tagitis went out of the pension house
to take his early lunch but while out on the street, a couple of burly men believed to be
police intelligence operatives, forcibly took him and boarded the latter on a motor vehicle
then sped away without the knowledge of his student, Arsimin Kunnong;

x x x x

10. When Kunnong could not locate Engr. Tagitis, the former sought the help of
another IDB scholar and reported the matter to the local police agency;

11. Arsimin Kunnong, including his friends and companions in Jolo, exerted efforts
in trying to locate the whereabouts of Engr. Tagitis and when he reported the matter to the
police authorities in Jolo, he was immediately given a ready answer that Engr. Tagitis could
[have been] abducted by the Abu Sayyaf group and other groups known to be fighting
against the government;

12. Being scared with these suggestions and insinuations of the police officers,
Kunnong reported the matter to the [respondent](wife of Engr. Tagitis) by phone and other
responsible officers and coordinators of the IDB Scholarship Programme in the Philippines
who alerted the office of the Governor of ARMM who was then preparing to attend the OIC
meeting in Jeddah, Saudi Arabia;

13. [The respondent], on the other hand, approached some of her co-employees with the
Land Bank in Digos branch, Digos City, Davao del Sur, who likewise sought help from some
of their friends in the military who could help them find/locate the whereabouts of her
husband;

x x x x
15. According to reliable information received by the [respondent], subject Engr.
Tagitis is in the custody of police intelligence operatives, specifically with the CIDG, PNP
Zamboanga City, being held against his will in an earnest attempt of the police to involve
and connect Engr. Tagitis with the different terrorist groups;

x x x x

17. [The respondent] filed her complaint with the PNP Police Station at the ARMM
in Cotobato and in Jolo, as suggested by her friends, seeking their help to find her husband,
but [the respondents] request and pleadings failed to produce any positive results

x x x x
20. Lately, [respondent] was again advised by one of the [petitioners] to go to the
ARMM Police Headquarters again in Cotobato City and also to the different Police
Headquarters including the police headquarters in Davao City, in Zamboanga City, in Jolo,
and in Camp Crame, Quezon City, and all these places have been visited by the [respondent]
in search for her husband, which entailed expenses for her trips to these places thereby
resorting her to borrowings and beggings [sic] for financial help from friends and relatives
only to try complying to the different suggestions of these police officers, despite of which,
her efforts produced no positive results up to the present time;

x x x x

25. [The respondent] has exhausted all administrative avenues and remedies but to no
avail, and under the circumstances, [respondent] has no other plain, speedy and adequate
remedy to protect and get the release of subject Engr. Morced Tagitis from the illegal
clutches of [the petitioners], their intelligence operatives and the like which are in total
violation of the subjects human and constitutional rights, except the issuance of a WRIT OF
AMPARO.

Based on these considerations, we rule that the respondents petition for the Writ of
Amparo is sufficient in form and substance and that the Court of Appeals had every reason
to proceed with its consideration of the case.



The Desaparecidos

The present case is one of first impression in the use and application of the Rule on the Writ
of Amparo in an enforced disappearance situation. For a deeper appreciation of the
application of this Rule to an enforced disappearance situation, a brief look at the historical
context of the writ and enforced disappearances would be very helpful.

The phenomenon of enforced disappearance arising from State action first attracted notice
in Adolf Hitlers Nact und Nebel Erlass or Night and Fog Decree of December 7, 1941.[82]
The Third Reichs Night and Fog Program, a State policy, was directed at persons in
occupied territories endangering German security; they were transported secretly to
Germany where they disappeared without a trace. In order to maximize the desired
intimidating effect, the policy prohibited government officials from providing information
about the fate of these targeted persons.[83]

In the mid-1970s, the phenomenon of enforced disappearances resurfaced, shocking and
outraging the world when individuals, numbering anywhere from 6,000 to 24,000, were
reported to have disappeared during the military regime in Argentina. Enforced
disappearances spread in Latin America, and the issue became an international concern
when the world noted its widespread and systematic use by State security forces in that
continent under Operation Condor[84] and during the Dirty War[85] in the 1970s and
1980s. The escalation of the practice saw political activists secretly arrested, tortured, and
killed as part of governments counter-insurgency campaigns. As this form of political
brutality became routine elsewhere in the continent, the Latin American media
standardized the term disappearance to describe the phenomenon. The victims of
enforced disappearances were called the desaparecidos,[86] which literally means the
disappeared ones.[87] In general, there are three different kinds of disappearance cases:

1) those of people arrested without witnesses or without positive identification of the
arresting agents and are never found again;

2) those of prisoners who are usually arrested without an appropriate warrant and held
in complete isolation for weeks or months while their families are unable to discover their
whereabouts and the military authorities deny having them in custody until they eventually
reappear in one detention center or another; and

3) those of victims of salvaging who have disappeared until their lifeless bodies are
later discovered.[88]

In the Philippines, enforced disappearances generally fall within the first two
categories,[89] and 855 cases were recorded during the period of martial law from 1972
until 1986. Of this number, 595 remained missing, 132 surfaced alive and 127 were found
dead. During former President Corazon C. Aquinos term, 820 people were reported to have
disappeared and of these, 612 cases were documented. Of this number, 407 remain
missing, 108 surfaced alive and 97 were found dead. The number of enforced
disappearances dropped during former President Fidel V. Ramos term when only 87 cases
were reported, while the three-year term of former President Joseph E. Estrada yielded 58
reported cases. KARAPATAN, a local non-governmental organization, reports that as of
March 31, 2008, the records show that there were a total of 193 victims of enforced
disappearance under incumbent President Gloria M. Arroyos administration. The
Commission on Human Rights records show a total of 636 verified cases of enforced
disappearances from 1985 to 1993. Of this number, 406 remained missing, 92 surfaced
alive, 62 were found dead, and 76 still have undetermined status.[90] Currently, the United
Nations Working Group on Enforced or Involuntary Disappearance[91] reports 619
outstanding cases of enforced or involuntary disappearances covering the period December
1, 2007 to November 30, 2008.[92]

Enforced Disappearances
Under Philippine Law

The Amparo Rule expressly provides that the writ shall cover extralegal killings and
enforced disappearances or threats thereof.[93] We note that although the writ
specifically covers enforced disappearances, this concept is neither defined nor penalized
in this jurisdiction. The records of the Supreme Court Committee on the Revision of Rules
(Committee) reveal that the drafters of the Amparo Rule initially considered providing an
elemental definition of the concept of enforced disappearance:[94]

JUSTICE MARTINEZ: I believe that first and foremost we should come up or formulate a
specific definition [for] extrajudicial killings and enforced disappearances. From that
definition, then we can proceed to formulate the rules, definite rules concerning the same.

CHIEF JUSTICE PUNO: As things stand, there is no law penalizing extrajudicial killings and
enforced disappearances so initially also we have to [come up with] the nature of these
extrajudicial killings and enforced disappearances [to be covered by the Rule] because our
concept of killings and disappearances will define the jurisdiction of the courts. So well
have to agree among ourselves about the nature of killings and disappearances for instance,
in other jurisdictions, the rules only cover state actors. That is an element incorporated in
their concept of extrajudicial killings and enforced disappearances. In other jurisdictions,
the concept includes acts and omissions not only of state actors but also of non state actors.
Well, more specifically in the case of the Philippines for instance, should these rules include
the killings, the disappearances which may be authored by let us say, the NPAs or the leftist
organizations and others. So, again we need to define the nature of the extrajudicial killings
and enforced disappearances that will be covered by these rules. [Emphasis supplied] [95]

In the end, the Committee took cognizance of several bills filed in the House of
Representatives[96] and in the Senate[97] on extrajudicial killings and enforced
disappearances, and resolved to do away with a clear textual definition of these terms in the
Rule. The Committee instead focused on the nature and scope of the concerns within its
power to address and provided the appropriate remedy therefor, mindful that an elemental
definition may intrude into the ongoing legislative efforts.[98]

As the law now stands, extra-judicial killings and enforced disappearances in this
jurisdiction are not crimes penalized separately from the component criminal acts
undertaken to carry out these killings and enforced disappearances and are now penalized
under the Revised Penal Code and special laws.[99] The simple reason is that the
Legislature has not spoken on the matter; the determination of what acts are criminal and
what the corresponding penalty these criminal acts should carry are matters of substantive
law that only the Legislature has the power to enact under the countrys constitutional
scheme and power structure.

Even without the benefit of directly applicable substantive laws on extra-judicial killings
and enforced disappearances, however, the Supreme Court is not powerless to act under its
own constitutional mandate to promulgate rules concerning the protection and
enforcement of constitutional rights, pleading, practice and procedure in all courts,[100]
since extrajudicial killings and enforced disappearances, by their nature and purpose,
constitute State or private party violation of the constitutional rights of individuals to life,
liberty and security. Although the Courts power is strictly procedural and as such does not
diminish, increase or modify substantive rights, the legal protection that the Court can
provide can be very meaningful through the procedures it sets in addressing extrajudicial
killings and enforced disappearances. The Court, through its procedural rules, can set the
procedural standards and thereby directly compel the public authorities to act on actual or
threatened violations of constitutional rights. To state the obvious, judicial intervention can
make a difference even if only procedurally in a situation when the very same
investigating public authorities may have had a hand in the threatened or actual violations
of constitutional rights.

Lest this Court intervention be misunderstood, we clarify once again that we do not rule on
any issue of criminal culpability for the extrajudicial killing or enforced disappearance. This
is an issue that requires criminal action before our criminal courts based on our existing
penal laws. Our intervention is in determining whether an enforced disappearance has
taken place and who is responsible or accountable for this disappearance, and to define and
impose the appropriate remedies to address it. The burden for the public authorities to
discharge in these situations, under the Rule on the Writ of Amparo, is twofold. The first is
to ensure that all efforts at disclosure and investigation are undertaken under pain of
indirect contempt from this Court when governmental efforts are less than what the
individual situations require. The second is to address the disappearance, so that the life of
the victim is preserved and his or her liberty and security restored. In these senses, our
orders and directives relative to the writ are continuing efforts that are not truly terminated
until the extrajudicial killing or enforced disappearance is fully addressed by the complete
determination of the fate and the whereabouts of the victim, by the production of the
disappeared person and the restoration of his or her liberty and security, and, in the proper
case, by the commencement of criminal action against the guilty parties.


Enforced Disappearance
Under International Law

From the International Law perspective, involuntary or enforced disappearance is
considered a flagrant violation of human rights.[101] It does not only violate the right to
life, liberty and security of the desaparecido; it affects their families as well through the
denial of their right to information regarding the circumstances of the disappeared family
member. Thus, enforced disappearances have been said to be a double form of torture,
with doubly paralyzing impact for the victims, as they are kept ignorant of their own
fates, while family members are deprived of knowing the whereabouts of their detained
loved ones and suffer as well the serious economic hardship and poverty that in most cases
follow the disappearance of the household breadwinner.[102]

The UN General Assembly first considered the issue of Disappeared Persons in December
1978 under Resolution 33/173. The Resolution expressed the General Assemblys deep
concern arising from reports from various parts of the world relating to enforced or
involuntary disappearances, and requested the UN Commission on Human Rights to
consider the issue of enforced disappearances with a view to making appropriate
recommendations.[103]

In 1992, in response to the reality that the insidious practice of enforced disappearance had
become a global phenomenon, the UN General Assembly adopted the Declaration on the
Protection of All Persons from Enforced Disappearance (Declaration).[104] This
Declaration, for the first time, provided in its third preambular clause a working description
of enforced disappearance, as follows:

Deeply concerned that in many countries, often in a persistent manner, enforced
disappearances occur, in the sense that persons are arrested, detained or abducted against
their will or otherwise deprived of their liberty by officials of different branches or levels of
Government, or by organized groups or private individuals acting on behalf of, or with the
support, direct or indirect, consent or acquiescence of the Government, followed by a
refusal to disclose the fate or whereabouts of the persons concerned or a refusal to
acknowledge the deprivation of their liberty, which places such persons outside the
protection of the law. [Emphasis supplied]


Fourteen years after (or on December 20, 2006), the UN General Assembly adopted the
International Convention for the Protection of All Persons from Enforced Disappearance
(Convention).[105] The Convention was opened for signature in Paris, France on February
6, 2007.[106] Article 2 of the Convention defined enforced disappearance as follows:

For the purposes of this Convention, enforced disappearance is considered to be the
arrest, detention, abduction or any other form of deprivation of liberty by agents of the
State or by persons or groups of persons acting with the authorization, support or
acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or
by concealment of the fate or whereabouts of the disappeared person, which place such a
person outside the protection of the law. [Emphasis supplied]

The Convention is the first universal human rights instrument to assert that there is a
right not to be subject to enforced disappearance[107] and that this right is non-
derogable.[108] It provides that no one shall be subjected to enforced disappearance under
any circumstances, be it a state of war, internal political instability, or any other public
emergency. It obliges State Parties to codify enforced disappearance as an offense
punishable with appropriate penalties under their criminal law.[109] It also recognizes the
right of relatives of the disappeared persons and of the society as a whole to know the truth
on the fate and whereabouts of the disappeared and on the progress and results of the
investigation.[110] Lastly, it classifies enforced disappearance as a continuing offense, such
that statutes of limitations shall not apply until the fate and whereabouts of the victim are
established.[111]


Binding Effect of UN
Action on the Philippines

To date, the Philippines has neither signed nor ratified the Convention, so that the
country is not yet committed to enact any law penalizing enforced disappearance as a
crime. The absence of a specific penal law, however, is not a stumbling block for action from
this Court, as heretofore mentioned; underlying every enforced disappearance is a violation
of the constitutional rights to life, liberty and security that the Supreme Court is mandated
by the Constitution to protect through its rule-making powers.

Separately from the Constitution (but still pursuant to its terms), the Court is guided, in
acting on Amparo cases, by the reality that the Philippines is a member of the UN, bound by
its Charter and by the various conventions we signed and ratified, particularly the
conventions touching on humans rights. Under the UN Charter, the Philippines pledged to
promote universal respect for, and observance of, human rights and fundamental freedoms
for all without distinctions as to race, sex, language or religion.[112] Although no universal
agreement has been reached on the precise extent of the human rights and fundamental
freedoms guaranteed to all by the Charter,[113] it was the UN itself that issued the
Declaration on enforced disappearance, and this Declaration states:[114]

Any act of enforced disappearance is an offence to dignity. It is condemned as a denial of
the purposes of the Charter of the United Nations and as a grave and flagrant violation of
human rights and fundamental freedoms proclaimed in the Universal Declaration of Human
Rights and reaffirmed and developed in international instruments in this field. [Emphasis
supplied]

As a matter of human right and fundamental freedom and as a policy matter made in a UN
Declaration, the ban on enforced disappearance cannot but have its effects on the country,
given our own adherence to generally accepted principles of international law as part of
the law of the land.[115]

In the recent case of Pharmaceutical and Health Care Association of the Philippines v. Duque
III,[116] we held that:

Under the 1987 Constitution, international law can become part of the sphere of domestic
law either by transformation or incorporation. The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism
such as local legislation. The incorporation method applies when, by mere constitutional
declaration, international law is deemed to have the force of domestic law. [Emphasis
supplied]

We characterized generally accepted principles of international law as norms of general
or customary international law that are binding on all states. We held further:[117]

[G]enerally accepted principles of international law, by virtue of the incorporation clause of
the Constitution, form part of the laws of the land even if they do not derive from treaty
obligations. The classical formulation in international law sees those customary rules
accepted as binding result from the combination [of] two elements: the established,
widespread, and consistent practice on the part of States; and a psychological element
known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the
latter element is a belief that the practice in question is rendered obligatory by the existence
of a rule of law requiring it. [Emphasis in the original]

The most widely accepted statement of sources of international law today is Article 38(1) of
the Statute of the International Court of Justice, which provides that the Court shall apply
international custom, as evidence of a general practice accepted as law.[118] The material
sources of custom include State practice, State legislation, international and national judicial
decisions, recitals in treaties and other international instruments, a pattern of treaties in the
same form, the practice of international organs, and resolutions relating to legal questions
in the UN General Assembly.[119] Sometimes referred to as evidence of international
law,[120] these sources identify the substance and content of the obligations of States and
are indicative of the State practice and opinio juris requirements of international
law.[121] We note the following in these respects:

First, barely two years from the adoption of the Declaration, the Organization of American
States (OAS) General Assembly adopted the Inter-American Convention on Enforced
Disappearance of Persons in June 1994.[122] State parties undertook under this
Convention not to practice, permit, or tolerate the forced disappearance of persons, even in
states of emergency or suspension of individual guarantees.[123] One of the key
provisions includes the States obligation to enact the crime of forced disappearance in their
respective national criminal laws and to establish jurisdiction over such cases when the
crime was committed within their jurisdiction, when the victim is a national of that State,
and when the alleged criminal is within its territory and it does not proceed to extradite
him, which can be interpreted as establishing universal jurisdiction among the parties to
the Inter-American Convention.[124] At present, Colombia, Guatemala, Paraguay, Peru and
Venezuela have enacted separate laws in accordance with the Inter-American Convention
and have defined activities involving enforced disappearance to be criminal.[125]

Second, in Europe, the European Convention on Human Rights has no explicit provision
dealing with the protection against enforced disappearance. The European Court of Human
Rights (ECHR), however, has applied the Convention in a way that provides ample
protection for the underlying rights affected by enforced disappearance through the
Conventions Article 2 on the right to life; Article 3 on the prohibition of torture; Article 5 on
the right to liberty and security; Article 6, paragraph 1 on the right to a fair trial; and Article
13 on the right to an effective remedy. A leading example demonstrating the protection
afforded by the European Convention is Kurt v. Turkey,[126] where the ECHR found a
violation of the right to liberty and security of the disappeared person when the applicants
son disappeared after being taken into custody by Turkish forces in the Kurdish village of
Agilli in November 1993. It further found the applicant (the disappeared persons mother)
to be a victim of a violation of Article 3, as a result of the silence of the authorities and the
inadequate character of the investigations undertaken. The ECHR also saw the lack of any
meaningful investigation by the State as a violation of Article 13.[127]

Third, in the United States, the status of the prohibition on enforced disappearance as part
of customary international law is recognized in the most recent edition of Restatement of
the Law: The Third,[128] which provides that [a] State violates international law if, as a
matter of State policy, it practices, encourages, or condones (3) the murder or causing the
disappearance of individuals.[129] We significantly note that in a related matter that finds
close identification with enforced disappearance the matter of torture the United States
Court of Appeals for the Second Circuit Court held in Filartiga v. Pena-Irala[130] that the
prohibition on torture had attained the status of customary international law. The court
further elaborated on the significance of UN declarations, as follows:

These U.N. declarations are significant because they specify with great precision the
obligations of member nations under the Charter. Since their adoption, "(m)embers can no
longer contend that they do not know what human rights they promised in the Charter to
promote. Moreover, a U.N. Declaration is, according to one authoritative definition, "a
formal and solemn instrument, suitable for rare occasions when principles of great and
lasting importance are being enunciated. Accordingly, it has been observed that the
Universal Declaration of Human Rights "no longer fits into the dichotomy of binding treaty
against non-binding pronouncement,' but is rather an authoritative statement of the
international community." Thus, a Declaration creates an expectation of adherence, and
"insofar as the expectation is gradually justified by State practice, a declaration may by
custom become recognized as laying down rules binding upon the States." Indeed, several
commentators have concluded that the Universal Declaration has become, in toto, a part of
binding, customary international law. [Citations omitted]

Fourth, in interpreting Article 2 (right to an effective domestic remedy) of the International
Convention on Civil and Political Rights (ICCPR), to which the Philippines is both a signatory
and a State Party, the UN Human Rights Committee, under the Office of the High
Commissioner for Human Rights, has stated that the act of enforced disappearance violates
Articles 6 (right to life), 7 (prohibition on torture, cruel, inhuman or degrading treatment or
punishment) and 9 (right to liberty and security of the person) of the ICCPR, and the act
may also amount to a crime against humanity.[131]

Fifth, Article 7, paragraph 1 of the 1998 Rome Statute establishing the International
Criminal Court (ICC) also covers enforced disappearances insofar as they are defined as
crimes against humanity,[132] i.e., crimes committed as part of a widespread or systematic
attack against any civilian population, with knowledge of the attack. While more than 100
countries have ratified the Rome Statute,[133] the Philippines is still merely a signatory and
has not yet ratified it. We note that Article 7(1) of the Rome Statute has been incorporated
in the statutes of other international and hybrid tribunals, including Sierra Leone Special
Court, the Special Panels for Serious Crimes in Timor-Leste, and the Extraordinary
Chambers in the Courts of Cambodia.[134] In addition, the implementing legislation of
State Parties to the Rome Statute of the ICC has given rise to a number of national criminal
provisions also covering enforced disappearance.[135]

While the Philippines is not yet formally bound by the terms of the Convention on enforced
disappearance (or by the specific terms of the Rome Statute) and has not formally declared
enforced disappearance as a specific crime, the above recital shows that enforced
disappearance as a State practice has been repudiated by the international community, so
that the ban on it is now a generally accepted principle of international law, which we
should consider a part of the law of the land, and which we should act upon to the extent
already allowed under our laws and the international conventions that bind us.

The following civil or political rights under the Universal Declaration of Human Rights, the
ICCPR and the International Convention on Economic, Social and Cultural Rights (ICESR)
may be infringed in the course of a disappearance:[136]

1) the right to recognition as a person before the law;
2) the right to liberty and security of the person;
3) the right not to be subjected to torture and other cruel, inhuman or degrading treatment
or punishment;
4) the right to life, when the disappeared person is killed;
5) the right to an identity;
6) the right to a fair trial and to judicial guarantees;
7) the right to an effective remedy, including reparation and compensation;
8) the right to know the truth regarding the circumstances of a disappearance.
9) the right to protection and assistance to the family;
10) the right to an adequate standard of living;
11) the right to health; and
12) the right to education [Emphasis supplied]

Article 2 of the ICCPR, which binds the Philippines as a state party, provides:
Article 2
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding that the violation has been committed by
persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any other
competent authority provided for by the legal system of the State, and to develop the
possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
[Emphasis supplied]

In General Comment No. 31, the UN Human Rights Committee opined that the right to
an effective remedy under Article 2 of the ICCPR includes the obligation of the State to
investigate ICCPR violations promptly, thoroughly, and effectively, viz:[137]

15. Article 2, paragraph 3, requires that in addition to effective protection of Covenant
rights, States Parties must ensure that individuals also have accessible and effective
remedies to vindicate those rights The Committee attaches importance to States Parties'
establishing appropriate judicial and administrative mechanisms for addressing claims of
rights violations under domestic law Administrative mechanisms are particularly
required to give effect to the general obligation to investigate allegations of violations
promptly, thoroughly and effectively through independent and impartial bodies. A failure
by a State Party to investigate allegations of violations could in and of itself give rise to a
separate breach of the Covenant. Cessation of an ongoing violation is an essential element of
the right to an effective remedy. [Emphasis supplied]


The UN Human Rights Committee further stated in the same General Comment No. 31 that
failure to investigate as well as failure to bring to justice the perpetrators of ICCPR
violations could in and of itself give rise to a separate breach of the Covenant, thus:[138]

18. Where the investigations referred to in paragraph 15 reveal violations of certain
Covenant rights, States Parties must ensure that those responsible are brought to justice. As
with failure to investigate, failure to bring to justice perpetrators of such violations could in
and of itself give rise to a separate breach of the Covenant. These obligations arise notably
in respect of those violations recognized as criminal under either domestic or international
law, such as torture and similar cruel, inhuman and degrading treatment (article 7),
summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and,
frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained
concern by the Committee, may well be an important contributing element in the
recurrence of the violations. When committed as part of a widespread or systematic attack
on a civilian population, these violations of the Covenant are crimes against humanity (see
Rome Statute of the International Criminal Court, article 7). [Emphasis supplied]

In Secretary of National Defense v. Manalo,[139] this Court, in ruling that the right to
security of persons is a guarantee of the protection of ones right by the government, held
that:

The right to security of person in this third sense is a corollary of the policy that the State
guarantees full respect for human rights under Article II, Section 11 of the 1987
Constitution. As the government is the chief guarantor of order and security, the
Constitutional guarantee of the rights to life, liberty and security of person is rendered
ineffective if government does not afford protection to these rights especially when they are
under threat. Protection includes conducting effective investigations, organization of the
government apparatus to extend protection to victims of extralegal killings or enforced
disappearances (or threats thereof) and/or their families, and bringing offenders to the bar
of justice. The Inter-American Court of Human Rights stressed the importance of
investigation in the Velasquez Rodriguez Case, viz:
(The duty to investigate) must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An investigation must have an objective and be
assumed by the State as its own legal duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or upon their offer of proof, without
an effective search for the truth by the government. [Emphasis supplied]

Manalo significantly cited Kurt v. Turkey,[140] where the ECHR interpreted the right to
security not only as a prohibition on the State against arbitrary deprivation of liberty, but
also as the imposition of a positive duty to afford protection to the right to liberty. The
Court notably quoted the following ECHR ruling:


[A]ny deprivation of liberty must not only have been effected in conformity with the
substantive and procedural rules of national law but must equally be in keeping with the
very purpose of Article 5, namely to protect the individual from arbitrariness... Having
assumed control over that individual, it is incumbent on the authorities to account for his or
her whereabouts. For this reason, Article 5 must be seen as requiring the authorities to take
effective measures to safeguard against the risk of disappearance and to conduct a prompt
effective investigation into an arguable claim that a person has been taken into custody and
has not been seen since. [Emphasis supplied]

These rulings effectively serve as the backdrop for the Rule on the Writ of Amparo, which
the Court made effective on October 24, 2007. Although the Amparo Rule still has gaps
waiting to be filled through substantive law, as evidenced primarily by the lack of a concrete
definition of enforced disappearance, the materials cited above, among others, provide
ample guidance and standards on how, through the medium of the Amparo Rule, the Court
can provide remedies and protect the constitutional rights to life, liberty and security that
underlie every enforced disappearance.

Evidentiary Difficulties Posed
by the Unique Nature of an
Enforced Disappearance

Before going into the issue of whether the respondent has discharged the burden of proving
the allegations of the petition for the Writ of Amparo by the degree of proof required by the
Amparo Rule, we shall discuss briefly the unique evidentiary difficulties presented by
enforced disappearance cases; these difficulties form part of the setting that the
implementation of the Amparo Rule shall encounter.

These difficulties largely arise because the State itself the party whose involvement is
alleged investigates enforced disappearances. Past experiences in other jurisdictions show
that the evidentiary difficulties are generally threefold.

First, there may be a deliberate concealment of the identities of the direct
perpetrators.[141] Experts note that abductors are well organized, armed and usually
members of the military or police forces, thus:

The victim is generally arrested by the security forces or by persons acting under some
form of governmental authority. In many countries the units that plan, implement and
execute the program are generally specialized, highly-secret bodies within the armed or
security forces. They are generally directed through a separate, clandestine chain of
command, but they have the necessary credentials to avoid or prevent any interference by
the "legal" police forces. These authorities take their victims to secret detention centers
where they subject them to interrogation and torture without fear of judicial or other
controls.[142]

In addition, there are usually no witnesses to the crime; if there are, these witnesses are
usually afraid to speak out publicly or to testify on the disappearance out of fear for their
own lives.[143] We have had occasion to note this difficulty in Secretary of Defense v.
Manalo[144] when we acknowledged that where powerful military officers are implicated,
the hesitation of witnesses to surface and testify against them comes as no surprise.

Second, deliberate concealment of pertinent evidence of the disappearance is a distinct
possibility; the central piece of evidence in an enforced disappearance i.e., the corpus
delicti or the victims body is usually concealed to effectively thwart the start of any
investigation or the progress of one that may have begun.[145] The problem for the victims
family is the States virtual monopoly of access to pertinent evidence. The Inter-American
Court of Human Rights (IACHR) observed in the landmark case of Velasquez
Rodriguez[146] that inherent to the practice of enforced disappearance is the deliberate use
of the States power to destroy the pertinent evidence. The IACHR described the
concealment as a clear attempt by the State to commit the perfect crime.[147]

Third is the element of denial; in many cases, the State authorities deliberately deny that the
enforced disappearance ever occurred.[148] Deniability is central to the policy of
enforced disappearances, as the absence of any proven disappearance makes it easier to
escape the application of legal standards ensuring the victims human rights.[149]
Experience shows that government officials typically respond to requests for information
about desaparecidos by saying that they are not aware of any disappearance, that the
missing people may have fled the country, or that their names have merely been
invented.[150]

These considerations are alive in our minds, as these are the difficulties we confront, in one
form or another, in our consideration of this case.

Evidence and Burden of Proof in
Enforced Disappearances Cases

Sections 13, 17 and 18 of the Amparo Rule define the nature of an Amparo proceeding and
the degree and burden of proof the parties to the case carry, as follows:
Section 13. Summary Hearing. The hearing on the petition shall be summary. However, the
court, justice or judge may call for a preliminary conference to simplify the issues and
determine the possibility of obtaining stipulations and admissions from the parties.

x x x x

Section 17. Burden of Proof and Standard of Diligence Required. The parties shall
establish their claims by substantial evidence.

The respondent who is a private individual must prove that ordinary diligence as required
by applicable laws, rules and regulations was observed in the performance of duty.

The respondent who is a public official or employee must prove that extraordinary diligence
as required by applicable laws, rules and regulations was observed in the performance of
duty.

The respondent public official or employee cannot invoke the presumption that official duty
has been regularly performed or evade responsibility or liability.

Section 18. Judgment. If the allegations in the petition are proven by substantial
evidence, the court shall grant the privilege of the writ and such reliefs as may be proper
and appropriate; otherwise, the privilege shall be denied. [Emphasis supplied]


These characteristics namely, of being summary and the use of substantial evidence as the
required level of proof (in contrast to the usual preponderance of evidence or proof beyond
reasonable doubt in court proceedings) reveal the clear intent of the framers of the
Amparo Rule to have the equivalent of an administrative proceeding, albeit judicially
conducted, in addressing Amparo situations. The standard of diligence required the duty
of public officials and employees to observe extraordinary diligence point, too, to the
extraordinary measures expected in the protection of constitutional rights and in the
consequent handling and investigation of extra-judicial killings and enforced disappearance
cases.

Thus, in these proceedings, the Amparo petitioner needs only to properly comply with the
substance and form requirements of a Writ of Amparo petition, as discussed above, and
prove the allegations by substantial evidence. Once a rebuttable case has been proven, the
respondents must then respond and prove their defenses based on the standard of diligence
required. The rebuttable case, of course, must show that an enforced disappearance took
place under circumstances showing a violation of the victims constitutional rights to life,
liberty or security, and the failure on the part of the investigating authorities to
appropriately respond.

The landmark case of Ang Tibay v. Court of Industrial Relations[151] provided the Court
its first opportunity to define the substantial evidence required to arrive at a valid decision
in administrative proceedings. To directly quote Ang Tibay:


Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. [citations omitted] The
statute provides that the rules of evidence prevailing in courts of law and equity shall not
be controlling. The obvious purpose of this and similar provisions is to free administrative
boards from the compulsion of technical rules so that the mere admission of matter which
would be deemed incompetent in judicial proceedings would not invalidate the
administrative order. [citations omitted] But this assurance of a desirable flexibility in
administrative procedure does not go so far as to justify orders without a basis in evidence
having rational probative force. [Emphasis supplied]


In Secretary of Defense v. Manalo,[152] which was the Courts first petition for a Writ of
Amparo, we recognized that the full and exhaustive proceedings that the substantial
evidence standard regularly requires do not need to apply due to the summary nature of
Amparo proceedings. We said:

The remedy [of the writ of amparo] provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to make the appropriate
reliefs available to the petitioner; it is not an action to determine criminal guilt requiring
proof beyond reasonable doubt, or liability for damages requiring preponderance of
evidence, or administrative responsibility requiring substantial evidence that will require
full and exhaustive proceedings. [Emphasis supplied]

Not to be forgotten in considering the evidentiary aspects of Amparo petitions are the
unique difficulties presented by the nature of enforced disappearances, heretofore
discussed, which difficulties this Court must frontally meet if the Amparo Rule is to be given
a chance to achieve its objectives. These evidentiary difficulties compel the Court to adopt
standards appropriate and responsive to the circumstances, without transgressing the due
process requirements that underlie every proceeding.

In the seminal case of Velasquez Rodriguez,[153] the IACHR faced with a lack of direct
evidence that the government of Honduras was involved in Velasquez Rodriguez
disappearance adopted a relaxed and informal evidentiary standard, and established the
rule that presumes governmental responsibility for a disappearance if it can be proven that
the government carries out a general practice of enforced disappearances and the specific
case can be linked to that practice.[154] The IACHR took note of the realistic fact that
enforced disappearances could be proven only through circumstantial or indirect evidence
or by logical inference; otherwise, it was impossible to prove that an individual had been
made to disappear. It held:

130. The practice of international and domestic courts shows that direct evidence, whether
testimonial or documentary, is not the only type of evidence that may be legitimately
considered in reaching a decision. Circumstantial evidence, indicia, and presumptions may
be considered, so long as they lead to conclusions consistent with the facts.
131. Circumstantial or presumptive evidence is especially important in allegations of
disappearances, because this type of repression is characterized by an attempt to suppress
all information about the kidnapping or the whereabouts and fate of the victim. [Emphasis
supplied]

In concluding that the disappearance of Manfredo Velsquez (Manfredo) was carried out by
agents who acted under cover of public authority, the IACHR relied on circumstantial
evidence including the hearsay testimony of Zenaida Velsquez, the victims sister, who
described Manfredos kidnapping on the basis of conversations she had with witnesses who
saw Manfredo kidnapped by men in civilian clothes in broad daylight. She also told the
Court that a former Honduran military official had announced that Manfredo was
kidnapped by a special military squadron acting under orders of the Chief of the Armed
Forces.[155] The IACHR likewise considered the hearsay testimony of a second witness
who asserted that he had been told by a Honduran military officer about the disappearance,
and a third witness who testified that he had spoken in prison to a man who identified
himself as Manfredo.[156]

Velasquez stresses the lesson that flexibility is necessary under the unique
circumstances that enforced disappearance cases pose to the courts; to have an effective
remedy, the standard of evidence must be responsive to the evidentiary difficulties faced.
On the one hand, we cannot be arbitrary in the admission and appreciation of evidence, as
arbitrariness entails violation of rights and cannot be used as an effective counter-measure;
we only compound the problem if a wrong is addressed by the commission of another
wrong. On the other hand, we cannot be very strict in our evidentiary rules and cannot
consider evidence the way we do in the usual criminal and civil cases; precisely, the
proceedings before us are administrative in nature where, as a rule, technical rules of
evidence are not strictly observed. Thus, while we must follow the substantial evidence
rule, we must observe flexibility in considering the evidence we shall take into account.

The fair and proper rule, to our mind, is to consider all the pieces of evidence adduced
in their totality, and to consider any evidence otherwise inadmissible under our usual rules
to be admissible if it is consistent with the admissible evidence adduced. In other words, we
reduce our rules to the most basic test of reason i.e., to the relevance of the evidence to the
issue at hand and its consistency with all other pieces of adduced evidence. Thus, even
hearsay evidence can be admitted if it satisfies this basic minimum test.

We note in this regard that the use of flexibility in the consideration of evidence is not
at all novel in the Philippine legal system. In child abuse cases, Section 28 of the Rule on
Examination of a Child Witness[157] is expressly recognized as an exception to the hearsay
rule. This Rule allows the admission of the hearsay testimony of a child describing any act
or attempted act of sexual abuse in any criminal or non-criminal proceeding, subject to
certain prerequisites and the right of cross-examination by the adverse party. The
admission of the statement is determined by the court in light of specified subjective and
objective considerations that provide sufficient indicia of reliability of the child
witness.[158] These requisites for admission find their counterpart in the present case
under the above-described conditions for the exercise of flexibility in the consideration of
evidence, including hearsay evidence, in extrajudicial killings and enforced disappearance
cases.

Assessment of the Evidence

The threshold question for our resolution is: was there an enforced disappearance within
the meaning of this term under the UN Declaration we have cited?

The Convention defines enforced disappearance as the arrest, detention, abduction or any
other form of deprivation of liberty by agents of the State or by persons or groups of
persons acting with the authorization, support or acquiescence of the State, followed by a
refusal to acknowledge the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person outside the protection
of the law.[159] Under this definition, the elements that constitute enforced disappearance
are essentially fourfold:[160]

(a) arrest, detention, abduction or any form of deprivation of liberty;

(b) carried out by agents of the State or persons or groups of persons acting with the
authorization, support or acquiescence of the State;

(c) followed by a refusal to acknowledge the detention, or a concealment of the fate of the
disappeared person; and

(d) placement of the disappeared person outside the protection of the law. [Emphasis
supplied]

We find no direct evidence indicating how the victim actually disappeared. The direct
evidence at hand only shows that Tagitis went out of the ASY Pension House after
depositing his room key with the hotel desk and was never seen nor heard of again. The
undisputed conclusion, however, from all concerned the petitioner, Tagitis colleagues and
even the police authorities is that Tagistis disappeared under mysterious circumstances
and was never seen again. The respondent injected the causal element in her petition and
testimony, as we shall discuss below.

We likewise find no direct evidence showing that operatives of PNP CIDG Zamboanga
abducted or arrested Tagitis. If at all, only the respondents allegation that Tagistis was
under CIDG Zamboanga custody stands on record, but it is not supported by any other
evidence, direct or circumstantial.

In her direct testimony, the respondent pointed to two sources of information as her bases
for her allegation that Tagistis had been placed under government custody (in contrast with
CIDG Zamboanga custody). The first was an unnamed friend in Zamboanga (later identified
as Col. Ancanan), who occupied a high position in the military and who allegedly mentioned
that Tagitis was in good hands. Nothing came out of this claim, as both the respondent
herself and her witness, Mrs. Talbin, failed to establish that Col. Ancanan gave them any
information that Tagitis was in government custody. Col. Ancanan, for his part, admitted
the meeting with the respondent but denied giving her any information about the
disappearance.

The more specific and productive source of information was Col. Kasim, whom the
respondent, together with her witness Mrs. Talbin, met in Camp Katitipan in Davao City. To
quote the relevant portions of the respondents testimony:

Q: Were you able to speak to other military officials regarding the whereabouts of your
husband particularly those in charge of any records or investigation?

A: I went to Camp Katitipan in Davao City. Then one military officer, Col. Casim, told me
that my husband is being abducted [sic] because he is under custodial investigation because
he is allegedly parang liason ng J.I., sir.

Q: What is J.I.?

A: Jemaah Islamiah, sir.

Q: Was there any information that was read to you during one of those visits of yours in
that Camp?

A: Col. Casim did not furnish me a copy of his report because he said those reports are
highly confidential, sir.

Q: Was it read to you then even though you were not furnished a copy?

A: Yes, sir. In front of us, my friends.

Q: And what was the content of that highly confidential report?

A: Those alleged activities of Engineer Tagitis, sir.[161] [Emphasis supplied]

She confirmed this testimony in her cross-examination:

Q: You also mentioned that you went to Camp Katitipan in Davao City?

A: Yes, maam.

Q: And a certain Col. Kasim told you that your husband was abducted and under
custodial investigation?

A: Yes, maam.

Q: And you mentioned that he showed you a report?

A: Yes, maam.

Q: Were you able to read the contents of that report?

A: He did not furnish me a copy of those [sic] report because those [sic] were highly
confidential. That is a military report, maam.

Q: But you were able to read the contents?

A: No. But he read it in front of us, my friends, maam.

Q: How many were you when you went to see Col. Kasim?

A: There were three of us, maam.

Q: Who were your companions?

A: Mrs. Talbin, tapos yung dalawang friends nya from Mati City, Davao Oriental,
maam.[162]

x x x x

Q: When you were told that your husband is in good hands, what was your reaction and
what did you do?

A: May binasa kasi sya that my husband has a parang meeting with other people na
parang mga terorista na mga tao. Tapos at the end of the report is [sic] under custodial
investigation. So I told him Colonel, my husband is sick. He is diabetic at nagmemaintain
yun ng gamot. Pakisabi lang sa naghohold sa asawa ko na bigyan siya ng gamot,
maam.[163]

x x x x

Q: You mentioned that you received information that Engineer Tagitis is being held by
the CIDG in Zamboanga, did you go to CIDG Zamboanga to verify that information?

A: I did not go to CIDG Zamboanga. I went to Camp Karingal instead. Enough na yun na
effort ko because I know that they would deny it, maam.[164]


On February 11, 2008, the respondent presented Mrs. Talbin to corroborate her testimony
that her husband was abducted and held under custodial investigation by the PNP-CIDG
Zamboanga City, viz:

Q: You said that you went to Camp Katitipan in Davao City sometime November 24,
2007, who was with you when you went there?

A: Mary Jean Tagitis, sir.

Q: Only the two of you?

A: No. We have some other companions. We were four at that time, sir.

Q: Who were they?

A: Salvacion Serrano, Mini Leong, Mrs. Tagitis and me, sir.

Q: Were you able to talk, see some other officials at Camp Katitipan during that time?
A: Col. Kasim (PS Supt. Julasirim Ahadin Kasim) only, sir.

Q: Were you able to talk to him?

A: Yes, sir.

Q: The four of you?

A: Yes, sir.

Q: What information did you get from Col. Kasim during that time?

A: The first time we met with [him] I asked him if he knew of the exact location, if he can
furnish us the location of Engr. Tagitis. And he was reading this report. He told us that
Engr. Tagitis is in good hands. He is with the military, but he is not certain whether he is
with the AFP or PNP. He has this serious case. He was charged of terrorism because he was
under surveillance from January 2007 up to the time that he was abducted. He told us that
he was under custodial investigation. As Ive said earlier, he was seen under surveillance
from January. He was seen talking to Omar Patik, a certain Santos of Bulacan who is also a
Balik Islam and charged with terrorism. He was seen carrying boxes of medicines. Then we
asked him how long will he be in custodial investigation. He said until we can get some
information. But he also told us that he cannot give us that report because it was a raw
report. It was not official, sir.

Q: You said that he was reading a report, was that report in document form, in a piece of
paper or was it in the computer or what?

A: As far as I can see it, sir, it is written in white bond paper. I dont know if it was
computerized but Im certain that it was typewritten. Im not sure if it used computer, fax
or what, sir.

Q: When he was reading it to you, was he reading it line by line or he was reading in a
summary form?

A: Sometimes he was glancing to the report and talking to us, sir.[165]

x x x x
Q: Were you informed as to the place where he was being kept during that time?

A: He did not tell us where he [Tagitis] was being kept. But he mentioned this Talipapao,
Sulu, sir.

Q: After that incident, what did you do if any?

A: We just left and as Ive mentioned, we just waited because that raw information that
he was reading to us [sic] after the custodial investigation, Engineer Tagitis will be released.
[Emphasis supplied][166]

Col. Kasim never denied that he met with the respondent and her friends, and that he
provided them information based on the input of an unnamed asset. He simply claimed in
his testimony that the informal letter he received from his informant in Sulu did not
indicate that Tagitis was in the custody of the CIDG. He also stressed that the information
he provided the respondent was merely a raw report from barangay intelligence that
still needed confirmation and follow up as to its veracity.[167]

To be sure, the respondents and Mrs. Talbins testimonies were far from perfect, as the
petitioners pointed out. The respondent mistakenly characterized Col. Kasim as a military
officer who told her that her husband is being abducted because he is under custodial
investigation because he is allegedly parang liason ng J.I. The petitioners also noted that
Mrs. Talbins testimony imputing certain statements to Sr. Supt. Kasim that Engr. Tagitis is
with the military, but he is not certain whether it is the PNP or AFP is not worthy of belief,
since Sr. Supt. Kasim is a high ranking police officer who would certainly know that the PNP
is not part of the military.

Upon deeper consideration of these inconsistencies, however, what appears clear to us is
that the petitioners never really steadfastly disputed or presented evidence to refute the
credibility of the respondent and her witness, Mrs. Talbin. The inconsistencies the
petitioners point out relate, more than anything else, to details that should not affect the
credibility of the respondent and Mrs. Talbin; the inconsistencies are not on material
points.[168] We note, for example, that these witnesses are lay people in so far as military
and police matters are concerned, and confusion between the police and the military is not
unusual. As a rule, minor inconsistencies such as these indicate truthfulness rather than
prevarication[169]and only tend to strengthen their probative value, in contrast to
testimonies from various witnesses dovetailing on every detail; the latter cannot but
generate suspicion that the material circumstances they testified to were integral parts of a
well thought of and prefabricated story.[170]

Based on these considerations and the unique evidentiary situation in enforced
disappearance cases, we hold it duly established that Col. Kasim informed the respondent
and her friends, based on the informants letter, that Tagitis, reputedly a liaison for the JI
and who had been under surveillance since January 2007, was in good hands and under
custodial investigation for complicity with the JI after he was seen talking to one Omar Patik
and a certain Santos of Bulacan, a Balik Islam charged with terrorism. The respondents
and Mrs. Talbins testimonies cannot simply be defeated by Col. Kasims plain denial and his
claim that he had destroyed his informants letter, the critical piece of evidence that
supports or negates the parties conflicting claims. Col. Kasims admitted destruction of this
letter effectively, a suppression of this evidence raises the presumption that the letter, if
produced, would be proof of what the respondent claimed.[171] For brevity, we shall call
the evidence of what Col. Kasim reported to the respondent to be the Kasim evidence.

Given this evidence, our next step is to decide whether we can accept this evidence, in lieu
of direct evidence, as proof that the disappearance of Tagitis was due to action with
government participation, knowledge or consent and that he was held for custodial
investigation. We note in this regard that Col. Kasim was never quoted to have said that the
custodial investigation was by the CIDG Zamboanga. The Kasim evidence only implies
government intervention through the use of the term custodial investigation, and does not
at all point to CIDG Zamboanga as Tagitis custodian.

Strictly speaking, we are faced here with a classic case of hearsay evidence i.e., evidence
whose probative value is not based on the personal knowledge of the witnesses (the
respondent, Mrs. Talbin and Col. Kasim himself) but on the knowledge of some other person
not on the witness stand (the informant).[172]

To say that this piece of evidence is incompetent and inadmissible evidence of what it
substantively states is to acknowledge as the petitioners effectively suggest that in the
absence of any direct evidence, we should simply dismiss the petition. To our mind, an
immediate dismissal for this reason is no different from a statement that the Amparo Rule
despite its terms is ineffective, as it cannot allow for the special evidentiary difficulties
that are unavoidably present in Amparo situations, particularly in extrajudicial killings and
enforced disappearances. The Amparo Rule was not promulgated with this intent or with
the intent to make it a token gesture of concern for constitutional rights. It was
promulgated to provide effective and timely remedies, using and profiting from local and
international experiences in extrajudicial killings and enforced disappearances, as the
situation may require. Consequently, we have no choice but to meet the evidentiary
difficulties inherent in enforced disappearances with the flexibility that these difficulties
demand.

To give full meaning to our Constitution and the rights it protects, we hold that, as in
Velasquez, we should at least take a close look at the available evidence to determine the
correct import of every piece of evidence even of those usually considered inadmissible
under the general rules of evidence taking into account the surrounding circumstances
and the test of reason that we can use as basic minimum admissibility requirement. In the
present case, we should at least determine whether the Kasim evidence before us is
relevant and meaningful to the disappearance of Tagistis and reasonably consistent with
other evidence in the case.

The evidence about Tagitis personal circumstances surrounded him with an air of mystery.
He was reputedly a consultant of the World Bank and a Senior Honorary Counselor for the
IDB who attended a seminar in Zamboanga and thereafter proceded to Jolo for an overnight
stay, indicated by his request to Kunnong for the purchase of a return ticket to Zamboanga
the day after he arrived in Jolo. Nothing in the records indicates the purpose of his overnight
sojourn in Jolo. A colleague in the IDB, Prof. Matli, early on informed the Jolo police that
Tagitis may have taken funds given to him in trust for IDB scholars. Prof Matli later on
stated that he never accused Tagitis of taking away money held in trust, although he
confirmed that the IDB was seeking assistance in locating funds of IDB scholars deposited in
Tagitis personal account. Other than these pieces of evidence, no other information exists
in the records relating to the personal circumstances of Tagitis.

The actual disappearance of Tagitis is as murky as his personal circumstances. While the
Amparo petition recited that he was taken away by burly men believed to be police
intelligence operatives, no evidence whatsoever was introduced to support this allegation.
Thus, the available direct evidence is that Tagitis was last seen at 12.30 p.m. of October 30,
2007 the day he arrived in Jolo and was never seen again.

The Kasim evidence assumes critical materiality given the dearth of direct evidence on the
above aspects of the case, as it supplies the gaps that were never looked into and clarified
by police investigation. It is the evidence, too, that colors a simple missing person report
into an enforced disappearance case, as it injects the element of participation by agents of
the State and thus brings into question how the State reacted to the disappearance.

Denials on the part of the police authorities, and frustration on the part of the respondent,
characterize the attempts to locate Tagitis. Initially in Jolo, the police informed Kunnong
that Tagitis could have been taken by the Abu Sayyaf or other groups fighting the
government. No evidence was ever offered on whether there was active Jolo police
investigation and how and why the Jolo police arrived at this conclusion. The respondents
own inquiry in Jolo yielded the answer that he was not missing but was with another
woman somewhere. Again, no evidence exists that this explanation was arrived at based on
an investigation. As already related above, the inquiry with Col. Ancanan in Zamboanga
yielded ambivalent results not useful for evidentiary purposes. Thus, it was only the
inquiry from Col. Kasim that yielded positive results. Col. Kasims story, however,
confirmed only the fact of his custodial investigation (and, impliedly, his arrest or
abduction), without identifying his abductor/s or the party holding him in custody. The
more significant part of Col. Kasims story is that the abduction came after Tagitis was seen
talking with Omar Patik and a certain Santos of Bulacan, a Balik Islam charged with
terrorism. Mrs. Talbin mentioned, too, that Tagitis was being held at Talipapao, Sulu. None
of the police agencies participating in the investigation ever pursued these leads. Notably,
TASK FORCE TAGITIS to which this information was relayed did not appear to have lifted a
finger to pursue these aspects of the case.

More denials were manifested in the Returns on the writ to the CA made by the petitioners.
Then PNP Chief Gen. Avelino I. Razon merely reported the directives he sent to the ARMM
Regional Director and the Regional Chief of the CIDG on Tagitis, and these reports merely
reiterated the open-ended initial report of the disappearance. The CIDG directed a search in
all of its divisions with negative results. These, to the PNP Chief, constituted the exhaustion
of all possible efforts. PNP-CIDG Chief General Edgardo M. Doromal, for his part, also
reported negative results after searching all divisions and departments [of the CIDG] for a
person named Engr. Morced N. Tagitis . . . and after a diligent and thorough research,
records show that no such person is being detained in the CIDG or any of its department or
divisions. PNP-PACER Chief PS Supt. Leonardo A. Espina and PNP PRO ARMM Regional
Director PC Superintendent Joel R. Goltiao did no better in their affidavits-returns, as they
essentially reported the results of their directives to their units to search for Tagitis.

The extent to which the police authorities acted was fully tested when the CA constituted
TASK FORCE TAGITIS, with specific directives on what to do. The negative results reflected
in the Returns on the writ were again replicated during the three hearings the CA
scheduled. Aside from the previously mentioned retraction that Prof. Matli made to
correct his accusation that Tagitis took money held in trust for students, PS Supt. Ajirim
reiterated in his testimony that the CIDG consistently denied any knowledge or complicity
in any abduction and said that there was no basis to conclude that the CIDG or any police
unit had anything to do with the disappearance of Tagitis; he likewise considered it
premature to conclude that Tagitis simply ran away with the money in his custody. As
already noted above, the TASK FORCE notably did not pursue any investigation about the
personal circumstances of Tagitis, his background in relation to the IDB and the background
and activities of this Bank itself, and the reported sighting of Tagistis with terrorists and his
alleged custody in Talipapao, Sulu. No attempt appears to have ever been made to look into
the alleged IDB funds that Tagitis held in trust, or to tap any of the assets who are
indispensable in investigations of this nature. These omissions and negative results were
aggravated by the CA findings that it was only as late as January 28, 2008 or three months
after the disappearance that the police authorities requested for clear pictures of Tagitis.
Col. Kasim could not attend the trial because his subpoena was not served, despite the fact
that he was designated as Ajirims replacement in the latters last post. Thus, Col. Kasim
was not then questioned. No investigation even an internal one appeared to have been
made to inquire into the identity of Col. Kasims asset and what he indeed wrote.

We glean from all these pieces of evidence and developments a consistency in the
governments denial of any complicity in the disappearance of Tagitis, disrupted only by the
report made by Col. Kasim to the respondent at Camp Katitipan. Even Col. Kasim, however,
eventually denied that he ever made the disclosure that Tagitis was under custodial
investigation for complicity in terrorism. Another distinctive trait that runs through these
developments is the governments dismissive approach to the disappearance, starting from
the initial response by the Jolo police to Kunnongs initial reports of the disappearance, to
the responses made to the respondent when she herself reported and inquired about her
husbands disappearance, and even at TASK FORCE TAGITIS itself.

As the CA found through TASK FORCE TAGITIS, the investigation was at best haphazard
since the authorities were looking for a man whose picture they initially did not even
secure. The returns and reports made to the CA fared no better, as the CIDG efforts
themselves were confined to searching for custodial records of Tagitis in their various
departments and divisions. To point out the obvious, if the abduction of Tagitis was a
black operation because it was unrecorded or officially unauthorized, no record of
custody would ever appear in the CIDG records; Tagitis, too, would not be detained in the
usual police or CIDG detention places. In sum, none of the reports on record contains any
meaningful results or details on the depth and extent of the investigation made. To be sure,
reports of top police officials indicating the personnel and units they directed to investigate
can never constitute exhaustive and meaningful investigation, or equal detailed
investigative reports of the activities undertaken to search for Tagitis. Indisputably, the
police authorities from the very beginning failed to come up to the extraordinary diligence
that the Amparo Rule requires.


CONCLUSIONS AND THE AMPARO REMEDY

Based on these considerations, we conclude that Col. Kasims disclosure, made in an
unguarded moment, unequivocally point to some government complicity in the
disappearance. The consistent but unfounded denials and the haphazard investigations
cannot but point to this conclusion. For why would the government and its officials engage
in their chorus of concealment if the intent had not been to deny what they already knew of
the disappearance? Would not an in-depth and thorough investigation that at least credibly
determined the fate of Tagitis be a feather in the governments cap under the circumstances
of the disappearance? From this perspective, the evidence and developments, particularly
the Kasim evidence, already establish a concrete case of enforced disappearance that the
Amparo Rule covers. From the prism of the UN Declaration, heretofore cited and
quoted,[173] the evidence at hand and the developments in this case confirm the fact of the
enforced disappearance and government complicity, under a background of consistent and
unfounded government denials and haphazard handling. The disappearance as well
effectively placed Tagitis outside the protection of the law a situation that will subsist
unless this Court acts.

This kind of fact situation and the conclusion reached are not without precedent in
international enforced disappearance rulings. While the facts are not exactly the same, the
facts of this case run very close to those of Timurtas v. Turkey,[174] a case decided by
ECHR. The European tribunal in that case acted on the basis of the photocopy of a post-
operation report in finding that Abdulvahap Timurtas (Abdulvahap) was abducted and
later detained by agents (gendarmes) of the government of Turkey. The victim's father in
this case brought a claim against Turkey for numerous violations of the European
Convention, including the right to life (Article 2) and the rights to liberty and security of a
person (Article 5). The applicant contended that on August 14, 1993, gendarmes
apprehended his son, Abdulvahap for being a leader of the Kurdish Workers Party (PKK) in
the Silopi region. The petition was filed in southeast Turkey nearly six and one half years
after the apprehension. According to the father, gendarmes first detained Abdulvahap and
then transferred him to another detainment facility. Although there was no eyewitness
evidence of the apprehension or subsequent detainment, the applicant presented evidence
corroborating his version of events, including a photocopy of a post-operation report signed
by the commander of gendarme operations in Silopi, Turkey. The report included a
description of Abdulvahap's arrest and the result of a subsequent interrogation during
detention where he was accused of being a leader of the PKK in the Silopi region. On this
basis, Turkey was held responsible for Abdulvahaps enforced disappearance.

Following the lead of this Turkish experience - adjusted to the Philippine legal setting and
the Amparo remedy this Court has established, as applied to the unique facts and
developments of this case we believe and so hold that the government in general, through
the PNP and the PNP-CIDG, and in particular, the Chiefs of these organizations together with
Col. Kasim, should be held fully accountable for the enforced disappearance of Tagitis.

The PNP and CIDG are accountable because Section 24 of Republic Act No. 6975, otherwise
known as the PNP Law,[175] specifies the PNP as the governmental office with the
mandate to investigate and prevent crimes, effect the arrest of criminal offenders, bring
offenders to justice and assist in their prosecution. The PNP-CIDG, as Col. Jose Volpane
Pante (then Chief of CIDG Region 9) testified, is the investigative arm of the PNP and is
mandated to investigate and prosecute all cases involving violations of the Revised Penal
Code, particularly those considered as heinous crimes.[176] Under the PNP organizational
structure, the PNP-CIDG is tasked to investigate all major crimes involving violations of the
Revised Penal Code and operates against organized crime groups, unless the President
assigns the case exclusively to the National Bureau of Investigation (NBI).[177] No
indication exists in this case showing that the President ever directly intervened by
assigning the investigation of Tagitis disappearance exclusively to the NBI.

Given their mandates, the PNP and PNP-CIDG officials and members were the ones who
were remiss in their duties when the government completely failed to exercise the
extral'>To fully enforce the Amparo remedy, we refer this case back to the CA for
appropriate proceedings directed at the monitoring of the PNP and the PNP-CIDG
investigations and actions, and the validation of their results through hearings the CA may
deem appropriate to conduct. For purposes of these investigations, the PNP/PNP-CIDG
shall initially present to the CA a plan of action for further investigation, periodically
reporting the detailed results of its investigation to the CA for its consideration and action.
On behalf of this Court, the CA shall pass upon: the need for the PNP and the PNP-CIDG to
make disclosures of matters known to them as indicated in this Decision and as further CA
hearings may indicate; the petitioners submissions; the sufficiency of their investigative
efforts; and submit to this Court a quarterly report containing its actions and
recommendations, copy furnished the petitioners and the respondent, with the first report
due at the end of the first quarter counted from the finality of this Decision. The PNP and
the PNP-CIDG shall have one (1) full year to undertake their investigation. The CA shall
submit its full report for the consideration of this Court at the end of the 4th quarter
counted from the finality of this Decision.

WHEREFORE, premises considered, we DENY the petitioners petition for review on
certiorari for lack of merit, and AFFIRM the decision of the Court of Appeals dated March 7,
2008 under the following terms:

a. Recognition that the disappearance of Engineer Morced N. Tagitis is an enforced
disappearance covered by the Rule on the Writ of Amparo;
b. Without any specific pronouncement on exact authorship and responsibility,
declaring the government (through the PNP and the PNP-CIDG) and Colonel Julasirim
Ahadin Kasim accountable for the enforced disappearance of Engineer Morced N. Tagitis;
c. Confirmation of the validity of the Writ of Amparo the Court of Appeals issued;
d. Holding the PNP, through the PNP Chief, and the PNP-CIDG, through its Chief,
directly responsible for the disclosure of material facts known to the government and to
their offices regarding the disappearance of Engineer Morced N. Tagitis, and for the conduct
of proper investigations using extraordinary diligence, with the obligation to show
investigation results acceptable to this Court;
e. Ordering Colonel Julasirim Ahadin Kasim impleaded in this case and holding him
accountable with the obligation to disclose information known to him and to his assets in
relation with the enforced disappearance of Engineer Morced N. Tagitis;
f. Referring this case back to the Court of Appeals for appropriate proceedings
directed at the monitoring of the PNP and PNP-CIDG investigations, actions and the
validation of their results; the PNP and the PNP-CIDG shall initially present to the Court of
Appeals a plan of action for further investigation, periodically reporting their results to the
Court of Appeals for consideration and action;
g. Requiring the Court of Appeals to submit to this Court a quarterly report with its
recommendations, copy furnished the incumbent PNP and PNP-CIDG Chiefs as petitioners
and the respondent, with the first report due at the end of the first quarter counted from the
finality of this Decision;
h. The PNP and the PNP-CIDG shall have one (1) full year to undertake their
investigations; the Court of Appeals shall submit its full report for the consideration of this
Court at the end of the 4th quarter counted from the finality of this Decision;

These directives and those of the Court of Appeals made pursuant to this Decision shall be
given to, and shall be directly enforceable against, whoever may be the incumbent Chiefs of
the Philippine National Police and its Criminal Investigation and Detection Group, under
pain of contempt from this Court when the initiatives and efforts at disclosure and
investigation constitute less than the extraordinary diligence that the Rule on the Writ of
Amparo and the circumstances of this case demand. Given the unique nature of Amparo
cases and their varying attendant circumstances, these directives particularly, the referral
back to and monitoring by the CA are specific to this case and are not standard remedies
that can be applied to every Amparo situation.

The dismissal of the Amparo petition with respect to General Alexander Yano, Commanding
General, Philippine Army, and General Ruben Rafael, Chief, Anti-Terrorism Task Force
Comet, Zamboanga City, is hereby AFFIRMED.

SO ORDERED.


ARTURO D. BRION
Associate Justice

WE CONCUR:


REYNATO S. PUNO
Chief Justice




ANTONIO T. CARPIO
Associate Justice






CONCHITA CARPIO MORALES
Associate Justice




PRESBITERO J. VELASCO, JR.
Associate Justice




TERESITA J. LEONARDO-DE CASTRO
Associate Justice




LUCAS P. BERSAMIN
Associate Justice




ROBERTO A. ABAD
Associate Justice




RENATO C. CORONA
Associate Justice






MINITA V. CHICO-NAZARIO
Associate Justice




ANTONIO EDUARDO B. NACHURA
Associate Justice




DIOSDADO M. PERALTA
Associate Justice




MARIANO C. DEL CASTILLO
Associate Justice




MARTIN S. VILLARAMA, JR.
Associate Justice




CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.



REYNATO S. PUNO
Chief Justice

[1] Under Rule 45 of the Rules of Court; rollo, pp. 826-919.
[2] Penned by Associate Justice Vicente Q. Roxas and concurred in by Associate Justice
Hakim S. Abdulwahid and Associate Justice Arturo G. Tayag; rollo, pp. 108-128.
[3] Section 1 of the Rule on the Writ of Amparo states:
SECTION 1. Petition. The petition for a writ of amparo is a remedy available to any
person whose right to life, liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats
thereof.
[4] A.M. No. 07-9-12-SC, October 24, 2007.
[5] Sworn Affidavit of Arsimin H. Kunnong dated November 7, 2007; rollo, p. 348.
[6] Sworn Affidavit of Rion Adam dated November 20, 2007; rollo, p. 349.
[7] Supra note 4.
[8] Id.
[9] Id.
[10] Annex C; rollo, pp. 135-143.
[11] CA Resolution dated December 28, 2004, CA rollo, pp. 13-16. The CA required that the
Return contain the following minimum information:
(A) Respondents [referring to herein petitioners] personal and lawful defenses to show
that the respondent did not violate or threaten with violation the right to life, liberty and
security of the aggrieved party, through any act or omission; (B) steps or actions taken by
respondent to determine the fate or whereabouts of the aggrieved party and the person or
persons responsible for the threat, act or omission; (C) all relevant information in the
possession of each respondent pertaining to the threat, act or omission against the
aggrieved party; and (D) since the respondents were all public officials, being either
members of the Armed Forces of the Philippines or the Philippine National Police, the
return should further state the actions that have been or would be taken: (i) To verify the
identity of the aggrieved party; (ii) To recover and preserve evidence related to the
disappearance of ENGINEER MORCED N. TAGITIS, the person identified in the petition,
which may aid in the prosecution of the person or persons responsible; (iii) To identify
witnesses and obtain statements from them concerning the disappearance; (iv) To
determine the cause, manner, location and time of disappearance as well as any pattern or
practice that may have brought about the disappearance; (v) To identify and apprehend the
person or persons involved in the disappearance of ENGINEER MORCED N. TAGITIS; and
(vi) To bring the suspected offenders before a competent court. General denial of the
allegations in the petition would not be allowed and all defenses not raised in the return
would be considered as waived. Id.
[12] CA rollo, pp. 56-90.
[13] Annex 2; id. at 91-96.
[14] Annex 3; id. at 97-98.
[15] Police Anti-Crime Emergency Response.
[16] Annex 4; id. at 99-103.
[17] Annex 5; id. at 104-120.
[18] CA Resolution dated January 9, 2008; rollo, p. 275.
[19] TSN, January 11, 2008, p. 39; CA Resolution dated January 11, 2008, rollo, pp. 280-283.
[20] The hearings were conducted on January 17, 2008, January 28, 2008, and February 11,
2008 respectively.
[21] CA Resolution dated January 11, 2008, rollo, pp. 280-283.
[22] TSN, January 17, 2008, pp. 10-11; CA Resolution dated January 18, 2008, CA rollo, pp.
283-286.
[23] Exhibit 6, CA rollo, p. 250.
[24] TSN, January 17, 2008, p. 77.
[25] Id.
[26] Id. at 80-81.
[27] Annex L; rollo, pp. 347.
[28] CA rollo, pp. 311-313.
[29] TSN, January 7, 2008, p. 20.
[30] Id. at 21.
[31] Id. at 22. Mr. Rudy Salvador later executed an affidavit dated January 21, 2008
detailing the assistance he provided for the respondent in locating the whereabouts of her
husband, viz:

That on November 12, 2007, Ms. Mary Jean B. Tagitis, my former staff in Land Bank of
the Philippines Digos Branch Digos City, came to my office at Land Bank Philippines, Bajada
Branch, Bajada, Davao City asking for help regarding the abduction of her husband Engr.
Morced Tagitis, a Senior Honorary Counselor of the Islamic Development Bank Scholarship
Program and a World Bank Consultant who was presumed to be abducted in Jolo, Sulu on
October 30, 2007;

During our meeting, I immediately called up my friends in the military asking them a
favor to help her to find the whereabouts her husband Engr. Morced Tagitis;

After then, we faxed a letter to PCSUPT RODOLFO B. MENDOZA JR. of the PHILIPPINE
NATIONAL POLICE, CAMP CRAME, QUEZON CITY appealing for assistance in
locating/gathering information on the abduction of Engr. Morced N. Tagitis. Exhibit C, TSN,
January 28, 2008, p. 8-9.
[32] Id. at 23.
[33] TSN, January 17, 2008, pp. 18-20.
[34] Id. at 34-35.
[35] Id. at 24-25.
[36] Id. at 33.
[37] Id. at 47-44; rollo, pp. 772-773. Col. Ancanan later executed an affidavit dated January
30, 2008 contradicting the respondents allegations. The pertinent portions of the affidavit
state:

3. That, mid of November 2007, Mrs. Tagitis of Davao City appeared before our office
and asked for help/assistance in locating her husband allegedly missing since November 4,
2007 in Jolo, Sulu;
4. That, I told her that her problem was purely a police matter which does not fall
under our mandate but that nonetheless I was willing to extend my help;
5. That during our conversation, I asked her to provide me with some
documents/information for purposes of back tracking/tracing the possible personalities
whom her husband supposedly met in Jolo before he was reported missing. However, this
did not materialize because Mrs. Tagitis was hesitant to produce said
documents/information for an unknown reason;
6. That during the Joint Reward Valuation conference (JRVC) on January 29, 2008, I
was astonished when PS SUPT JOSE VOLPANE PANTE, Regional Chief 9RCIDU, informed me
that accordingly (sic) I was the one who told Mrs. Tagitis that her husband was in the
custody of the 9RCIDU ;
7. That in the course of my conversation with Mrs. Tagitis, I never told her or made
mention of any word to that effect implicating the CIDG personnel particularly members of
9RCIDU as being responsible or involved in the disappearance of her husband, Engr. Morced
Tagitis;
That I am executing this affidavit to contradict and dispute the allegation of Mrs.
Tagitis that I told her that the CIDG personnel were involved in the disappearance of her
husband.
[38] Id. at 48-52.
[39] TSN, February 11, 2008, p. 43.
[40] Id. at 44-47; rollo, pp. 808-809.
[41] Id. at 810-811.
[42] TSN, February 11, 2008, p. 29.
[43] Id. at 31-32.
[44] Id. at 32-33.
[45] Id. at 33-34.
[46] Id. at 36.
[47] Id. at 41.
[48] TSN, January 28, 2008, pp. 45-46.
[49] Id. at 59.
[50] Id. at 61-63.
[51] Id. at 80-81. Paragraph 13 of Prof. Matlis January 26, 2008 affidavit states:

13. Contrary to the contents of the affidavit I signed on January 4, 2008, it was not I who
said that Brother Engr.[sic] Morced converted the money that were entrusted and
deposited to be [sic] said institution he was working with, by means of deceitful
performance, grave abuse of trust and confidence, misappropriate, misapply and convert
the same to his own personal and [sic] benefits (Paragraph 6 of January 4, 2008 Affidavit)
and it was not also I who said: That, I am appearing before the competent authority in
order to reveal the truth of facts that Engr. [sic] Morced Tagitis, have reportedly taken and
carried away the deposited above mentioned IDB Scholarship Fund who was [sic] entrusted
to his own personal account.
[52] Id. at 81.
[53] Id. at 74-76. As read by Prof. Matli in his January 28, 2008 cross-examination, the e-
mail stated:

To: Nuraya Lackian
CC: Abdulrahman R.T. Linzag
Subject: Re: Financial Problem (Refund and Stipend)
From: Salam@isdb.org
Date: Tue, 27 November 2007

Br. Tahirodin Benzar A. Ampatuan
GEN. COORDINATOR
IDB Scholarship Programme in Philippines

Assalamo Alaikum

Thanks for your below mail.

Could you please, in coordination and cooperation with Br. Hj. Abdul Raman R.T. Linzag,
personally visit Br. Engr. Morceds office and try to find/locate documents related with the
Scholarship Programme and, if found, please try to solve these problems, i.e.,

- Did or how may students get their monthly stipends and where are other bank drafts
to be delivered to them (Br. Morceds account has no amount left in his concern)
- What about stipends for new students (26 new intake in 2007), which we also
transferred to Br. Morced [sic] account.

Thanks for your kind cooperation and closely follow-up on this subject.

Regards,
Saeed Zafar
[54] Id. at 1-82.
[55] Id. at 96-97.
[56] Id. at 98-99.
[57] TSN, February 11, 2008, p. 48.
[58] Id. at 53-56.
[59] Id. at 56.
[60] Id. at 57-58.
[61] Id. at 61-62.
[62] Id. at 63.
[63] Id. at 68.
[64] Id. at 70.
[65] Id. at 85.
[66] Id. at 88.
[67] Sworn Affidavit of Col. Pante dated February 6, 2008; rollo, p. 775.
[68] Id.
[69] TSN, February 11, 2008, p. 99.
[70] Supra note 66.
[71] Supra note 2.
[72] Declaration on the Protection of all Persons from Enforced Disappearance, G.A. Res
47/133 3, U.N. Doc. A/RES/47/133 (December 18, 1992).
[73] Rollo, pp. 129-131.
[74] Id. at 13-105.
[75] Section 5, Rule on the Writ of Amparo.
[76] Section 1, Rule 8 of the Rules of Court provides:
Section 1. In General. Every pleading shall contain in a methodical and logical form, a
plain, concise and direct statement of the ultimate facts on which the party pleading relies
for his claim or defense, as the case may be, omitting the statement of mere evidentiary
facts.

[77] Supra note 9.
[78] The Rule on the Writ of Amparo: Annotation, p. 52.
[79] Id. Section 17 of the Rule on the Writ of Amparo pertinently states that [t]he
respondent who is a public official or employee must prove that extraordinary diligence as
required by applicable laws, rules and regulations was observed in the performance of
duty.
[80] Supra note 9.
[81] Supra note 78.
[82] Brian Finucane, Enforced Disappearance as a Crime under International Law: A
Neglected Origins in the Laws of War, 35 Yale Journal of International Law (June 28, 2009)
6, available at < http://ssrn.com/abstract=1427062> (last visited November 12, 2009).
[83] Christos Pourgourides, Enforced Disappearances, Council of Europe-Parliamentary
Assembly, Doc. 10679, September 19, 2005,
http://assembly.coe.int/Main.asp?link=/Documents/Working
Docs/Doc05/EDOC10679.htm (last visited November 12, 2009). The aim of the secret
arrest and detention prescribed by the Night and Fog Decree was twofold. First, an
individual was to be removed from the protection of law. Second and more importantly,
secret arrest and detention served as a form of general deterrence, achieved through the
intimidation and anxiety caused by the persistent uncertainty of the missing persons
family. By terrorizing the occupied populations of Western Europe through a program of
enforced disappearance, Hitler hoped to suppress resistance. Id. at 8.
[84] Operation Condor was a campaign of political repressions involving assassination and
intelligence operations officially implemented in 1975 by the governments of the Southern
Cone of South America. The program aimed to eradicate alleged socialist/communist
influence and ideas and to control active or potential opposition movements against the
governments. Due to its clandestine nature, the precise number of deaths directly
attributable to Operation Condor will likely never be known, but it is reported to have
caused over sixty thousand victims, possibly even more. Condor's key members were the
governments in Argentina, Chile, Uruguay, Paraguay, Bolivia and Brazil, with Ecuador and
Peru joining later in more peripheral roles. Operation Condor,
http://en.wikipedia.org/wiki/Operation_Condor (last visited November 12, 2009).
[85] The Dirty War refers to the state-sponsored violence against Argentine citizenry and
left-wing guerrillas from roughly 1976 to 1983 carried out primarily by Jorge Rafael
Videla's military government. The exact chronology of the repression is still debated, as
trade unionists were targeted for assassination as early as 1973; Isabel Martnez de Pern's
"annihilation decrees" of 1975, during Operativo Independencia, have also been suggested
as the origin of The Dirty War. The Dirty War, http://en.wikepedia.org/wiki/Dirty_War
(last visited November 12, 2009).
[86] Human rights organizations first coined the term "disappeared" ("desaparecido") in
1966, during secret government crackdowns on political opponents in Guatemala, with
systematic documentation of disappearances developing through the mid 1970s. See
Wasana Punyasena, The Faade of Accountability: Disappearances in Sri Lanka, 23 B.C.
Third World L.J. 115,117 (Winter 2003) citing Amnesty International, Disappearances and
Political Killings: Human Rights Crisis of the 1990s, A Manual for Action, 13 (1994).
[87] Cited in Diana Grace L. Uy, The Problem of Enforced Disappearances: Examining the
Writs of Habeas Corpus, Amparo and Habeas Data (2009), p. 8 (unpublished J.D. thesis,
Ateneo de Manila University, on file with the Professional Schools Library, Ateneo de Manila
University) citing Ibon Foundation, Inc., Stop the Killings, Abductions, and Involuntary or
Enforced Disappearances in the Philippines, 39 (2007).
[88] Id. at 14, citing Amnesty International USA, Disappearances: A Workbook, p. 91 (1981).
[89] Id.
[90] Id. at 14-15.
[91] Established by resolution 20 (XXXVI) of 29 February 1980 of the Commission on
Human Rights, the Working Group on Enforced or Involuntary Disappearances was created
with the basic mandate to assist relatives to ascertain the fate and whereabouts of their
disappeared family members. The Working Group examines the reports of disappearances
received from relatives of disappeared persons or human rights organizations acting on
their behalf and transmits individual cases to the Governments concerned requesting them
to carry out investigations and inform the Working Group of the results. See Enforced or
Involuntary Disappearances, Office of the United Nations High Commissioner for Human
Rights Fact Sheet No. 6/Rev.3, pp. 9-10 (2009), available at
http://www.unhcr.org/refworld/category,REFERENCE,OHCHR,THEMREPORT,,4794774bd,
0.html (last visited November 12, 2009).
[92] See Report of the Working Group on Enforced or Involuntary Disappearance,
A/HRC/10/9, February 6, 2009, available at
http://www.ohchr.org/english/issues/disappear/docs/A.HRC.10.9.pdf (last visited
November 12, 2009).
[93] Section 1, Rule on the Writ of Amparo.
[94] Felipe Enrique M. Gozon, Jr. & Theoben Jerdan C. Orosa, Watching the Watchers: A Look
into Drafting of the Writ of Amparo, 52 ATENEO L.J. 665,675 (2007). The Committee, in
considering a definition for the concept of enforced disappearance, noted several
international instruments such as the Declaration on the Protection of All Persons from
Enforced Disappearance and the International Convention for the Protection of All Persons
from Enforced Disappearance.
[95] Id.
[96]See House Bill No. 00326 entitled, An Act Defining and Penalizing Enforced or
Involuntary Disappearance and for Other Purposes, filed by Representative Edcel Lagman
on July 2, 2007 and House Bill 2263 entitled, An Act Defining and Penalizing the Crime of
Enforced or Involuntary Disappearance filed by Representative Satur Ocampo et al.
[97]See Senate Bill No. 1307 entitled, An Act Defining and Penalizing Enforced or
Involuntary Disappearance and for Other Purposes, filed by Senator Francis Escudero on
July 24, 2007 and Senate Bill No. 2107 entitled, Enforced or Involuntary Disappearance Act
of 2008, filed by Senator Miriam Defensor Santiago on March 4, 2008.
[98] Supra note 94, at 681.
[99] Perpetrators of enforced disappearances may be penalized for the crime of arbitrary
detention under Article 124 of the Revised Penal Code or kidnapping and serious illegal
detention under Article 267 of the Revised Penal Code. See supra note 87, at 16.
[100] CONSTITUTION, Article VIII, Section 5.
[101] Supra note 91, at 1.
[102] Supra note 86.
[103]A/RES/133, 20 December 1997, available at
http://www.un.org./documents/ga/res/33/ares335173.pdf (last visited November 12,
2009).
[104] Supra note 72.
[105] G.A. Res. 61/177, UN Doc. A/RES/61/177 (December 20, 2006).
[106] See Susan McCrory, The International Convention for the Protection of All Persons
from Enforced Disappearances, 7 Hum. Rts. L. Rev. 545,547 (2007). Unlike the Declaration,
the Convention is a legally binding instrument for the states to ratify it. The Convention
shall enter into force after ratification by 20 state parties. As of this writing, there are
already eighty-one (81) state signatories and only sixteen (16) of those states have ratified
the Convention. Currently, the state parties to the Convention are only Albania, Argentina,
Bolivia, Cuba, Ecuador, France, Germany, Honduras, Japan, Kazakhstan, Mali, Mexico,
Nigeria, Senegal, Spain and Uruguay. See Status of the International Convention for the
Protection of All Persons from Enforced Disappearance at
http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg-ho=iv-
168&chapter=4&lang=en (last visited November 12, 2009). At present, the Philippines is
neither a signatory nor a state party to the Convention.
[107] Article 1, 1 of the Convention states that [n]o one shall be subjected to enforced
disappearance.
[108] A non-derogable right is a right that may not be restricted or suspended, even in
times of war or other public emergency (i.e., the right to life and the right to be free from
torture); supra note 91.
[109] Article 4 of the Convention states that [e]ach State Party shall take the necessary
measures to ensure that enforced disappearance constitutes an offence under its criminal
law.
[110] See Preamble, 8 of the Convention that affirms the right of any victim to know the
truth about the circumstances of an enforced disappearance and the fate of the disappeared
person, and the right to freedom to seek, receive and impart information to this end.
[111] Supra note 87, at 13. Article 8 of the Convention states that [a] State Party which
applies a statute of limitations in respect of enforced disappearance shall take the necessary
measures to ensure that the term of limitation for criminal proceedings: (a) Is of long
duration and is proportionate to the extreme seriousness of this offence; (b) Commences
from the moment when the offence of enforced disappearance ceases, taking into account
its continuous nature.
[112] Article 55 of the UN Charter states that: [w]ith a view to the creation of conditions of
stability and well-being which are necessary for peaceful and friendly relations among
nations the United Nations shall promote universal respect for, and observance of,
human rights and fundamental freedoms for all without distinctions as to race, sex,
language or religion. Article 55 states further: [a]ll members pledge themselves to take
joint and separate action in cooperation with the Organization for the achievement of the
purposes set forth in Article 55.
[113] See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).
[114] Article 1, 1, Declaration on the Protection of All Persons from Enforced
Disappearance; supra note 72.
[115] CONSTITUTION, Article II, Section 2 states:
Section. 2. The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land and adheres
to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.
[Emphasis supplied]
[116] G.R. No. 173034, October 9, 2007, 535 SCRA 265, 289.
[117] Id. at 290 citing Mijares v. Ranada, G.R. No. 139325, April 12, 2005, 455 SCRA 397.
[118] Ian Brownlie, Principles of Public International Law, 6th ed., p. 5.
[119] Id. at 6.
[120] Joaquin G. Bernas, SJ, An Introduction to Public International Law, 1st ed., p. 8.
[121] Aloysius P. Llamzon, The Generally Accepted Principles of International Law as
Philippine Law: Towards a Structurally Consistent Use of Customary International Law in
Philippine Courts, 47 ATENEO L.J. 243, 370 (2002).
[122] Supra note 83.
[123] Article 1, 1 of the Inter-American Convention on Enforced Disappearances. Article
II of the Inter-American Convention defined enforced disappearance as the act of depriving
a person or persons of his or her freedom, in whatever way, perpetrated by agents of the
state or by persons or groups persons acting with the authorization, support, or
acquiescence of the state, followed by an absence of information or a refusal to
acknowledge that deprivation of freedom, or to give information on the whereabouts of that
person, thereby impeding his or her recourse to the applicable remedies and procedural
guarantees.
[124] Supra note 83.
[125] See Judgment of the Supreme Court of Nepal in Writ No. 3575, 100, 104, 323, 500, 45,
41, 155, 162, 164, 167, 97, 110, 111, 142, 211, 250, 223, 262, 378, 418, 485, 617, 632, 635,
54(0002) 0004, 2588/0038, June 1, 2007.
[126] 27 Eur. H.R. Rep. 373 (1998).
[127] Supra note 83.
[128] The Foreign Relations Law of the United States.
[129] American Law Institute, Restatement of the Law, the Third, the Foreign Relations Law
of the United States, 1987, Vol. 2, 702.
[130] 630 F.2d 876 (2d Cir. 1980).
[131] General Comment No. 31 [80], 18, The Nature of the General Legal Obligation
Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13., adopted on March
29, 2004.
[132] Under Article 7 (1) of the Rome Statute, enforced disappearance, the systematic
practice of which can be a crime against humanity, is the arrest, detention or abduction of
persons by, or with the authorization, support or acquiescence of, a State or a political
organization, followed by a refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of those persons, with the intention of removing
them from the protection of the law for a prolonged period of time. See Joan Lou P.
Gamboa, Creative Rule-Making In Response To Deficiencies of Existing Remedies, Vol. LII,
U.S.T. LAW REV, at 57 (2007-2008).
[133] Working Group on Enforced or Involuntary Disappearance General Comment,
Enforced Disappearance as a Crime Against Humanity, 12, p. 2.
[134] Id.
[135] Supra note 83. See Article 7 (i) of the UK International Criminal Court Act 2001 which
states that [f]or the purpose of this Statute crime against humanity means any of the
following acts when committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack: .xxx(i) Enforced
disappearance of persons.
[136] Supra note 91, at 3. Enforced disappearances can also involve serious breaches of
international instruments that are not conventions such as:

1) The Body of Principals for the Protection of All Persons under Any Form of Detention or
Imprisonment;
2) The Code of Conduct for Law Enforcement Officials, the Standard Minimum Rules for the
Treatment of Prisoners;
3) The Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and
Summary Executions and
4) The Declaration on the Protection of All Persons from Enforced Disappearances. Id.

[137] Supra note 131.
[138] Id.
[139] G.R. No. 180906, October 7, 2008, 568 SCRA 1, 57-58.
[140] Kurt v. Turkey (1999) 27 E.H.R.R. 373.
[141]Irum Taqi, Adjudicating Disappearance Cases in Turkey, An Argument for Adopting
the Inter-American Court of Human Rights Approach, 24 Fordham Int'l L.J. 940, 945-946
(2001).
[142] Juan E. Mendez & Jose Miguel Vivanco, Disappearances and the Inter-American Court:
Reflections on a Litigation Experience, 13 Hamline L. Rev. 507 (1990).
[143] Supra note 141.
[144] Supra note 139.
[145] Supra note 141.
[146] I/A Court H.R. Velasquez Rodriguez Case, Judgment of July 29, 1988, Series C No. 4.
[147] Supra note 142, at 557.
[148] Supra note 141.
[149] Supra note 142, at 509.
[150] Id.
[151] 69 Phil. 635, 643 (1940), citing Consolidated Edison Co. v. National Labor Relations
Board, 59 S. Ct. 206, 83 Law. Ed. No. 4, Adv. Op., p. 131.
[152] Supra note 139.
[153] Supra note 146.
[154] The novel, two-step process involves: First, a complainant must prove that the
government engaged in a systemic practice of disappearances. Second, the complainant
must establish a link between that practice and the individual case. Once the complainant
has satisfied both prongs to the requisite standard of proof, the burden of proof shifts to the
government to refute the allegations. If the government fails to disprove the allegations, the
IACHR could presume government liability for the disappearance. See Irum Taqi,
Adjudicating Disappearance Cases in Turkey, An Argument for Adopting the Inter-American
Court of Human Rights Approach, 24 Fordham Int'l L.J. 940 (2001).

[155] The substance of Zenaidas testimony as found by the IACHR:
107. According to the testimony of his sister, eyewitnesses to the kidnapping of Manfredo
Velsquez told her that he was detained on September 12, 1981, between 4:30 and 5:00
p.m., in a parking lot in downtown Tegucigalpa by seven heavily-armed men dressed in
civilian clothes (one of them being First Sgt. Jos Isaas Vilorio ), who used a white Ford
without license plates ( testimony of Zenaida Velsquez. See also testimony of Ramn
Custodio Lpez).
108. This witness informed the Court that Col. Leonidas Torres Arias, who had been head of
Honduran military intelligence, announced in a press conference in Mexico City that
Manfredo Velsquez was kidnapped by a special squadron commanded by Capt. Alexander
Hernndez, who was carrying out the direct orders of General Gustavo Alvarez Martnez
(testimony of Zenaida Velsquez ).
[156] Gobind Singh Sethi, The European Court of Human Rights Jurisprudence on Issues of
Enforced Disappearances, 8 NO. 3 Hum. Rts. Brief 29 (2001).

[157] A.M. No. 00-4-07-SC, December 15, 2000.
[158] Section 28 of the Rule on Examination of a Child Witness states:

SEC. 28. Hearsay exception in child abuse cases. A statement made by a child describing
any act or attempted act of child abuse, not otherwise admissible under the hearsay rule,
may be admitted in evidence in any criminal or non-criminal proceeding subject to the
following rules:

(a) Before such hearsay statement may be admitted, its proponent shall make
known to the adverse party the intention to offer such statement and its particulars to
provide him a fair opportunity to object. If the child is available, the court shall, upon
motion of the adverse party, require the child to be present at the presentation of the
hearsay statement for cross-examination by the adverse party. When the child is
unavailable, the fact of such circumstance must be proved by the proponent.

(b) In ruling on the admissibility of such hearsay statement, the court shall
consider the time, content, and circumstances thereof which provide sufficient indicia of
reliability. It shall consider the following factors:


(1) Whether there is a motive to lie;

(2) The general character of the declarant child;

(3) Whether more than one person heard the statement;

(4) Whether the statement was spontaneous;

(5) The timing of the statement and the relationship between the declarant child and
witness;
(6) Cross-examination could not show the lack of knowledge of the declarant child;
(7) The possibility of faulty recollection of the declarant child is remote; and
(8) The circumstances surrounding the statement are such that there is no reason to
suppose the declarant child misrepresented the involvement of the accused. [Emphasis
supplied]
[159] Article 2 of the International Convention for the Protection of All Persons from
Enforced Disappearance.
[160] Susan McCrory, The International Convention For the Protection of All Persons from
Enforced Disappearances, 7 Hum. Rts. L. Rev. 545 (2007).
[161] TSN, January 7, 2008, pp. 23-24.
[162] TSN, January 17, 2008, pp. 48-50.
[163] Id. at 52.
[164] Id. at 66.
[165] TSN, February 11, 2008, pp. 32-35.
[166] Id. at 36.
[167] Supra note 60.
[168] People v. Modelo, L- 29144, October 30, 1970, 35 SCRA 639, 643.
[169] People v. Vinas, L-21756, October 28, 1968, 25 SCRA 682, 686.
[170] People v. Alviar, L-32276, September 12, 1974, 59 SCRA 136, 153-154.
[171] Section 3 of Rule 131 of the RULES OF COURT provides:
The following presumptions are satisfactory if uncontradicted, but may be contradicted
and overcome by other evidence:
x x x x
(e) That evidence willfully suppressed would be adversed if produced.
See Metrobank & Trust Company v. Court of Appeals, G.R. No. 122899, June 8, 2000, 333
SCRA 212, 219-220; Manila Bay Club Corporation v. Court of Appeals, 249 SCRA 303, 306
(1995).
[172] See RULES OF COURT, Rule 130, Section 36.
[173] Supra note 104.
[174] (23531/94) [2000] ECHR 221 (13 June 2000).
[175] An Act Establishing the Philippine National Police Under a Reorganized Department
of the Interior and Local Government and for Other Purposes.
[176] Supra note 66.
[177] See CIDG Profile, available at:
http://www.pnp.gov.ph/about/content/offices/central/cidg/content/cidg.html (last
visited November 12, 2009).
sited November 12, 2009).

Republic of the Philippines
SUPREME COURT
Manila

EN BANC



G.R. No. 101083 July 30, 1993

JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and ROBERTA SADIUA, CARLO, AMANDA SALUD
and PATRISHA, all surnamed FLORES, minors and represented by their parents ENRICO and
NIDA FLORES, GIANINA DITA R. FORTUN, minor, represented by her parents SIGRID and
DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all surnamed MISA, minors and
represented by their parents GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE PESIGAN, JOVIE MARIE ALFARO,
minor, represented by her parents JOSE and MARIA VIOLETA ALFARO, MARIA
CONCEPCION T. CASTRO, minor, represented by her parents FREDENIL and JANE CASTRO,
JOHANNA DESAMPARADO,
minor, represented by her parents JOSE and ANGELA DESAMPRADO, CARLO JOAQUIN T.
NARVASA, minor, represented by his parents GREGORIO II and CRISTINE CHARITY
NARVASA, MA. MARGARITA, JESUS IGNACIO, MA. ANGELA and MARIE GABRIELLE, all
surnamed SAENZ, minors, represented by their parents ROBERTO and AURORA SAENZ,
KRISTINE, MARY ELLEN, MAY, GOLDA MARTHE and DAVID IAN, all surnamed KING,
minors, represented by their parents MARIO and HAYDEE KING, DAVID, FRANCISCO and
THERESE VICTORIA, all surnamed ENDRIGA, minors, represented by their parents
BALTAZAR and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all surnamed ABAYA,
minors, represented by their parents ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR.
and MARIETTE, all surnamed CARDAMA, minors, represented by their parents MARIO and
LINA CARDAMA, CLARISSA, ANN MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA,
minors and represented by their parents RICARDO and MARISSA OPOSA, PHILIP JOSEPH,
STEPHEN JOHN and ISAIAH JAMES, all surnamed QUIPIT, minors, represented by their
parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO, CRISANTO, ANNA, DANIEL and
FRANCISCO, all surnamed BIBAL, minors, represented by their parents FRANCISCO, JR. and
MILAGROS BIBAL, and THE PHILIPPINE ECOLOGICAL NETWORK, INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his capacity as the Secretary of the
Department of Environment and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch 66, respondents.

Oposa Law Office for petitioners.

The Solicitor General for respondents.



DAVIDE, JR., J.:

In a broader sense, this petition bears upon the right of Filipinos to a balanced and healthful
ecology which the petitioners dramatically associate with the twin concepts of "inter-
generational responsibility" and "inter-generational justice." Specifically, it touches on the
issue of whether the said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests and "arrest the unabated
hemorrhage of the country's vital life support systems and continued rape of Mother Earth."

The controversy has its genesis in Civil Case No. 90-77 which was filed before Branch 66
(Makati, Metro Manila) of the Regional Trial Court (RTC), National Capital Judicial Region.
The principal plaintiffs therein, now the principal petitioners, are all minors duly
represented and joined by their respective parents. Impleaded as an additional plaintiff is
the Philippine Ecological Network, Inc. (PENI), a domestic, non-stock and non-profit
corporation organized for the purpose of, inter alia, engaging in concerted action geared for
the protection of our environment and natural resources. The original defendant was the
Honorable Fulgencio S. Factoran, Jr., then Secretary of the Department of Environment and
Natural Resources (DENR). His substitution in this petition by the new Secretary, the
Honorable Angel C. Alcala, was subsequently ordered upon proper motion by the
petitioners. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and alleges that the
plaintiffs "are all citizens of the Republic of the Philippines, taxpayers, and entitled to the
full benefit, use and enjoyment of the natural resource treasure that is the country's virgin
tropical forests." The same was filed for themselves and others who are equally concerned
about the preservation of said resource but are "so numerous that it is impracticable to
bring them all before the Court." The minors further asseverate that they "represent their
generation as well as generations yet unborn." 4 Consequently, it is prayed for that
judgment be rendered:

. . . ordering defendant, his agents, representatives and other persons acting in his behalf to


(1) Cancel all existing timber license agreements in the country;

(2) Cease and desist from receiving, accepting, processing, renewing or approving new
timber license agreements.

and granting the plaintiffs ". . . such other reliefs just and equitable under the premises." 5

The complaint starts off with the general averments that the Philippine archipelago of 7,100
islands has a land area of thirty million (30,000,000) hectares and is endowed with rich,
lush and verdant rainforests in which varied, rare and unique species of flora and fauna may
be found; these rainforests contain a genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous Philippine cultures which have existed,
endured and flourished since time immemorial; scientific evidence reveals that in order to
maintain a balanced and healthful ecology, the country's land area should be utilized on the
basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of deforestation have resulted in a host of
environmental tragedies, such as (a) water shortages resulting from drying up of the water
table, otherwise known as the "aquifer," as well as of rivers, brooks and streams, (b)
salinization of the water table as a result of the intrusion therein of salt water,
incontrovertible examples of which may be found in the island of Cebu and the Municipality
of Bacoor, Cavite, (c) massive erosion and the consequential loss of soil fertility and
agricultural productivity, with the volume of soil eroded estimated at one billion
(1,000,000,000) cubic meters per annum approximately the size of the entire island of
Catanduanes, (d) the endangering and extinction of the country's unique, rare and varied
flora and fauna, (e) the disturbance and dislocation of cultural communities, including the
disappearance of the Filipino's indigenous cultures, (f) the siltation of rivers and seabeds
and consequential destruction of corals and other aquatic life leading to a critical reduction
in marine resource productivity, (g) recurrent spells of drought as is presently experienced
by the entire country, (h) increasing velocity of typhoon winds which result from the
absence of windbreakers, (i) the floodings of lowlands and agricultural plains arising from
the absence of the absorbent mechanism of forests, (j) the siltation and shortening of the
lifespan of multi-billion peso dams constructed and operated for the purpose of supplying
water for domestic uses, irrigation and the generation of electric power, and (k) the
reduction of the earth's capacity to process carbon dioxide gases which has led to
perplexing and catastrophic climatic changes such as the phenomenon of global warming,
otherwise known as the "greenhouse effect."

Plaintiffs further assert that the adverse and detrimental consequences of continued and
deforestation are so capable of unquestionable demonstration that the same may be
submitted as a matter of judicial notice. This notwithstanding, they expressed their
intention to present expert witnesses as well as documentary, photographic and film
evidence in the course of the trial.

As their cause of action, they specifically allege that:

CAUSE OF ACTION

7. Plaintiffs replead by reference the foregoing allegations.

8. Twenty-five (25) years ago, the Philippines had some sixteen (16) million hectares
of rainforests constituting roughly 53% of the country's land mass.

9. Satellite images taken in 1987 reveal that there remained no more than 1.2 million
hectares of said rainforests or four per cent (4.0%) of the country's land area.

10. More recent surveys reveal that a mere 850,000 hectares of virgin old-growth
rainforests are left, barely 2.8% of the entire land mass of the Philippine archipelago and
about 3.0 million hectares of immature and uneconomical secondary growth forests.

11. Public records reveal that the defendant's, predecessors have granted timber license
agreements ('TLA's') to various corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.

A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex
"A".

12. At the present rate of deforestation, i.e. about 200,000 hectares per annum or 25
hectares per hour nighttime, Saturdays, Sundays and holidays included the
Philippines will be bereft of forest resources after the end of this ensuing decade, if not
earlier.

13. The adverse effects, disastrous consequences, serious injury and irreparable
damage of this continued trend of deforestation to the plaintiff minor's generation and to
generations yet unborn are evident and incontrovertible. As a matter of fact, the
environmental damages enumerated in paragraph 6 hereof are already being felt,
experienced and suffered by the generation of plaintiff adults.

14. The continued allowance by defendant of TLA holders to cut and deforest the
remaining forest stands will work great damage and irreparable injury to plaintiffs
especially plaintiff minors and their successors who may never see, use, benefit from and
enjoy this rare and unique natural resource treasure.

This act of defendant constitutes a misappropriation and/or impairment of the natural
resource property he holds in trust for the benefit of plaintiff minors and succeeding
generations.

15. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology
and are entitled to protection by the State in its capacity as the parens patriae.

16. Plaintiff have exhausted all administrative remedies with the defendant's office. On
March 2, 1990, plaintiffs served upon defendant a final demand to cancel all logging permits
in the country.

A copy of the plaintiffs' letter dated March 1, 1990 is hereto attached as Annex "B".

17. Defendant, however, fails and refuses to cancel the existing TLA's to the continuing
serious damage and extreme prejudice of plaintiffs.

18. The continued failure and refusal by defendant to cancel the TLA's is an act violative
of the rights of plaintiffs, especially plaintiff minors who may be left with a country that is
desertified (sic), bare, barren and devoid of the wonderful flora, fauna and indigenous
cultures which the Philippines had been abundantly blessed with.

19. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the
public policy enunciated in the Philippine Environmental Policy which, in pertinent part,
states that it is the policy of the State

(a) to create, develop, maintain and improve conditions under which man and nature
can thrive in productive and enjoyable harmony with each other;

(b) to fulfill the social, economic and other requirements of present and future
generations of Filipinos and;

(c) to ensure the attainment of an environmental quality that is conductive to a life of
dignity and well-being. (P.D. 1151, 6 June 1977)

20. Furthermore, defendant's continued refusal to cancel the aforementioned TLA's is
contradictory to the Constitutional policy of the State to

a. effect "a more equitable distribution of opportunities, income and wealth" and
"make full and efficient use of natural resources (sic)." (Section 1, Article XII of the
Constitution);

b. "protect the nation's marine wealth." (Section 2, ibid);

c. "conserve and promote the nation's cultural heritage and resources (sic)" (Section
14, Article XIV, id.);

d. "protect and advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature." (Section 16, Article II, id.)

21. Finally, defendant's act is contrary to the highest law of humankind the natural
law and violative of plaintiffs' right to self-preservation and perpetuation.

22. There is no other plain, speedy and adequate remedy in law other than the instant
action to arrest the unabated hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6

On 22 June 1990, the original defendant, Secretary Factoran, Jr., filed a Motion to Dismiss
the complaint based on two (2) grounds, namely: (1) the plaintiffs have no cause of action
against him and (2) the issue raised by the plaintiffs is a political question which properly
pertains to the legislative or executive branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and (3) the action presents a
justiciable question as it involves the defendant's abuse of discretion.

On 18 July 1991, respondent Judge issued an order granting the aforementioned motion to
dismiss. 7 In the said order, not only was the defendant's claim that the complaint states
no cause of action against him and that it raises a political question sustained, the
respondent Judge further ruled that the granting of the relief prayed for would result in the
impairment of contracts which is prohibited by the fundamental law of the land.

Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised
Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground
that the respondent Judge gravely abused his discretion in dismissing the action. Again, the
parents of the plaintiffs-minors not only represent their children, but have also joined the
latter in this case. 8

On 14 May 1992, We resolved to give due course to the petition and required the parties to
submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a
Comment in behalf of the respondents and the petitioners filed a reply thereto.

Petitioners contend that the complaint clearly and unmistakably states a cause of action as
it contains sufficient allegations concerning their right to a sound environment based on
Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive Order
(E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No. 1151
(Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to self-
preservation and self-perpetuation embodied in natural law. Petitioners likewise rely on the
respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the people's
right to a healthful environment.

It is further claimed that the issue of the respondent Secretary's alleged grave abuse of
discretion in granting Timber License Agreements (TLAs) to cover more areas for logging
than what is available involves a judicial question.

Anent the invocation by the respondent Judge of the Constitution's non-impairment clause,
petitioners maintain that the same does not apply in this case because TLAs are not
contracts. They likewise submit that even if TLAs may be considered protected by the said
clause, it is well settled that they may still be revoked by the State when the public interest
so requires.

On the other hand, the respondents aver that the petitioners failed to allege in their
complaint a specific legal right violated by the respondent Secretary for which any relief is
provided by law. They see nothing in the complaint but vague and nebulous allegations
concerning an "environmental right" which supposedly entitles the petitioners to the
"protection by the state in its capacity as parens patriae." Such allegations, according to
them, do not reveal a valid cause of action. They then reiterate the theory that the question
of whether logging should be permitted in the country is a political question which should
be properly addressed to the executive or legislative branches of Government. They
therefore assert that the petitioners' resources is not to file an action to court, but to lobby
before Congress for the passage of a bill that would ban logging totally.

As to the matter of the cancellation of the TLAs, respondents submit that the same cannot
be done by the State without due process of law. Once issued, a TLA remains effective for a
certain period of time usually for twenty-five (25) years. During its effectivity, the same
can neither be revised nor cancelled unless the holder has been found, after due notice and
hearing, to have violated the terms of the agreement or other forestry laws and regulations.
Petitioners' proposition to have all the TLAs indiscriminately cancelled without the
requisite hearing would be violative of the requirements of due process.

Before going any further, We must first focus on some procedural matters. Petitioners
instituted Civil Case No. 90-777 as a class suit. The original defendant and the present
respondents did not take issue with this matter. Nevertheless, We hereby rule that the said
civil case is indeed a class suit. The subject matter of the complaint is of common and
general interest not just to several, but to all citizens of the Philippines. Consequently, since
the parties are so numerous, it, becomes impracticable, if not totally impossible, to bring all
of them before the court. We likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all concerned interests. Hence, all the
requisites for the filing of a valid class suit under Section 12, Rule 3 of the Revised Rules of
Court are present both in the said civil case and in the instant petition, the latter being but
an incident to the former.

This case, however, has a special and novel element. Petitioners minors assert that they
represent their generation as well as generations yet unborn. We find no difficulty in ruling
that they can, for themselves, for others of their generation and for the succeeding
generations, file a class suit. Their personality to sue in behalf of the succeeding generations
can only be based on the concept of intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right, as hereinafter expounded,
considers
the "rhythm and harmony of nature." Nature means the created world in its entirety. 9 Such
rhythm and harmony indispensably include, inter alia, the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources to the end that their
exploration, development and utilization be equitably accessible to the present as well as
future generations. 10 Needless to say, every generation has a responsibility to the next to
preserve that rhythm and harmony for the full enjoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of their right to a sound environment
constitutes, at the same time, the performance of their obligation to ensure the protection of
that right for the generations to come.

The locus standi of the petitioners having thus been addressed, We shall now proceed to the
merits of the petition.

After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not hesitate to
find for the petitioners and rule against the respondent Judge's challenged order for having
been issued with grave abuse of discretion amounting to lack of jurisdiction. The pertinent
portions of the said order reads as follows:

xxx xxx xxx

After a careful and circumspect evaluation of the Complaint, the Court cannot help but agree
with the defendant. For although we believe that plaintiffs have but the noblest of all
intentions, it (sic) fell short of alleging, with sufficient definiteness, a specific legal right they
are seeking to enforce and protect, or a specific legal wrong they are seeking to prevent and
redress (Sec. 1, Rule 2, RRC). Furthermore, the Court notes that the Complaint is replete
with vague assumptions and vague conclusions based on unverified data. In fine, plaintiffs
fail to state a cause of action in its Complaint against the herein defendant.

Furthermore, the Court firmly believes that the matter before it, being impressed with
political color and involving a matter of public policy, may not be taken cognizance of by
this Court without doing violence to the sacred principle of "Separation of Powers" of the
three (3) co-equal branches of the Government.

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 11

We do not agree with the trial court's conclusions that the plaintiffs failed to allege with
sufficient definiteness a specific legal right involved or a specific legal wrong committed,
and that the complaint is replete with vague assumptions and conclusions based on
unverified data. A reading of the complaint itself belies these conclusions.

The complaint focuses on one specific fundamental legal right the right to a balanced and
healthful ecology which, for the first time in our nation's constitutional history, is solemnly
incorporated in the fundamental law. Section 16, Article II of the 1987 Constitution
explicitly provides:

Sec. 16. The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.

This right unites with the right to health which is provided for in the preceding section of
the same article:

Sec. 15. The State shall protect and promote the right to health of the people and instill
health consciousness among them.

While the right to a balanced and healthful ecology is to be found under the Declaration of
Principles and State Policies and not under the Bill of Rights, it does not follow that it is less
important than any of the civil and political rights enumerated in the latter. Such a right
belongs to a different category of rights altogether for it concerns nothing less than self-
preservation and self-perpetuation aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all governments and constitutions. As a
matter of fact, these basic rights need not even be written in the Constitution for they are
assumed to exist from the inception of humankind. If they are now explicitly mentioned in
the fundamental charter, it is because of the well-founded fear of its framers that unless the
rights to a balanced and healthful ecology and to health are mandated as state policies by
the Constitution itself, thereby highlighting their continuing importance and imposing upon
the state a solemn obligation to preserve the first and protect and advance the second, the
day would not be too far when all else would be lost not only for the present generation, but
also for those to come generations which stand to inherit nothing but parched earth
incapable of sustaining life.

The right to a balanced and healthful ecology carries with it the correlative duty to refrain
from impairing the environment. During the debates on this right in one of the plenary
sessions of the 1986 Constitutional Commission, the following exchange transpired
between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:

MR. VILLACORTA:

Does this section mandate the State to provide sanctions against all forms of pollution
air, water and noise pollution?

MR. AZCUNA:

Yes, Madam President. The right to healthful (sic) environment necessarily carries with it
the correlative duty of not impairing the same and, therefore, sanctions may be provided for
impairment of environmental balance. 12

The said right implies, among many other things, the judicious management and
conservation of the country's forests.

Without such forests, the ecological or environmental balance would be irreversiby
disrupted.

Conformably with the enunciated right to a balanced and healthful ecology and the right to
health, as well as the other related provisions of the Constitution concerning the
conservation, development and utilization of the country's natural resources, 13 then
President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of
which expressly mandates that the Department of Environment and Natural Resources
"shall be the primary government agency responsible for the conservation, management,
development and proper use of the country's environment and natural resources,
specifically forest and grazing lands, mineral, resources, including those in reservation and
watershed areas, and lands of the public domain, as well as the licensing and regulation of
all natural resources as may be provided for by law in order to ensure equitable sharing of
the benefits derived therefrom for the welfare of the present and future generations of
Filipinos." Section 3 thereof makes the following statement of policy:

Sec. 3. Declaration of Policy. It is hereby declared the policy of the State to ensure the
sustainable use, development, management, renewal, and conservation of the country's
forest, mineral, land, off-shore areas and other natural resources, including the protection
and enhancement of the quality of the environment, and equitable access of the different
segments of the population to the development and the use of the country's natural
resources, not only for the present generation but for future generations as well. It is also
the policy of the state to recognize and apply a true value system including social and
environmental cost implications relative to their utilization, development and conservation
of our natural resources.

This policy declaration is substantially re-stated it Title XIV, Book IV of the Administrative
Code of 1987, 15 specifically in Section 1 thereof which reads:

Sec. 1. Declaration of Policy. (1) The State shall ensure, for the benefit of the Filipino
people, the full exploration and development as well as the judicious disposition, utilization,
management, renewal and conservation of the country's forest, mineral, land, waters,
fisheries, wildlife, off-shore areas and other natural resources, consistent with the necessity
of maintaining a sound ecological balance and protecting and enhancing the quality of the
environment and the objective of making the exploration, development and utilization of
such natural resources equitably accessible to the different segments of the present as well
as future generations.

(2) The State shall likewise recognize and apply a true value system that takes into
account social and environmental cost implications relative to the utilization, development
and conservation of our natural resources.

The above provision stresses "the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment." Section 2 of the same Title, on the
other hand, specifically speaks of the mandate of the DENR; however, it makes particular
reference to the fact of the agency's being subject to law and higher authority. Said section
provides:

Sec. 2. Mandate. (1) The Department of Environment and Natural Resources shall be
primarily responsible for the implementation of the foregoing policy.

(2) It shall, subject to law and higher authority, be in charge of carrying out the State's
constitutional mandate to control and supervise the exploration, development, utilization,
and conservation of the country's natural resources.

Both E.O. NO. 192 and the Administrative Code of 1987 have set the objectives which will
serve as the bases for policy formulation, and have defined the powers and functions of the
DENR.

It may, however, be recalled that even before the ratification of the 1987 Constitution,
specific statutes already paid special attention to the "environmental right" of the present
and future generations. On 6 June 1977, P.D. No. 1151 (Philippine Environmental Policy)
and P.D. No. 1152 (Philippine Environment Code) were issued. The former "declared a
continuing policy of the State (a) to create, develop, maintain and improve conditions under
which man and nature can thrive in productive and enjoyable harmony with each other, (b)
to fulfill the social, economic and other requirements of present and future generations of
Filipinos, and (c) to insure the attainment of an environmental quality that is conducive to a
life of dignity and well-being." 16 As its goal, it speaks of the "responsibilities of each
generation as trustee and guardian of the environment for succeeding generations." 17 The
latter statute, on the other hand, gave flesh to the said policy.

Thus, the right of the petitioners (and all those they represent) to a balanced and healthful
ecology is as clear as the DENR's duty under its mandate and by virtue of its powers and
functions under E.O. No. 192 and the Administrative Code of 1987 to protect and advance
the said right.

A denial or violation of that right by the other who has the corelative duty or obligation to
respect or protect the same gives rise to a cause of action. Petitioners maintain that the
granting of the TLAs, which they claim was done with grave abuse of discretion, violated
their right to a balanced and healthful ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.

A cause of action is defined as:

. . . an act or omission of one party in violation of the legal right or rights of the other; and its
essential elements are legal right of the plaintiff, correlative obligation of the defendant, and
act or omission of the defendant in violation of said legal right. 18

It is settled in this jurisdiction that in a motion to dismiss based on the ground that the
complaint fails to state a cause of action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in the complaint itself. No other
matter should be considered; furthermore, the truth of falsity of the said allegations is
beside the point for the truth thereof is deemed hypothetically admitted. The only issue to
be resolved in such a case is: admitting such alleged facts to be true, may the court render a
valid judgment in accordance with the prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the utmost
care and circumspection in passing upon a motion to dismiss on the ground of the absence
thereof [cause of action] lest, by its failure to manifest a correct appreciation of the facts
alleged and deemed hypothetically admitted, what the law grants or recognizes is
effectively nullified. If that happens, there is a blot on the legal order. The law itself stands in
disrepute."

After careful examination of the petitioners' complaint, We find the statements under the
introductory affirmative allegations, as well as the specific averments under the sub-
heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed
violation of their rights. On the basis thereof, they may thus be granted, wholly or partly, the
reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the TLAs is
concerned, there is the need to implead, as party defendants, the grantees thereof for they
are indispensable parties.

The foregoing considered, Civil Case No. 90-777 be said to raise a political question. Policy
formulation or determination by the executive or legislative branches of Government is not
squarely put in issue. What is principally involved is the enforcement of a right vis-a-vis
policies already formulated and expressed in legislation. It must, nonetheless, be
emphasized that the political question doctrine is no longer, the insurmountable obstacle to
the exercise of judicial power or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review. The second paragraph of section 1,
Article VIII of the Constitution states that:

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.

Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice Isagani A.
Cruz, a distinguished member of this Court, says:

The first part of the authority represents the traditional concept of judicial power, involving
the settlement of conflicting rights as conferred as law. The second part of the authority
represents a broadening of judicial power to enable the courts of justice to review what was
before forbidden territory, to wit, the discretion of the political departments of the
government.

As worded, the new provision vests in the judiciary, and particularly the Supreme Court, the
power to rule upon even the wisdom of the decisions of the executive and the legislature
and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave abuse of discretion,"
which is a very elastic phrase that can expand or contract according to the disposition of the
judiciary.

In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:

In the case now before us, the jurisdictional objection becomes even less tenable and
decisive. The reason is that, even if we were to assume that the issue presented before us
was political in nature, we would still not be precluded from revolving it under the
expanded jurisdiction conferred upon us that now covers, in proper cases, even the political
question. Article VII, Section 1, of the Constitution clearly provides: . . .

The last ground invoked by the trial court in dismissing the complaint is the non-
impairment of contracts clause found in the Constitution. The court a quo declared that:

The Court is likewise of the impression that it cannot, no matter how we stretch our
jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e., to cancel all existing timber
license agreements in the country and to cease and desist from receiving, accepting,
processing, renewing or approving new timber license agreements. For to do otherwise
would amount to "impairment of contracts" abhored (sic) by the fundamental law. 24

We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a
sweeping pronouncement. In the first place, the respondent Secretary did not, for obvious
reasons, even invoke in his motion to dismiss the non-impairment clause. If he had done so,
he would have acted with utmost infidelity to the Government by providing undue and
unwarranted benefits and advantages to the timber license holders because he would have
forever bound the Government to strictly respect the said licenses according to their terms
and conditions regardless of changes in policy and the demands of public interest and
welfare. He was aware that as correctly pointed out by the petitioners, into every timber
license must be read Section 20 of the Forestry Reform Code (P.D. No. 705) which provides:

. . . Provided, That when the national interest so requires, the President may amend, modify,
replace or rescind any contract, concession, permit, licenses or any other form of privilege
granted herein . . .

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protested by the due process clause of the
Constitution. In Tan vs. Director of Forestry, 25 this Court held:

. . . A timber license is an instrument by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is promoted. A timber license
is not a contract within the purview of the due process clause; it is only a license or
privilege, which can be validly withdrawn whenever dictated by public interest or public
welfare as in this case.

A license is merely a permit or privilege to do what otherwise would be unlawful, and is not
a contract between the authority, federal, state, or municipal, granting it and the person to
whom it is granted; neither is it property or a property right, nor does it create a vested
right; nor is it taxation (37 C.J. 168). Thus, this Court held that the granting of license does
not create irrevocable rights, neither is it property or property rights (People vs. Ong Tin,
54 O.G. 7576).

We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc. vs. Deputy Executive
Secretary: 26

. . . Timber licenses, permits and license agreements are the principal instruments by which
the State regulates the utilization and disposition of forest resources to the end that public
welfare is promoted. And it can hardly be gainsaid that they merely evidence a privilege
granted by the State to qualified entities, and do not vest in the latter a permanent or
irrevocable right to the particular concession area and the forest products therein. They
may be validly amended, modified, replaced or rescinded by the Chief Executive when
national interests so require. Thus, they are not deemed contracts within the purview of the
due process of law clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as amended.
Also, Tan v. Director of Forestry, G.R. No. L-24548, October 27, 1983, 125 SCRA 302].

Since timber licenses are not contracts, the non-impairment clause, which reads:

Sec. 10. No law impairing, the obligation of contracts shall be passed. 27

cannot be invoked.

In the second place, even if it is to be assumed that the same are contracts, the instant case
does not involve a law or even an executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the non-impairment clause cannot as yet be
invoked. Nevertheless, granting further that a law has actually been passed mandating
cancellations or modifications, the same cannot still be stigmatized as a violation of the non-
impairment clause. This is because by its very nature and purpose, such as law could have
only been passed in the exercise of the police power of the state for the purpose of
advancing the right of the people to a balanced and healthful ecology, promoting their
health and enhancing the general welfare. In Abe vs. Foster Wheeler
Corp. 28 this Court stated:

The freedom of contract, under our system of government, is not meant to be absolute. The
same is understood to be subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In other words, the constitutional
guaranty of non-impairment of obligations of contract is limited by the exercise of the police
power of the State, in the interest of public health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted in Philippine
American Life Insurance Co. vs. Auditor General, 30 to wit:

Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both shall be
free of governmental interference. But neither property rights nor contract rights are
absolute; for government cannot exist if the citizen may at will use his property to the
detriment of his fellows, or exercise his freedom of contract to work them harm. Equally
fundamental with the private right is that of the public to regulate it in the common interest.

In short, the non-impairment clause must yield to the police power of the state. 31

Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause could
apply with respect to the prayer to enjoin the respondent Secretary from receiving,
accepting, processing, renewing or approving new timber licenses for, save in cases of
renewal, no contract would have as of yet existed in the other instances. Moreover, with
respect to renewal, the holder is not entitled to it as a matter of right.

WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. 90-777 is
hereby set aside. The petitioners may therefore amend their complaint to implead as
defendants the holders or grantees of the questioned timber license agreements.

No pronouncement as to costs.

SO ORDERED.

Cruz, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Quiason,
JJ., concur.

Narvasa, C.J., Puno and Vitug, JJ., took no part.







Separate Opinions



FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this
case which, to my mind, is one of the most important cases decided by this Court in the last
few years. The seminal principles laid down in this decision are likely to influence
profoundly the direction and course of the protection and management of the environment,
which of course embraces the utilization of all the natural resources in the territorial base of
our polity. I have therefore sought to clarify, basically to myself, what the Court appears to
be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the
bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of
petitioners' claim that their suit is properly regarded as a class suit. I understand locus
standi to refer to the legal interest which a plaintiff must have in the subject matter of the
suit. Because of the very broadness of the concept of "class" here involved membership
in this "class" appears to embrace everyone living in the country whether now or in the
future it appears to me that everyone who may be expected to benefit from the course of
action petitioners seek to require public respondents to take, is vested with the necessary
locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of
action in the field of environmental protection, as against both the public administrative
agency directly concerned and the private persons or entities operating in the field or sector
of activity involved. Whether such beneficiaries' right of action may be found under any and
all circumstances, or whether some failure to act, in the first instance, on the part of the
governmental agency concerned must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably is left for future determination
in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right the right to a balanced and healthful ecology" (Decision, p. 14).
There is no question that "the right to a balanced and healthful ecology" is "fundamental"
and that, accordingly, it has been "constitutionalized." But although it is fundamental in
character, I suggest, with very great respect, that it cannot be characterized as "specific,"
without doing excessive violence to language. It is in fact very difficult to fashion language
more comprehensive in scope and generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and
smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and
raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and
whole communities; of dumping of organic and inorganic wastes on open land, streets and
thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or
slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources
through the use of dynamite or cyanide and other chemicals; contamination of ground
water resources; loss of certain species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1,
Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977
all appear to be formulations of policy, as general and abstract as the constitutional
statements of basic policy in Article II, Section 16 ("the right to a balanced and healthful
ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon
the other hand, a compendious collection of more "specific environment management
policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating
to an extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the
Court has identified the particular provision or provisions (if any) of the Philippine
Environment Code which give rise to a specific legal right which petitioners are seeking to
enforce. Secondly, the Philippine Environment Code identifies with notable care the
particular government agency charged with the formulation and implementation of
guidelines and programs dealing with each of the headings and sub-headings mentioned
above. The Philippine Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right
comprised in the constitutional statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially
enforceable even in their present form. The implications of this doctrine will have to be
explored in future cases; those implications are too large and far-reaching in nature even to
be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific
legal right a right cast in language of a significantly lower order of generality than Article
II (15) of the Constitution that is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that the trial court can validly render
judgment granting all or part of the relief prayed for. To my mind, the Court should be
understood as simply saying that such a more specific legal right or rights may well exist in
our corpus of law, considering the general policy principles found in the Constitution and
the existence of the Philippine Environment Code, and that the trial court should have given
petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings
on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of
action be a specific, operable legal right, rather than a constitutional or statutory policy, for
at least two (2) reasons. One is that unless the legal right claimed to have been violated or
disregarded is given specification in operational terms, defendants may well be unable to
defend themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.

The second is a broader-gauge consideration where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall back on the
expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of
the Constitution which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government. (Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments the legislative and executive departments
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose
concession agreements or TLA's petitioners demand public respondents should cancel,
must be impleaded in the proceedings below. It might be asked that, if petitioners'
entitlement to the relief demanded is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and conditions of their concession
agreements (and this, petitioners implicitly assume), what will those companies litigate
about? The answer I suggest is that they may seek to dispute the existence of the specific
legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of
public respondent administrative agency. They may also controvert the appropriateness of
the remedy or remedies demanded by petitioners, under all the circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment,
including the forest cover of our territory, is of extreme importance for the country. The
doctrines set out in the Court's decision issued today should, however, be subjected to
closer examination.





# Separate Opinions

FELICIANO, J., concurring

I join in the result reached by my distinguished brother in the Court, Davide, Jr., J., in this
case which, to my mind, is one of the most important cases decided by this Court in the last
few years. The seminal principles laid down in this decision are likely to influence
profoundly the direction and course of the protection and management of the environment,
which of course embraces the utilization of all the natural resources in the territorial base of
our polity. I have therefore sought to clarify, basically to myself, what the Court appears to
be saying.

The Court explicitly states that petitioners have the locus standi necessary to sustain the
bringing and, maintenance of this suit (Decision, pp. 11-12). Locus standi is not a function of
petitioners' claim that their suit is properly regarded as a class suit. I understand locus
standi to refer to the legal interest which a plaintiff must have in the subject matter of the
suit. Because of the very broadness of the concept of "class" here involved membership
in this "class" appears to embrace everyone living in the country whether now or in the
future it appears to me that everyone who may be expected to benefit from the course of
action petitioners seek to require public respondents to take, is vested with the necessary
locus standi. The Court may be seen therefore to be recognizing a beneficiaries' right of
action in the field of environmental protection, as against both the public administrative
agency directly concerned and the private persons or entities operating in the field or sector
of activity involved. Whether such beneficiaries' right of action may be found under any and
all circumstances, or whether some failure to act, in the first instance, on the part of the
governmental agency concerned must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably is left for future determination
in an appropriate case.

The Court has also declared that the complaint has alleged and focused upon "one specific
fundamental legal right the right to a balanced and healthful ecology" (Decision, p. 14).
There is no question that "the right to a balanced and healthful ecology" is "fundamental"
and that, accordingly, it has been "constitutionalized." But although it is fundamental in
character, I suggest, with very great respect, that it cannot be characterized as "specific,"
without doing excessive violence to language. It is in fact very difficult to fashion language
more comprehensive in scope and generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which can be subsumed under this rubic
appears to be entirely open-ended: prevention and control of emission of toxic fumes and
smoke from factories and motor vehicles; of discharge of oil, chemical effluents, garbage and
raw sewage into rivers, inland and coastal waters by vessels, oil rigs, factories, mines and
whole communities; of dumping of organic and inorganic wastes on open land, streets and
thoroughfares; failure to rehabilitate land after strip-mining or open-pit mining; kaingin or
slash-and-burn farming; destruction of fisheries, coral reefs and other living sea resources
through the use of dynamite or cyanide and other chemicals; contamination of ground
water resources; loss of certain species of fauna and flora; and so on. The other statements
pointed out by the Court: Section 3, Executive Order No. 192 dated 10 June 1987; Section 1,
Title XIV, Book IV of the 1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977
all appear to be formulations of policy, as general and abstract as the constitutional
statements of basic policy in Article II, Section 16 ("the right to a balanced and healthful
ecology") and 15 ("the right to health").

P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine Environment Code," is, upon
the other hand, a compendious collection of more "specific environment management
policies" and "environment quality standards" (fourth "Whereas" clause, Preamble) relating
to an extremely wide range of topics:

(a) air quality management;

(b) water quality management;

(c) land use management;

(d) natural resources management and conservation embracing:

(i) fisheries and aquatic resources;

(ii) wild life;

(iii) forestry and soil conservation;

(iv) flood control and natural calamities;

(v) energy development;

(vi) conservation and utilization of surface and ground water

(vii) mineral resources

Two (2) points are worth making in this connection. Firstly, neither petitioners nor the
Court has identified the particular provision or provisions (if any) of the Philippine
Environment Code which give rise to a specific legal right which petitioners are seeking to
enforce. Secondly, the Philippine Environment Code identifies with notable care the
particular government agency charged with the formulation and implementation of
guidelines and programs dealing with each of the headings and sub-headings mentioned
above. The Philippine Environment Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries of implementation of that Code.

As a matter of logic, by finding petitioners' cause of action as anchored on a legal right
comprised in the constitutional statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially
enforceable even in their present form. The implications of this doctrine will have to be
explored in future cases; those implications are too large and far-reaching in nature even to
be hinted at here.

My suggestion is simply that petitioners must, before the trial court, show a more specific
legal right a right cast in language of a significantly lower order of generality than Article
II (15) of the Constitution that is or may be violated by the actions, or failures to act,
imputed to the public respondent by petitioners so that the trial court can validly render
judgment granting all or part of the relief prayed for. To my mind, the Court should be
understood as simply saying that such a more specific legal right or rights may well exist in
our corpus of law, considering the general policy principles found in the Constitution and
the existence of the Philippine Environment Code, and that the trial court should have given
petitioners an effective opportunity so to demonstrate, instead of aborting the proceedings
on a motion to dismiss.

It seems to me important that the legal right which is an essential component of a cause of
action be a specific, operable legal right, rather than a constitutional or statutory policy, for
at least two (2) reasons. One is that unless the legal right claimed to have been violated or
disregarded is given specification in operational terms, defendants may well be unable to
defend themselves intelligently and effectively; in other words, there are due process
dimensions to this matter.

The second is a broader-gauge consideration where a specific violation of law or
applicable regulation is not alleged or proved, petitioners can be expected to fall back on the
expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of
the Constitution which reads:

Section 1. . . .

Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine whether
or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government. (Emphasis supplied)

When substantive standards as general as "the right to a balanced and healthy ecology" and
"the right to health" are combined with remedial standards as broad ranging as "a grave
abuse of discretion amounting to lack or excess of jurisdiction," the result will be, it is
respectfully submitted, to propel courts into the uncharted ocean of social and economic
policy making. At least in respect of the vast area of environmental protection and
management, our courts have no claim to special technical competence and experience and
professional qualification. Where no specific, operable norms and standards are shown to
exist, then the policy making departments the legislative and executive departments
must be given a real and effective opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should intervene.

My learned brother Davide, Jr., J., rightly insists that the timber companies, whose
concession agreements or TLA's petitioners demand public respondents should cancel,
must be impleaded in the proceedings below. It might be asked that, if petitioners'
entitlement to the relief demanded is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and conditions of their concession
agreements (and this, petitioners implicitly assume), what will those companies litigate
about? The answer I suggest is that they may seek to dispute the existence of the specific
legal right petitioners should allege, as well as the reality of the claimed factual nexus
between petitioners' specific legal rights and the claimed wrongful acts or failures to act of
public respondent administrative agency. They may also controvert the appropriateness of
the remedy or remedies demanded by petitioners, under all the circumstances which exist.

I vote to grant the Petition for Certiorari because the protection of the environment,
including the forest cover of our territory, is of extreme importance for the country. The
doctrines set out in the Court's decision issued today should, however, be subjected to
closer examination.

# Footnotes

1 Rollo, 164; 186.

2 Id., 62-65, exclusive of annexes.

3 Under Section 12, Rule 3, Revised Rules of Court.

4 Rollo, 67.

5 Id., 74.

6 Rollo, 70-73.

7 Annex "B" of Petitions; Id., 43-44.

8 Paragraph 7, Petition, 6; Rollo, 20.

9 Webster's Third New International Dictionary, unabridged, 1986, 1508.

10 Title XIV (Environment and Natural Resources), Book IV of the Administrative Code
of 1987, E.O. No. 292.

11 Annex "B" of Petition; Rollo, 43-44.

12 Record of the Constitutional Commission, vol. 4, 913.

13 For instance, the Preamble and Article XII on the National Economy and Patrimony.

14 The Reorganization Act of the Department of Environment and Natural Resources.

15 E.O. No. 292.

16 Section 1.

17 Section 2.

18 Ma-ao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947]; Community Investment and
Finance Corp. vs. Garcia, 88 Phil. 215 [1951]; Remitere vs. Vda. de Yulo, 16 SCRA 251
[1966]; Caseas vs. Rosales, 19 SCRA 462 [1967]; Virata vs. Sandiganbayan, 202 SCRA 680
[1991]; Madrona vs. Rosal, 204 SCRA 1 [1991].

19 Section 1(q), Rule 16, Revised Rules of Court.

20 Adamos vs. J.M. Tuason and Co., Inc. 25 SCRA 529 [1968]; Virata vs. Sandiganbayn,
supra; Madrona vs. Rosal, supra.

21 39 SCRA 473, 479 [1971].

22 1991 ed., 226-227.

23 180 SCRA 496, 501-502 [1989]. See also, Coseteng vs. Mitra, 187 SCRA 377 [1990];
Gonzales vs. Macaraig, 191 SCRA 452 [1990]; Llamas vs. Orbos, 202 SCRA 844 [1991];
Bengzon vs. Senate Blue Ribbon Committee, 203 SCRA 767 [1991].

24 Rollo, 44.

25 125 SCRA 302, 325 [1983].

26 190 SCRA 673, 684 [1990].

27 Article III, 1987 Constitution.

28 110 Phil. 198, 203 [1960]; footnotes omitted.

29 291 U.S. 502, 523, 78 L. ed. 940, 947-949.

30 22 SCRA 135, 146-147 [1968].

31 Ongsiako vs. Gamboa, 86 Phil. 50 [1950]; Abe vs. Foster Wheeler Corp. supra.; Phil.
American Life Insurance Co. vs. Auditor General, supra.; Alalayan vs. NPC, 24 SCRA
172[1968]; Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54 [1974]; Kabiling vs.
National Housing Authority, 156 SCRA 623 [1987].









EN BANC

THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN
and/or VICE-GOVERNOR EMMANUEL PIOL, for and in his own behalf,
Petitioners,


- versus -


THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN.
HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed
Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential
Adviser on the Peace Process,
Respondents.
x--------------------------------------------x
CITY GOVERNMENT OF ZAMBOANGA, as represented by HON. CELSO L. LOBREGAT, City
Mayor of Zamboanga, and in his personal capacity as resident of the City of Zamboanga, Rep.
MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO BASILIO A. FABIAN, District 2, City of
Zamboanga,
Petitioners,


- versus -


THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL
(GRP), as represented by RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES ESPERON, in his capacity as the
Presidential Adviser on Peace Process,
Respondents.
x--------------------------------------------x
THE CITY OF ILIGAN, duly represented by CITY MAYOR LAWRENCE LLUCH CRUZ,
Petitioner,


- versus


THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON
ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN; GEN. HERMOGENES
ESPERON, JR., in his capacity as the present and duly appointed Presidential Adviser on the
Peace Process; and/or SEC. EDUARDO ERMITA, in his capacity as Executive Secretary.
Respondents.
x--------------------------------------------x
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL NORTE, as represented by HON.
ROLANDO E. YEBES, in his capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his
capacity as Vice-Governor and Presiding Officer of the Sangguniang Panlalawigan, HON.
CECILIA JALOSJOS CARREON, Congresswoman, 1st Congressional District, HON. CESAR G.
JALOSJOS, Congressman, 3rd Congressional District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga del Norte, namely, HON. SETH FREDERICK P.
JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON. ULDARICO M. MEJORADA II, HON.
EDIONAR M. ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L. ADRIATICO, HON.
FELIXBERTO C. BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING,
HON. ANECITO S. DARUNDAY, HON. ANGELICA J. CARREON and HON. LUZVIMINDA E.
TORRINO,
Petitioners,


- versus -


THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL
[GRP], as represented by HON. RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in
his capacity as the Presidential Adviser of Peace Process,
Respondents.
x--------------------------------------------x
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L. PIMENTEL III,
Petitioners,


- versus -


THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE NEGOTIATING PANEL,
represented by its Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION
FRONT PEACE NEGOTIATING PANEL, represented by its Chairman MOHAGHER IQBAL,
Respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO,
Petitioners-in-Intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS,
Petitioners-in-Intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal Mayor NOEL N. DEANO,
Petitioners-in-Intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by MAYOR CHERRYLYN P.
SANTOS-AKBAR,
Petitioners-in-Intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON. SUHARTO T. MANGUDADATU, in his
capacity as Provincial Governor and a resident of the Province of Sultan Kudarat,
Petitioner-in-Intervention.
x-------------------------------------------x

RUY ELIAS LOPEZ, for and in his own behalf and on behalf of Indigenous Peoples in
Mindanao Not Belonging to the MILF,
Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT, JOSELITO C. ALISUAG and
RICHALEX G. JAGMIS, as citizens and residents of Palawan,
Petitioners-in-Intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI,
Petitioners-in-Intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF),
Respondent-in-Intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE & DEVELOPMENT (MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x

G.R. No. 183591

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, &
BRION, JJ.

Promulgated:

October 14, 2008







G.R. No. 183752




























G.R. No. 183893

























G.R. No. 183951















































G.R. No. 183962
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

D E C I S I O N

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in
pursuing the peace process. While the facts surrounding this controversy center on the
armed conflict in Mindanao between the government and the Moro Islamic Liberation Front
(MILF), the legal issue involved has a bearing on all areas in the country where there has
been a long-standing armed conflict. Yet again, the Court is tasked to perform a delicate
balancing act. It must uncompromisingly delineate the bounds within which the President
may lawfully exercise her discretion, but it must do so in strict adherence to the
Constitution, lest its ruling unduly restricts the freedom of action vested by that same
Constitution in the Chief Executive precisely to enable her to pursue the peace process
effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS


On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the
MILF, through the Chairpersons of their respective peace negotiating panels, were
scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect
of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National Liberation Front
(MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat
perceived to be the manipulation of the MNLF away from an Islamic basis towards Marxist-
Maoist orientations.[1]

The signing of the MOA-AD between the GRP and the MILF was not to materialize,
however, for upon motion of petitioners, specifically those who filed their cases before the
scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order
enjoining the GRP from signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding of
several prior agreements between the two parties beginning in 1996, when the GRP-MILF
peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the
Agreement on General Cessation of Hostilities. The following year, they signed the General
Framework of Agreement of Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by
stating that the same contained, among others, the commitment of the parties to pursue
peace negotiations, protect and respect human rights, negotiate with sincerity in the
resolution and pacific settlement of the conflict, and refrain from the use of threat or force
to attain undue advantage while the peace negotiations on the substantive agenda are on-
going.[2]

Early on, however, it was evident that there was not going to be any smooth sailing in
the GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF attacked
a number of municipalities in Central Mindanao and, in March 2000, it took control of the
town hall of Kauswagan, Lanao del Norte.[3] In response, then President Joseph Estrada
declared and carried out an all-out-war against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive
against the MILF was suspended and the government sought a resumption of the peace
talks. The MILF, according to a leading MILF member, initially responded with deep
reservation, but when President Arroyo asked the Government of Malaysia through Prime
Minister Mahathir Mohammad to help convince the MILF to return to the negotiating table,
the MILF convened its Central Committee to seriously discuss the matter and, eventually,
decided to meet with the GRP.[4]

The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by
the Malaysian government, the parties signing on the same date the Agreement on the
General Framework for the Resumption of Peace Talks Between the GRP and the MILF. The
MILF thereafter suspended all its military actions.[5]

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22,
2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) containing the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With
regard to the Ancestral Domain Aspect, the parties in Tripoli Agreement 2001 simply
agreed that the same be discussed further by the Parties in their next meeting.

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001
which ended with the signing of the Implementing Guidelines on the Security Aspect of the
Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was
followed by the Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002 at
Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he
was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF.
Murads position as chief peace negotiator was taken over by Mohagher Iqbal.[6]

In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as mentioned,
was set to be signed last August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS


Before the Court is what is perhaps the most contentious consensus ever embodied
in an instrument the MOA-AD which is assailed principally by the present petitions
bearing docket numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain[7]
and the Presidential Adviser on the Peace Process (PAPP) Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor Emmanuel Piol
filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with Prayer for
the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order.[9]
Invoking the right to information on matters of public concern, petitioners seek to compel
respondents to disclose and furnish them the complete and official copies of the MOA-AD
including its attachments, and to prohibit the slated signing of the MOA-AD, pending the
disclosure of the contents of the MOA-AD and the holding of a public consultation thereon.
Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional.[10]

This initial petition was followed by another one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition[11] filed by the City of Zamboanga,[12] Mayor Celso Lobregat,
Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar
injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded
from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in the alternative,
that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order
commanding and directing public respondents and their agents to cease and desist from
formally signing the MOA-AD.[13] The Court also required the Solicitor General to submit
to the Court and petitioners the official copy of the final draft of the MOA-AD,[14] to which
she complied.[15]

Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or Declaratory Relief,
docketed as G.R. No. 183893, praying that respondents be enjoined from signing the MOA-
AD or, if the same had already been signed, from implementing the same, and that the MOA-
AD be declared unconstitutional. Petitioners herein additionally implead Executive
Secretary Eduardo Ermita as respondent.

The Province of Zamboanga del Norte,[17] Governor Rolando Yebes, Vice-Governor Francis
Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members[18] of the
Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for
Certiorari, Mandamus and Prohibition,[19] docketed as G.R. No. 183951. They pray, inter
alia, that the MOA-AD be declared null and void and without operative effect, and that
respondents be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a
petition for Prohibition,[20] docketed as G.R. No. 183962, praying for a judgment
prohibiting and permanently enjoining respondents from formally signing and executing
the MOA-AD and or any other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal. Petitioners herein additionally
implead as respondent the MILF Peace Negotiating Panel represented by its Chairman
Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their petitions-
/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel A. Roxas,
former Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela[21] and
Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat[22] and Gov. Suharto
Mangudadatu, the Municipality of Linamon in Lanao del Norte,[23] Ruy Elias Lopez of
Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and
businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig,
Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace
and Development (MMMPD) filed their respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions.
Respondents filed Comments on the petitions, while some of petitioners submitted their
respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to
address the issues hurled against it, and thus moved to dismiss the cases. In the succeeding
exchange of pleadings, respondents motion was met with vigorous opposition from
petitioners.

The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the
following principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies
of the final draft of the Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it
is considered that consultation has become fait accompli with the finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel
committed grave abuse of discretion amounting to lack or excess of jurisdiction when it
negotiated and initiated the MOA vis--vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the peoples right to information on matters of public
concern (1987 Constitution, Article III, Sec. 7) under a state policy of full disclosure of all its
transactions involving public interest (1987 Constitution, Article II, Sec. 28) including public
consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil
Procedure is an appropriate remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines would
be BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a
juridical, territorial or political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral
domain in violation of Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF
1997), particularly Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF
ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the
Government of the Republic of the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga,
Iligan and Isabela, and the Municipality of Linamon, Lanao del Norte in/from the areas
covered by the projected Bangsamoro Homeland is a justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments of the
Government of the Republic of the Philippines.[24]

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of
the parties submitted their memoranda on time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject
five petitions and six petitions-in-intervention against the MOA-AD, as well as the two
comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.

Under the heading Terms of Reference (TOR), the MOA-AD includes not only four earlier
agreements between the GRP and MILF, but also two agreements between the GRP and the
MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation
of the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of
President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)[25] and the Indigenous Peoples Rights
Act (IPRA),[26] and several international law instruments the ILO Convention No. 169
Concerning Indigenous and Tribal Peoples in Independent Countries in relation to the UN
Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among others.

The MOA-AD includes as a final TOR the generic category of compact rights
entrenchment emanating from the regime of dar-ul-muahada (or territory under compact)
and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty
device.

During the height of the Muslim Empire, early Muslim jurists tended to see the world
through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-ul-
harb (the Abode of War). The first referred to those lands where Islamic laws held sway,
while the second denoted those lands where Muslims were persecuted or where Muslim
laws were outlawed or ineffective.[27] This way of viewing the world, however, became
more complex through the centuries as the Islamic world became part of the international
community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States
and inter-governmental organizations, the classical division of the world into dar-ul-Islam
and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe novel
ways of perceiving non-Muslim territories. For instance, areas like dar-ul-muahada (land
of compact) and dar-ul-sulh (land of treaty) referred to countries which, though under a
secular regime, maintained peaceful and cooperative relations with Muslim States, having
been bound to each other by treaty or agreement. Dar-ul-aman (land of order), on the other
hand, referred to countries which, though not bound by treaty with Muslim States,
maintained freedom of religion for Muslims.[28]

It thus appears that the compact rights entrenchment emanating from the regime of
dar-ul-muahada and dar-ul-sulh simply refers to all other agreements between the MILF
and the Philippine government the Philippines being the land of compact and peace
agreement that partake of the nature of a treaty device, treaty being broadly defined as
any solemn agreement in writing that sets out understandings, obligations, and benefits for
both parties which provides for a framework that elaborates the principles declared in the
[MOA-AD].[29]

The MOA-AD states that the Parties HAVE AGREED AND ACKNOWLEDGED AS
FOLLOWS, and starts with its main body.

The main body of the MOA-AD is divided into four strands, namely, Concepts and Principles,
Territory, Resources, and Governance.

A. CONCEPTS AND PRINCIPLES

This strand begins with the statement that it is the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as Bangsamoros.
It defines Bangsamoro people as the natives or original inhabitants of Mindanao and its
adjacent islands including Palawan and the Sulu archipelago at the time of conquest or
colonization, and their descendants whether mixed or of full blood, including their
spouses.[30]

Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD, includes
not only Moros as traditionally understood even by Muslims,[31] but all indigenous
peoples of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice
of indigenous peoples shall be respected. What this freedom of choice consists in has not
been specifically defined.

The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of
which is vested exclusively in the Bangsamoro people by virtue of their prior rights of
occupation.[32] Both parties to the MOA-AD acknowledge that ancestral domain does not
form part of the public domain.[33]

The Bangsamoro people are acknowledged as having the right to self-governance,
which right is said to be rooted on ancestral territoriality exercised originally under the
suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The sultanates
were described as states or karajaan/kadatuan resembling a body politic endowed with
all the elements of a nation-state in the modern sense.[34]

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on
the past suzerain authority of the sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the
Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent principalities
(pangampong) each ruled by datus and sultans, none of whom was supreme over the
others.[35]

The MOA-AD goes on to describe the Bangsamoro people as the First Nation with
defined territory and with a system of government having entered into treaties of amity and
commerce with foreign nations.
The term First Nation is of Canadian origin referring to the indigenous peoples of
that territory, particularly those known as Indians. In Canada, each of these indigenous
peoples is equally entitled to be called First Nation, hence, all of them are usually
described collectively by the plural First Nations.[36] To that extent, the MOA-AD, by
identifying the Bangsamoro people as the First Nation suggesting its exclusive
entitlement to that designation departs from the Canadian usage of the term.

The MOA-AD then mentions for the first time the Bangsamoro Juridical Entity (BJE)
to which it grants the authority and jurisdiction over the Ancestral Domain and Ancestral
Lands of the Bangsamoro.[37]



B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.[38]

More specifically, the core of the BJE is defined as the present geographic area of the
ARMM thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu, Tawi-
Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities
of Lanao del Norte that voted for inclusion in the ARMM in the 2001 plebiscite.[39]

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays,
which are grouped into two categories, Category A and Category B. Each of these areas is to
be subjected to a plebiscite to be held on different dates, years apart from each other. Thus,
Category A areas are to be subjected to a plebiscite not later than twelve (12) months
following the signing of the MOA-AD.[40] Category B areas, also called Special Intervention
Areas, on the other hand, are to be subjected to a plebiscite twenty-five (25) years from the
signing of a separate agreement the Comprehensive Compact.[41]

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural
resources within its internal waters, defined as extending fifteen (15) kilometers from the
coastline of the BJE area;[42] that the BJE shall also have territorial waters, which shall
stretch beyond the BJE internal waters up to the baselines of the Republic of the Philippines
(RP) south east and south west of mainland Mindanao; and that within these territorial
waters, the BJE and the Central Government (used interchangeably with RP) shall exercise
joint jurisdiction, authority and management over all natural resources.[43] Notably, the
jurisdiction over the internal waters is not similarly described as joint.

The MOA-AD further provides for the sharing of minerals on the territorial waters
between the Central Government and the BJE, in favor of the latter, through production
sharing and economic cooperation agreement.[44] The activities which the Parties are
allowed to conduct on the territorial waters are enumerated, among which are the
exploration and utilization of natural resources, regulation of shipping and fishing activities,
and the enforcement of police and safety measures.[45] There is no similar provision on the
sharing of minerals and allowed activities with respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and
trade relations with foreign countries and shall have the option to establish trade missions
in those countries. Such relationships and understandings, however, are not to include
aggression against the GRP. The BJE may also enter into environmental cooperation
agreements.[46]

The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to take necessary steps to ensure the
BJEs participation in international meetings and events like those of the ASEAN and the
specialized agencies of the UN. The BJE is to be entitled to participate in Philippine official
missions and delegations for the negotiation of border agreements or protocols for
environmental protection and equitable sharing of incomes and revenues involving the
bodies of water adjacent to or between the islands forming part of the ancestral
domain.[47]

With regard to the right of exploring for, producing, and obtaining all potential sources
of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control
thereon is to be vested in the BJE as the party having control within its territorial
jurisdiction. This right carries the proviso that, in times of national emergency, when
public interest so requires, the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or direct the operation of
such resources.[48]

The sharing between the Central Government and the BJE of total production
pertaining to natural resources is to be 75:25 in favor of the BJE.[49]
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising
from any unjust dispossession of their territorial and proprietary rights, customary land
tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer
possible, reparation is to be in such form as mutually determined by the Parties.[50]

The BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other land tenure instruments
granted by the Philippine Government, including those issued by the present ARMM.[51]

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to embody
the details for the effective enforcement and the mechanisms and modalities for the
actual implementation of the MOA-AD. The MOA-AD explicitly provides that the
participation of the third party shall not in any way affect the status of the relationship
between the Central Government and the BJE.[52]

The associative relationship
between the Central Government
and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as
associative, characterized by shared authority and responsibility. And it states that the
structure of governance is to be based on executive, legislative, judicial, and administrative
institutions with defined powers and functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring amendments to the existing legal
framework shall take effect upon signing of the Comprehensive Compact and upon
effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the present controversy hangs on the legality
of this provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive of
civil service, electoral, financial and banking, education, legislation, legal, economic, police
and internal security force, judicial system and correctional institutions, the details of which
shall be discussed in the negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo
Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP and the
MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies the
signatories as the representatives of the Parties, meaning the GRP and MILF themselves,
and not merely of the negotiating panels.[53] In addition, the signature page of the MOA-AD
states that it is WITNESSED BY Datuk Othman Bin Abd Razak, Special Adviser to the Prime
Minister of Malaysia, ENDORSED BY Ambassador Sayed Elmasry, Adviser to Organization
of the Islamic Conference (OIC) Secretary General and Special Envoy for Peace Process in
Southern Philippines, and SIGNED IN THE PRESENCE OF Dr. Albert G. Romulo, Secretary
of Foreign Affairs of RP and Dato Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs,
Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the
provinces, municipalities, and barangays under Categories A and B earlier mentioned in the
discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES


A. RIPENESS


The power of judicial review is limited to actual cases or controversies.[54] Courts decline
to issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic
questions.[55] The limitation of the power of judicial review to actual cases and
controversies defines the role assigned to the judiciary in a tripartite allocation of power, to
assure that the courts will not intrude into areas committed to the other branches of
government.[56]

An actual case or controversy involves a conflict of legal rights, an assertion of opposite
legal claims, susceptible of judicial resolution as distinguished from a hypothetical or
abstract difference or dispute. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and jurisprudence.[57] The Court can
decide the constitutionality of an act or treaty only when a proper case between opposing
parties is submitted for judicial determination.[58]

Related to the requirement of an actual case or controversy is the requirement of ripeness.
A question is ripe for adjudication when the act being challenged has had a direct adverse
effect on the individual challenging it.[59] For a case to be considered ripe for adjudication,
it is a prerequisite that something had then been accomplished or performed by either
branch before a court may come into the picture,[60] and the petitioner must allege the
existence of an immediate or threatened injury to itself as a result of the challenged
action.[61] He must show that he has sustained or is immediately in danger of sustaining
some direct injury as a result of the act complained of.[62]

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial
review in the present petitions, reasoning that

The unsigned MOA-AD is simply a list of consensus points subject to further negotiations
and legislative enactments as well as constitutional processes aimed at attaining a final
peaceful agreement. Simply put, the MOA-AD remains to be a proposal that does not
automatically create legally demandable rights and obligations until the list of operative
acts required have been duly complied with. x x x

x x x x

In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to
pass upon issues based on hypothetical or feigned constitutional problems or interests with
no concrete bases. Considering the preliminary character of the MOA-AD, there are no
concrete acts that could possibly violate petitioners and intervenors rights since the acts
complained of are mere contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors perceived injury, if at all, is merely
imaginary and illusory apart from being unfounded and based on mere conjectures.
(Underscoring supplied)


The Solicitor General cites[63] the following provisions of the MOA-AD:

TERRITORY

x x x x

2. Toward this end, the Parties enter into the following stipulations:
x x x x

d. Without derogating from the requirements of prior agreements, the Government
stipulates to conduct and deliver, using all possible legal measures, within twelve (12)
months following the signing of the MOA-AD, a plebiscite covering the areas as enumerated
in the list and depicted in the map as Category A attached herein (the Annex). The Annex
constitutes an integral part of this framework agreement. Toward this end, the Parties shall
endeavor to complete the negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months from the signing of the MOA-AD.

x x x x

GOVERNANCE

x x x x

7. The Parties agree that mechanisms and modalities for the actual implementation of this
MOA-AD shall be spelt out in the Comprehensive Compact to mutually take such steps to
enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework
shall come into force upon the signing of a Comprehensive Compact and upon effecting the
necessary changes to the legal framework with due regard to non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact.[64] (Underscoring supplied)


The Solicitor Generals arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe.
In Pimentel, Jr. v. Aguirre,[65] this Court held:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged
action, the dispute is said to have ripened into a judicial controversy even without any other
overt act. Indeed, even a singular violation of the Constitution and/or the law is enough to
awaken judicial duty.

x x x x

By the same token, when an act of the President, who in our constitutional scheme is a
coequal of Congress, is seriously alleged to have infringed the Constitution and the laws x x
x settling the dispute becomes the duty and the responsibility of the courts.[66]


In Santa Fe Independent School District v. Doe,[67] the United States Supreme Court held
that the challenge to the constitutionality of the schools policy allowing student-led prayers
and speeches before games was ripe for adjudication, even if no public prayer had yet been
led under the policy, because the policy was being challenged as unconstitutional on its
face.[68]

That the law or act in question is not yet effective does not negate ripeness. For example, in
New York v. United States,[69] decided in 1992, the United States Supreme Court held that
the action by the State of New York challenging the provisions of the Low-Level Radioactive
Waste Policy Act was ripe for adjudication even if the questioned provision was not to take
effect until January 1, 1996, because the parties agreed that New York had to take
immediate action to avoid the provision's consequences.[70]

The present petitions pray for Certiorari,[71] Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law when any tribunal, board or officer has acted, in
the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of its
jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.[72] Mandamus is a remedy granted by law when any tribunal, corporation,
board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use or enjoyment of a right or office to which such other is
entitled.[73] Certiorari, Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative
and executive officials.[74]

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3),
issued on February 28, 2001.[75] The said executive order requires that [t]he
government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order.[76]

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the
terms of the MOA-AD without consulting the local government units or communities
affected, nor informing them of the proceedings. As will be discussed in greater detail later,
such omission, by itself, constitutes a departure by respondents from their mandate under
E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the
Constitution. The MOA-AD provides that any provisions of the MOA-AD requiring
amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal framework,
implying an amendment of the Constitution to accommodate the MOA-AD. This stipulation,
in effect, guaranteed to the MILF the amendment of the Constitution. Such act constitutes
another violation of its authority. Again, these points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the Constitution
and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and
Mandamus, and an actual case or controversy ripe for adjudication exists. When an act of a
branch of government 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.[77]

B. LOCUS STANDI


For a party to have locus standi, one must allege 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.[78]

Because constitutional cases are often public actions in which the relief sought is likely
to affect other persons, a preliminary question frequently arises as to this interest in the
constitutional question raised.[79]

When suing as a citizen, the person complaining must allege that he 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.[80] 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.[81]

For a taxpayer, one is allowed to sue where there is an assertion that public funds are
illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law.[82] The Court retains
discretion whether or not to allow a taxpayers suit.[83]

In the case of a legislator or member of Congress, an act of the Executive that injures
the institution of Congress causes a derivative but nonetheless substantial injury that can be
questioned by legislators. A member of the House of Representatives has standing to
maintain inviolate the prerogatives, powers and privileges vested by the Constitution in his
office.[84]

An organization may be granted standing to assert the rights of its members,[85] but
the mere invocation by the Integrated Bar of the Philippines or any member of the legal
profession of the duty to preserve the rule of law does not suffice to clothe it with
standing.[86]

As regards a local government unit (LGU), it can seek relief in order to protect or
vindicate an interest of its own, and of the other LGUs.[87]

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy
the requirements of the law authorizing intervention,[88] such as a legal interest in the
matter in litigation, or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus
standi, given the liberal attitude it has exercised, highlighted in the case of David v.
Macapagal-Arroyo,[89] where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of transcendental
importance deserving the attention of the Court in view of their seriousness, novelty and
weight as precedents.[90] The Courts forbearing stance on locus standi on issues involving
constitutional issues has for its purpose the protection of fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves within the
limits of the Constitution and the laws and have not abused the discretion given them, has
brushed aside technical rules of procedure.[91]

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591)
Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R. No. 183893) and
City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan
Kudarat, City of Isabela and Municipality of Linamon have locus standi in view of the direct
and substantial injury that they, as LGUs, would suffer as their territories, whether in whole
or in part, are to be included in the intended domain of the BJE. These petitioners allege
that they did not vote for their inclusion in the ARMM which would be expanded to form the
BJE territory. Petitioners legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel
III would have no standing as citizens and taxpayers for their failure to specify that they
would be denied some right or privilege or there would be wastage of public funds. The fact
that they are a former Senator, an incumbent mayor of Makati City, and a resident of
Cagayan de Oro, respectively, is of no consequence. Considering their invocation of the
transcendental importance of the issues at hand, however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers,
assert that government funds would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be
given legal standing. Their allegation that the issues involved in these petitions are of
undeniable transcendental importance clothes them with added basis for their personality
to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member
of the Senate and a citizen to enforce compliance by respondents of the publics
constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest in
the matter in litigation, or in the success or failure of either of the parties. He thus
possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd
district of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as
members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer,
resident and member of the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as
taxpayer, they failed to allege any proper legal interest in the present petitions. Just the
same, the Court exercises its discretion to relax the procedural technicality on locus standi
given the paramount public interest in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace and prosperity in
Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a non-government
organization of Muslim lawyers, allege that they stand to be benefited or prejudiced, as the
case may be, in the resolution of the petitions concerning the MOA-AD, and prays for the
denial of the petitions on the grounds therein stated. Such legal interest suffices to clothe
them with standing.

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the
satisfaction of all the reliefs prayed for by petitioners and the subsequent pronouncement of
the Executive Secretary that [n]o matter what the Supreme Court ultimately decides[,] the
government will not sign the MOA.[92]

In lending credence to this policy decision, the Solicitor General points out that the
President had already disbanded the GRP Peace Panel.[93]

In David v. Macapagal-Arroyo,[94] this Court held that the moot and academic
principle not being a magical formula that automatically dissuades courts in resolving a
case, it will decide cases, otherwise moot and academic, if it finds that (a) there is a grave
violation of the Constitution;[95] (b) the situation is of exceptional character and
paramount public interest is involved;[96] (c) the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public;[97] and (d)
the case is capable of repetition yet evading review.[98]

Another exclusionary circumstance that may be considered is where there is a
voluntary cessation of the activity complained of by the defendant or doer. Thus, once a suit
is filed and the doer voluntarily ceases the challenged conduct, it does not automatically
deprive the tribunal of power to hear and determine the case and does not render the case
moot especially when the plaintiff seeks damages or prays for injunctive relief against the
possible recurrence of the violation.[99]

The present petitions fall squarely into these exceptions to thus thrust them into the
domain of judicial review. The grounds cited above in David are just as applicable in the
present cases as they were, not only in David, but also in Province of Batangas v.
Romulo[100] and Manalo v. Calderon[101] where the Court similarly decided them on the
merits, supervening events that would ordinarily have rendered the same moot
notwithstanding.


Petitions not mooted


Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It bears
emphasis that the signing of the MOA-AD did not push through due to the Courts issuance
of a Temporary Restraining Order.

Contrary too to respondents position, the MOA-AD cannot be considered a mere list
of consensus points, especially given its nomenclature, the need to have it signed or
initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional
implications of these consensus points, foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of
respondents to amend and effect necessary changes to the existing legal framework for
certain provisions of the MOA-AD to take effect. Consequently, the present petitions are not
confined to the terms and provisions of the MOA-AD, but to other on-going and future
negotiations and agreements necessary for its realization. The petitions have not, therefore,
been rendered moot and academic simply by the public disclosure of the MOA-AD,[102] the
manifestation that it will not be signed as well as the disbanding of the GRP Panel not
withstanding.

Petitions are imbued with paramount public interest


There is no gainsaying that the petitions are imbued with paramount public interest,
involving a significant part of the countrys territory and the wide-ranging political
modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal
enactments including possible Constitutional amendments more than ever provides
impetus for the Court to formulate controlling principles to guide the bench, the bar, the
public and, in this case, the government and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.[103] where the Court did not pontificat[e] on
issues which no longer legitimately constitute an actual case or controversy [as this] will do
more harm than good to the nation as a whole.

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what
was assailed and eventually cancelled was a stand-alone government procurement contract
for a national broadband network involving a one-time contractual relation between two
partiesthe government and a private foreign corporation. As the issues therein involved
specific government procurement policies and standard principles on contracts, the
majority opinion in Suplico found nothing exceptional therein, the factual circumstances
being peculiar only to the transactions and parties involved in the controversy.
The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of agreements
necessary to carry out the Tripoli Agreement 2001. The MOA-AD which dwells on the
Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in August 2001 and the
Humanitarian, Rehabilitation and Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to
the Solicitor General, has stated that no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-AD], mootness will not set in in light of
the terms of the Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry
out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or in any form,
which could contain similar or significantly drastic provisions. While the Court notes the
word of the Executive Secretary that the government is committed to securing an
agreement that is both constitutional and equitable because that is the only way that long-
lasting peace can be assured, it is minded to render a decision on the merits in the present
petitions to formulate controlling principles to guide the bench, the bar, the public and,
most especially, the government in negotiating with the MILF regarding Ancestral Domain.

Respondents invite the Courts attention to the separate opinion of then Chief Justice
Artemio Panganiban in Sanlakas v. Reyes[104] in which he stated that the doctrine of
capable of repetition yet evading review can override mootness, provided the party
raising it in a proper case has been and/or continue to be prejudiced or damaged as a direct
result of their issuance. They contend that the Court must have jurisdiction over the
subject matter for the doctrine to be invoked.

The present petitions all contain prayers for Prohibition over which this Court exercises
original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for Injunction
and Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching
implications and raises questions that need to be resolved.[105] At all events, the Court has
jurisdiction over most if not the rest of the petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the
doctrine immediately referred to as what it had done in a number of landmark cases.[106]
There is a reasonable expectation that petitioners, particularly the Provinces of North
Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and
Isabela, and the Municipality of Linamon, will again be subjected to the same problem in the
future as respondents actions are capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and petitioners
with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors have
been furnished, or have procured for themselves, copies of the MOA-AD.
V. SUBSTANTIVE ISSUES


As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-AD was
negotiated and finalized, the other relating to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public
consultation and the right to information when they negotiated and later initialed the MOA-
AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?

ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as
provided in Section 7, Article III on the Bill of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
acts, transactions, or decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such limitations as may be
provided by law.[107]


As early as 1948, in Subido v. Ozaeta,[108] the Court has recognized the statutory right
to examine and inspect public records, a right which was eventually accorded constitutional
status.

The right of access to public documents, as enshrined in both the 1973 Constitution
and the 1987 Constitution, has been recognized as a self-executory constitutional
right.[109]

In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110] the Court ruled that access to
public records is predicated on the right of the people to acquire information on matters of
public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest in
matters of social and political significance.

x x x The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be no realistic
perception by the public of the nations problems, nor a meaningful democratic decision-
making if they are denied access to information of general interest. Information is needed
to enable the members of society to cope with the exigencies of the times. As has been aptly
observed: Maintaining the flow of such information depends on protection for both its
acquisition and its dissemination since, if either process is interrupted, the flow inevitably
ceases. x x x[111]


In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues
confronting the nation[112] so that they may be able to criticize and participate in the
affairs of the government in a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed public
that a government remains responsive to the changes desired by the people.[113]

The MOA-AD is a matter of public concern


That the subject of the information sought in the present cases is a matter of public
concern[114] faces no serious challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.[115] In previous cases, the Court found that the regularity of real
estate transactions entered in the Register of Deeds,[116] the need for adequate notice to
the public of the various laws,[117] the civil service eligibility of a public employee,[118]
the proper management of GSIS funds allegedly used to grant loans to public officials,[119]
the recovery of the Marcoses alleged ill-gotten wealth,[120] and the identity of party-list
nominees,[121] among others, are matters of public concern. Undoubtedly, the MOA-AD
subject of the present cases is of public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the lives of the public at large.

Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as to the
executory nature or commercial character of agreements, the Court has categorically ruled:

x x x [T]he right to information contemplates inclusion of negotiations leading to the
consummation of the transaction. Certainly, a consummated contract is not a requirement
for the exercise of the right to information. Otherwise, the people can never exercise the
right if no contract is consummated, and if one is consummated, it may be too late for the
public to expose its defects.

Requiring a consummated contract will keep the public in the dark until the contract,
which may be grossly disadvantageous to the government or even illegal, becomes fait
accompli. This negates the State policy of full transparency on matters of public concern, a
situation which the framers of the Constitution could not have intended. Such a
requirement will prevent the citizenry from participating in the public discussion of any
proposed contract, effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a retreat by the State of its
avowed policy of full disclosure of all its transactions involving public interest.[122]
(Emphasis and italics in the original)


Intended as a splendid symmetry[123] to the right to information under the Bill of
Rights is the policy of public disclosure under Section 28, Article II of the Constitution
reading:

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest.[124]

The policy of full public disclosure enunciated in above-quoted Section 28
complements the right of access to information on matters of public concern found in the
Bill of Rights. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information even if
nobody demands.[125]

The policy of public disclosure establishes a concrete ethical principle for the conduct
of public affairs in a genuinely open democracy, with the peoples right to know as the
centerpiece. It is a mandate of the State to be accountable by following such policy.[126]
These provisions are vital to the exercise of the freedom of expression and essential to hold
public officials at all times accountable to the people.[127]

Whether Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will
not be in force and effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of
course, the implementing law will have to be enacted by Congress, Mr. Presiding
Officer.[128]


The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the
issue, is enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get
the Gentleman correctly as having said that this is not a self-executing provision? It would
require a legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment
from Commissioner Regalado, so that the safeguards on national interest are modified by
the clause as may be provided by law

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and
Congress may provide for reasonable safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should
immediately influence the climate of the conduct of public affairs but, of course, Congress
here may no longer pass a law revoking it, or if this is approved, revoking this principle,
which is inconsistent with this policy.[129] (Emphasis supplied)


Indubitably, the effectivity of the policy of public disclosure need not await the passing
of a statute. As Congress cannot revoke this principle, it is merely directed to provide for
reasonable safeguards. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-
executory nature. Since both provisions go hand-in-hand, it is absurd to say that the
broader[130] right to information on matters of public concern is already enforceable while
the correlative duty of the State to disclose its transactions involving public interest is not
enforceable until there is an enabling law. Respondents cannot thus point to the absence of
an implementing legislation as an excuse in not effecting such policy.

An essential element of these freedoms is to keep open a continuing dialogue or
process of communication between the government and the people. It is in the interest of
the State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the peoples will.[131] Envisioned to be
corollary to the twin rights to information and disclosure is the design for feedback
mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to
participate? Will the government provide feedback mechanisms so that the people can
participate and can react where the existing media facilities are not able to provide full
feedback mechanisms to the government? I suppose this will be part of the government
implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these courses
take place. There is a message and a feedback, both ways.

x x x x

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about public officials
but also network of private business o[r] community-based organizations that will be
reacting. As a matter of fact, we will put more credence or credibility on the private
network of volunteers and voluntary community-based organizations. So I do not think we
are afraid that there will be another OMA in the making.[132] (Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is
evident in the marching orders to respondents. The mechanics for the duty to disclose
information and to conduct public consultation regarding the peace agenda and process is
manifestly provided by E.O. No. 3.[133] The preambulatory clause of E.O. No. 3 declares
that there is a need to further enhance the contribution of civil society to the comprehensive
peace process by institutionalizing the peoples participation.

One of the three underlying principles of the comprehensive peace process is that it should
be community-based, reflecting the sentiments, values and principles important to all
Filipinos and shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community.[134] Included as a
component of the comprehensive peace process is consensus-building and empowerment
for peace, which includes continuing consultations on both national and local levels to
build consensus for a peace agenda and process, and the mobilization and facilitation of
peoples participation in the peace process.[135]

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
continuing consultations, contrary to respondents position that plebiscite is more than
sufficient consultation.[136]

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of
which is to [c]onduct regular dialogues with the National Peace Forum (NPF) and other
peace partners to seek relevant information, comments, recommendations as well as to
render appropriate and timely reports on the progress of the comprehensive peace
process.[137] E.O. No. 3 mandates the establishment of the NPF to be the principal forum
for the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners
and concerned sectors of society on both national and local levels, on the implementation of
the comprehensive peace process, as well as for government[-]civil society dialogue and
consensus-building on peace agenda and initiatives.[138]

In fine, E.O. No. 3 establishes petitioners right to be consulted on the peace agenda, as
a corollary to the constitutional right to information and disclosure.

PAPP Esperon committed grave abuse of discretion


The PAPP committed grave abuse of discretion when he failed to carry out the
pertinent consultation. The furtive process by which the MOA-AD was designed and crafted
runs contrary to and in excess of the legal authority, and amounts to a whimsical,
capricious, oppressive, arbitrary and despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a
particular way or manner. It may, however, require him to comply with the law and
discharge the functions within the authority granted by the President.[139]

Petitioners are not claiming a seat at the negotiating table, contrary to respondents
retort in justifying the denial of petitioners right to be consulted. Respondents stance
manifests the manner by which they treat the salient provisions of E.O. No. 3 on peoples
participation. Such disregard of the express mandate of the President is not much different
from superficial conduct toward token provisos that border on classic lip service.[140] It
illustrates a gross evasion of positive duty and a virtual refusal to perform the duty
enjoined.

As for respondents invocation of the doctrine of executive privilege, it is not tenable
under the premises. The argument defies sound reason when contrasted with E.O. No. 3s
explicit provisions on continuing consultation and dialogue on both national and local
levels. The executive order even recognizes the exercise of the publics right even before
the GRP makes its official recommendations or before the government proffers its definite
propositions.[141] It bear emphasis that E.O. No. 3 seeks to elicit relevant advice,
information, comments and recommendations from the people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in
view of their unqualified disclosure of the official copies of the final draft of the MOA-AD. By
unconditionally complying with the Courts August 4, 2008 Resolution, without a prayer for
the documents disclosure in camera, or without a manifestation that it was complying
therewith ex abundante ad cautelam.

Petitioners assertion that the Local Government Code (LGC) of 1991 declares it a State
policy to require all national agencies and offices to conduct periodic consultations with
appropriate local government units, non-governmental and people's organizations, and
other concerned sectors of the community before any project or program is implemented in
their respective jurisdictions[142] is well-taken. The LGC chapter on intergovernmental
relations puts flesh into this avowed policy:

Prior Consultations Required. No project or program shall be implemented by
government authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof
are complied with, and prior approval of the sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are to be implemented shall not be evicted
unless appropriate relocation sites have been provided, in accordance with the provisions
of the Constitution.[143] (Italics and underscoring supplied)


In Lina, Jr. v. Hon. Pao,[144] the Court held that the above-stated policy and above-
quoted provision of the LGU apply only to national programs or projects which are to be
implemented in a particular local community. Among the programs and projects covered
are those that are critical to the environment and human ecology including those that may
call for the eviction of a particular group of people residing in the locality where these will
be implemented.[145] The MOA-AD is one peculiar program that unequivocally and
unilaterally vests ownership of a vast territory to the Bangsamoro people,[146] which could
pervasively and drastically result to the diaspora or displacement of a great number of
inhabitants from their total environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs),
whose interests are represented herein by petitioner Lopez and are adversely affected by
the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of
decision-making in matters which may affect their rights, lives and destinies.[147] The
MOA-AD, an instrument recognizing ancestral domain, failed to justify its non-compliance
with the clear-cut mechanisms ordained in said Act,[148] which entails, among other things,
the observance of the free and prior informed consent of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency
the power to delineate and recognize an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is the raison detre of the MOA-AD,
without which all other stipulations or consensus points necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without complying with
the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly transcended
the boundaries of their authority. As it seems, even the heart of the MOA-AD is still subject
to necessary changes to the legal framework. While paragraph 7 on Governance suspends
the effectivity of all provisions requiring changes to the legal framework, such clause is itself
invalid, as will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public
scrutiny and available always to public cognizance. This has to be so if the country is to
remain democratic, with sovereignty residing in the people and all government authority
emanating from them.[149]


ON THE SECOND SUBSTANTIVE ISSUE


With regard to the provisions of the MOA-AD, there can be no question that they
cannot all be accommodated under the present Constitution and laws. Respondents have
admitted as much in the oral arguments before this Court, and the MOA-AD itself recognizes
the need to amend the existing legal framework to render effective at least some of its
provisions. Respondents, nonetheless, counter that the MOA-AD is free of any legal
infirmity because any provisions therein which are inconsistent with the present legal
framework will not be effective until the necessary changes to that framework are made.
The validity of this argument will be considered later. For now, the Court shall pass upon
how

The MOA-AD is inconsistent with the Constitution and laws as presently worded.


In general, the objections against the MOA-AD center on the extent of the powers
conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed
those granted to any local government under present laws, and even go beyond those of the
present ARMM. Before assessing some of the specific powers that would have been vested
in the BJE, however, it would be useful to turn first to a general idea that serves as a unifying
link to the different provisions of the MOA-AD, namely, the international law concept of
association. Significantly, the MOA-AD explicitly alludes to this concept, indicating that the
Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned provision,
however, that the MOA-AD most clearly uses it to describe the envisioned relationship
between the BJE and the Central Government.

4. The relationship between the Central Government and the Bangsamoro juridical entity
shall be associative characterized by shared authority and responsibility with a structure of
governance based on executive, legislative, judicial and administrative institutions with
defined powers and functions in the comprehensive compact. A period of transition shall be
established in a comprehensive peace compact specifying the relationship between the
Central Government and the BJE. (Emphasis and underscoring supplied)

The nature of the associative relationship may have been intended to be defined more
precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a
concept of association in international law, and the MOA-AD by its inclusion of
international law instruments in its TOR placed itself in an international legal context, that
concept of association may be brought to bear in understanding the use of the term
associative in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable
links. In the basic model, one state, the associate, delegates certain responsibilities to the
other, the principal, while maintaining its international status as a state. Free associations
represent a middle ground between integration and independence. x x x[150] (Emphasis
and underscoring supplied)


For purposes of illustration, the Republic of the Marshall Islands and the Federated
States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the
Pacific Islands,[151] are associated states of the U.S. pursuant to a Compact of Free
Association. The currency in these countries is the U.S. dollar, indicating their very close
ties with the U.S., yet they issue their own travel documents, which is a mark of their
statehood. Their international legal status as states was confirmed by the UN Security
Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM
generally have the capacity to conduct foreign affairs in their own name and right, such
capacity extending to matters such as the law of the sea, marine resources, trade, banking,
postal, civil aviation, and cultural relations. The U.S. government, when conducting its
foreign affairs, is obligated to consult with the governments of the Marshall Islands or the
FSM on matters which it (U.S. government) regards as relating to or affecting either
government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S.
government has the authority and obligation to defend them as if they were part of U.S.
territory. The U.S. government, moreover, has the option of establishing and using military
areas and facilities within these associated states and has the right to bar the military
personnel of any third country from having access to these territories for military purposes.

It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nations national constitution,
and each party may terminate the association consistent with the right of independence. It
has been said that, with the admission of the U.S.-associated states to the UN in 1990, the
UN recognized that the American model of free association is actually based on an
underlying status of independence.[152]

In international practice, the associated state arrangement has usually been used as a
transitional device of former colonies on their way to full independence. Examples of states
that have passed through the status of associated states as a transitional phase are Antigua,
St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become
independent states.[153]

Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJEs capacity to
enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJEs participation in meetings and events in the ASEAN
and the specialized UN agencies, and the continuing responsibility of the Central
Government over external defense. Moreover, the BJEs right to participate in Philippine
official missions bearing on negotiation of border agreements, environmental protection,
and sharing of revenues pertaining to the bodies of water adjacent to or between the islands
forming part of the ancestral domain, resembles the right of the governments of FSM and
the Marshall Islands to be consulted by the U.S. government on any foreign affairs matter
affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to
vest in the BJE the status of an associated state or, at any rate, a status closely
approximating it.

The concept of association is not recognized under the present Constitution


No province, city, or municipality, not even the ARMM, is recognized under our laws as
having an associative relationship with the national government. Indeed, the concept
implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state. The
Constitution, however, does not contemplate any state in this jurisdiction other than the
Philippine State, much less does it provide for a transitory status that aims to prepare any
part of Philippine territory for independence.

Even the mere concept animating many of the MOA-ADs provisions, therefore, already
requires for its validity the amendment of constitutional provisions, specifically the
following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are
the provinces, cities, municipalities, and barangays. There shall be autonomous regions in
Muslim Mindanao and the Cordilleras as hereinafter provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the
Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing
common and distinctive historical and cultural heritage, economic and social structures, and
other relevant characteristics within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines.


The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution


It is not merely an expanded version of the ARMM, the status of its relationship with the
national government being fundamentally different from that of the ARMM. Indeed, BJE is a
state in all but name as it meets the criteria of a state laid down in the Montevideo
Convention,[154] namely, a permanent population, a defined territory, a government, and a
capacity to enter into relations with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it which has betrayed itself by its use of the
concept of association runs counter to the national sovereignty and territorial integrity of
the Republic.

The defining concept underlying the relationship between the national government and the
BJE being itself contrary to the present Constitution, it is not surprising that many of the
specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict
with the Constitution and the laws.

Article X, Section 18 of the Constitution provides that [t]he creation of the
autonomous region shall be effective when approved by a majority of the votes cast by
the constituent units in a plebiscite called for the purpose, provided that only provinces,
cities, and geographic areas voting favorably in such plebiscite shall be included in the
autonomous region. (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even
assuming that it is covered by the term autonomous region in the constitutional provision
just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c) on
TERRITORY in relation to 2(d) and 2(e), the present geographic area of the ARMM and, in
addition, the municipalities of Lanao del Norte which voted for inclusion in the ARMM
during the 2001 plebiscite Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal are
automatically part of the BJE without need of another plebiscite, in contrast to the areas
under Categories A and B mentioned earlier in the overview. That the present components
of the ARMM and the above-mentioned municipalities voted for inclusion therein in 2001,
however, does not render another plebiscite unnecessary under the Constitution, precisely
because what these areas voted for then was their inclusion in the ARMM, not the BJE.


The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this
Constitution and national laws, the organic act of autonomous regions shall provide for
legislative powers over:

(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general
welfare of the people of the region. (Underscoring supplied)


Again on the premise that the BJE may be regarded as an autonomous region, the
MOA-AD would require an amendment that would expand the above-quoted provision. The
mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional
provision would not suffice, since any new law that might vest in the BJE the powers found
in the MOA-AD must, itself, comply with other provisions of the Constitution. It would not
do, for instance, to merely pass legislation vesting the BJE with treaty-making power in
order to accommodate paragraph 4 of the strand on RESOURCES which states: The BJE is
free to enter into any economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do not include aggression
against the Government of the Republic of the Philippines x x x. Under our constitutional
system, it is only the President who has that power. Pimentel v. Executive Secretary[155]
instructs:

In our system of government, the President, being the head of state, is regarded as the
sole organ and authority in external relations and is the country's sole representative with
foreign nations. As the chief architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the President is vested with the
authority to deal with foreign states and governments, extend or withhold recognition,
maintain diplomatic relations, enter into treaties, and otherwise transact the business of
foreign relations. In the realm of treaty-making, the President has the sole authority to
negotiate with other states. (Emphasis and underscoring supplied)


Article II, Section 22 of the Constitution must also be amended if the scheme
envisioned in the MOA-AD is to be effected. That constitutional provision states: The State
recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development. (Underscoring supplied) An associative
arrangement does not uphold national unity. While there may be a semblance of unity
because of the associative ties between the BJE and the national government, the act of
placing a portion of Philippine territory in a status which, in international practice, has
generally been a preparation for independence, is certainly not conducive to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent with
prevailing statutory law, among which are R.A. No. 9054[156] or the Organic Act of the
ARMM, and the IPRA.[157]


Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of Bangsamoro people used in the MOA-AD. Paragraph 1 on CONCEPTS AND
PRINCIPLES states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as Bangsamoros. The Bangsamoro people refers to those who
are natives or original inhabitants of Mindanao and its adjacent islands including Palawan
and the Sulu archipelago at the time of conquest or colonization of its descendants whether
mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The
freedom of choice of the Indigenous people shall be respected. (Emphasis and underscoring
supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X,
Section 3 of the Organic Act, which, rather than lumping together the identities of the
Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes
between Bangsamoro people and Tribal peoples, as follows:

As used in this Organic Act, the phrase indigenous cultural community refers to Filipino
citizens residing in the autonomous region who are:

(a) Tribal peoples. These are citizens whose social, cultural and economic conditions
distinguish them from other sectors of the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have
retained some or all of their own social, economic, cultural, and political institutions.


Respecting the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains. The MOA-ADs manner of delineating the ancestral
domain of the Bangsamoro people is a clear departure from that procedure. By paragraph 1
of TERRITORY, the Parties simply agree that, subject to the delimitations in the agreed
Schedules, [t]he Bangsamoro homeland and historic territory refer to the land mass as well
as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as
illustrated in the following provisions thereof:

SECTION 52. Delineation Process. The identification and delineation of ancestral domains
shall be done in accordance with the following procedures:

x x x x

b) Petition for Delineation. The process of delineating a specific perimeter may be
initiated by the NCIP with the consent of the ICC/IP concerned, or through a Petition for
Delineation filed with the NCIP, by a majority of the members of the ICCs/IPs;

c) Delineation Proper. The official delineation of ancestral domain boundaries
including census of all community members therein, shall be immediately undertaken by
the Ancestral Domains Office upon filing of the application by the ICCs/IPs concerned.
Delineation will be done in coordination with the community concerned and shall at all
times include genuine involvement and participation by the members of the communities
concerned;

d) Proof Required. Proof of Ancestral Domain Claims shall include the testimony of
elders or community under oath, and other documents directly or indirectly attesting to the
possession or occupation of the area since time immemorial by such ICCs/IPs in the concept
of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, burial
grounds, sacred places and old villages;

4) Historical accounts, including pacts and agreements concerning boundaries entered into
by the ICCs/IPs concerned with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and hunting grounds;

9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers,
creeks, ridges, hills, terraces and the like; and

10) Write-ups of names and places derived from the native dialect of the community.

e) Preparation of Maps. On the basis of such investigation and the findings of fact
based thereon, the Ancestral Domains Office of the NCIP shall prepare a perimeter map,
complete with technical descriptions, and a description of the natural features and
landmarks embraced therein;

f) Report of Investigation and Other Documents. A complete copy of the preliminary
census and a report of investigation, shall be prepared by the Ancestral Domains Office of
the NCIP;

g) Notice and Publication. A copy of each document, including a translation in the
native language of the ICCs/IPs concerned shall be posted in a prominent place therein for
at least fifteen (15) days. A copy of the document shall also be posted at the local, provincial
and regional offices of the NCIP, and shall be published in a newspaper of general
circulation once a week for two (2) consecutive weeks to allow other claimants to file
opposition thereto within fifteen (15) days from date of such publication: Provided, That in
areas where no such newspaper exists, broadcasting in a radio station will be a valid
substitute: Provided, further, That mere posting shall be deemed sufficient if both
newspaper and radio station are not available;

h) Endorsement to NCIP. Within fifteen (15) days from publication, and of the
inspection process, the Ancestral Domains Office shall prepare a report to the NCIP
endorsing a favorable action upon a claim that is deemed to have sufficient proof. However,
if the proof is deemed insufficient, the Ancestral Domains Office shall require the
submission of additional evidence: Provided, That the Ancestral Domains Office shall reject
any claim that is deemed patently false or fraudulent after inspection and verification:
Provided, further, That in case of rejection, the Ancestral Domains Office shall give the
applicant due notice, copy furnished all concerned, containing the grounds for denial. The
denial shall be appealable to the NCIP: Provided, furthermore, That in cases where there are
conflicting claims among ICCs/IPs on the boundaries of ancestral domain claims, the
Ancestral Domains Office shall cause the contending parties to meet and assist them in
coming up with a preliminary resolution of the conflict, without prejudice to its full
adjudication according to the section below.

x x x x
To remove all doubts about the irreconcilability of the MOA-AD with the present legal
system, a discussion of not only the Constitution and domestic statutes, but also of
international law is in order, for

Article II, Section 2 of the Constitution states that the Philippines adopts the generally
accepted principles of international law as part of the law of the land.


Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,[158]
held that the Universal Declaration of Human Rights is part of the law of the land on account
of which it ordered the release on bail of a detained alien of Russian descent whose
deportation order had not been executed even after two years. Similarly, the Court in
Agustin v. Edu[159] applied the aforesaid constitutional provision to the 1968 Vienna
Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of peoples,
understood not merely as the entire population of a State but also a portion thereof. In
considering the question of whether the people of Quebec had a right to unilaterally secede
from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION OF QUEBEC[160]
had occasion to acknowledge that the right of a people to self-determination is now so
widely recognized in international conventions that the principle has acquired a status
beyond convention and is considered a general principle of international law.

Among the conventions referred to are the International Covenant on Civil and Political
Rights[161] and the International Covenant on Economic, Social and Cultural Rights[162]
which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-
determination, freely determine their political status and freely pursue their economic,
social, and cultural development.

The peoples right to self-determination should not, however, be understood as
extending to a unilateral right of secession. A distinction should be made between the right
of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC is
again instructive:

(ii) Scope of the Right to Self-determination

126. The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-determination a
peoples pursuit of its political, economic, social and cultural development within the
framework of an existing state. A right to external self-determination (which in this case
potentially takes the form of the assertion of a right to unilateral secession) arises in only
the most extreme of cases and, even then, under carefully defined circumstances. x x x

External self-determination can be defined as in the following statement from the
Declaration on Friendly Relations, supra, as

The establishment of a sovereign and independent State, the free association or integration
with an independent State or the emergence into any other political status freely
determined by a people constitute modes of implementing the right of self-determination
by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a
framework of respect for the territorial integrity of existing states. The various
international documents that support the existence of a peoples right to self-determination
also contain parallel statements supportive of the conclusion that the exercise of such a
right must be sufficiently limited to prevent threats to an existing states territorial integrity
or the stability of relations between sovereign states.

x x x x (Emphasis, italics and underscoring supplied)


The Canadian Court went on to discuss the exceptional cases in which the right to
external self-determination can arise, namely, where a people is under colonial rule, is
subject to foreign domination or exploitation outside a colonial context, and less definitely
but asserted by a number of commentators is blocked from the meaningful exercise of its
right to internal self-determination. The Court ultimately held that the population of
Quebec had no right to secession, as the same is not under colonial rule or foreign
domination, nor is it being deprived of the freedom to make political choices and pursue
economic, social and cultural development, citing that Quebec is equitably represented in
legislative, executive and judicial institutions within Canada, even occupying prominent
positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT
OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE
AALAND ISLANDS QUESTION.[163] There, Sweden presented to the Council of the League
of Nations the question of whether the inhabitants of the Aaland Islands should be
authorized to determine by plebiscite if the archipelago should remain under Finnish
sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving the
question, appointed an International Committee composed of three jurists to submit an
opinion on the preliminary issue of whether the dispute should, based on international law,
be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as
follows:

x x x [I]n the absence of express provisions in international treaties, the right of
disposing of national territory is essentially an attribute of the sovereignty of every State.
Positive International Law does not recognize the right of national groups, as such, to
separate themselves from the State of which they form part by the simple expression of a
wish, any more than it recognizes the right of other States to claim such a separation.


epublic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 161872 April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

TINGA, J.:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on
December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due
course to petitioners Certificate of Candidacy in its Resolution No. 6558 dated January 17,
2004. The decision, however, was not unanimous since Commissioners Luzviminda G.
Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties
or movements to back up his candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558.
Petitioners Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The
COMELEC, acting on petitioners Motion for Reconsideration and on similar motions filed by
other aspirants for national elective positions, denied the same under the aegis of Omnibus
Resolution No. 6604 dated February 11, 2004. The COMELEC declared petitioner and thirty-
five (35) others nuisance candidates who could not wage a nationwide campaign and/or are
not nominated by a political party or are not supported by a registered political party with a
national constituency. Commissioner Sadain maintained his vote for petitioner. By then,
Commissioner Tancangco had retired.

In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which
were allegedly rendered in violation of his right to "equal access to opportunities for public
service" under Section 26, Article II of the 1987

Constitution,1 by limiting the number of qualified candidates only to those who can afford
to wage a nationwide campaign and/or are nominated by political parties. In so doing,
petitioner argues that the COMELEC indirectly amended the constitutional provisions on
the electoral process and limited the power of the sovereign people to choose their leaders.
The COMELEC supposedly erred in disqualifying him since he is the most qualified among
all the presidential candidates, i.e., he possesses all the constitutional and legal
qualifications for the office of the president, he is capable of waging a national campaign
since he has numerous national organizations under his leadership, he also has the capacity
to wage an international campaign since he has practiced law in other countries, and he has
a platform of government. Petitioner likewise attacks the validity of the form for the
Certificate of Candidacy prepared by the COMELEC. Petitioner claims that the form does not
provide clear and reasonable guidelines for determining the qualifications of candidates
since it does not ask for the candidates bio-data and his program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioners invocation of the constitutional provision ensuring "equal access
to opportunities for public office" is the claim that there is a constitutional right to run for or
hold public office and, particularly in his case, to seek the presidency. There is none. What is
recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II
of the Constitution neither bestows such a right nor elevates the privilege to the level of an
enforceable right. There is nothing in the plain language of the provision which suggests
such a thrust or justifies an interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the Constitution, entitled
"Declaration of Principles and State Policies." The provisions under the Article are generally
considered not self-executing,2 and there is no plausible reason for according a different
treatment to the "equal access" provision. Like the rest of the policies enumerated in Article
II, the provision does not contain any judicially enforceable constitutional right but merely
specifies a guideline for legislative or executive action.3 The disregard of the provision does
not give rise to any cause of action before the courts.4

An inquiry into the intent of the framers5 produces the same determination that the
provision is not self-executory. The original wording of the present Section 26, Article II had
read, "The State shall broaden opportunities to public office and prohibit public dynasties."6
Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth an
amendment that changed the word "broaden" to the phrase "ensure equal access," and the
substitution of the word "office" to "service." He explained his proposal in this wise:

I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important
would be equal access to the opportunity. If you broaden, it would necessarily mean that the
government would be mandated to create as many offices as are possible to accommodate
as many people as are also possible. That is the meaning of broadening opportunities to
public service. So, in order that we should not mandate the State to make the government
the number one employer and to limit offices only to what may be necessary and expedient
yet offering equal opportunities to access to it, I change the word "broaden."7 (emphasis
supplied)

Obviously, the provision is not intended to compel the State to enact positive measures that
would accommodate as many people as possible into public office. The approval of the
"Davide amendment" indicates the design of the framers to cast the provision as simply
enunciatory of a desired policy objective and not reflective of the imposition of a clear State
burden.

Moreover, the provision as written leaves much to be desired if it is to be regarded as the
source of positive rights. It is difficult to interpret the clause as operative in the absence of
legislation since its effective means and reach are not properly defined. Broadly written, the
myriad of claims that can be subsumed under this rubric appear to be entirely open-ended.8
Words and phrases such as "equal access," "opportunities," and "public service" are
susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it
was not the intention of the framers to inflict on the people an operative but amorphous
foundation from which innately unenforceable rights may be sourced.

As earlier noted, the privilege of equal access to opportunities to public office may be
subjected to limitations. Some valid limitations specifically on the privilege to seek elective
office are found in the provisions9 of the Omnibus Election Code on "Nuisance Candidates"
and COMELEC Resolution No. 645210 dated December 10, 2002 outlining the instances
wherein the COMELEC may motu proprio refuse to give due course to or cancel a Certificate
of Candidacy.

As long as the limitations apply to everybody equally without discrimination, however, the
equal access clause is not violated. Equality is not sacrificed as long as the burdens
engendered by the limitations are meant to be borne by any one who is minded to file a
certificate of candidacy. In the case at bar, there is no showing that any person is exempt
from the limitations or the burdens which they create.

Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of
the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003.
Thus, their presumed validity stands and has to be accorded due weight.

Clearly, therefore, petitioners reliance on the equal access clause in Section 26, Article II of
the Constitution is misplaced.

The rationale behind the prohibition against nuisance candidates and the disqualification of
candidates who have not evinced a bona fide intention to run for office is easy to divine. The
State has a compelling interest to ensure that its electoral exercises are rational, objective,
and orderly. Towards this end, the State takes into account the practical considerations in
conducting elections. Inevitably, the greater the number of candidates, the greater the
opportunities for logistical confusion, not to mention the increased allocation of time and
resources in preparation for the election. These practical difficulties should, of course, never
exempt the State from the conduct of a mandated electoral exercise. At the same time,
remedial actions should be available to alleviate these logistical hardships, whenever
necessary and proper. Ultimately, a disorderly election is not merely a textbook example of
inefficiency, but a rot that erodes faith in our democratic institutions. As the United States
Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary showing of a
significant modicum of support before printing the name of a political organization and its
candidates on the ballot the interest, if no other, in avoiding confusion, deception and even
frustration of the democratic [process].11

The COMELEC itself recognized these practical considerations when it promulgated
Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of its Law
Department dated 11 January 2004. As observed in the COMELECs Comment:

There is a need to limit the number of candidates especially in the case of candidates for
national positions because the election process becomes a mockery even if those who
cannot clearly wage a national campaign are allowed to run. Their names would have to be
printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots.
These would entail additional costs to the government. For the official ballots in automated
counting and canvassing of votes, an additional page would amount to more or less FOUR
HUNDRED FIFTY MILLION PESOS (P450,000,000.00).

xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot
wage a decent campaign enough to project the prospect of winning, no matter how slim.12

The preparation of ballots is but one aspect that would be affected by allowance of
"nuisance candidates" to run in the elections. Our election laws provide various
entitlements for candidates for public office, such as watchers in every polling place,13
watchers in the board of canvassers,14 or even the receipt of electoral contributions.15
Moreover, there are election rules and regulations the formulations of which are dependent
on the number of candidates in a given election.

Given these considerations, the ignominious nature of a nuisance candidacy becomes even
more galling. The organization of an election with bona fide candidates standing is onerous
enough. To add into the mix candidates with no serious intentions or capabilities to run a
viable campaign would actually impair the electoral process. This is not to mention the
candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body
would be bogged by irrelevant minutiae covering every step of the electoral process, most
probably posed at the instance of these nuisance candidates. It would be a senseless
sacrifice on the part of the State.

Owing to the superior interest in ensuring a credible and orderly election, the State could
exclude nuisance candidates and need not indulge in, as the song goes, "their trips to the
moon on gossamer wings."

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the
compelling State interest to ensure orderly and credible elections by excising impediments
thereto, such as nuisance candidacies that distract and detract from the larger purpose. The
COMELEC is mandated by the Constitution with the administration of elections16 and
endowed with considerable latitude in adopting means and methods that will ensure the
promotion of free, orderly and honest elections.17 Moreover, the Constitution guarantees
that only bona fide candidates for public office shall be free from any form of harassment
and discrimination.18 The determination of bona fide candidates is governed by the
statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election
Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper application in
the case of the petitioner cannot be tested and reviewed by this Court on the basis of what is
now before it. The assailed resolutions of the COMELEC do not direct the Court to the
evidence which it considered in determining that petitioner was a nuisance candidate. This
precludes the Court from reviewing at this instance whether the COMELEC committed grave
abuse of discretion in disqualifying petitioner, since such a review would necessarily take
into account the matters which the COMELEC considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents purportedly
evincing his credentials as an eligible candidate for the presidency. Yet this Court, not being
a trier of facts, can not properly pass upon the reproductions as evidence at this level.
Neither the COMELEC nor the Solicitor General appended any document to their respective
Comments.

The question of whether a candidate is a nuisance candidate or not is both legal and factual.
The basis of the factual determination is not before this Court. Thus, the remand of this case
for the reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioners aspiration and offer to serve in
the government. It deserves not a cursory treatment but a hearing which conforms to the
requirements of due process.

As to petitioners attacks on the validity of the form for the certificate of candidacy, suffice it
to say that the form strictly complies with Section 74 of the Omnibus Election Code. This
provision specifically enumerates what a certificate of candidacy should contain, with the
required information tending to show that the candidate possesses the minimum
qualifications for the position aspired for as established by the Constitution and other
election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded
to the COMELEC for the reception of further evidence, to determine the question on
whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in
Section 69 of the Omnibus Election Code.

The COMELEC is directed to hold and complete the reception of evidence and report its
findings to this Court with deliberate dispatch.

SO ORDERED.

Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.


Footnotes

* On Official Leave.

1 Sec. 26. The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law.

2 See Basco v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 52, 68; Kilosbayan, Inc. v.
Morato, G.R. No. 118910, 246 SCRA 540, 564. "A provision which lays down a general
principle, such as those found in Art. II of the 1987 Constitution, is usually not self-
executing." Manila Prince Hotel v. GSIS, G.R. No. 122156, 3 February 1997, 267 SCRA 408,
431. "Accordingly, [the Court has] held that the provisions in Article II of our Constitution
entitled "Declaration of Principles and State Policies" should generally be construed as mere
statements of principles of the State." Justice Puno, dissenting, Manila Prince Hotel v. GSIS,
Id. at 474.

3 See Kilosbayan Inc. v. Morato, G.R. No. 118910, 16 November 1995, 250 SCRA 130, 138.
Manila Prince Hotel v. GSIS, supra note 2 at 436.

4 Kilosbayan, Inc. v. Morato, supra note 2.

5 "A searching inquiry should be made to find out if the provision is intended as a present
enactment, complete in itself as a definitive law, or if it needs future legislation for
completion and enforcement. The inquiry demands a micro-analysis and the context of the
provision in question." J. Puno, dissenting, Manila Prince Hotel v. GSIS, supra note 2.

6 J. Bernas, The Intent of the 1986 Constitution Writers (1995), p. 148.

7 IV Records of Proceedings and Debates, 1986 Constitutional Commission 945.

8 See J. Feliciano, concurring, Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA
792, 815.

9 Section 69. Nuisance Candidates. The Commission may, motu proprio or upon a
verified petition of an interested party, refuse to give due course or cancel a certificate of
candidacy if it is shown that said certificate has been filed to put the election process in
mockery or disrepute or to cause confusion among the voters by the similarity of the names
of the registered candidates or by other circumstances or acts which clearly demonstrate
that the candidate has no bona fide intention to run for the office for which the certificate of
candidacy has been filed and thus prevent a faithful determination of the true will of the
electorate.

10 SEC. 6. Motu Proprio Cases. The Commission may, at any time before the election,
motu proprio refuse to give due course to or cancel a certificate of candidacy of any
candidate for the positions of President, Vice-President, Senator and Party-list:

I. The grounds:

a. Candidates who, on the face of their certificate of candidacy, do not possess the
constitutional and legal qualifications of the office to which they aspire to be elected;

b. Candidate who, on the face of said certificate, filed their certificate of candidacy to put the
election process in mockery or disrepute;

c. Candidates whose certificate of candidacy could cause confusion among the voters by the
similarity of names and surnames with other candidates; and

d. Candidates who have no bona fide intention to run for the office for which the certificate
of candidacy had been filed or acts that clearly demonstrate the lack of such bona fide
intention, such as:

d.1 Candidates who do not belong to or are not nominated by any registered political party
of national constituency;

d.2 Presidential, Vice-Presidential [candi-dates] who do not present running mates for vice-
president, respectively, nor senatorial candidates;

d.3 Candidates who do not have a platform of government and are not capable of waging a
nationwide campaign.

11 Jenness v. Fortson, 403 U.S. 431 (1971).

12 Rollo, pp. 469.

13 See Section 178, Omnibus Election Code, as amended.

14 See Section 239, Omnibus Election Code, as amended.

15 See Article XI, Omnibus Election Code, as amended.

16 See Section 2(1), Article IX, Constitution.

17 Sanchez v. COMELEC, 199 Phil. 617 (1987), citing Cauton v. COMELEC, L-25467, 27 April
1967, 19 SCRA 911.

18 See Section 9, Article IX, Constitution.


Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 47065 June 26, 1940

PANGASINAN TRANSPORTATION CO., INC., petitioner,
vs.
THE PUBLIC SERVICE COMMISSION, respondent.

C. de G. Alvear for petitioner.
Evaristo R. Sandoval for respondent.

LAUREL, J.:

The petitioner has been engaged for the past twenty years in the business of transporting
passengers in the Province of Pangasinan and Tarlac and, to a certain extent, in the Province
of Nueva Ecija and Zambales, by means of motor vehicles commonly known as TPU buses, in
accordance with the terms and conditions of the certificates of public convenience issued in
its favor by the former Public Utility Commission in cases Nos. 24948, 30973, 36830, 32014
and 53090. On August 26, 1939, the petitioner filed with the Public Service Commission an
application for authorization to operate ten additional new Brockway trucks (case No.
56641), on the ground that they were needed to comply with the terms and conditions of its
existing certificates and as a result of the application of the Eight Hour Labor Law. In the
decision of September 26, 1939, granting the petitioner's application for increase of
equipment, the Public Service Commission ordered:

Y de acuerdo con que se provee por el articulo 15 de la ley No. 146 del Commonwealth, tal
como ha sido enmendada por el articulo 1 de la Ley No. 454, por la presente se enmienda las
condiciones de los certificados de convenciencia publica expedidos en los expedientes Nos.
24948, 30973, 36831, 32014 y la authorizacion el el expediente No. 53090, asi que se
consideran incorporadas en los mismos las dos siguientes condiciones:

Que los certificados de conveniencia publica y authorizacion arriba mencionados seran
validos y subsistentes solamente durante de veinticinco (25) anos, contados desde la fecha
de la promulgacion de esta decision.

Que la empresa de la solicitante porda ser adquirida por el Commonwealth de Filipinas o
por alguna dependencia del mismo en cualquier tiempo que lo deseare previo pago del
precio d costo de su equipo util, menos una depreciacion razonable que se ha fijar por la
Comision al tiempo de su adquisicion.

Not being agreeable to the two new conditions thus incorporated in its existing certificates,
the petitioner filed on October 9, 1939 a motion for reconsideration which was denied by
the Public Service Commission on November 14, 1939. Whereupon, on November 20, 1939,
the present petition for a writ of certiorari was instituted in this court praying that an order
be issued directing the secretary of the Public Service Commission to certify forthwith to
this court the records of all proceedings in case No. 56641; that this court, after hearing,
render a decision declaring section 1 of Commonwealth Act No. 454 unconstitutional and
void; that, if this court should be of the opinion that section 1 of Commonwealth Act No. 454
is constitutional, a decision be rendered declaring that the provisions thereof are not
applicable to valid and subsisting certificates issued prior to June 8, 1939. Stated in the
language of the petitioner, it is contended:

1. That the legislative powers granted to the Public Service Commission by section 1 of
Commonwealth Act No. 454, without limitation, guide or rule except the unfettered
discretion and judgment of the Commission, constitute a complete and total abdication by
the Legislature of its functions in the premises, and for that reason, the Act, in so far as those
powers are concerned, is unconstitutional and void.

2. That even if it be assumed that section 1 of Commonwealth Act No. 454, is valid
delegation of legislative powers, the Public Service Commission has exceeded its authority
because: (a) The Act applies only to future certificates and not to valid and subsisting
certificates issued prior to June 8, 1939, when said Act took effect, and (b) the Act, as
applied by the Commission, violates constitutional guarantees.

Section 15 of Commonwealth Act No. 146, as amended by section 1 of Commonwealth Act
No. 454, invoked by the respondent Public Service Commission in the decision complained
of in the present proceedings, reads as follows:

With the exception to those enumerated in the preceding section, no public service shall
operate in the Philippines without possessing a valid and subsisting certificate from the
Public Service Commission, known as "certificate of public convenience," or "certificate of
convenience and public necessity," as the case may be, to the effect that the operation of
said service and the authorization to do business will promote the public interests in a
proper and suitable manner.

The Commission may prescribed as a condition for the issuance of the certificate provided
in the preceding paragraph that the service can be acquired by the Commonwealth of the
Philippines or by any instrumentality thereof upon payment of the cost price of its useful
equipment, less reasonable depreciation; and likewise, that the certificate shall valid only
for a definite period of time; and that the violation of any of these conditions shall produce
the immediate cancellation of the certificate without the necessity of any express action on
the part of the Commission.

In estimating the depreciation, the effect of the use of the equipment, its actual condition,
the age of the model, or other circumstances affecting its value in the market shall be taken
into consideration.

The foregoing is likewise applicable to any extension or amendment of certificates actually
force and to those which may hereafter be issued, to permits to modify itineraries and time
schedules of public services and to authorization to renew and increase equipment and
properties.

Under the first paragraph of the aforequoted section 15 of Act No. 146, as amended, no
public service can operate without a certificate of public convenience or certificate of
convenience and public necessity to the effect that the operation of said service and the
authorization to do business will "public interests in a proper and suitable manner." Under
the second paragraph, one of the conditions which the Public Service Commission may
prescribed the issuance of the certificate provided for in the first paragraph is that "the
service can be acquired by the Commonwealth of the Philippines or by any instrumental
thereof upon payment of the cost price of its useful equipment, less reasonable
depreciation," a condition which is virtually a restatement of the principle already
embodied in the Constitution, section 6 of Article XII, which provides that "the State may, in
the interest of national welfare and defense, establish and operate industries and means of
transportation and communication, and, upon payment of just compensation, transfer to
public ownership utilities and other private enterprises to be operated by the Government.
"Another condition which the Commission may prescribed, and which is assailed by the
petitioner, is that the certificate "shall be valid only for a definite period of time." As there is
a relation between the first and second paragraphs of said section 15, the two provisions
must be read and interpreted together. That is to say, in issuing a certificate, the
Commission must necessarily be satisfied that the operation of the service under said
certificate during a definite period fixed therein "will promote the public interests in a
proper and suitable manner." Under section 16 (a) of Commonwealth Act. No. 146 which is
a complement of section 15, the Commission is empowered to issue certificates of public
convenience whenever it "finds that the operation of the public service proposed and the
authorization to do business will promote the public interests in a proper and suitable
manner." Inasmuch as the period to be fixed by the Commission under section 15 is
inseparable from the certificate itself, said period cannot be disregarded by the Commission
in determining the question whether the issuance of the certificate will promote the public
interests in a proper and suitable manner. Conversely, in determining "a definite period of
time," the Commission will be guided by "public interests," the only limitation to its power
being that said period shall not exceed fifty years (sec. 16 (a), Commonwealth Act No. 146;
Constitution, Art. XIII, sec. 8.) We have already ruled that "public interest" furnishes a
sufficient standard. (People vs. Fernandez and Trinidad, G. R. No. 45655, promulgated June
15, 1938; People vs. Rosenthal and Osmea, G. R. Nos. 46076 and 46077, promulgated June
12, 1939, citing New York Central Securities Corporation vs. U.S.A., 287 U.S. 12, 24, 25, 77
Law. ed. 138, 145, 146; Schenchter Poultry Corporation vs. I.S., 295, 540, 79 Law. ed. 1570,
1585; Ferrazzini vs. Gsell, 34 Phil., 697, 711-712.)

Section 8 of Article XIII of the Constitution provides, among other things, that no franchise,
certificate, or any other form of authorization for the operation of a public utility shall be
"for a longer period than fifty years," and when it was ordained, in section 15 of
Commonwealth Act No. 146, as amended by Commonwealth Act No. 454, that the Public
Service Commission may prescribed as a condition for the issuance of a certificate that it
"shall be valid only for a definite period of time" and, in section 16 (a) that "no such
certificates shall be issued for a period of more than fifty years," the National Assembly
meant to give effect to the aforesaid constitutional mandate. More than this, it has thereby
also declared its will that the period to be fixed by the Public Service Commission shall not
be longer than fifty years. All that has been delegated to the Commission, therefore, is the
administrative function, involving the use discretion, to carry out the will of the National
Assembly having in view, in addition, the promotion of "public interests in a proper and
suitable manner." The fact that the National Assembly may itself exercise the function and
authority thus conferred upon the Public Service Commission does not make the provision
in question constitutionally objectionable.

The theory of the separation of powers is designed by its originators to secure action and at
the same time to forestall overaction which necessarily results from undue concentration of
powers, and thereby obtain efficiency and prevent deposition. Thereby, the "rule of law"
was established which narrows the range of governmental action and makes it subject to
control by certain devices. As a corollary, we find the rule prohibiting delegation of
legislative authority, and from the earliest time American legal authorities have proceeded
on the theory that legislative power must be exercised by the legislature alone. It is
frankness, however, to confess that as one delves into the mass of judicial pronouncement,
he finds a great deal of confusion. One thing, however, is apparent in the development of the
principle of separation of powers and that is that the maxim of delegatus non potest
delegari or delegata potestas non potest delegari, attributed to Bracton (De Legius et
Consuetedinious Angliae, edited by G. E. Woodbine, Yale University Press, 1922, vol. 2, p.
167) but which is also recognized in principle in the Roman Law (D. 17.18.3), has been
made to adapt itself to the complexities of modern governments, giving rise to the adoption,
within certain limits, of the principle of "subordinate legislation," not only in the United
States and England but in practically all modern governments. (People vs. Rosenthal and
Osmea, G. R. Nos. 46076 and 46077, promulgated June 12, 1939.) Accordingly, with the
growing complexity of modern life, the multiplication of the subjects of governmental
regulation, and the increased difficulty of administering the laws, there is a constantly
growing tendency toward the delegation of greater powers by the legislature, and toward
the approval of the practice by the court. (Dillon Catfish Drainage Dist, v. Bank of Dillon, 141
S. E. 274, 275, 143 S. Ct. 178; State vs. Knox County, 54 S. W. 2d. 973, 976, 165 Tenn. 319.) In
harmony with such growing tendency, this Court, since the decision in the case of Compaia
General de Tabacos de Filipinas vs. Board of Public Utility Commissioner (34 Phil., 136),
relied upon by the petitioner, has, in instances, extended its seal of approval to the
"delegation of greater powers by the legislature." (Inchausti Steamship Co. vs. Public Utility
Commissioner, 44 Phil., Autobus Co. vs. De Jesus, 56 Phil., 446; People vs. Fernandez &
Trinidad, G. R. No. 45655, promulgated June 15, 1938; People vs. Rosenthal & Osmea, G. R.
Nos. 46076, 46077, promulgated June 12, 1939; and Robb and Hilscher vs. People, G. R. No.
45866, promulgated June 12, 1939.).

Under the fourth paragraph of section 15 of Commonwealth Act No. 146, as amended by
Commonwealth Act No. 454, the power of the Public Service Commission to prescribed the
conditions "that the service can be acquired by the Commonwealth of the Philippines or by
any instrumentality thereof upon payment of the cost price of its useful equipment, less
reasonable," and "that the certificate shall be valid only for a definite period of time" is
expressly made applicable "to any extension or amendment of certificates actually in force"
and "to authorizations to renew and increase equipment and properties." We have
examined the legislative proceedings on the subject and have found that these conditions
were purposely made applicable to existing certificates of public convenience. The history
of Commonwealth Act No. 454 reveals that there was an attempt to suppress, by way of
amendment, the sentence "and likewise, that the certificate shall be valid only for a definite
period of time," but the attempt failed:

x x x x x x x x x

Sr. CUENCO. Seor Presidente, para otra enmienda. En la misma pagina, lineas 23 y 24, pido
que se supriman las palabras 'and likewise, that the certificate shall be valid only for a
definite period time.' Esta disposicion del proyecto autoriza a la Comision de Servicios
Publicos a fijar un plazo de vigencia certificado de conveniencia publica. Todo el mundo
sabe que bo se puede determinar cuando los intereses del servicio publico requiren la
explotacion de un servicio publico y ha de saber la Comision de Servisios, si en un tiempo
determinado, la explotacion de algunos buses en cierta ruta ya no tiene de ser, sobre todo, si
tiene en cuenta; que la explotacion de los servicios publicos depende de condiciones
flutuantes, asi como del volumen como trafico y de otras condiciones. Ademas, el servicio
publico se concede por la Comision de Servicios Publicos el interes publico asi lo exige. El
interes publico no tiene duracion fija, no es permanente; es un proceso mas o menos
indefinido en cuanto al tiempo. Se ha acordado eso en el caucus de anoche.

EL PRESIDENTE PRO TEMPORE. Que dice el Comite?

Sr. ALANO. El Comite siente tener que rechazar esa enmienda, en vista de que esto
certificados de conveniencia publica es igual que la franquicia: sepuede extender. Si los
servicios presentados por la compaia durante el tiempo de su certificado lo require, puede
pedir la extension y se le extendera; pero no creo conveniente el que nosotros demos un
certificado de conveniencia publica de una manera que podria pasar de cincuenta anos,
porque seria anticonstitucional.

x x x x x x x x x

By a majority vote the proposed amendment was defeated. (Sesion de 17 de mayo de 1939,
Asamblea Nacional.)

The petitioner is mistaken in the suggestion that, simply because its existing certificates had
been granted before June 8, 1939, the date when Commonwealth Act No. 454, amendatory
of section 15 of Commonwealth Act No. 146, was approved, it must be deemed to have the
right of holding them in perpetuity. Section 74 of the Philippine Bill provided that "no
franchise, privilege, or concession shall be granted to any corporation except under the
conditions that it shall be subject to amendment, alteration, or repeal by the Congress of the
United States." The Jones Law, incorporating a similar mandate, provided, in section 28, that
"no franchise or right shall be granted to any individual, firm, or corporation except under
the conditions that it shall be subject to amendment, alteration, or repeal by the Congress of
the United States." Lastly, the Constitution of the Philippines provided, in section 8 of Article
XIII, that "no franchise or right shall be granted to any individual, firm, or corporation,
except under the condition that it shall be subject to amendment, alteration, or repeal by the
National Assembly when the public interest so requires." The National Assembly, by virtue
of the Constitution, logically succeeded to the Congress of the United States in the power to
amend, alter or repeal any franchise or right granted prior to or after the approval of the
Constitution; and when Commonwealth Acts Nos. 146 and 454 were enacted, the National
Assembly, to the extent therein provided, has declared its will and purpose to amend or
alter existing certificates of public convenience.

Upon the other hand, statutes enacted for the regulation of public utilities, being a proper
exercise by the state of its police power, are applicable not only to those public utilities
coming into existence after its passage, but likewise to those already established and in
operation.

Nor is there any merit in petitioner's contention, that, because of the establishment of
petitioner's operations prior to May 1, 1917, they are not subject to the regulations of the
Commission. Statutes for the regulation of public utilities are a proper exercise by the state
of its police power. As soon as the power is exercised, all phases of operation of established
utilities, become at once subject to the police power thus called into operation. Procedures'
Transportation Co. v. Railroad Commission, 251 U. S. 228, 40 Sup. Ct. 131, 64 Law. ed. 239,
Law v. Railroad Commission, 184 Cal. 737, 195 Pac. 423, 14 A. L. R. 249. The statute is
applicable not only to those public utilities coming into existence after its passage, but
likewise to those already established and in operation. The 'Auto Stage and Truck
Transportation Act' (Stats. 1917, c. 213) is a statute passed in pursuance of the police
power. The only distinction recognized in the statute between those established before and
those established after the passage of the act is in the method of the creation of their
operative rights. A certificate of public convenience and necessity it required for any new
operation, but no such certificate is required of any transportation company for the
operation which was actually carried on in good faith on May 1, 1917, This distinction in the
creation of their operative rights in no way affects the power of the Commission to
supervise and regulate them. Obviously the power of the Commission to hear and dispose of
complaints is as effective against companies securing their operative rights prior to May 1,
1917, as against those subsequently securing such right under a certificate of public
convenience and necessity. (Motor Transit Co. et al. v. Railroad Commission of California et
al., 209 Pac. 586.)

Moreover, Commonwealth Acts Nos. 146 and 454 are not only the organic acts of the Public
Service Commission but are "a part of the charter of every utility company operating or
seeking to operate a franchise" in the Philippines. (Streator Aqueduct Co. v. et al., 295 Fed.
385.) The business of a common carrier holds such a peculiar relation to the public interest
that there is superinduced upon it the right of public regulation. When private property is
"affected with a public interest it ceased to be juris privati only." When, therefore, one
devotes his property to a use in which the public has an interest, he, in effect, grants to the
public an interest in that use, and must submit to be controlled by the public for the
common good, to the extent of the interest he has thus created. He may withdraw his grant
by discounting the use, but so long as he maintains the use he must submit to control.
Indeed, this right of regulation is so far beyond question that it is well settled that the power
of the state to exercise legislative control over public utilities may be exercised through
boards of commissioners. (Fisher vs. Yangco Steamship Company, 31 Phil., 1, citing Munn
vs. Illinois, 94 U.S. 113; Georgia R. & Bkg. Co. vs. Smith, 128 U.S. 174; Budd vs. New York, 143
U.S. 517; New York etc. R. Co. vs. Bristol 151 U.S. 556, 571; Connecticut etc. R. Co. vs.
Woodruff, 153 U.S. 689; Louisville etc. Ry Co. vs. Kentucky, 161 U.S. 677, 695.) This right of
the state to regulate public utilities is founded upon the police power, and statutes for the
control and regulation of utilities are a legitimate exercise thereof, for the protection of the
public as well as of the utilities themselves. Such statutes are, therefore, not
unconstitutional, either impairing the obligation of contracts, taking property without due
process, or denying the equal protection of the laws, especially inasmuch as the question
whether or not private property shall be devoted to a public and the consequent burdens
assumed is ordinarily for the owner to decide; and if he voluntarily places his property in
public service he cannot complain that it becomes subject to the regulatory powers of the
state. (51 C. J., sec. 21, pp. 9-10.) in the light of authorities which hold that a certificate of
public convenience constitutes neither a franchise nor contract, confers no property right,
and is mere license or privilege. (Burgess vs. Mayor & Alderman of Brockton, 235 Mass. 95,
100, 126 N. E. 456; Roberto vs. Commisioners of Department of Public Utilities, 262 Mass.
583, 160 N. E. 321; Scheible vs. Hogan, 113 Ohio St. 83, 148 N. E. 581; Martz vs. Curtis [J. L.]
Cartage Co. [1937], 132 Ohio St. 271, 7 N. E. [d] 220; Manila Yellow Taxicab Co. vs.
Sabellano, 59 Phil., 773.)

Whilst the challenged provisions of Commonwealth Act No. 454 are valid and constitutional,
we are, however, of the opinion that the decision of the Public Service Commission should
be reversed and the case remanded thereto for further proceedings for the reason now to
be stated. The Public Service Commission has power, upon proper notice and hearing, "to
amend, modify or revoke at any time any certificate issued under the provisions of this Act,
whenever the facts and circumstances on the strength of which said certificate was issued
have been misrepresented or materially changed." (Section 16, par. [m], Commonwealth Act
No. 146.) The petitioner's application here was for an increase of its equipment to enable it
to comply with the conditions of its certificates of public convenience. On the matter of
limitation to twenty five (25) years of the life of its certificates of public convenience, there
had been neither notice nor opportunity given the petitioner to be heard or present
evidence. The Commission appears to have taken advantage of the petitioner to augment
petitioner's equipment in imposing the limitation of twenty-five (25) years which might as
well be twenty or fifteen or any number of years. This is, to say the least, irregular and
should not be sanctioned. There are cardinal primary rights which must be respected even
in proceedings of this character. The first of these rights is the right to a hearing, which
includes the right of the party interested or affected to present his own case and submit
evidence in support thereof. In the language of Chief Justice Hughes, in Morgan v. U.S., (304
U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129), "the liberty and property of the citizen shall be
protected by the rudimentary requirements of fair play." Not only must the party be given
an opportunity to present his case and to adduce evidence tending to establish the rights
which he asserts but the tribunal must consider the evidence presented. (Chief Justice
Hughes in Morgan vs. U.S., 298 U.S. 468, 56 S. Ct. 906, 80 :Law. ed. 1288.) In the language of
this Court in Edwards vs. McCoy (22 Phil., 598), "the right to adduce evidence, without the
corresponding duty on the part of the board to consider it, is vain. Such right is
conspicuously futile if the person or persons to whom the evidence is presented can thrust
it aside without or consideration." While the duty to deliberate does not impose the
obligation to decide right, it does imply a necessity which cannot be disregarded, namely,
that of having something to support its decision. A decision with absolutely nothing to
support it is a nullity, at least when directly attacked. (Edwards vs. McCoy, supra.) This
principle emanates from the more fundamental principle that the genius of constitutional
government is contrary to the vesting of unlimited power anywhere. Law is both a grant
and a limitation upon power.

The decision appealed from is hereby reversed and the case remanded to the Public Service
Commission for further proceedings in accordance with law and this decision, without any
pronouncement regarding costs. So ordered.

Avancea, C.J., Imperial, Diaz, Concepcion and Moran, JJ., concur.



EN BANC

ABAKADA GURO PARTY G.R. No. 166715
LIST (formerly AASJS)*
OFFICERS/MEMBERS
SAMSON S. ALCANTARA,
ED VINCENT S. ALBANO,
ROMEO R. ROBISO,
RENE B. GOROSPE and
EDWIN R. SANDOVAL,
Petitioners, Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
- v e r s u s - CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.
NACHURA,
REYES,
LEONARDO-DE CASTRO and
BRION, JJ.
HON. CESAR V. PURISIMA, in
his capacity as Secretary of
Finance, HON. GUILLERMO L.
PARAYNO, JR., in his capacity
as Commissioner of the Bureau
of Internal Revenue, and
HON. ALBERTO D. LINA, in his
Capacity as Commissioner of
Bureau of Customs,
Respondents. Promulgated:


August 14, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N
CORONA, J.:

This petition for prohibition[1] seeks to prevent respondents from implementing and
enforcing Republic Act (RA) 9335[2] (Attrition Act of 2005).

RA 9335 was enacted to optimize the revenue-generation capability and collection of the
Bureau of Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to
encourage BIR and BOC officials and employees to exceed their revenue targets by
providing a system of rewards and sanctions through the creation of a Rewards and
Incentives Fund (Fund) and a Revenue Performance Evaluation Board (Board).[3] It covers
all officials and employees of the BIR and the BOC with at least six months of service,
regardless of employment status.[4]

The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue
targets for the year, as determined by the Development Budget and Coordinating
Committee (DBCC). Any incentive or reward is taken from the fund and allocated to the BIR
and the BOC in proportion to their contribution in the excess collection of the targeted
amount of tax revenue.[5]

The Boards in the BIR and the BOC are composed of the Secretary of the Department of
Finance (DOF) or his/her Undersecretary, the Secretary of the Department of Budget and
Management (DBM) or his/her Undersecretary, the Director General of the National
Economic Development Authority (NEDA) or his/her Deputy Director General, the
Commissioners of the BIR and the BOC or their Deputy Commissioners, two representatives
from the rank-and-file employees and a representative from the officials nominated by their
recognized organization.[6]

Each Board has the duty to (1) prescribe the rules and guidelines for the allocation,
distribution and release of the Fund; (2) set criteria and procedures for removing from the
service officials and employees whose revenue collection falls short of the target; (3)
terminate personnel in accordance with the criteria adopted by the Board; (4) prescribe a
system for performance evaluation; (5) perform other functions, including the issuance of
rules and regulations and (6) submit an annual report to Congress.[7]

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to
promulgate and issue the implementing rules and regulations of RA 9335,[8] to be
approved by a Joint Congressional Oversight Committee created for such purpose.[9]

Petitioners, invoking their right as taxpayers filed this petition challenging the
constitutionality of RA 9335, a tax reform legislation. They contend that, by establishing a
system of rewards and incentives, the law transform[s] the officials and employees of the
BIR and the BOC into mercenaries and bounty hunters as they will do their best only in
consideration of such rewards. Thus, the system of rewards and incentives invites
corruption and undermines the constitutionally mandated duty of these officials and
employees to serve the people with utmost responsibility, integrity, loyalty and efficiency.

Petitioners also claim that limiting the scope of the system of rewards and incentives only to
officials and employees of the BIR and the BOC violates the constitutional guarantee of
equal protection. There is no valid basis for classification or distinction as to why such a
system should not apply to officials and employees of all other government agencies.

In addition, petitioners assert that the law unduly delegates the power to fix revenue targets
to the President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of
RA 9335 provides that BIR and BOC officials may be dismissed from the service if their
revenue collections fall short of the target by at least 7.5%, the law does not, however, fix
the revenue targets to be achieved. Instead, the fixing of revenue targets has been delegated
to the President without sufficient standards. It will therefore be easy for the President to
fix an unrealistic and unattainable target in order to dismiss BIR or BOC personnel.

Finally, petitioners assail the creation of a congressional oversight committee on the ground
that it violates the doctrine of separation of powers. While the legislative function is deemed
accomplished and completed upon the enactment and approval of the law, the creation of
the congressional oversight committee permits legislative participation in the
implementation and enforcement of the law.

In their comment, respondents, through the Office of the Solicitor General, question the
petition for being premature as there is no actual case or controversy yet. Petitioners have
not asserted any right or claim that will necessitate the exercise of this Courts jurisdiction.
Nevertheless, respondents acknowledge that public policy requires the resolution of the
constitutional issues involved in this case. They assert that the allegation that the reward
system will breed mercenaries is mere speculation and does not suffice to invalidate the
law. Seen in conjunction with the declared objective of RA 9335, the law validly classifies
the BIR and the BOC because the functions they perform are distinct from those of the other
government agencies and instrumentalities. Moreover, the law provides a sufficient
standard that will guide the executive in the implementation of its provisions. Lastly, the
creation of the congressional oversight committee under the law enhances, rather than
violates, separation of powers. It ensures the fulfillment of the legislative policy and serves
as a check to any over-accumulation of power on the part of the executive and the
implementing agencies.

After a careful consideration of the conflicting contentions of the parties, the Court finds
that petitioners have failed to overcome the presumption of constitutionality in favor of RA
9335, except as shall hereafter be discussed.


ACTUAL CASE AND RIPENESS


An actual case or controversy involves a conflict of legal rights, an assertion of
opposite legal claims susceptible of judicial adjudication.[10] A closely related requirement
is ripeness, that is, the question must be ripe for adjudication. And a constitutional question
is ripe for adjudication when the governmental act being challenged has a direct adverse
effect on the individual challenging it.[11] Thus, to be ripe for judicial adjudication, the
petitioner must show a personal stake in the outcome of the case or an injury to himself that
can be redressed by a favorable decision of the Court.[12]

In this case, aside from the general claim that the dispute has ripened into a judicial
controversy by the mere enactment of the law even without any further overt act,[13]
petitioners fail either to assert any specific and concrete legal claim or to demonstrate any
direct adverse effect of the law on them. They are unable to show a personal stake in the
outcome of this case or an injury to themselves. On this account, their petition is
procedurally infirm.

This notwithstanding, public interest requires the resolution of the constitutional issues
raised by petitioners. The grave nature of their allegations tends to cast a cloud on the
presumption of constitutionality in favor of the law. And where an action of the legislative
branch is alleged to have infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute.[14]


ACCOUNTABILITY OF
PUBLIC OFFICERS


Section 1, Article 11 of the Constitution states:

Sec. 1. Public office is a public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism, and justice, and lead modest lives.


Public office is a public trust. It must be discharged by its holder not for his own personal
gain but for the benefit of the public for whom he holds it in trust. By demanding
accountability and service with responsibility, integrity, loyalty, efficiency, patriotism and
justice, all government officials and employees have the duty to be responsive to the needs
of the people they are called upon to serve.

Public officers enjoy the presumption of regularity in the performance of their duties. This
presumption necessarily obtains in favor of BIR and BOC officials and employees. RA 9335
operates on the basis thereof and reinforces it by providing a system of rewards and
sanctions for the purpose of encouraging the officials and employees of the BIR and the BOC
to exceed their revenue targets and optimize their revenue-generation capability and
collection.[15]

The presumption is disputable but proof to the contrary is required to rebut it. It cannot be
overturned by mere conjecture or denied in advance (as petitioners would have the Court
do) specially in this case where it is an underlying principle to advance a declared public
policy.
Petitioners claim that the implementation of RA 9335 will turn BIR and BOC officials and
employees into bounty hunters and mercenaries is not only without any factual and legal
basis; it is also purely speculative.

A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its
nullification, there must be a clear and unequivocal breach of the Constitution, not a
doubtful and equivocal one.[16] To invalidate RA 9335 based on petitioners baseless
supposition is an affront to the wisdom not only of the legislature that passed it but also of
the executive which approved it.

Public service is its own reward. Nevertheless, public officers may by law be rewarded for
exemplary and exceptional performance. A system of incentives for exceeding the set
expectations of a public office is not anathema to the concept of public accountability. In
fact, it recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public
service of deserving government personnel.

In United States v. Matthews,[17] the U.S. Supreme Court validated a law which awards to
officers of the customs as well as other parties an amount not exceeding one-half of the net
proceeds of forfeitures in violation of the laws against smuggling. Citing Dorsheimer v.
United States,[18] the U.S. Supreme Court said:

The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal
and industry in detecting fraudulent attempts to evade payment of duties and taxes.

In the same vein, employees of the BIR and the BOC may by law be entitled to a reward
when, as a consequence of their zeal in the enforcement of tax and customs laws, they
exceed their revenue targets. In addition, RA 9335 establishes safeguards to ensure that the
reward will not be claimed if it will be either the fruit of bounty hunting or mercenary
activity or the product of the irregular performance of official duties. One of these
precautionary measures is embodied in Section 8 of the law:

SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. The
officials, examiners, and employees of the [BIR] and the [BOC] who violate this Act or who
are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise
extraordinary diligence in the performance of their duties shall be held liable for any loss or
injury suffered by any business establishment or taxpayer as a result of such violation,
negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence.


EQUAL PROTECTION


Equality guaranteed under the equal protection clause is equality under the same
conditions and among persons similarly situated; it is equality among equals, not similarity
of treatment of persons who are classified based on substantial differences in relation to the
object to be accomplished.[19] When things or persons are different in fact or circumstance,
they may be treated in law differently. In Victoriano v. Elizalde Rope Workers Union,[20]
this Court declared:

The guaranty of equal protection of the laws is not a guaranty of equality in the application
of the laws upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to
avoid the constitutional prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of statutes does not mean
indiscriminate operation on persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things which are different in fact be treated in law as
though they were the same. The equal protection clause does not forbid discrimination as to
things that are different. It does not prohibit legislation which is limited either in the object
to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification.
Classification in law, as in the other departments of knowledge or practice, is the grouping
of things in speculation or practice because they agree with one another in certain
particulars. A law is not invalid because of simple inequality. The very idea of classification
is that of inequality, so that it goes without saying that the mere fact of inequality in no
manner determines the matter of constitutionality. All that is required of a valid
classification is that it be reasonable, which means that the classification should be based on
substantial distinctions which make for real differences, that it must be germane to the
purpose of the law; that it must not be limited to existing conditions only; and that it must
apply equally to each member of the class. This Court has held that the standard is satisfied
if the classification or distinction is based on a reasonable foundation or rational basis and
is not palpably arbitrary.

In the exercise of its power to make classifications for the purpose of enacting laws over
matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion.
It is not necessary that the classification be based on scientific or marked differences of
things or in their relation. Neither is it necessary that the classification be made with
mathematical nicety. Hence, legislative classification may in many cases properly rest on
narrow distinctions, for the equal protection guaranty does not preclude the legislature
from recognizing degrees of evil or harm, and legislation is addressed to evils as they may
appear.[21] (emphasis supplied)

The equal protection clause recognizes a valid classification, that is, a classification that has
a reasonable foundation or rational basis and not arbitrary.[22] With respect to RA 9335, its
expressed public policy is the optimization of the revenue-generation capability and
collection of the BIR and the BOC.[23] Since the subject of the law is the revenue- generation
capability and collection of the BIR and the BOC, the incentives and/or sanctions provided
in the law should logically pertain to the said agencies. Moreover, the law concerns only the
BIR and the BOC because they have the common distinct primary function of generating
revenues for the national government through the collection of taxes, customs duties, fees
and charges.

The BIR performs the following functions:

Sec. 18. The Bureau of Internal Revenue. The Bureau of Internal Revenue, which shall be
headed by and subject to the supervision and control of the Commissioner of Internal
Revenue, who shall be appointed by the President upon the recommendation of the
Secretary [of the DOF], shall have the following functions:

(1) Assess and collect all taxes, fees and charges and account for all revenues
collected;
(2) Exercise duly delegated police powers for the proper performance of its
functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
(5) Perform such other functions as may be provided by law.[24]
xxx xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. The Bureau of Customs which shall be headed and subject
to the management and control of the Commissioner of Customs, who shall be appointed by
the President upon the recommendation of the Secretary[of the DOF] and hereinafter
referred to as Commissioner, shall have the following functions:

(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within
all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of
vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under
its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.[25]
xxx xxx xxx (emphasis supplied)

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special
function of being the instrumentalities through which the State exercises one of its great
inherent functions taxation. Indubitably, such substantial distinction is germane and
intimately related to the purpose of the law. Hence, the classification and treatment
accorded to the BIR and the BOC under RA 9335 fully satisfy the demands of equal
protection.

UNDUE DELEGATION


Two tests determine the validity of delegation of legislative power: (1) the completeness
test and (2) the sufficient standard test. A law is complete when it sets forth therein the
policy to be executed, carried out or implemented by the delegate.[26] It lays down a
sufficient standard when it provides adequate guidelines or limitations in the law to map
out the boundaries of the delegates authority and prevent the delegation from running
riot.[27] To be sufficient, the standard must specify the limits of the delegates authority,
announce the legislative policy and identify the conditions under which it is to be
implemented.[28]

RA 9335 adequately states the policy and standards to guide the President in fixing revenue
targets and the implementing agencies in carrying out the provisions of the law. Section 2
spells out the policy of the law:

SEC. 2. Declaration of Policy. It is the policy of the State to optimize the revenue-
generation capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau
of Customs (BOC) by providing for a system of rewards and sanctions through the creation
of a Rewards and Incentives Fund and a Revenue Performance Evaluation Board in the
above agencies for the purpose of encouraging their officials and employees to exceed their
revenue targets.

Section 4 canalized within banks that keep it from overflowing[29] the delegated power to
the President to fix revenue targets:
SEC. 4. Rewards and Incentives Fund. A Rewards and Incentives Fund, hereinafter
referred to as the Fund, is hereby created, to be sourced from the collection of the BIR and
the BOC in excess of their respective revenue targets of the year, as determined by the
Development Budget and Coordinating Committee (DBCC), in the following percentages:
Excess of Collection of the Excess the Revenue Targets
Percent (%) of the Excess Collection to Accrue to the Fund

30% or below

15%

More than 30%


15% of the first 30%
plus 20% of the
remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the
year when the revenue collection target was exceeded and shall be released on the same
fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the BIR
and the BOC for a given fiscal year as stated in the Budget of Expenditures and Sources of
Financing (BESF) submitted by the President to Congress. The BIR and the BOC shall submit
to the DBCC the distribution of the agencies revenue targets as allocated among its revenue
districts in the case of the BIR, and the collection districts in the case of the BOC.
xxx xxx xxx (emphasis supplied)

Revenue targets are based on the original estimated revenue collection expected
respectively of the BIR and the BOC for a given fiscal year as approved by the DBCC and
stated in the BESF submitted by the President to Congress.[30] Thus, the determination of
revenue targets does not rest solely on the President as it also undergoes the scrutiny of the
DBCC.
On the other hand, Section 7 specifies the limits of the Boards authority and identifies the
conditions under which officials and employees whose revenue collection falls short of the
target by at least 7.5% may be removed from the service:

SEC. 7. Powers and Functions of the Board. The Board in the agency shall have the
following powers and functions:

xxx xxx xxx

(b) To set the criteria and procedures for removing from service officials and employees
whose revenue collection falls short of the target by at least seven and a half percent (7.5%),
with due consideration of all relevant factors affecting the level of collection as provided in
the rules and regulations promulgated under this Act, subject to civil service laws, rules and
regulations and compliance with substantive and procedural due process: Provided, That
the following exemptions shall apply:

1. Where the district or area of responsibility is newly-created, not exceeding two years in
operation, as has no historical record of collection performance that can be used as basis for
evaluation; and

2. Where the revenue or customs official or employee is a recent transferee in the middle of
the period under consideration unless the transfer was due to nonperformance of revenue
targets or potential nonperformance of revenue targets: Provided, however, That when the
district or area of responsibility covered by revenue or customs officials or employees has
suffered from economic difficulties brought about by natural calamities or force majeure or
economic causes as may be determined by the Board, termination shall be considered only
after careful and proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding
paragraph: Provided, That such decision shall be immediately executory: Provided, further,
That the application of the criteria for the separation of an official or employee from service
under this Act shall be without prejudice to the application of other relevant laws on
accountability of public officers and employees, such as the Code of Conduct and Ethical
Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act;

xxx xxx xxx (emphasis supplied)

Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the
BIR and the BOC. The guarantee of security of tenure only means that an employee cannot
be dismissed from the service for causes other than those provided by law and only after
due process is accorded the employee.[31] In the case of RA 9335, it lays down a reasonable
yardstick for removal (when the revenue collection falls short of the target by at least 7.5%)
with due consideration of all relevant factors affecting the level of collection. This standard
is analogous to inefficiency and incompetence in the performance of official duties, a ground
for disciplinary action under civil service laws.[32] The action for removal is also subject to
civil service laws, rules and regulations and compliance with substantive and procedural
due process.

At any rate, this Court has recognized the following as sufficient standards: public interest,
justice and equity, public convenience and welfare and simplicity, economy and
welfare.[33] In this case, the declared policy of optimization of the revenue-generation
capability and collection of the BIR and the BOC is infused with public interest.

SEPARATION OF POWERS


Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. There is hereby created a Joint
Congressional Oversight Committee composed of seven Members from the Senate and
seven Members from the House of Representatives. The Members from the Senate shall be
appointed by the Senate President, with at least two senators representing the minority.
The Members from the House of Representatives shall be appointed by the Speaker with at
least two members representing the minority. After the Oversight Committee will have
approved the implementing rules and regulations (IRR) it shall thereafter become functus
officio and therefore cease to exist.


The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of
approving the implementing rules and regulations (IRR) formulated by the DOF, DBM,
NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it
became functus officio and ceased to exist. Hence, the issue of its alleged encroachment on
the executive function of implementing and enforcing the law may be considered moot and
academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue
of the constitutionality of the Joint Congressional Oversight Committee created under RA
9335 (or other similar laws for that matter).

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of
congressional oversight in Macalintal v. Commission on Elections[34] is illuminating:

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities undertaken by Congress to
enhance its understanding of and influence over the implementation of legislation it has
enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a)
to monitor bureaucratic compliance with program objectives, (b) to determine whether
agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to
prevent executive usurpation of legislative authority, and (d) to assess executive conformity
with the congressional perception of public interest.



The power of oversight has been held to be intrinsic in the grant of legislative power itself
and integral to the checks and balances inherent in a democratic system of government. x x
x x x x x x x
Over the years, Congress has invoked its oversight power with increased frequency to check
the perceived exponential accumulation of power by the executive branch. By the
beginning of the 20th century, Congress has delegated an enormous amount of legislative
authority to the executive branch and the administrative agencies. Congress, thus, uses its
oversight power to make sure that the administrative agencies perform their functions
within the authority delegated to them. x x x x x x x x x

Categories of congressional oversight functions

The acts done by Congress purportedly in the exercise of its oversight powers may be
divided into three categories, namely: scrutiny, investigation and supervision.

a. Scrutiny

Congressional scrutiny implies a lesser intensity and continuity of attention to
administrative operations. Its primary purpose is to determine economy and efficiency of
the operation of government activities. In the exercise of legislative scrutiny, Congress may
request information and report from the other branches of government. It can give
recommendations or pass resolutions for consideration of the agency involved.

xxx xxx xxx

b. Congressional investigation

While congressional scrutiny is regarded as a passive process of looking at the facts that are
readily available, congressional investigation involves a more intense digging of facts. The
power of Congress to conduct investigation is recognized by the 1987 Constitution under
section 21, Article VI, xxx xxx xxx

c. Legislative supervision

The third and most encompassing form by which Congress exercises its oversight power is
thru legislative supervision. Supervision connotes a continuing and informed awareness
on the part of a congressional committee regarding executive operations in a given
administrative area. While both congressional scrutiny and investigation involve inquiry
into past executive branch actions in order to influence future executive branch
performance, congressional supervision allows Congress to scrutinize the exercise of
delegated law-making authority, and permits Congress to retain part of that delegated
authority.

Congress exercises supervision over the executive agencies through its veto power. It
typically utilizes veto provisions when granting the President or an executive agency the
power to promulgate regulations with the force of law. These provisions require the
President or an agency to present the proposed regulations to Congress, which retains a
right to approve or disapprove any regulation before it takes effect. Such legislative veto
provisions usually provide that a proposed regulation will become a law after the expiration
of a certain period of time, only if Congress does not affirmatively disapprove of the
regulation in the meantime. Less frequently, the statute provides that a proposed regulation
will become law if Congress affirmatively approves it.

Supporters of legislative veto stress that it is necessary to maintain the balance of power
between the legislative and the executive branches of government as it offers lawmakers a
way to delegate vast power to the executive branch or to independent agencies while
retaining the option to cancel particular exercise of such power without having to pass new
legislation or to repeal existing law. They contend that this arrangement promotes
democratic accountability as it provides legislative check on the activities of unelected
administrative agencies. One proponent thus explains:

It is too late to debate the merits of this delegation policy: the policy is too deeply embedded
in our law and practice. It suffices to say that the complexities of modern government have
often led Congress-whether by actual or perceived necessity- to legislate by declaring broad
policy goals and general statutory standards, leaving the choice of policy options to the
discretion of an executive officer. Congress articulates legislative aims, but leaves their
implementation to the judgment of parties who may or may not have participated in or
agreed with the development of those aims. Consequently, absent safeguards, in many
instances the reverse of our constitutional scheme could be effected: Congress proposes, the
Executive disposes. One safeguard, of course, is the legislative power to enact new
legislation or to change existing law. But without some means of overseeing post enactment
activities of the executive branch, Congress would be unable to determine whether its
policies have been implemented in accordance with legislative intent and thus whether
legislative intervention is appropriate.

Its opponents, however, criticize the legislative veto as undue encroachment upon the
executive prerogatives. They urge that any post-enactment measures undertaken by the
legislative branch should be limited to scrutiny and investigation; any measure beyond that
would undermine the separation of powers guaranteed by the Constitution. They contend
that legislative veto constitutes an impermissible evasion of the Presidents veto authority
and intrusion into the powers vested in the executive or judicial branches of government.
Proponents counter that legislative veto enhances separation of powers as it prevents the
executive branch and independent agencies from accumulating too much power. They
submit that reporting requirements and congressional committee investigations allow
Congress to scrutinize only the exercise of delegated law-making authority. They do not
allow Congress to review executive proposals before they take effect and they do not afford
the opportunity for ongoing and binding expressions of congressional intent. In contrast,
legislative veto permits Congress to participate prospectively in the approval or disapproval
of subordinate law or those enacted by the executive branch pursuant to a delegation of
authority by Congress. They further argue that legislative veto is a necessary response by
Congress to the accretion of policy control by forces outside its chambers. In an era of
delegated authority, they point out that legislative veto is the most efficient means
Congress has yet devised to retain control over the evolution and implementation of its
policy as declared by statute.

In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the
validity of legislative veto provisions. The case arose from the order of the immigration
judge suspending the deportation of Chadha pursuant to 244(c)(1) of the Immigration and
Nationality Act. The United States House of Representatives passed a resolution vetoing the
suspension pursuant to 244(c)(2) authorizing either House of Congress, by resolution, to
invalidate the decision of the executive branch to allow a particular deportable alien to
remain in the United States. The immigration judge reopened the deportation proceedings
to implement the House order and the alien was ordered deported. The Board of
Immigration Appeals dismissed the aliens appeal, holding that it had no power to declare
unconstitutional an act of Congress. The United States Court of Appeals for Ninth Circuit
held that the House was without constitutional authority to order the aliens deportation
and that 244(c)(2) violated the constitutional doctrine on separation of powers.

On appeal, the U.S. Supreme Court declared 244(c)(2) unconstitutional. But the Court
shied away from the issue of separation of powers and instead held that the provision
violates the presentment clause and bicameralism. It held that the one-house veto was
essentially legislative in purpose and effect. As such, it is subject to the procedures set out in
Article I of the Constitution requiring the passage by a majority of both Houses and
presentment to the President. x x x x x x x x x

Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two
lower court decisions invalidating the legislative veto provisions in the Natural Gas Policy
Act of 1978 and the Federal Trade Commission Improvement Act of 1980. Following this
precedence, lower courts invalidated statutes containing legislative veto provisions
although some of these provisions required the approval of both Houses of Congress and
thus met the bicameralism requirement of Article I. Indeed, some of these veto provisions
were not even exercised.[35] (emphasis supplied)


In Macalintal, given the concept and configuration of the power of congressional oversight
and considering the nature and powers of a constitutional body like the Commission on
Elections, the Court struck down the provision in RA 9189 (The Overseas Absentee Voting
Act of 2003) creating a Joint Congressional Committee. The committee was tasked not only
to monitor and evaluate the implementation of the said law but also to review, revise,
amend and approve the IRR promulgated by the Commission on Elections. The Court held
that these functions infringed on the constitutional independence of the Commission on
Elections.[36]

With this backdrop, it is clear that congressional oversight is not unconstitutional per se,
meaning, it neither necessarily constitutes an encroachment on the executive power to
implement laws nor undermines the constitutional separation of powers. Rather, it is
integral to the checks and balances inherent in a democratic system of government. It may
in fact even enhance the separation of powers as it prevents the over-accumulation of
power in the executive branch.

However, to forestall the danger of congressional encroachment beyond the legislative
sphere, the Constitution imposes two basic and related constraints on Congress.[37] It may
not vest itself, any of its committees or its members with either executive or judicial
power.[38] And, when it exercises its legislative power, it must follow the single, finely
wrought and exhaustively considered, procedures specified under the Constitution,[39]
including the procedure for enactment of laws and presentment.

Thus, any post-enactment congressional measure such as this should be limited to scrutiny
and investigation. In particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress power of appropriation and the budget
hearings conducted in connection with it, its power to ask heads of departments to appear
before and be heard by either of its Houses on any matter pertaining to their departments
and its power of confirmation[40] and
(2) investigation and monitoring[41] of the implementation of laws pursuant to the
power of Congress to conduct inquiries in aid of legislation.[42]

Any action or step beyond that will undermine the separation of powers guaranteed by the
Constitution. Legislative vetoes fall in this class.

Legislative veto is a statutory provision requiring the President or an administrative agency
to present the proposed implementing rules and regulations of a law to Congress which, by
itself or through a committee formed by it, retains a right or power to approve or
disapprove such regulations before they take effect. As such, a legislative veto in the form of
a congressional oversight committee is in the form of an inward-turning delegation
designed to attach a congressional leash (other than through scrutiny and investigation) to
an agency to which Congress has by law initially delegated broad powers.[43] It radically
changes the design or structure of the Constitutions diagram of power as it entrusts to
Congress a direct role in enforcing, applying or implementing its own laws.[44]

Congress has two options when enacting legislation to define national policy within the
broad horizons of its legislative competence.[45] It can itself formulate the details or it can
assign to the executive branch the responsibility for making necessary managerial decisions
in conformity with those standards.[46] In the latter case, the law must be complete in all its
essential terms and conditions when it leaves the hands of the legislature.[47] Thus, what is
left for the executive branch or the concerned administrative agency when it formulates
rules and regulations implementing the law is to fill up details (supplementary rule-making)
or ascertain facts necessary to bring the law into actual operation (contingent rule-
making).[48]

Administrative regulations enacted by administrative agencies to implement and interpret
the law which they are entrusted to enforce have the force of law and are entitled to
respect.[49] Such rules and regulations partake of the nature of a statute[50] and are just as
binding as if they have been written in the statute itself. As such, they have the force and
effect of law and enjoy the presumption of constitutionality and legality until they are set
aside with finality in an appropriate case by a competent court.[51] Congress, in the guise of
assuming the role of an overseer, may not pass upon their legality by subjecting them to its
stamp of approval without disturbing the calculated balance of powers established by the
Constitution. In exercising discretion to approve or disapprove the IRR based on a
determination of whether or not they conformed with the provisions of RA 9335, Congress
arrogated judicial power unto itself, a power exclusively vested in this Court by the
Constitution.
CONSIDERED OPINION OF
MR. JUSTICE DANTE O. TINGA


Moreover, the requirement that the implementing rules of a law be subjected to approval by
Congress as a condition for their effectivity violates the cardinal constitutional principles of
bicameralism and the rule on presentment.[52]

Section 1, Article VI of the Constitution states:

Section 1. The legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent reserved to the
people by the provision on initiative and referendum. (emphasis supplied)


Legislative power (or the power to propose, enact, amend and repeal laws)[53] is vested in
Congress which consists of two chambers, the Senate and the House of Representatives. A
valid exercise of legislative power requires the act of both chambers. Corrollarily, it can be
exercised neither solely by one of the two chambers nor by a committee of either or both
chambers. Thus, assuming the validity of a legislative veto, both a single-chamber legislative
veto and a congressional committee legislative veto are invalid.

Additionally, Section 27(1), Article VI of the Constitution provides:

Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be
presented to the President. If he approves the same, he shall sign it, otherwise, he shall veto
it and return the same with his objections to the House where it originated, which shall
enter the objections at large in its Journal and proceed to reconsider it. If, after such
reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it
shall be sent, together with the objections, to the other House by which it shall likewise be
reconsidered, and if approved by two-thirds of all the Members of that House, it shall
become a law. In all such cases, the votes of each House shall be determined by yeas or nays,
and the names of the members voting for or against shall be entered in its Journal. The
President shall communicate his veto of any bill to the House where it originated within
thirty days after the date of receipt thereof; otherwise, it shall become a law as if he had
signed it. (emphasis supplied)


Every bill passed by Congress must be presented to the President for approval or veto. In
the absence of presentment to the President, no bill passed by Congress can become a law.
In this sense, law-making under the Constitution is a joint act of the Legislature and of the
Executive. Assuming that legislative veto is a valid legislative act with the force of law, it
cannot take effect without such presentment even if approved by both chambers of
Congress.

In sum, two steps are required before a bill becomes a law. First, it must be approved by
both Houses of Congress.[54] Second, it must be presented to and approved by the
President.[55] As summarized by Justice Isagani Cruz[56] and Fr. Joaquin G. Bernas, S.J.[57],
the following is the procedure for the approval of bills:

A bill is introduced by any member of the House of Representatives or the Senate except for
some measures that must originate only in the former chamber.

The first reading involves only a reading of the number and title of the measure and its
referral by the Senate President or the Speaker to the proper committee for study.

The bill may be killed in the committee or it may be recommended for approval, with or
without amendments, sometimes after public hearings are first held thereon. If there are
other bills of the same nature or purpose, they may all be consolidated into one bill under
common authorship or as a committee bill.

Once reported out, the bill shall be calendared for second reading. It is at this stage that the
bill is read in its entirety, scrutinized, debated upon and amended when desired. The second
reading is the most important stage in the passage of a bill.

The bill as approved on second reading is printed in its final form and copies thereof are
distributed at least three days before the third reading. On the third reading, the members
merely register their votes and explain them if they are allowed by the rules. No further
debate is allowed.

Once the bill passes third reading, it is sent to the other chamber, where it will also undergo
the three readings. If there are differences between the versions approved by the two
chambers, a conference committee[58] representing both Houses will draft a compromise
measure that if ratified by the Senate and the House of Representatives will then be
submitted to the President for his consideration.

The bill is enrolled when printed as finally approved by the Congress, thereafter
authenticated with the signatures of the Senate President, the Speaker, and the Secretaries
of their respective chambers[59]

The Presidents role in law-making.

The final step is submission to the President for approval. Once approved, it takes
effect as law after the required publication.[60]

Where Congress delegates the formulation of rules to implement the law it has enacted
pursuant to sufficient standards established in the said law, the law must be complete in all
its essential terms and conditions when it leaves the hands of the legislature. And it may be
deemed to have left the hands of the legislature when it becomes effective because it is only
upon effectivity of the statute that legal rights and obligations become available to those
entitled by the language of the statute. Subject to the indispensable requisite of publication
under the due process clause,[61] the determination as to when a law takes effect is wholly
the prerogative of Congress.[62] As such, it is only upon its effectivity that a law may be
executed and the executive branch acquires the duties and powers to execute the said law.
Before that point, the role of the executive branch, particularly of the President, is limited to
approving or vetoing the law.[63]
From the moment the law becomes effective, any provision of law that empowers Congress
or any of its members to play any role in the implementation or enforcement of the law
violates the principle of separation of powers and is thus unconstitutional. Under this
principle, a provision that requires Congress or its members to approve the implementing
rules of a law after it has already taken effect shall be unconstitutional, as is a provision that
allows Congress or its members to overturn any directive or ruling made by the members of
the executive branch charged with the implementation of the law.

Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional.
While there may be similar provisions of other laws that may be invalidated for failure to
pass this standard, the Court refrains from invalidating them wholesale but will do so at the
proper time when an appropriate case assailing those provisions is brought before us.[64]

The next question to be resolved is: what is the effect of the unconstitutionality of Section
12 of RA 9335 on the other provisions of the law? Will it render the entire law
unconstitutional? No.

Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. If any provision of this Act is declared invalid by a competent
court, the remainder of this Act or any provision not affected by such declaration of
invalidity shall remain in force and effect.


In Tatad v. Secretary of the Department of Energy,[65] the Court laid down the following
rules:

The general rule is that where part of a statute is void as repugnant to the Constitution,
while another part is valid, the valid portion, if separable from the invalid, may stand and be
enforced. The presence of a separability clause in a statute creates the presumption that the
legislature intended separability, rather than complete nullity of the statute. To justify this
result, the valid portion must be so far independent of the invalid portion that it is fair to
presume that the legislature would have enacted it by itself if it had supposed that it could
not constitutionally enact the other. Enough must remain to make a complete, intelligible
and valid statute, which carries out the legislative intent. x x x

The exception to the general rule is that when the parts of a statute are so mutually
dependent and connected, as conditions, considerations, inducements, or compensations
for each other, as to warrant a belief that the legislature intended them as a whole, the
nullity of one part will vitiate the rest. In making the parts of the statute dependent,
conditional, or connected with one another, the legislature intended the statute to be
carried out as a whole and would not have enacted it if one part is void, in which case if
some parts are unconstitutional, all the other provisions thus dependent, conditional, or
connected must fall with them.

The separability clause of RA 9335 reveals the intention of the legislature to isolate and
detach any invalid provision from the other provisions so that the latter may continue in
force and effect. The valid portions can stand independently of the invalid section. Without
Section 12, the remaining provisions still constitute a complete, intelligible and valid law
which carries out the legislative intent to optimize the revenue-generation capability and
collection of the BIR and the BOC by providing for a system of rewards and sanctions
through the Rewards and Incentives Fund and a Revenue Performance Evaluation Board.

To be effective, administrative rules and regulations must be published in full if their
purpose is to enforce or implement existing law pursuant to a valid delegation. The IRR of
RA 9335 were published on May 30, 2006 in two newspapers of general circulation[66] and
became effective 15 days thereafter.[67] Until and unless the contrary is shown, the IRR are
presumed valid and effective even without the approval of the Joint Congressional
Oversight Committee.

WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating
a Joint Congressional Oversight Committee to approve the implementing rules and
regulations of the law is declared UNCONSTITUTIONAL and therefore NULL and VOID. The
constitutionality of the remaining provisions of RA 9335 is UPHELD. Pursuant to Section 13
of RA 9335, the rest of the provisions remain in force and effect.

SO ORDERED.


RENATO C. CORONA
Associate Justice

WE CONCUR:


REYNATO S. PUNO
Chief Justice


LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
Associate Justice




ANTONIO T. CARPIO
Associate Justice




MA. ALICIA M. AUSTRIA-MARTINEZ
Associate Justice




CONCHITA CARPIO MORALES
Associate Justice




ADOLFO S. AZCUNA
Associate Justice




DANTE O. TINGA
Associate Justice




MINITA V. CHICO-NAZARIO
Associate Justice




PRESBITERO J. VELASCO, JR.
Associate Justice




ANTONIO EDUARDO B. NACHURA
Associate Justice




RUBEN T. REYES
Associate Justice




TERESITA J. LEONARDO-DE CASTRO
Associate Justice




ARTURO D. BRION
Associate Justice





C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in
the above decision had been reached in consultation before the case was assigned to the
writer of the opinion of the Court.



REYNATO S. PUNO
Chief Justice

* Advocates and Adherents of Social Justice for School Teachers and Allied Workers.
[1] Under Rule 65 of the Rules of Court.
[2] An Act to Improve Revenue Collection Performance of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC) Through the Creation of a Rewards and
Incentives Fund and of a Revenue Performance Evaluation Board and for Other Purposes.
[3] Section 2, RA 9335.
[4] Section 3, id.
[5] Section 4, id.
[6] Section 6, id.
[7] Section 7, id.
[8] Section 11, id.
[9] Section 12, id.
[10] Cruz, Isagani, PHILIPPINE CONSTITUTIONAL LAW, 1995 edition, p. 23.
[11] Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY, 1996 edition, pp. 848-849.
[12] Cruz v. Secretary of Environment and Natural Resources, 400 Phil. 904 (2000).
(Vitug, J., separate opinion)
[13] See La Bugal-BLaan Tribal Association, Inc. v. Ramos, G.R. No. 127882, 01
December 2004, 445 SCRA 1.
[14] Taada v. Angara, 338 Phil. 546 (1997).
[15] Section 2, id.
[16] Central Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas, G.R. No.
148208, 15 December 2004, 446 SCRA 299.
[17] 173 U.S. 381 (1899).
[18] 74 U.S. 166 (1868).
[19] BLACKS LAW DICTIONARY, SPECIAL DE LUXE 5th Edition, West, p. 481.
[20] 158 Phil. 60 (1974).
[21] Id. Citations omitted.
[22] Ambros v. Commission on Audit, G.R. No. 159700, 30 June 2005, 462 SCRA 572.
[23] Section 2, RA 9335.
[24] Section 18, Chapter 4, Title II, Book IV, Administrative Code of 1987.
[25] Section 23, id.
[26] Pelaez v. Auditor General, 122 Phil. 965 (1965).
[27] Eastern Shipping Lines, Inc. v. POEA, G.R. No. L-76633, 18 October 1988, 166
SCRA 533.
[28] Cruz, Isagani, PHILIPPINE POLITICAL LAW, 1991 edition, p. 97.
[29] Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), (Cardozo, J., dissenting).
[30] Section 5, Rule II, Implementing Rules and Regulations of RA 9335.
[31] De Guzman, Jr. v. Commission on Elections, 391 Phil. 70 (2000).
[32] See Section 46(b)(8), Chapter 6, Title I, Subtitle A, Book V, Administrative Code of
1987.
[33] Equi-Asia Placement, Inc. v. Department of Foreign Affairs, G.R. No. 152214, 19
September 2006, 502 SCRA 295.
[34] 453 Phil. 586 (2003). Mr. Justice (now Chief Justice) Punos separate opinion
was adopted as part of the ponencia in this case insofar as it related to the creation of and
the powers given to the Joint Congressional Oversight Committee.
[35] Id. (italics in the original)
[36] Id.
[37] Metropolitan Washington Airports Authority v. Citizens for the Abatement of
Aircraft Noise, 501 U.S. 252 (1991).
[38] Id.
[39] Id.
[40] See Mr. Justice (now Chief Justice) Punos separate opinion in Macalintal.
[41] E.g., by requiring the regular submission of reports.
[42] See Mr. Justice (now Chief Justice) Punos separate opinion in Macalintal.
[43] See Tribe, Lawrence, I American Constitutional Law 131 (2000).
[44] Id.
[45] Id. at 141.
[46] Metropolitan Washington Airports Authority v. Citizens for the Abatement of
Airport Noise, supra.
[47] Edu v. Ericta, 146 Phil. 469 (1970).
[48] Bernas, Joaquin, THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY, 2003 edition, p. 664 citing Wayman v. Southward, 10
Wheat 1 (1852) and The Brig Aurora, 7 Cr. 382 (1813)).
[49] Eslao v. Commission on Audit, G.R. No. 108310, 01 September 1994, 236 SCRA
161; Sierra Madre Trust v. Secretary of Agriculture and Natural Resources, 206 Phil. 310
(1983).
[50] People v. Maceren, 169 Phil. 437 (1977).
[51] See Eslao v. Commission on Audit, supra.
[52] It is also for these reasons that the United States Supreme Court struck down
legislative vetoes as unconstitutional in Immigration and Naturalization Service v. Chadha
(462 U.S. 919 [1983]).
[53] Nachura, Antonio B., OUTLINE REVIEWER IN POLITICAL LAW, 2006 edition, p.
236.
[54] Section 26, Article VI of the Constitution provides:

Section 26. (1) Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof.
(2) No bill passed by either House shall become a law unless it has passed three readings on
separate days, and printed copies thereof in its final form have been distributed to its
Members three days before its passage, except when the President certifies to the necessity
of its immediate enactment to meet a public calamity or emergency. Upon the last reading of
a bill, no amendment thereto shall be allowed, and the vote thereon shall be taken
immediately thereafter, and the yeas and nays entered in the Journal.
[55] See Bernas, supra note 48, p. 762.
[56] PHILIPPINE POLITICAL LAW, 2002 edition, Central Lawbook Publishing Co., Inc.,
pp. 152-153.
[57] THE PHILIPPINE CONSTITUTION FOR LADIES, GENTLEMEN AND OTHERS,
2007 edition, Rex Bookstore, Inc., pp. 118-119.
[58] The conference committee consists of members nominated by both Houses. The
task of the conference committee, however, is not strictly limited to reconciling differences.
Jurisprudence also allows the committee to insert new provision[s] not found in either
original provided these are germane to the subject of the bill. Next, the reconciled version
must be presented to both Houses for ratification. (Id.)
[59] Supra note 56.
[60] Supra note 57.
[61] See Section 1, Article III of the Constitution. In Taada v. Tuvera (230 Phil. 528),
the Court also cited Section 6, Article III which recognizes the right of the people to
information on matters of public concern.
[62] As much is recognized in Article 2 of the Civil Code which states that Laws shall
take effect after fifteen days following the completion of their publication either in the
Official Gazette, or in a newspaper of general circulation in the Philippines, unless it is
otherwise provided. Taada recognized that unless it is otherwise provided referred to
the date of effectivity. Simply put, a law which is silent as to its effectivity date takes effect
fifteen days following publication, though there is no impediment for Congress to provide
for a different effectivity date.
[63] It has been suggested by Mr. Justice Antonio T. Carpio that Section 12 of RA 9335
is likewise unconstitutional because it violates the principle of separation of powers,
particularly with respect to the executive and the legislative branches. Implicit in this claim
is the proposition that the ability of the President to promulgate implementing rules to
legislation is inherent in the executive branch.
There has long been a trend towards the delegation of powers, especially of legislative
powers, even if not expressly permitted by the Constitution. (I. Cortes, Administrative Law,
at 12-13.) Delegation of legislative powers is permissible unless the delegation amounts to a
surrender or abdication of powers. (Id.) Recent instances of delegated legislative powers
upheld by the Court include the power of the Departments of Justice and Health to
promulgate rules and regulations on lethal injection (Echegaray v. Secretary of Justice, 358
Phil. 410 [1998]); the power of the Secretary of Health to phase out blood banks (Beltran v.
Secretary of Health, G.R. No. 133640, 133661, & 139147, 25 November 2005, 476 SCRA
168); and the power of the Departments of Finance and Labor to promulgate Implementing
Rules to the Migrant Workers and Overseas Filipinos Act. (Equi-Asia Placement v.DFA, G.R.
No. 152214, 19 September 2006, 502 SCRA 295.)
The delegation to the executive branch of the power to formulate and enact implementing
rules falls within the class of permissible delegation of legislative powers. Most recently, in
Executive Secretary v. Southwing Heavy Industries (G.R. Nos. 164171, 164172 &168741, 20
February 2006, 482 SCRA 673), we characterized such delegation as confer[ring] upon the
President quasi-legislative power which may be defined as the authority delegated by the
law-making body to the administrative body to adopt rules and regulations intended to
carry out the provisions of the law and implement legislative policy. (Id., at 686, citing
Cruz, Philippine Administrative Law, 2003 Edition, at 24.) Law book authors are likewise
virtually unanimous that the power of the executive branch to promulgate implementing
rules arises from legislative delegation. Justice Nachura defines the nature of the rule-
making power of administrative bodies in the executive branch as the exercise of delegated
legislative power, involving no discretion as to what the law shall be, but merely the
authority to fix the details in the execution or enforcement of a policy set out in the law
itself. (A.E. Nachura, Outline Reviewer in Political Law [2000 ed.], at 272.) He further
explains that rules and regulations that fix the details in the execution and enforcement of
a policy set out in the law are called supplementary or detailed legislation. (Id., at 273.)
Other commentators such as Fr. Bernas (Bernas, supra note 48, at 611), De Leon and De
Leon (H. De Leon & H. De Leon, Jr., Administrative Law: Text and Cases (1998 ed), at 79-80;
citing 1 Am. Jur. 2d 891) and Carlos Cruz (C. Cruz, Philippine Administrative Law (1998 ed),
at 19-20, 22, 23) have similar views.
The Congress may delegate the power to craft implementing rules to the President in his
capacity as the head of the executive branch, which is tasked under the Constitution to
execute the law. In effecting this delegation, and as with any other delegation of legislative
powers, Congress may impose conditions or limitations which the executive branch is
bound to observe. A usual example is the designation by Congress of which particular
members of the executive branch should participate in the drafting of the implementing
rules. This set-up does not offend the separation of powers between the branches as it is
sanctioned by the delegation principle.
Apart from whatever rule-making power that Congress may delegate to the President, the
latter has inherent ordinance powers covering the executive branch as part of the power of
executive control (The President shall have control of all the executive departments,
bureaus and offices Section 17, Article VII, Constitution.). By its nature, this ordinance
power does not require or entail delegation from Congress. Such faculty must be
distinguished from the authority to issue implementing rules to legislation which does not
inhere in the presidency but instead, as explained earlier, is delegated by Congress.
The marked distinction between the Presidents power to issue intrabranch orders and
instructions or internal rules for the executive branch, on one hand, and the Presidents
authority by virtue of legislative delegation to issue implementing rules to legislation, on
the other, is embodied in the rules on publication, as explained in Taada v. Tuvera (G.R. No.
L-63915, 29 December 1986, 146 SCRA 446). The Court held therein that internal
regulations applicable to members of the executive branch, that is, regulating only the
personnel of the administrative agency and not the public, need not be published. Neither is
publication required of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their subordinates in the
performance of their duties. (Id., at 454) The dispensation with publication in such
instances is rooted in the very nature of the issuances, i.e., they are not binding on the
public. They neither create rights nor impose obligations which are enforceable in court.
Since they are issued pursuant to the power of executive control, and are directed only at
members of the executive branch, there is no constitutional need for their publication.
However, when the presidential issuance does create rights and obligations affecting the
public at large, as implementing rules certainly do, then publication is mandatory. In
explaining why this is so, the Court went as far as to note that such rules and regulations are
designed to enforce or implement existing law pursuant to a valid delegation. (Id., at 254.)
The Court would not have spoken of valid delegation if indeed the power to issue such
rules was inherent in the presidency. Moreover, the creation of legal rights and obligations
is legislative in character, and the President in whom legislative power does not reside
cannot confer legal rights or impose obligations on the people absent the proper
empowering statute. Thus, any presidential issuance which purports to bear such legal
effect on the public, such as implementing rules to legislation, can only emanate from a
legislative delegation to the President.
The prevalent practice in the Office of the President is to issue orders or instructions to
officials of the executive branch regarding the enforcement or carrying out of the law. This
practice is valid conformably with the Presidents power of executive control. The faculty to
issue such orders or instructions is distinct from the power to promulgate implementing
rules to legislation. The latter originates from a different legal foundation the delegation of
legislative power to the President.
Justice Carpio cites an unconventional interpretation of the ordinance power of the
President, particularly the power to issue executive orders, as set forth in the
Administrative Code of 1987. Yet, by practice, implementing rules are never contained in
executive orders. They are, instead, contained in a segregate promulgation, usually entitled
Implementing Rules and Regulations, which derives not from the Administrative Code, but
rather from the specific grants in the legislation itself sought to be implemented.
His position does not find textual support in the Administrative Code itself. Section 2,
Chapter 2, Title 1, Book III of the Code, which defines Executive orders as [a]cts of the
President providing for rules of a general or permanent character in the implementation or
execution of constitutional or statutory powers. Executive orders are not the vehicles for
rules of a general or permanent character in the implementation or execution of laws. They
are the vehicle for rules of a general or permanent character in the implementation or
execution of the constitutional or statutory powers of the President himself. Since by
definition, the statutory powers of the President consist of a specific delegation by Congress,
it necessarily follows that the faculty to issue executive orders to implement such delegated
authority emanates not from any inherent executive power but from the authority
delegated by Congress.
It is not correct, as Justice Carpio posits, that without implementing rules, legislation cannot
be faithfully executed by the executive branch. Many of our key laws, including the Civil
Code, the Revised Penal Code, the Corporation Code, the Land Registration Act and the
Property Registration Decree, do not have Implementing Rules. It has never been suggested
that the enforcement of these laws is unavailing, or that the absence of implementing rules
to these laws indicates insufficient statutory details that should preclude their enforcement.
(See DBM v.Kolonwel Trading, G.R. Nos. 175608, 175616 & 175659, 8 June 2007, 524 SCRA
591, 603.)
In rejecting the theory that the power to craft implementing rules is executive in character
and reaffirming instead that such power arises from a legislative grant, the Court asserts
that Congress retains the power to impose statutory conditions in the drafting of
implementing rules, provided that such conditions do not take on the character of a
legislative veto. Congress can designate which officers or entities should participate in the
drafting of implementing rules. It may impose statutory restraints on the participants in the
drafting of implementing rules, and the President is obliged to observe such restraints on
the executive officials, even if he thinks they are unnecessary or foolhardy. The
unconstitutional nature of the legislative veto does not however bar Congress from
imposing conditions which the President must comply with in the execution of the law.
After all, the President has the constitutional duty to faithfully execute the laws.
[64] This stance is called for by judicial restraint as well as the presumption of
constitutionality accorded to laws enacted by Congress, a co-equal branch. It is also finds
support in Pelaez v. Auditor General (122 Phil. 965 [1965]).
[65] 346 Phil. 321 (1997). Emphasis in the original.
[66] In particular, the Philippine Star and the Manila Standard.
[67] Section 36, IRR of RA 9335.


Republic of the Philippines
SUPREME COURT
Manila


EN BANC



PHILIPPINE COCONUT G.R. Nos. 177857-58
, PRODUCERS FEDERATION, INC.
(COCOFED), MANUEL V. DEL
ROSARIO, DOMINGO P. ESPINA,
SALVADOR P. BALLARES,
JOSELITO A. MORALEDA,
PAZ M. YASON,
VICENTE A. CADIZ,
CESARIA DE LUNA TITULAR, and
RAYMUNDO C. DE VILLA,
Petitioners,

- versus -

REPUBLIC OF THE PHILIPPINES,
Respondent,

WIGBERTO E. TAADA,
OSCAR F. SANTOS,
SURIGAO DEL SUR FEDERATION
OF AGRICULTURAL
COOPERATIVES (SUFAC) and
MORO FARMERS ASSOCIATION
OF ZAMBOANGA DEL SUR
(MOFAZS), represented by
ROMEO C. ROYANDOYAN,
Intervenors.
x------------------------------------------------x
DANILO S. URSUA, G.R. No. 178193
Petitioner,

- versus -


REPUBLIC OF THE PHILIPPINES,
Respondent,
x------------------------------------------------x




Present:

CORONA, C.J.,
CARPIO,*
VELASCO, JR.,
LEONARDO-DE CASTRO,*
BRION,**
PERALTA,*
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.


Promulgated:

January 24, 2012
x-----------------------------------------------------------------------------------------x


D E C I S I O N


VELASCO, JR., J.:


The Case



Cast against a similar backdrop, these consolidated petitions for review under Rule 45 of
the Rules of Court assail and seek to annul certain issuances of the Sandiganbayan in its
Civil Case No. 0033-A entitled, Republic of the Philippines, Plaintiff, v. Eduardo M.
Cojuangco, Jr., et al., Defendants, COCOFED, et al., BALLARES, et al., Class Action Movants,
and Civil Case No. 0033-F entitled, Republic of the Philippines, Plaintiff, v. Eduardo M.
Cojuangco, Jr., et al., Defendants. Civil Case (CC) Nos. 0033-A and 0033-F are the results of
the splitting into eight (8) amended complaints of CC No. 0033 entitled, Republic of the
Philippines v. Eduardo Cojuangco, Jr., et al., a suit for recovery of ill-gotten wealth
commenced by the Presidential Commission on Good Government (PCGG), for the Republic
of the Philippines (Republic), against Ferdinand E. Marcos and several individuals, among
them, Ma. Clara Lobregat (Lobregat) and petitioner Danilo S. Ursua (Ursua). Lobregat and
Ursua occupied, at one time or another, directorial or top management positions in either
the Philippine Coconut Producers Federation, Inc. (COCOFED) or the Philippine Coconut
Authority (PCA), or both.[1] Each of the eight (8) subdivided complaints correspondingly
impleaded as defendants only the alleged participants in the transaction/s subject of the
suit, or who are averred as owner/s of the assets involved.

The original complaint, CC No. 0033, as later amended to make the allegations more specific,
is described in Republic v. Sandiganbayan[2] (one of several ill-gotten suits of the same title
disposed of by the Court) as revolving around the provisional take over by the PCGG of
COCOFED, Cocomark, and Coconut Investment Company and their assets and the
sequestration of shares of stock in United Coconut Planters Bank (UCPB) allegedly owned
by, among others, over a million coconut farmers, and the six (6) Coconut Industry
Investment Fund (CIIF) corporations,[3] referred to in some pleadings as CIIF oil mills and
the fourteen (14) CIIF holding companies[4] (hereafter collectively called CIIF
companies), so-called for having been either organized, acquired and/or funded as UCPB
subsidiaries with the use of the CIIF levy. The basic complaint also contained allegations
about the alleged misuse of the coconut levy funds to buy out the majority of the
outstanding shares of stock of San Miguel Corporation (SMC).

More particularly, in G.R. Nos. 177857-58, class action petitioners COCOFED and a group of
purported coconut farmers and COCOFED members (hereinafter COCOFED et al.
collectively)[5] seek the reversal of the following judgments and resolutions of the anti-
graft court insofar as these issuances are adverse to their interests:

1) Partial Summary Judgment[6] dated July 11, 2003, as reiterated in a resolution[7] of
December 28, 2004, denying COCOFEDs motion for reconsideration, and the May 11, 2007
resolution denying COCOFEDs motion to set case for trial and declaring the partial
summary judgment final and appealable,[8] all issued in Civil Case No. 0033-A; and

2) Partial Summary Judgment[9] dated May 7, 2004, as also reiterated in a resolution[10] of
December 28, 2004, and the May 11, 2007 resolution[11] issued in Civil Case No. 0033-F.
The December 28, 2004 resolution denied COCOFEDs Class Action Omnibus Motion therein
praying to dismiss CC Case No. 0033-F on jurisdictional ground and alternatively,
reconsideration and to set case for trial. The May 11, 2007 resolution declared the judgment
final and appealable.


For convenience, the partial summary judgment (PSJ) rendered on July 11, 2003 in CC No.
0033-A shall hereinafter be referred to as PSJ-A, and that issued on May 7, 2004 in CC 0033-
F, as PSJ-F. PSJ-A and PSJ-F basically granted the Republics separate motions for summary
judgment.

On June 5, 2007, the court a quo issued a Resolution in CC No. 0033-A, which modified PSJ-A
by ruling that no further trial is needed on the issue of ownership of the subject properties.
Likewise, on May 11, 2007, the said court issued a Resolution in CC No. 0033-F amending
PSJ-F in like manner.

On the other hand, petitioner Ursua, in G.R. No. 178193, limits his petition for review on PSJ-
A to the extent that it negates his claims over shares of stock in UCPB.

Taada, et al. have intervened[12] in G.R. Nos. 177857-58 in support of the governments
case.

Another petition was filed and docketed as G.R. No. 180705. It involves questions relating to
Eduardo M. Cojuangco, Jr.s (Cojuangco, Jr.s) ownership of the UCPB shares, which he
allegedly received as option shares, and which is one of the issues raised in PSJ-A.[13] G.R.
No. 180705 was consolidated with G.R. Nos. 177857-58 and 178193. On September 28,
2011, respondent Republic filed a Motion to Resolve G.R. Nos. 177857-58 and 178193.[14]
On January 17, 2012, the Court issued a Resolution deconsolidating G.R. Nos. 177857-58
and 178193 from G.R. No. 180705. This Decision is therefore separate and distinct from the
decision to be rendered in G.R. No. 180705.

The Facts

The relevant facts, as culled from the records and as gathered from Decisions of the Court in
a batch of coco levy and illegal wealth cases, are:

In 1971, Republic Act No. (R.A.) 6260 was enacted creating the Coconut Investment
Company (CIC) to administer the Coconut Investment Fund (CIF), which, under Section
8[15] thereof, was to be sourced from a PhP 0.55 levy on the sale of every 100 kg. of copra.
Of the PhP 0.55 levy of which the copra seller was, or ought to be, issued COCOFUND
receipts, PhP 0.02 was placed at the disposition of COCOFED, the national association of
coconut producers declared by the Philippine Coconut Administration (PHILCOA, now
PCA[16]) as having the largest membership.[17]

The declaration of martial law in September 1972 saw the issuance of several presidential
decrees (P.Ds.) purportedly designed to improve the coconut industry through the
collection and use of the coconut levy fund. While coming generally from impositions on the
first sale of copra, the coconut levy fund came under various names, the different
establishing laws and the stated ostensible purpose for the exaction explaining the differing
denominations. Charged with the duty of collecting and administering the Fund was
PCA.[18] Like COCOFED with which it had a legal linkage,[19] the PCA, by statutory
provisions scattered in different coco levy decrees, had its share of the coco levy.[20]

The following were some of the issuances on the coco levy, its collection and utilization,
how the proceeds of the levy will be managed and by whom, and the purpose it was
supposed to serve:
1. P.D. No. 276 established the Coconut Consumers Stabilization Fund (CCSF) and declared
the proceeds of the CCSF levy as trust fund,[21] to be utilized to subsidize the sale of
coconut-based products, thus stabilizing the price of edible oil.[22]

2. P.D. No. 582 created the Coconut Industry Development Fund (CIDF) to finance the
operation of a hybrid coconut seed farm.

3. Then came P.D. No. 755 providing under its Section 1 the following:

It is hereby declared that the policy of the State is to provide readily available credit
facilities to the coconut farmers at a preferential rates; that this policy can be expeditiously
and efficiently realized by the implementation of the Agreement for the Acquisition of a
Commercial Bank for the benefit of Coconut Farmers executed by the [PCA]; and that the
[PCA] is hereby authorized to distribute, for free, the shares of stock of the bank it acquired
to the coconut farmers.

Towards achieving the policy thus declared, P.D. No. 755, under its Section 2, authorized
PCA to utilize the CCSF and the CIDF collections to acquire a commercial bank and deposit
the CCSF levy collections in said bank, interest free, the deposit withdrawable only when the
bank has attained a certain level of sufficiency in its equity capital. The same section also
decreed that all levies PCA is authorized to collect shall not be considered as special and/or
fiduciary funds or form part of the general funds of the government within the
contemplation of P.D. No. 711.[23]

4. P.D. No. 961 codified the various laws relating to the development of coconut/palm oil
industries.

5. The relevant provisions of P.D. No. 961, as later amended by P.D. No. 1468 (Revised
Coconut Industry Code), read:

ARTICLE III
Levies

Section 1. Coconut Consumers Stabilization Fund Levy. The [PCA] is hereby empowered
to impose and collect the Coconut Consumers Stabilization Fund Levy .

.

Section 5. Exemption. The [CCSF] and the [CIDF] as well as all disbursements as herein
authorized, shall not be construed as special and/or fiduciary funds, or as part of the
general funds of the national government within the contemplation of PD 711; the
intention being that said Fund and the disbursements thereof as herein authorized for the
benefit of the coconut farmers shall be owned by them in their private capacities: .
(Emphasis supplied.)


6. Letter of Instructions No. (LOI) 926, Series of 1979, made reference to the creation, out of
other coco levy funds, of the Coconut Industry Investment Fund (CIIF) in P.D. No. 1468 and
entrusted a portion of the CIIF levy to UCPB for investment, on behalf of coconut farmers, in
oil mills and other private corporations, with the following equity ownership structure:[24]

Section 2. Organization of the Cooperative Endeavor. The [UCPB], in its capacity as
the investment arm of the coconut farmers thru the [CIIF] is hereby directed to invest, on
behalf of the coconut farmers, such portion of the CIIF in private corporations under
the following guidelines:

a) The coconut farmers shall own or control at least (50%) of the outstanding voting
capital stock of the private corporation [acquired] thru the CIIF and/or corporation owned
or controlled by the farmers thru the CIIF . (Words in bracket added.)


Through the years, a part of the coconut levy funds went directly or indirectly to various
projects and/or was converted into different assets or investments.[25] Of particular
relevance to this case was their use to acquire the First United Bank (FUB), later renamed
UCPB, and the acquisition by UCPB, through the CIIF companies, of a large block of SMC
shares. [26]

Apropos the intended acquisition of a commercial bank for the purpose stated earlier, it
would appear that FUB was the bank of choice which the Pedro Cojuangco group
(collectively, Pedro Cojuangco) had control of. The plan, then, was for PCA to buy all of
Pedro Cojuangcos shares in FUB. However, as later events unfolded, a simple direct sale
from the seller (Pedro) to PCA did not ensue as it was made to appear that Cojuangco, Jr.
had the exclusive option to acquire the formers FUB controlling interests. Emerging from
this elaborate, circuitous arrangement were two deeds; the first, simply denominated as
Agreement,[27] dated May 1975,[28] entered into by and between Cojuangco, Jr., for and in
his behalf and in behalf of certain other buyers, and Pedro Cojuangco, purportedly
accorded Cojuangco, Jr. the option to buy 72.2% of FUBs outstanding capital stock, or
137,866 shares (the option shares, for brevity), at PhP 200 per share.

The second but related contract, dated May 25, 1975, was denominated as Agreement for
the Acquisition of a Commercial Bank for the Benefit of the Coconut Farmers of the
Philippines.[29] It had PCA,[30] for itself and for the benefit of the coconut farmers,
purchase from Cojuangco, Jr. the shares of stock subject of the First Agreement for PhP 200
per share. As additional consideration for PCAs buy-out of what Cojuangco, Jr. would later
claim to be his exclusive and personal option,[31] it was stipulated that, from PCA,
Cojuangco, Jr. shall receive equity in FUB amounting to 10%, or 7.22%, of the 72.2%, or fully
paid shares.

Apart from the aforementioned 72.2%, PCA purchased from other FUB shareholders 6,534
shares.

While the 64.98% portion of the option shares (72.2% 7.22% = 64.98%) ostensibly
pertained to the farmers, the corresponding stock certificates supposedly representing the
farmers equity were in the name of and delivered to PCA.[32] There were, however, shares
forming part of the aforesaid 64.98% portion, which ended up in the hands of non-
farmers.[33] The remaining 27.8% of the FUB capital stock were not covered by any of the
agreements.

Under paragraph 8 of the second agreement, PCA agreed to expeditiously distribute the FUB
shares purchased to such coconut farmers holding registered COCOFUND receipts on
equitable basis.

As found by the Sandiganbayan, the PCA appropriated, out of its own fund, an amount for
the purchase of the said 72.2% equity, albeit it would later reimburse itself from the
coconut levy fund.[34]

As of June 30, 1975, the list of FUB stockholders shows PCA with 129,955 shares.[35]

Shortly after the execution of the PCA Cojuangco, Jr. Agreement, President Marcos issued,
on July 29, 1975, P.D. No. 755 directing, as earlier narrated, PCA to use the CCSF and CIDF to
acquire a commercial bank to provide coco farmers with readily available credit facilities at
preferential rate, and PCA to distribute, for free, the bank shares to coconut farmers.

Then came the 1986 EDSA event. One of the priorities of then President Corazon C. Aquinos
revolutionary government was the recovery of ill-gotten wealth reportedly amassed by the
Marcos family and close relatives, their nominees and associates. Apropos thereto, she
issued Executive Order Nos. (E.Os.) 1, 2 and 14, as amended by E.O. 14-A, all Series of 1986.
E.O. 1 created the PCGG and provided it with the tools and processes it may avail of in the
recovery efforts;[36] E.O. No. 2 asserted that the ill-gotten assets and properties come in the
form of shares of stocks, etc.; while E.O. No. 14 conferred on the Sandiganbayan exclusive
and original jurisdiction over ill-gotten wealth cases, with the proviso that technical rules
of procedure and evidence shall not be applied strictly to the civil cases filed under the E.O.
Pursuant to these issuances, the PCGG issued numerous orders of sequestration, among
which were those handed out, as earlier mentioned, against shares of stock in UCPB
purportedly owned by or registered in the names of (a) more than a million coconut
farmers and (b) the CIIF companies, including the SMC shares held by the CIIF companies.
On July 31, 1987, the PCGG instituted before the Sandiganbayan a recovery suit docketed
thereat as CC No. 0033.

After the filing and subsequent amendments of the complaint in CC 0033, Lobregat,
COCOFED et al., and Ballares et al., purportedly representing over a million coconut farmers,
sought and were allowed to intervene.[37] Meanwhile, the following incidents/events
transpired:

1. On the postulate, inter alia, that its coco-farmer members own at least 51% of the
outstanding capital stock of UCPB, the CIIF companies, etc., COCOFED et al., on November
29, 1989, filed Class Action Omnibus Motion praying for the lifting of the orders of
sequestration referred to above and for a chance to present evidence to prove the coconut
farmers ownership of the UCPB and CIIF shares. The plea to present evidence was denied;

2. Later, the Republic moved for and secured approval of a motion for separate trial which
paved the way for the subdivision of the causes of action in CC 0033, each detailing how the
assets subject thereof were acquired and the key roles the principal played;

3. Civil Case 0033, pursuant to an order of the Sandiganbayan would be subdivided into
eight complaints, docketed as CC 0033-A to CC 0033-H.[38]

Lobregat, Ballares et al., COCOFED, et al., on the strength of their authority to intervene in
CC 0033, continued to participate in CC 0033-A where one of the issues raised was the
misuse of the names/identities of the over a million coconut farmers;[39]

4. On February 23, 2001, Lobregat, COCOFED, Ballares et al., filed a Class Action Omnibus
Motion to enjoin the PCGG from voting the sequestered UCPB shares and the SMC shares
registered in the names of the CIIF companies. The Sandiganbayan, by Order of February 28,
2001, granted the motion, sending the Republic to come to this Court on certiorari,
docketed as G.R. Nos. 147062-64, to annul said order; and

5. By Decision of December 14, 2001, in G.R. Nos. 147062-64 (Republic v. COCOFED), [40]
the Court declared the coco levy funds as prima facie public funds. And purchased as the
sequestered UCPB shares were by such funds, beneficial ownership thereon and the
corollary voting rights prima facie pertain, according to the Court, to the government.

The instant proceedings revolve around CC 0033-A (Re: Anomalous Purchase and Use of
[FUB] now [UCPB])[41] and CC 0033-F (Re: Acquisition of San Miguel Corporation Shares of
Stock), the first case pivoting mainly on the series of transactions culminating in the alleged
anomalous purchase of 72.2% of FUBs outstanding capital stock and the transfer by PCA of
a portion thereof to private individuals. COCOFED, et al. and Ballares, et al. participated in
CC No. 0033-A as class action movants.

Petitioners COCOFED et al.[42] and Ursua[43] narrate in their petitions how the farmers
UCPB shares in question ended up in the possession of those as hereunder indicated:

1) The farmers UCPB shares were originally registered in the name of PCA for the eventual
free distribution thereof to and registration in the individual names of the coconut farmers
in accordance with PD 755 and the IRR that PCA shall issue;

2) Pursuant to the stock distribution procedures set out in PCA Administrative Order No. 1,
s. of 1975, (PCA AO 1),[44] farmers who had paid to the CIF under RA 6260 and registered
their COCOFUND (CIF) receipts with PCA were given their corresponding UCPB stock
certificates. As of June 1976, the cut-off date for the extended registration, only 16 million
worth of COCOFUND receipts were registered, leaving over 50 million shares undistributed;

3) PCA would later pass Res. 074-78, s. of 1978, to allocate the 50 million undistributed
shares to (a) farmers who were already recipients thereof and (b) qualified farmers to be
identified by COCOFED after a national census.

4) As of May 1981, some 15.6 million shares were still held by and registered in the name of
COCOFED in behalf of coconut farmers for distribution immediately after the completion
of the national census, to all those determined by the PCA to be bonafide coconut farmers,
but who have not received the bank shares;[45] and

5) Prior to June 1986, a large number of coconut farmers opted to sell all/part of their UCPB
shares below their par value. This prompted the UCPB Board to authorize the CIIF
companies to buy these shares. Some 40.34 million common voting shares of UCPB ended
up with these CIIF companies albeit initially registered in the name of UCPB.

On the other hand, the subject of CC 0033-F are two (2) blocks of SMC shares of stock, the
first referring to shares purchased through and registered in the name of the CIIF holding
companies. The purported ownership of the second block of SMC shares is for the nonce
irrelevant to the disposition of this case. During the time material, the CIIF block of SMC
shares represented 27% of the outstanding capital stock of SMC.

Civil Case No. 0033-A

After the pre-trial, but before the Republic, as plaintiff a quo, could present, as it committed
to, a list of UCPB stockholders as of February 25, 1986,[46] among other evidence,
COCOFED, et al., on the premise that the sequestered farmers UCPB shares are not
unlawfully acquired assets, filed in April 2001 their Class Action Motion for a Separate
Summary Judgment. In it, they prayed for a judgment dismissing the complaint in CC 0033-
A, for the reason that the over than a million unimpleaded coconut farmers own the UCPB
shares. In March 2002, they filed Class Action Motion for Partial Separate Trial on the issue
of whether said UCPB shares have legitimately become the private property of the million
coconut farmers.

Correlatively, the Republic, on the strength of the December 14, 2001 ruling in Republic v.
COCOFED[47] and on the argument, among others, that the claim of COCOFED and Ballares
et al. over the subject UCPB shares is based solely on the supposed COCOFUND receipts
issued for payment of the R.A. 6260 CIF levy, filed a Motion for Partial Summary Judgment
[RE: COCOFED, et al. and Ballares, et al.] dated April 22, 2002, praying that a summary
judgment be rendered declaring:

a. That Section 2 of [PD] 755, Section 5, Article III of P.D. 961 and Section 5, Article III of
P.D. No. 1468 are unconstitutional;

b. That (CIF) payments under (R.A.) No. 6260 are not valid and legal bases for
ownership claims over UCPB shares; and

c. That COCOFED, et al., and Ballares, et al. have not legally and validly obtained title over
the subject UCPB shares.


After an exchange of pleadings, the Republic filed its sur-rejoinder praying that it be
conclusively held to be the true and absolute owner of the coconut levy funds and the UCPB
shares acquired therefrom.[48]

A joint hearing on the separate motions for summary judgment to determine what material
facts exist with or without controversy followed.[49] By Order[50] of March 11, 2003, the
Sandiganbayan detailed, based on this Courts ruling in related cases, the parties
manifestations made in open court and the pleadings and evidence on record, the facts it
found to be without substantial controversy, together with the admissions and/or extent of
the admission made by the parties respecting relevant facts, as follows:


As culled from the exhaustive discussions and manifestations of the parties in open court of
their respective pleadings and evidence on record, the facts which exist without any
substantial controversy are set forth hereunder, together with the admissions and/or the
extent or scope of the admissions made by the parties relating to the relevant facts:

1. The late President Ferdinand E. Marcos was President for two terms . . . and, during the
second term, declared Martial Law through Proclamation No. 1081 dated September 21,
1972.

2. On January 17, 1973, [he] issued Proclamation No. 1102 announcing the ratification of
the 1973 Constitution.

3. From January 17, 1973 to April 7, 1981, [he] . . .exercised the powers and prerogative of
President under the 1935 Constitution and the powers and prerogative of President . . . the
1973 Constitution.

[He] promulgated various [P.D.s], among which were P.D. No. 232, P.D. No. 276, P.D. No.
414, P.D. No. 755, P.D. No. 961 and P.D. No. 1468.

4. On April 17, 1981, amendments to the 1973 Constitution were effected and, on June 30,
1981, [he], after being elected President, reassumed the title and exercised the powers of
the President until 25 February 1986.
5. Defendants Maria Clara Lobregat and Jose R. Eleazar, Jr. were [PCA] Directors during
the period 1970 to 1986.

6. Plaintiff admits the existence of the following agreements which are attached as
Annexes A and B to the Opposition dated October 10, 2002 of defendant Eduardo M.
Cojuangco, Jr. to the above-cited Motion for Partial Summary Judgment:

a) Agreement made and entered into this ______ day of May, 1975 at Makati, Rizal,
Philippines, by and between:

PEDRO COJUANGCO, Filipino, x x x, for and in his own behalf and in behalf of certain other
stockholders of First United Bank listed in Annex A attached hereto (hereinafter
collectively called the SELLERS);

and

EDUARDO COJUANGCO, JR., Filipino, x x x, represented in this act by his duly authorized
attorney-in-fact, EDGARDO J. ANGARA, for and in his own behalf and in behalf of certain
other buyers, (hereinafter collectively called the BUYERS);

WITNESSETH: That

WHEREAS, the SELLERS own of record and beneficially a total of 137,866 shares of stock,
with a par value of P100.00 each, of the common stock of the First United Bank (the Bank),
a commercial banking corporation existing under the laws of the Philippines;

WHEREAS, the BUYERS desire to purchase, and the SELLERS are willing to sell, the
aforementioned shares of stock totaling 137,866 shares (hereinafter called the Contract
Shares) owned by the SELLERS due to their special relationship to EDUARDO COJUANGCO,
JR.;

NOW, THEREFORE, for and in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:

1. Sale and Purchase of Contract Shares

Subject to the terms and conditions of this Agreement, the SELLERS hereby sell, assign,
transfer and convey unto the BUYERS, and the BUYERS hereby purchase and acquire, the
Contract Shares free and clear of all liens and encumbrances thereon.

2. Contract Price

The purchase price per share of the Contract Shares payable by the BUYERS is P200.00 or
an aggregate price of P27,573,200.00 (the Contract Price).

3. Delivery of, and payment for, stock certificates

Upon the execution of this Agreement, (i) the SELLERS shall deliver to the BUYERS the stock
certificates representing the Contract Shares, free and clear of all liens, encumbrances,
obligations, liabilities and other burdens in favor of the Bank or third parties, duly endorsed
in blank or with stock powers sufficient to transfer the shares to bearer; and (ii) BUYERS
shall deliver to the SELLERS P27,511,295.50 representing the Contract Price less the
amount of stock transfer taxes payable by the SELLERS, which the BUYERS undertake to
remit to the appropriate authorities. (Emphasis added.)

4. Representation and Warranties of Sellers

The SELLERS respectively and independently of each other represent and warrant that:

(a) The SELLERS are the lawful owners of, with good marketable title to, the Contract
Shares and that (i) the certificates to be delivered pursuant thereto have been validly issued
and are fully paid and no-assessable; (ii) the Contract Shares are free and clear of all liens,
encumbrances, obligations, liabilities and other burdens in favor of the Bank or third
parties

This representation shall survive the execution and delivery of this Agreement and the
consummation or transfer hereby contemplated.

(b) The execution, delivery and performance of this Agreement by the SELLERS does not
conflict with or constitute any breach of any provision in any agreement to which they are a
party or by which they may be bound.

(c) They have complied with the condition set forth in Article X of the Amended Articles of
Incorporation of the Bank.

5. Representation of BUYERS .

6. Implementation

The parties hereto hereby agree to execute or cause to be executed such documents and
instruments as may be required in order to carry out the intent and purpose of this
Agreement.

7. Notices .


IN WITNESS WHEREOF, the parties hereto have hereunto set their hands at the
place and on the date first above written.



PEDRO COJUANGCO EDUARDO COJUANGCO, JR.
(on his own behalf and in (on his own behalf and in behalf
behalf of the other Sellers of the other Buyers)
listed in Annex A hereof) (BUYERS)
(SELLERS)
By:

EDGARDO J. ANGARA
Attorney-in-Fact



b) Agreement for the Acquisition of a Commercial Bank for the Benefit of the
Coconut Farmers of the Philippines, made and entered into this 25th day of May 1975 at
Makati, Rizal, Philippines, by and between:

EDUARDO M. COJUANGCO, JR., x x x, hereinafter referred to as the SELLER;

and

PHILIPPINE COCONUT AUTHORITY, a public corporation created by Presidential Decree No.
232, as amended, for itself and for the benefit of the coconut farmers of the Philippines,
(hereinafter called the BUYER)

WITNESSETH: That

WHEREAS, on May 17, 1975, the Philippine Coconut Producers Federation (PCPF),
through its Board of Directors, expressed the desire of the coconut farmers to own a
commercial bank which will be an effective instrument to solve the perennial credit
problems and, for that purpose, passed a resolution requesting the PCA to negotiate with
the SELLER for the transfer to the coconut farmers of the SELLERs option to buy the First
United Bank (the Bank) under such terms and conditions as BUYER may deem to be in the
best interest of the coconut farmers and instructed Mrs. Maria Clara Lobregat to convey
such request to the BUYER;

WHEREAS, the PCPF further instructed Mrs. Maria Clara Lobregat to make representations
with the BUYER to utilize its funds to finance the purchase of the Bank;

WHEREAS, the SELLER has the exclusive and personal option to buy 144,400 shares (the
Option Shares) of the Bank, constituting 72.2% of the present outstanding shares of stock
of the Bank, at the price of P200.00 per share, which option only the SELLER can validly
exercise;

WHEREAS, in response to the representations made by the coconut farmers, the BUYER has
requested the SELLER to exercise his personal option for the benefit of the coconut farmers;

WHEREAS, the SELLER is willing to transfer the Option Shares to the BUYER at a price equal
to his option price of P200 per share;

WHEREAS, recognizing that ownership by the coconut farmers of a commercial bank is a
permanent solution to their perennial credit problems, that it will accelerate the growth and
development of the coconut industry and that the policy of the state which the BUYER is
required to implement is to achieve vertical integration thereof so that coconut farmers will
become participants in, and beneficiaries of, the request of PCPF that it acquire a
commercial bank to be owned by the coconut farmers and, appropriated, for that purpose,
the sum of P150 Million to enable the farmers to buy the Bank and capitalize the Bank to
such an extension as to be in a position to adopt a credit policy for the coconut farmers at
preferential rates;
WHEREAS, x x x the BUYER is willing to subscribe to additional shares (Subscribed
Shares) and place the Bank in a more favorable financial position to extend loans and
credit facilities to coconut farmers at preferential rates;

NOW, THEREFORE, for and in consideration of the foregoing premises and the other terms
and conditions hereinafter contained, the parties hereby declare and affirm that their
principal contractual intent is (1) to ensure that the coconut farmers own at least 60% of
the outstanding capital stock of the Bank; and (2) that the SELLER shall receive
compensation for exercising his personal and exclusive option to acquire the Option Shares,
for transferring such shares to the coconut farmers at the option price of P200 per share,
and for performing the management services required of him hereunder.

1. To ensure that the transfer to the coconut farmers of the Option Shares is effected with
the least possible delay and to provide for the faithful performance of the obligations of the
parties hereunder, the parties hereby appoint the Philippine National Bank as their escrow
agent (the Escrow Agent).

Upon execution of this Agreement, the BUYER shall deposit with the Escrow Agent such
amount as may be necessary to implement the terms of this Agreement.

2. As promptly as practicable after execution of this Agreement, the SELLER shall exercise
his option to acquire the Option Share and SELLER shall immediately thereafter deliver and
turn over to the Escrow Agent such stock certificates as are herein provided to be received
from the existing stockholders of the Bank by virtue of the exercise on the aforementioned
option.

3. To ensure the stability of the Bank and continuity of management and credit policies to
be adopted for the benefit of the coconut farmers, the parties undertake to cause the
stockholders and the Board of Directors of the Bank to authorize and approve a
management contract between the Bank and the SELLER under the following terms:

(a) The management contract shall be for a period of five (5) years, renewable for another
five (5) years by mutual agreement of the SELLER and the Bank;

(b) The SELLER shall be elected President and shall hold office at the pleasure of the Board
of Directors. While serving in such capacity, he shall be entitled to such salaries and
emoluments as the Board of Directors may determine;

(c) The SELLER shall recruit and develop a professional management team to manage and
operate the Bank under the control and supervision of the Board of Directors of the Bank;

(d) The BUYER undertakes to cause three (3) persons designated by the SELLER to be
elected to the Board of Directors of the Bank;

(e) The SELLER shall receive no compensation for managing the Bank, other than such
salaries or emoluments to which he may be entitled by virtue of the discharge of his
function and duties as President, provided and

(f) The management contract may be assigned to a management company owned and
controlled by the SELLER.

4. As compensation for exercising his personal and exclusive option to acquire the Option
Shares and for transferring such shares to the coconut farmers, as well as for performing
the management services required of him, SELLER shall receive equity in the Bank
amounting, in the aggregate, to 95,304 fully paid shares in accordance with the procedure
set forth in paragraph 6 below;

5. In order to comply with the Central Bank program for increased capitalization of banks
and to ensure that the Bank will be in a more favorable financial position to attain its
objective to extend to the coconut farmers loans and credit facilities, the BUYER undertakes
to subscribe to shares with an aggregate par value of P80,864,000 (the Subscribed
Shares). The obligation of the BUYER with respect to the Subscribed Shares shall be as
follows:

(a) The BUYER undertakes to subscribe, for the benefit of the coconut farmers, to shares
with an aggregate par value of P15,884,000 from the present authorized but unissued
shares of the Bank; and

(b) The BUYER undertakes to subscribe, for the benefit of the coconut farmers, to shares
with an aggregate par value of P64,980,000 from the increased capital stock of the Bank,
which subscriptions shall be deemed made upon the approval by the stockholders of the
increase of the authorized capital stock of the Bank from P50 Million to P140 Million.

The parties undertake to declare stock dividends of P8 Million out of the present authorized
but unissued capital stock of P30 Million.

6. To carry into effect the agreement of the parties that the SELLER shall receive as his
compensation 95,304 shares:

(a) .

(b) With respect to the Subscribed Shares, the BUYER undertakes, in order to prevent the
dilution of SELLERs equity position, that it shall cede over to the SELLER 64,980 fully-paid
shares out of the Subscribed Shares. Such undertaking shall be complied with in the
following manner: .


7. The parties further undertake that the Board of Directors and management of the Bank
shall establish and implement a loan policy for the Bank of making available for loans at
preferential rates of interest to the coconut farmers .

8. The BUYER shall expeditiously distribute from time to time the shares of the Bank, that
shall be held by it for the benefit of the coconut farmers of the Philippines under the
provisions of this Agreement, to such, coconut farmers holding registered COCOFUND
receipts on such equitable basis as may be determine by the BUYER in its sound discretion.

9. .

10. To ensure that not only existing but future coconut farmers shall be participants in and
beneficiaries of the credit policies, and shall be entitled to the benefit of loans and credit
facilities to be extended by the Bank to coconut farmers at preferential rates, the shares
held by the coconut farmers shall not be entitled to pre-emptive rights with respect to the
unissued portion of the authorized capital stock or any increase thereof.

11. After the parties shall have acquired two-thirds (2/3) of the outstanding shares of the
Bank, the parties shall call a special stockholders meeting of the Bank:

(a) To classify the present authorized capital stock of P50,000,000 divided into 500,000
shares, with a par value of P100.00 per share into: 361,000 Class A shares, with an
aggregate par value of P36,100,000 and 139,000 Class B shares, with an aggregate par value
of P13,900,000. All of the Option Shares constituting 72.2% of the outstanding shares, shall
be classified as Class A shares and the balance of the outstanding shares, constituting 27.8%
of the outstanding shares, as Class B shares;

(b) To amend the articles of incorporation of the Bank to effect the following changes:

(i) change of corporate name to First United Coconut Bank;

(ii) replace the present provision restricting the transferability of the shares with a
limitation on ownership by any individual or entity to not more than 10% of the
outstanding shares of the Bank;

(iii) provide that the holders of Class A shares shall not be entitled to pre-emptive rights
with respect to the unissued portion of the authorized capital stock or any increase thereof;
and

(iv) provide that the holders of Class B shares shall be absolutely entitled to pre-emptive
rights, with respect to the unissued portion of Class B shares comprising part of the
authorized capital stock or any increase thereof, to subscribe to Class B shares in proportion
t the subscriptions of Class A shares, and to pay for their subscriptions to Class B shares
within a period of five (5) years from the call of the Board of Directors.

(c) To increase the authorized capital stock of the Bank from P50 Million to P140 Million.;

(d) To declare a stock dividend of P8 Million payable to the SELLER, the BUYER and other
stockholders of the Bank out of the present authorized but unissued capital stock of P30
Million;

(e) To amend the by-laws of the Bank accordingly; and

(f) To authorize and approve the management contract provided in paragraph 2 above.

The parties agree that they shall vote their shares and take all the necessary corporate
action in order to carry into effect the foregoing provisions of this paragraph 11 .

12. It is the contemplation of the parties that the Bank shall achieve a financial and equity
position to be able to lend to the coconut farmers at preferential rates.

In order to achieve such objective, the parties shall cause the Bank to adopt a policy
of reinvestment, by way of stock dividends, of such percentage of the profits of the Bank as
may be necessary.

13. The parties agree to execute or cause to be executed such documents and instruments
as may be required in order to carry out the intent and purpose of this Agreement.


IN WITNESS WHEREOF,

PHILIPPINE COCONUT AUTHORITY
(BUYER)

By:

EDUARDO COJUANGCO, JR. MARIA CLARA L. LOBREGAT
(SELLER)



7. Defendants Lobregat, et al. and COCOFED, et al. and Ballares, et al. admit that the
(PCA) was the other buyers represented by . Cojuangco, Jr. in the May 1975 Agreement
entered into between Pedro Cojuangco (on his own behalf and in behalf of other sellers
listed in Annex A of the agreement) and Cojuangco, Jr. (on his own behalf and in behalf
of the other buyers). Defendant Cojuangco insists he was the only buyer under the
aforesaid Agreement.

8. ..

9. Defendants Lobregat, et al., and COCOFED, et al., and Ballares, et al. admit that in
addition to the 137,866 FUB shares of Pedro Cojuangco, et al. covered by the Agreement,
other FUB stockholders sold their shares to PCA such that the total number of FUB shares
purchased by PCA increased from 137,866 shares to 144,400 shares, the OPTION SHARES
referred to in the Agreement of May 25, 1975. Defendant Cojuangco did not make said
admission as to the said 6,534 shares in excess of the 137,866 shares covered by the
Agreement with Pedro Cojuangco.

10. Defendants Lobregat, et al. and COCOFED, et al. and Ballares, et al. admit that the
Agreement, described in Section 1 of Presidential Decree (P.D.) No. 755 dated July 29, 1975
as the Agreement for the Acquisition of a Commercial Bank for the Benefit of Coconut
Farmers executed by the Philippine Coconut Authority and incorporated in Section 1 of
P.D. No. 755 by reference, refers to the AGREEMENT FOR THE ACQUISITION OF A
COMMERCIAL BANK FOR THE BENEFIT OF THE COCONUT FARMERS OF THE
PHILIPPINES dated May 25, 1975 between defendant Eduardo M. Cojuangco, Jr. and the
[PCA] (Annex B for defendant Cojuangcos OPPOSITION TO PLAINTIFFS MOTION FOR
PARTIAL SUMMARY JUDGMENT [RE: EDUARDO M. COJUANGCO, JR.] dated September 18,
2002).

Plaintiff refused to make the same admission.

11. the Court takes judicial notice that P.D. No. 755 was published [in] volume 71 of
the Official Gazette but the text of the agreement was not so published with P.D. No. 755.

12. Defendants Lobregat, et al. and COCOFED, et al. and Ballares, et al. admit that the PCA
used public funds, in the total amount of P150 million, to purchase the FUB shares
amounting to 72.2% of the authorized capital stock of the FUB, although the PCA was later
reimbursed from the coconut levy funds and that the PCA subscription in the increased
capitalization of the FUB, which was later renamed the (UCPB), came from the said
coconut levy funds.

13. Pursuant to the May 25, 1975 Agreement, out of the 72.2% shares of the authorized
and the increased capital stock of the FUB (later UCPB), entirely paid for by PCA, 64.98% of
the shares were placed in the name of the PCA for the benefit of the coconut farmers and
7,22% were given to defendant Cojuangco. The remaining 27.8% shares of stock in the FUB
which later became the UCPB were not covered by the two (2) agreements referred to in
item no. 6, par. (a) and (b) above.
There were shares forming part of the aforementioned 64.98% which were later sold or
transferred to non-coconut farmers.
14. Under the May 27, 1975 Agreement, defendant Cojuangcos equity in the FUB (now
UCPB) was ten percent (10%) of the shares of stock acquired by the PCA for the benefit of
the coconut farmers.
15. That the fully paid 95.304 shares of the FUB, later the UCPB, acquired by defendant
Cojuangco, Jr. pursuant to the May 25, 1975 Agreement were paid for by the PCA in
accordance with the terms and conditions provided in the said Agreement.
16. Defendants Lobregat, et al. and COCOFED, et al. and Ballares, et al. admit that the
affidavits of the coconut farmers (specifically, Exhibit 1-Farmer to 70-Farmer) uniformly
state that:

a. they are coconut farmers who sold coconut products;
b. in the sale thereof, they received COCOFUND receipts pursuant to R.A. No. 6260;
c. they registered the said COCOFUND receipts; and
d. by virtue thereof, and under R.A. No. 6260, P.D. Nos. 755, 961 and 1468, they are
allegedly entitled to the subject UCPB shares.

but subject to the following qualifications:

a. there were other coconut farmers who received UCPB shares although they did not
present said COCOFUND receipt because the PCA distributed the unclaimed UCPB shares
not only to those who already received their UCPB shares in exchange for their COCOFUND
receipts but also to the coconut farmers determined by a national census conducted
pursuant to PCA administrative issuances;

b. [t]here were other affidavits executed by Lobregat, Eleazar, Ballares and Aldeguer
relative to the said distribution of the unclaimed UCPB shares; and

c. the coconut farmers claim the UCPB shares by virtue of their compliance not only
with the laws mentioned in item (d) above but also with the relevant issuances of the PCA
such as, PCA Administrative Order No. 1, dated August 20, 1975 (Exh. 298-Farmer); PCA
Resolution No. 033-78 dated February 16, 1978.

The plaintiff did not make any admission as to the foregoing qualifications.

17. Defendants Lobregat, et al. and COCOFED, et al. and Ballares, et al. claim that the UCPB
shares in question have legitimately become the private properties of the 1,405,366 coconut
farmers solely on the basis of their having acquired said shares in compliance with R.A. No.
6260, P.D. Nos. 755, 961 and 1468 and the administrative issuances of the PCA cited above.

18. ..

On July 11, 2003, the Sandiganbayan issued the assailed PSJ-A finding for the Republic,
the judgment accentuated by (a) the observation that COCOFED has all along manifested as
representing over a million coconut farmers and (b) a declaration on the issue of ownership
of UCPB shares and the unconstitutionality of certain provisions of P.D. No. 755 and its
implementing regulations. On the matter of ownership in particular, the anti-graft court
declared that the 64.98% sequestered Farmers UCPB shares, plus other shares paid by
PCA are conclusively owned by the Republic. In its pertinent parts, PSJ-A, resolving the
separate motions for summary judgment in seriatim with separate dispositive portions for
each, reads:

WHEREFORE, in view of the foregoing, we rule as follows:



A. Re: CLASS ACTION MOTION FOR A SEPARATE SUMMARY JUDGMENT dated April 11,
2001 filed by Defendant Maria Clara L. Lobregat, COCOFED, et al., and Ballares, et al.

The Class Action Motion for Separate Summary Judgment dated April 11, 2001 filed by
defendant Maria Clara L. Lobregat, COCOFED, et al. and Ballares, et al., is hereby DENIED for
lack of merit.

B. Re: MOTION FOR PARTIAL SUMMARY JUDGMENT (RE: COCOFED, ET AL. AND
BALLARES, ET AL.) dated April 22, 2002 filed by Plaintiff.

1. a. Section 1 of P.D. No. 755, taken in relation to Section 2 of the same P.D., is
unconstitutional: (i) for having allowed the use of the CCSF to benefit directly private
interest by the outright and unconditional grant of absolute ownership of the FUB/UCPB
shares paid for by PCA entirely with the CCSF to the undefined coconut farmers, which
negated or circumvented the national policy or public purpose declared by P.D. No. 755 to
accelerate the growth and development of the coconut industry and achieve its vertical
integration; and (ii) for having unduly delegated legislative power to the PCA.

b. The implementing regulations issued by PCA, namely, Administrative Order No. 1, Series
of 1975 and Resolution No. 074-78 are likewise invalid for their failure to see to it that the
distribution of shares serve exclusively or at least primarily or directly the aforementioned
public purpose or national policy declared by P.D. No. 755.

2. Section 2 of P.D. No. 755 which mandated that the coconut levy funds shall not be
considered special and/or fiduciary funds nor part of the general funds of the national
government and similar provisions of Sec. 5, Art. III, P.D. No. 961 and Sec. 5, Art. III, P.D. No.
1468 contravene the provisions of the Constitution, particularly, Art. IX (D), Sec. 2; and
Article VI, Sec. 29 (3).

3. Lobregat, COCOFED, et al. and Ballares, et al. have not legally and validly obtained title
of ownership over the subject UCPB shares by virtue of P.D. No. 755, the Agreement dated
May 25, 1975 between the PCA and defendant Cojuangco, and PCA implementing rules,
namely, Adm. Order No. 1, s. 1975 and Resolution No. 074-78.

4. The so-called Farmers UCPB shares covered by 64.98% of the UCPB shares of stock,
which formed part of the 72.2% of the shares of stock of the former FUB and now of the
UCPB, the entire consideration of which was charged by PCA to the CCSF, are hereby
declared conclusively owned by, the Plaintiff Republic of the Philippines.

C. Re: MOTION FOR PARTIAL SUMMARY JUDGMENT (RE: EDUARDO M. COJUANGCO, JR.)
dated September 18, 2002 filed by Plaintiff.

1. Sec. 1 of P.D. No. 755 did not validate the Agreement between PCA and defendant
Eduardo M. Cojuangco, Jr. dated May 25, 1975 nor did it give the Agreement the binding
force of a law because of the non-publication of the said Agreement.

2. Regarding the questioned transfer of the shares of stock of FUB (later UCPB) by PCA to
defendant Cojuangco or the so-called Cojuangco UCPB shares which cost the PCA more
than Ten Million Pesos in CCSF in 1975, we declare, that the transfer of the following
FUB/UCPB shares to defendant Eduardo M. Cojuangco, Jr. was not supported by valuable
consideration, and therefore null and void:

a. The 14,400 shares from the Option Shares;

b. Additional Bank Shares Subscribed and Paid by PCA, consisting of:

1. Fifteen Thousand Eight Hundred Eighty-Four (15,884) shares out of the authorized but
unissued shares of the bank, subscribed and paid by PCA;

2. Sixty Four Thousand Nine Hundred Eighty (64,980) shares of the increased capital
stock subscribed and paid by PCA; and

3. Stock dividends declared pursuant to paragraph 5 and paragraph 11 (iv) (d) of the
Agreement.

3. The above-mentioned shares of stock of the FUB/UCPB transferred to defendant
Cojuangco are hereby declared conclusively owned by the Republic of the Philippines.

4. The UCPB shares of stock of the alleged fronts, nominees and dummies of defendant
Eduardo M. Cojuangco, Jr. which form part of the 72.2% shares of the FUB/UCPB paid for by
the PCA with public funds later charged to the coconut levy funds, particularly the CCSF,
belong to the plaintiff Republic of the Philippines as their true and beneficial owner.

Let trial of this Civil Case proceed with respect to the issues which have not been disposed
of in this Partial Summary Judgment. For this purpose, the plaintiffs Motion Ad Cautelam to
Present Additional Evidence dated March 28, 2001 is hereby GRANTED.



From PSJ-A, Lobregat moved for reconsideration which COCOFED, et al. and Ballares, et al.
adopted. All these motions were denied in the extended assailed Resolution[51] of
December 28, 2004.

Civil Case No. 0033-F

Here, the Republic, after filing its pre-trial brief, interposed a Motion for Judgment on the
Pleadings and/or for [PSJ] (Re: Defendants CIIF Companies, 14 Holding Companies and
COCOFED, et al.) praying that, in light of the parties submissions and the supervening ruling
in Republic v. COCOFED[52] which left certain facts beyond question, a judgment issue:

1) Declaring Section 5 of Article III of P.D. No. 961 (Coconut Industry Code) and Section 5
of Article III of P.D. No. 1468 (Revised Coconut Industry Code) to be unconstitutional;

2) Declaring that CIF payments under RA No. 6260 are not valid and legal bases for
ownership claims over the CIIF companies and, ultimately, the CIIF block of SMC shares; and

3) Ordering the reconveyance of the CIIF companies, the 14 holding companies, and the
27% CIIF block of San Miguel Corporation shares of stocks in favor of the government and
declaring the ownership thereof to belong to the government in trust for all the coconut
farmers.

At this juncture, it may be stated that, vis--vis CC 0033-F, Gabay Foundation, Inc. sought
but was denied leave to intervene. But petitioners COCOFED, et al. moved and were allowed
to intervene[53] on the basis of their claim that COCOFED members beneficially own the
block of SMC shares held by the CIIF companies, at least 51% of whose capitol stock such
members own. The claim, as the OSG explained, arose from the interplay of the following:
(a) COCOFED et al.s alleged majority ownership of the CIIF companies under Sections 9[54]
and 10[55] of P.D. No. 1468, and (b) their alleged entitlement to shares in the CIIF
companies by virtue of their supposed registration of COCOFUND receipts allegedly issued
to COCOFED members upon payment of the R.A. 6260 CIF levy.[56]

Just as in CC No. 0033-A, the Sandiganbayan also conducted a hearing in CC No. 0033-F to
determine facts that appeared without substantial controversy as culled from the records
and, by Order[57] of February 23, 2004, outlined those facts.
On May 7, 2004, the Sandiganbayan, in light of its ruling in CC No. 0033-A and disposing of
the issue on ownership of the CIIF oil and holding companies and their entire block of
subject SMC shares, issued the assailed PSJ-F also finding for the Republic, the fallo of which
pertinently reading:

WHEREFORE, in view of the foregoing, we hold that:

The Motion for Partial Summary Judgment (Re: Defendants CIIF Companies, 14 Holding
Companies and Cocofed et al.) filed by Plaintiff is hereby GRANTED. ACCORDINGLY, THE
CIIF COMPANIES, namely:

1. Southern Luzon Coconut Oil Mills (SOLCOM);
2. Cagayan de Oro Oil Co., Inc. (CAGOIL);
3. Iligan Coconut Industries, Inc. (ILICOCO);
4. San Pablo Manufacturing Corp. (SPMC);
5. Granexport Manufacturing Corp. (GRANEX); and
6. Legaspi Oil Co., Inc. (LEGOIL),

AS WELL AS THE 14 HOLDING COMPANIES, NAMELY:

1. Soriano Shares, Inc.;
2. ACS Investors, Inc.;
3. Roxas Shares, Inc.;
4. Arc Investors, Inc.;
5. Toda Holdings, Inc.;
6. AP Holdings, Inc.;
7. Fernandez Holdings, Inc.;
8. SMC Officers Corps, Inc.;
9. Te Deum Resources, Inc.;
10. Anglo Ventures, Inc.;
11. Randy Allied Ventures, Inc.;
12. Rock Steel Resources, Inc.;
13. Valhalla Properties Ltd., Inc.; and
14. First Meridian Development, Inc.


AND THE CIIF BLOCK OF SAN MIGUEL CORPORATION (SMC) SHARES OF STOCK
TOTALLING 33,133,266 SHARES AS OF 1983 ARE DECLARED OWNED BY THE
GOVERNMENT IN TRUST FOR ALL THE COCONUT FARMERS GOVERNMENT AND
ORDERDED RECONVEYED TO THE GOVERNMENT.[58] (Emphasis and capitalization in the
original; underscoring added.)

Let the trial of this Civil Case proceed with respect to the issues which have not been
disposed of in this Partial Summary Judgment, including the determination of whether the
CIIF Block of SMC Shares adjudged to be owned by the Government represents 27% of the
issued and outstanding capital stock of SMC according to plaintiff or to 31.3% of said capital
stock according to COCOFED, et al and Ballares, et al.

SO ORDERED.


Expressly covered by the declaration and the reconveyance directive are all dividends
declared, paid and issued thereon as well as any increments thereto arising from, but not
limited to, exercise of pre-emptive rights.

On May 26, 2004, COCOFED et al., filed an omnibus motion (to dismiss for lack of subject
matter jurisdiction or alternatively for reconsideration and to set case for trial), but this
motion was denied per the Sandiganbayans Resolution[59] of December 28, 2004.

On May 11, 2007, in CC 0033-A, the Sandiganbayan issued a Resolution[60] denying
Lobregats and COCOFEDs separate motions to set the case for trial/hearing, noting that
there is no longer any point in proceeding to trial when the issue of their claim of ownership
of the sequestered UCPB shares and related sub-issues have already been resolved in PSJ-A.

For ease of reference, PSJ-A and PSJ-F each originally decreed trial or further hearing on
issues yet to be disposed of. However, the Resolution[61] issued on June 5, 2007 in CC
0033-A and the Resolution[62] of May 11, 2007 rendered in CC 0033-F effectively modified
the underlying partial summary judgments by deleting that portions on the necessity of
further trial on the issue of ownership of (1) the sequestered UCPB shares, (2) the CIIF
block of SMC shares and (3) the CIIF companies. As the anti-graft court stressed in both
resolutions, the said issue of ownership has been finally resolved in the corresponding
PSJs.[63]

Hence, the instant petitions.

The Issues

COCOFED et al., in G.R. Nos. 177857-58, impute reversible error on the Sandiganbayan
for (a) assuming jurisdiction over CC Nos. 0033-A and 0033-F despite the Republics failure
to establish below the jurisdictional facts, i.e., that the sequestered assets sought to be
recovered are ill-gotten in the context of E.O. Nos. 1, 2, 14 and 14-A; (b) declaring certain
provisions of coco levy issuances unconstitutional; and (c) denying the petitioners plea to
prove that the sequestered assets belong to coconut farmers. Specifically, petitioners aver:

I. The Sandiganbayan gravely erred when it refused to acknowledge that it did not have
subject matter jurisdiction over the ill-gotten wealth cases because the respondent Republic
failed to prove, and did not even attempt to prove, the jurisdictional fact that the
sequestered assets constitute ill-gotten wealth of former President Marcos and Cojuangco.
Being without subject matter jurisdiction over the ill-gotten wealth cases, a defect
previously pointed out and repeatedly assailed by COCOFED, et al., the assailed PSJs and the
assailed Resolutions are all null and void.

A. Insofar as the ill-gotten wealth cases are concerned, the Sandiganbayans subject matter
jurisdiction is limited to the recovery of ill-gotten wealth as defined in Eos 1, 2, 14 and 14-
A. Consistent with that jurisdiction, the subdivided complaints in the ill-gotten wealth cases
expressly alleged that the sequestered assets constitutes ill-gotten wealth of former
President Marcos and Cojuangco, having been filed pursuant to, and in connection with, Eos
1, 2, 14 and 14-A, the Sandiganbayan gravely erred, if not exceeded its jurisdiction, when it
refused to require the respondent Republic to prove the aforesaid jurisdictional fact.

B. . Having no evidence on record to prove the said jurisdictional fact, the Sandiganbayan
gravely erred, if not grossly exceeded its statutory jurisdiction, when it rendered the
assailed PSJs instead of dismissing the ill-gotten wealth cases.

C. Under Section 1 of Rule 9 of the Rules of Court, lack of jurisdiction over the subject
matter may be raised at any stage of the proceedings. In any event, in pursuing its
intervention in the ill-gotten wealth cases, COCOFED, et al precisely questioned the
Sandiganbayans subject matter jurisdiction, asserted that the jurisdictional fact does not
exist, moved to dismiss the ill-gotten wealth cases and even prayed that the writs of
sequestration over the sequestered assets be lifted. In concluding that those actions
constitute an invocation of its jurisdiction, the Sandiganbayan clearly acted whimsically,
capriciously and in grave abuse of its discretion.

II. Through the assailed PSJs and the assailed Resolutions, the Sandiganbayan declared
certain provisions of the coconut levy laws as well as certain administrative issuances of the
PCA as unconstitutional. In doing so, the Sandiganbayan erroneously employed, if not
grossly abused, its power of judicial review.

A. the Sandiganbayan gravely erred, if not brazenly exceeded its statutory jurisdiction
and abused the judicial powers, when it concluded that the public purpose of certain
coconut levy laws was not evident, when it thereupon formulated its own public policies
and purposes for the coconut levy laws and at the same time disregarded the national
policies specifically prescribed therein.

B. In ruling that it is not clear or evident how the means employed by the [coconut levy]
laws would serve the avowed purpose of the law or can serve a public purpose, the
Sandiganbayan erroneously examined, determined and evaluated the wisdom of such laws,
a constitutional power within the exclusive province of the legislative department.

C. The Sandiganbayan gravely erred in declaring Section 1 of PD 755, PCA [AO] 1 and PCA
Resolution No. 074-78 constitutionally infirm by reason of alleged but unproven and
unsubstantiated flaws in their implementation.

D. The Sandiganbayan gravely erred in concluding that Section 1 of PD 755 constitutes an
undue delegation of legislative power insofar as it authorizes the PCA to promulgate rules
and regulations governing the distribution of the UCPB shares to the coconut farmers.
Rather, taken in their proper context, Section 1 of PD 755 was complete in itself, [and]
prescribed sufficient standards that circumscribed the discretion of the PCA.

More importantly, this Honorable Court has, on three (3) separate occasions, rejected
respondent Republics motion to declare the coconut levy laws unconstitutional. The
Sandiganbayan gravely erred, if not acted in excess of its jurisdiction, when it ignored the
settled doctrines of law of the case and/or stare decisis and granted respondent Republics
fourth attempt to declare the coconut levy laws unconstitutional, despite fact that such
declaration of unconstitutionality was not necessary to resolve the ultimate issue of
ownership involved in the ill-gotten wealth cases.

III. In rendering the assailed PSJs and thereafter refusing to proceed to trial on the merits,
on the mere say-so of the respondent Republic, the Sandiganbayan committed gross and
irreversible error, gravely abused its judicial discretion and flagrantly exceeded its
jurisdiction as it effectively sanctioned the taking of COCOFED, et al.s property by the
respondent Republic without due process of law and through retroactive application of the
declaration of unconstitutionality of the coconut levy laws, an act that is not only illegal and
violative of the settled Operative Fact Doctrine but, more importantly, inequitable to the
coconut farmers whose only possible mistake, offense or misfortune was to follow the law.

A. .

1. In the course of the almost twenty (20) years that the ill-gotten wealth cases were
pending, COCOFED, et al. repeatedly asked to be allowed to present evidence to prove that
the true, actual and beneficial owners of the sequestered assets are the coconut farmers and
not Cojuangco, an alleged crony of former President Marcos. The Sandiganbayan
grievously erred and clearly abused its judicial discretion when it repeatedly and
continuously denied COCOFED, et al. the opportunity to present their evidence to disprove
the baseless allegations of the Ill-Gotten Wealth Cases that the sequestered assets constitute
ill-gotten wealth of Cojuangco and of former President Marcos, an error that undeniably and
illegally deprived COCOFED, et al of their constitutional right to be heard.

2. The Sandiganbayan erroneously concluded that the Assailed PSJs and Assailed
Resolutions settled the ultimate issue of ownership of the Sequestered Assets and, more
importantly, resolved all factual and legal issues involved in the ill-gotten wealth cases.
Rather, as there are triable issues still to be resolved, it was incumbent upon the
Sandiganbayan to receive evidence thereon and conduct trial on the merits.

3. Having expressly ordered the parties to proceed to trial and thereafter decreeing that
trial is unnecessary as the Assailed PSJs were final and appealable judgments, the
Sandiganbayan acted whimsically, capriciously and contrary to the Rules of Court, treated
the parties in the ill-gotten wealth cases unfairly, disobeyed the dictate of this Honorable
Court and, worse, violated COCOFED, et als right to due process and equal protection of the
laws.

B. The Sandiganbayan gravely erred if not grossly abused its discretion when it repeatedly
disregarded, and outrightly refused to recognize, the operative facts that existed as well as
the rights that vested from the time the coconut levy laws were enacted until their
declaration of unconstitutionality in the assailed PSJs. As a result, the assailed PSJs
constitute a proscribed retroactive application of the declaration of unconstitutionality, a
taking of private property, and an impairment of vested rights of ownership, all without due
process of law.[64] Otherwise stated, the assailed PSJs and the assailed Resolutions
effectively penalized the coconut farmers whose only possible mistake, offense or
misfortune was to follow the laws that were then legal, valid and constitutional.

IV. The voluminous records of these ill-gotten wealth cases readily reveal the various
dilatory tactics respondent Republic resorted to. As a result, despite the lapse of almost
twenty (20) years of litigation, the respondent Republic has not been required to, and has
not even attempted to prove, the bases of its perjurious claim that the sequestered assets
constitute ill-gotten wealth of former President Marcos and his crony, Cojuangco. In
tolerating respondent Republics antics for almost twenty (20) years, the Sandiganbayan
so glaringly departed from procedure and thereby flagrantly violated COCOFED, et al.s right
to speedy trial.



In G.R. No. 178193, petitioner Ursua virtually imputes to the Sandiganbayan the same
errors attributed to it by petitioners in G.R. Nos. 177857-58.[65] He replicates as follows:

I

The Sandiganbayan decided in a manner not in accord with the Rules of Court and settled
jurisprudence in rendering the questioned PSJ as final and appealable thereafter taking the
sequestered assets from their owners or record without presentation of any evidence, thus,
the questioned PSJ and the questioned Resolutions are all null and void.

A. The Sandiganbayans jurisdiction insofar as the ill-gotten wealth cases are concerned, is
limited to the recovery of ill-gotten wealth as defined in Executive Orders No. 1, 2, 14 and
14-A.

B. The Sandiganbayan should have decided to dismiss the case or continue to receive
evidence instead of ruling against the constitutionality of some coconut levy laws and PCA
issuances because it could decide on other grounds available to it.

II

The Sandiganbayan gravely erred when it declared PD. 755, Section 1 and 2, Section 5,
Article 1 of PD 961, and Section 5 of Art. III of PD 1468 as well as administrative issuances
of the PCA as unconstitutional in effect, it abused it power of judicial review.

A. The Sandiganbayan gravely erred in concluding that the purpose of PD 755 Section 1 and
2, Section 5, Article 1 of PD 961, and Section 5 of Art. III of PD 1468 is not evident. It then
proceeded to formulated its own purpose thereby intruding into the wisdom of the
legislature in enacting [t]he law.

B. The Sandiganbayan gravely erred in declaring Section 1 of PD 755, PCA [AO] No. 1 and
PCA Resolution No. 074-78 unconstitutional due to alleged flaws in their implementation.

C. The Sandiganbayan gravely erred in concluding that Section 1 of PD No. 755 constitutes
an undue delegation of legislative power insofar as it authorizes the PCA to promulgate
rules and regulations governing the distribution of the UCPB shares to the coconut farmers.
Section 1 of PD 755 was complete in itself, prescribed sufficient standards that
circumscribed the discretion of the PCA and merely authorized the PCA to fill matters of
detail an execution through promulgated rules and regulations.

III

The coconut levy laws, insofar as they allowed the PCA to promulgate rules and regulations
governing the distribution of the UCPB to the coconut farmers, do not constitute an undue
delegation of legislative power as they were complete in themselves and prescribed
sufficient standards that circumscribed the discretion of the PCA.

IV

Assuming ex-gratia argumenti that the coconut levy laws are unconstitutional, still, the
owners thereof cannot be deprived of their property without due process of law
considering that they have in good faith acquired vested rights over the sequestered assets.
In sum, the instant petitions seek to question the decisions of the Sandiganbayan in both CC
Nos. 0033-A and 0033-F, along with the preliminary issues of objection. We shall address at
the outset, (1) the common preliminary questions, including jurisdictional issue, followed
by (2) the common primary contentious issues (i.e. constitutional questions), and (3) the
issues particular to each case.

The Courts Ruling

I

The Sandiganbayan has jurisdiction over the subject
matter ofthe subdivided amended complaints.

The primary issue, as petitioners COCOFED, et al. and Ursua put forward, boils down to
the Sandiganbayans alleged lack of jurisdiction over the subject matter of the amended
complaints. Petitioners maintain that the jurisdictional facts necessary to acquire
jurisdiction over the subject matter in CC No. 0033-A have yet to be established. In fine, the
Republic, so petitioners claim, has failed to prove the ill-gotten nature of the sequestered
coconut farmers UCPB shares. Accordingly, the controversy is removed from the subject
matter jurisdiction of the Sandiganbayan and necessarily any decision rendered on the
merits, such as PSJ-A and PSJ-F, is void.

To petitioners, it behooves the Republic to prove the jurisdictional facts warranting the
Sandiganbayans continued exercise of jurisdiction over ill-gotten wealth cases. Citing
Manila Electric Company [Meralco] v. Ortaez,[66] petitioners argue that the jurisdiction of
an adjudicatory tribunal exercising limited jurisdiction, like the Sandiganbayan, depends
upon the facts of the case as proved at the trial and not merely upon the allegation in the
complaint.[67] Cited too is PCGG v. Nepumuceno,[68] where the Court held:

The determinations made by the PCGG at the time of issuing sequestration orders cannot
be considered as final determinations; that the properties or entities sequestered or taken-
over in fact constitute ill-gotten wealth according to [E.O.] No. 1 is a question which can be
finally determined only by a court the Sandiganbayan. The PCGG has the burden of
proving before the Sandiganbayan that the assets it has sequestered or business entity it
has provisionally taken-over constitutes ill-gotten wealth within the meaning of [E.O.] No.
1 and Article No. XVIII (26) of the 1987 Constitution.

Petitioners above posture is without merit.

Justice Florenz D. Regalado explicates subject matter jurisdiction:

16. Basic is the doctrine that the jurisdiction of a court over the subject-matter of an
action is conferred only by the Constitution or the law and that the Rules of Court yield to
substantive law, in this case, the Judiciary Act and B.P. Blg. 129, both as amended, and of
which jurisdiction is only a part. Jurisdiction cannot be acquired through, or waived,
enlarged or diminished by, any act or omission of the parties; neither can it be conferred by
the acquiescence of the court. Jurisdiction must exist as a matter of law. Consequently,
questions of jurisdiction may be raised for the first time on appeal even if such issue was
not raised in the lower court.

17. Nevertheless, in some case, the principle of estoppel by laches has been availed to
bar attacks on jurisdiction.[69]

It is, therefore, clear that jurisdiction over the subject matter is conferred by law. In
turn, the question on whether a given suit comes within the pale of a statutory conferment
is determined by the allegations in the complaint, regardless of whether or not the plaintiff
will be entitled at the end to recover upon all or some of the claims asserted therein.[70]
We said as much in Magay v. Estiandan:[71]

[J]urisdiction over the subject matter is determined by the allegations of the complaint,
irrespective of whether or not the plaintiff is entitled to recover upon all or some of the
claims asserted therein-a matter that can be resolved only after and as a result of the trial.
Nor may the jurisdiction of the court be made to depend upon the defenses set up in the
answer or upon the motion to dismiss, for, were we to be governed by such rule, the
question of jurisdiction could depend almost entirely upon the defendant.

Of the same tenor was what the Court wrote in Allied Domecq Philippines, Inc. v. Villon:[72]

Jurisdiction over the subject matter is the power to hear and determine the general class to
which the proceedings in question belong. Jurisdiction over the subject matter is conferred
by law and not by the consent or acquiescence of any or all of the parties or by erroneous
belief of the court that it exists. Basic is the rule that jurisdiction over the subject matter is
determined by the cause or causes of action as alleged in the complaint.

The material averments in subdivided CC No. 0033-A and CC No. 0033-F included the
following:

12. Defendant Eduardo Cojuangco, Jr served as a public officer during the Marcos
administration.

13. Defendant Eduardo Cojuangco, Jr., taking advantage of his association, influence and
connection, acting in unlawful concert with the [Marcoses] and the individual defendants,
embarked upon devices, schemes and stratagems, including the use of defendant
corporations as fronts, to unjustly enrich themselves as the expense of the Plaintiff and the
Filipino people, such as when he

a) manipulated, beginning the year 1975 with the active collaboration of Defendants ,
Marai Clara Lobregat, Danilo Ursua [etc.], the purchase by the (PCA) of 72.2% of the
outstanding capital stock of the (FUB) which was subsequently converted into a universal
bank named (UCPB) through the use of (CCSF) in a manner contrary to law and to
the specific purposes for which said coconut levy funds were imposed and collected under
P.D. 276 and under anomalous and sinister designs and circumstances, to wit:

(i) Defendant Eduardo Cojuangco, Jr. coveted the coconut levy funds as a cheap, lucrative
and risk-free source of funds with which to exercise his private option to buy the controlling
interest in FUB.
(ii) to legitimize a posteriori his highly anomalous and irregular use and diversion of
government funds to advance his own private and commercial interests Defendant
Eduardo Cojuangco, Jr. caused the issuance of PD 755 (a) declaring that the coconut levy
funds shall not be considered special and fiduciary and trust funds conveniently repealing
for that purpose a series of previous decrees establishing the character of the coconut
levy funds as special, fiduciary, trust and governments; (b) confirming the agreement
between Cojuangco and PCA on the purchase of FUB by incorporating by reference said
private commercial agreement in PD 755;
(iii) .
(iv) To perpetuate his opportunity to build his economic empire, Cojuangco caused the
issuance of an unconstitutional decree (PD 1468) requiring the deposit of all coconut levy
funds with UCPB interest free to the prejudice of the government and finally
(v) Having fully established himself as the undisputed coconut king with unlimited
powers to deal with the coconut levy funds, the stage was now set for Defendant Eduardo
Cojuangco, Jr. to launch his predatory forays into almost all aspects of Philippine activity
namely . oil mills.
(vi) In gross violation of their fiduciary positions and in contravention of the goal to create
a bank for coconut farmers of the country, the capital stock of UCPB as of February 25, 1986
was actually held by the defendants, their lawyers, factotum and business associates,
thereby finally gaining control of the UCPB by misusing the names and identities of the so-
called more than one million coconut farmers.

(b) created and/or funded with the use of coconut levy funds various corporations, such as
(COCOFED) with the active collaboration and participation of Defendants Juan Ponce
Enrile, Maria Clara Lobregat most of whom comprised the interlocking officers and
directors of said companies; dissipated, misused and/or misappropriated a substantial part
of said coco levy funds FINALLY GAIN OWNERSHIP AND CONTROL OF THE UNITED
COCONUT PLANTERS BANK BY MISUSING THE NAMES AND/OR IDENTIFIES OF THE SO-
CALLLED MORE THAN ONE MILLION COCONUT FARNMERS;

(c) misappropriated, misused and dissipated P840 million of the (CIDF) levy funds
deposited with the National Development Corporation (NIDC) as administrator trustee of
said funds and later with UCPB, of which Defendant Eduardo Cojuangco, Jr. was the Chief
Executive Officer.

(d) established and caused to be funded with coconut levy fundfs, with the active
collaboration of Defendants Ferdinand E. Marcos through the issuance of LOI 926 and of
[other] defendants the United Coconut Oil Mills, Inc., a corporation controlled by
Defendant Eduardo Cojuangco, Jr. and bought sixteen (16) certain competing oil mills at
exorbitant prices then mothballed them.



(i) misused coconut levy funds to buy majority of the outstanding shares of stock of San
Miguel Corporation.



14. Defendants Eduardo Cojuangco, Jr. of the Angara Concepcion Cruz Regala and Abello
law offices (ACCRA) plotted, devised, schemed, conspired and confederated with each other
in setting up, through the use of the coconut levy funds the financial and corporate
structures that led to the establishment of UCPB UNICOM [etc.] and more than twenty other
coconut levy funded corporations including the acquisition of [SMC] shares and its
institutionalization through presidential directives of the coconut monopoly.



16. The acts of Defendants, singly or collectively, and /or in unlawful concert with one
another, constitute gross abuse of official position and authority, flagrant breach of public
trust and fiduciary obligations, brazen abuse of right and power, unjust enrichment,
violation of the Constitution and laws to the grave and irreparable damage of the Plaintiff
and the Filipino people.


CC No. 0033-F


12. Defendant Eduardo Cojuangco, Jr., served as a public officer during the Marcos
administration.

13. Having fully established himself as the undisputed coconut king with unlimited
powers to deal with the coconut levy funds, the stage was now set for Cojuangco, Jr. to
launch his predatory forays into almost all aspects of Philippine economic activity namely
oil mills .

14. Defendant Eduardo Cojuangco, Jr., taking undue advantage of his association, influence,
and connection, acting in unlawful concert with Defendants Ferdinand E. Marcos and
Imelda R. Marcos, and the individual defendants, embarked upon devices, schemes and
stratagems, including the use of defendant corporations as fronts, to unjustly enrich
themselves at the expense of Plaintiff and the Filipino people.

(a) Having control over the coconut levy, Defendant Eduardo M. Cojuangco invested the
funds in diverse activities, such as the various businesses SMC was engaged in.;



(c) Later that year [1983], Cojuangco also acquired the Soriano stocks through a series of
complicated and secret agreements, a key feature of which was a voting trust agreement
that stipulated that Andres, Jr. or his heir would proxy over the vote of the shares owned by
Soriano and Cojuangco.



(g) All together, Cojuangco purchased 33 million shares of the SMC through the 14
holding companies



3.1. The same fourteen companies were in turn owned by the six (6) so-called CIIF
Companies.

(h) Defendant Corporations are but shell corporations owned by interlocking
shareholders who have previously admitted that they are just nominee stockholders who
do not have any proprietary interest over the shares in their names. [L]awyers of the
Angara Abello Concepcion Regala & Cruz (ACCRA) Law offices, the previous counsel who
incorporated said corporations, prove that they were merely nominee stockholders thereof.

(l) These companies, which ACCRA Law Offices organized for Defendant Cojuangco to be
able to control more than 60% of SMC shares, were funded by institutions which depended
upon the coconut levy such as the UCPB, UNICOM, (COCOLIFE), among others. Cojuangco
and his ACCRA lawyers used the funds from 6 large coconut oil mills and 10 copra trading
companies to borrow money from the UCPB and purchase these holding companies and the
SMC stocks. Cojuangco used $ 150 million from the coconut levy, broken down as follows:

Amount Source Purpose
(in million)

$ 22.26 Oil Mills equity in holding
Companies

$ 65.6 Oil Mills loan to holding
Companies

$ 61.2 UCPB loan to holding
Companies [164]

The entire amount, therefore, came from the coconut levy, some passing through the
Unicom Oil mills, others directly from the UCPB.

(m) With his entry into the said Company, it began to get favors from the Marcos
government, significantly the lowering of the excise taxes on beer, one of the main
products of SMC.

15. Defendants plotted, devised, schemed, conspired and confederated with each other in
setting up, through the use of coconut levy funds, the financial and corporate framework
and structures that led to the establishment of UCPB, [etc.], and more than twenty other
coconut levy-funded corporations, including the acquisition of [SMC] shares and its
institutionalization through presidential directives of the coconut monopoly.

16. The acts of Defendants, singly or collectively, and/or in unlawful concert with one
another, constitute gross abuse of official position and authority, flagrant breach of public
trust and fiduciary obligations, brazen abuse of right and power, unjust enrichment,
violation of the constitution and laws of the Republic of the Philippines, to the grave and
irreparable damage of Plaintiff and the Filipino people.[73]


Judging from the allegations of the defendants illegal acts thereat made, it is fairly obvious
that both CC Nos. 0033-A and CC 0033-F partake, in the context of EO Nos. 1, 2 and 14,
series of 1986, the nature of ill-gotten wealth suits. Both deal with the recovery of
sequestered shares, property or business enterprises claimed, as alleged in the
corresponding basic complaints, to be ill-gotten assets of President Marcos, his cronies and
nominees and acquired by taking undue advantage of relationships or influence and/or
through or as a result of improper use, conversion or diversion of government funds or
property. Recovery of these assetsdetermined as shall hereinafter be discussed as prima
facie ill-gottenfalls within the unquestionable jurisdiction of the Sandiganbayan.[74]

P.D. No. 1606, as amended by R.A. 7975 and E.O. No. 14, Series of 1986, vests the
Sandiganbayan with, among others, original jurisdiction over civil and criminal cases
instituted pursuant to and in connection with E.O. Nos. 1, 2, 14 and 14-A. Correlatively, the
PCGG Rules and Regulations defines the term Ill-Gotten Wealth as any asset, property,
business enterprise or material possession of persons within the purview of [E.O.] Nos. 1
and 2, acquired by them directly, or indirectly thru dummies, nominees, agents,
subordinates and/or business associates by any of the following means or similar schemes:

(1) Through misappropriation, conversion, misuse or malversation of public funds or raids
on the public treasury;

(2) .;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the
government or any of its subdivisions, agencies or instrumentalities or government-owned
or controlled corporations;
(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or
any other form of interest or participation in any business enterprise or undertaking;

(5) Through the establishment of agricultural, industrial or commercial monopolies or
other combination and/or by the issuance, promulgation and/or implementation of decrees
and orders intended to benefit particular persons or special interests; and

(6) By taking undue advantage of official position, authority, relationship or influence for
personal gain or benefit.[75] (Emphasis supplied)

Section 2(a) of E.O. No. 1 charged the PCGG with the task of assisting the President in
[T]he recovery of all ill-gotten wealth accumulated by former [President] Marcos, his
immediate family, relatives, subordinates and close associates including the takeover or
sequestration of all business enterprises and entities owned or controlled by them, during
his administration, directly or through nominees, by taking undue advantage of their public
office and/or using their powers, authority, influence, connections or relationship.
Complementing the aforesaid Section 2(a) is Section 1 of E.O. No. 2 decreeing the freezing of
all assets in which the [Marcoses] their close relatives, subordinates, business associates,
dummies, agents or nominees have any interest or participation.

The Republics averments in the amended complaints, particularly those detailing the
alleged wrongful acts of the defendants, sufficiently reveal that the subject matter thereof
comprises the recovery by the Government of ill-gotten wealth acquired by then President
Marcos, his cronies or their associates and dummies through the unlawful, improper
utilization or diversion of coconut levy funds aided by P.D. No. 755 and other sister decrees.
President Marcos himself issued these decrees in a brazen bid to legalize what amounts to
private taking of the said public funds.

Petitioners COCOFED et al. and Ursua, however, would insist that the Republic has
failed to prove the jurisdiction facts: that the sequestered assets indeed constitute ill-gotten
wealth as averred in the amended subdivided complaints.

This contention is incorrect.

There was no actual need for Republic, as plaintiff a quo, to adduce evidence to show that
the Sandiganbayan has jurisdiction over the subject matter of the complaints as it leaned on
the averments in the initiatory pleadings to make visible the jurisdiction of the
Sandiganbayan over the ill-gotten wealth complaints.


EN BANC
[G.R. Nos. 146710-15. March 2, 2001]

JOSEPH E. ESTRADA, petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman,
RAMON GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE
PHILIPPINES FOUNDATION, INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG
and ERNESTO B. FRANCISCO, JR., respondent.
[G.R. No. 146738. March 2, 2001]

JOSEPH E. ESTRADA, petitioner, vs. GLORIA MACAPAGAL-ARROYO, respondent.
D E C I S I O N
PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito
Estrada alleges that he is the President on leave while respondent Gloria Macapagal-Arroyo
claims she is the President. The warring personalities are important enough but more
transcendental are the constitutional issues embedded on the parties dispute. While the
significant issues are many, the jugular issue involves the relationship between the ruler
and the ruled in a democracy, Philippine style.

First, we take a view of the panorama of events that precipitated the crisis in the office of
the President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President
while respondent Gloria Macapagal-Arroyo was elected Vice-President. Some (10) million
Filipinos voted for the petitioner believing he would rescue them from lifes adversity. Both
petitioner and the respondent were to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems
that slowly but surely eroded his popularity. His sharp descent from power started on
October 4, 2000. Ilocos Sur Governos, Luis Chavit Singson, a longtime friend of the
petitioner, went on air and accused the petitioner, his family and friends of receiving
millions of pesos from jueteng lords.[1]

The expos immediately ignited reactions of rage. The next day, October 5, 2000, Senator
Teofisto Guingona Jr, then the Senate Minority Leader, took the floor and delivered a fiery
privilege speech entitled I Accuse. He accused the petitioner of receiving some P220
million in jueteng money from Governor Singson from November 1998 to August 2000. He
also charged that the petitioner took from Governor Singson P70 million on excise tax on
cigarettes intended for Ilocos Sur. The privilege speech was referred by then Senate
President Franklin Drilon, to the Blue Ribbon Committee (then headed by Senator Aquilino
Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for joint
investigation.[2]

The House of Representatives did no less. The House Committee on Public Order and
Security, then headed by Representative Roilo Golez, decided to investigate the expos of
Governor Singson. On the other hand, Representatives Heherson Alvarez, Ernesto Herrera
and Michael Defensor spearheaded the move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime
Cardinal Sin issued a pastoral statement in behalf of the Presbyteral Council of the
Archdiocese of Manila, asking petitioner to step down from the presidency as he had lost
the moral authority to govern.[3] Two days later or on October 13, the Catholic Bishops
Conference of the Philippines joined the cry for the resignation of the petitioner.[4] Four
days later, or on October 17, former President Corazon C. Aquino also demanded that the
petitioner take the supreme self-sacrifice of resignation.[5] Former President Fidel Ramos
also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as
Secretary of the Department of Social Welfare and Services[6] and later asked for
petitioners resignation.[7] However, petitioner strenuously held on to his office and
refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the
Council of Senior Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala,
former Prime Minister Cesar Virata, former Senator Vicente Paterno and Washington
Sycip.[8] On November 2, Secretary Mar Roxas II also resigned from the Department of
Trade and Industry.[9] On November 3, Senate President Franklin Drilon, and House
Speaker Manuel Villar, together with some 47 representatives defected from the ruling
coalition, Lapian ng Masang Pilipino.[10]

The month of November ended with a big bang. In a tumultuous session on November 13,
House Speaker Villar transmitted the Articles of Impeachment[11] signed by 115
representatives, or more than 1/3 of all the members of the House of Representatives to the
Senate. This caused political convulsions in both houses of Congress. Senator Drilon was
replaced by Senator Pimentel as Senate President. Speaker Villar was unseated by
Representative Fuentabella.[12] On November 20, the Senate formally opened the
impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges
with Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.[13]

The political temperature rose despite the cold December. On December 7, the
impeachment trial started.[14] the battle royale was fought by some of the marquee names
in the legal profession. Standing as prosecutors were then House Minority Floor Leader
Feliciano Belmonte and Representatives Joker Arroyo, Wigberto Taada, Sergio Apostol,
Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan Libarios, Oscar Rodriguez, Clavel
Martinez and Antonio Nachura. They were assisted by a battery of private prosecutors led
by now Secretary of Justice Hernando Perez and now Solicitor General Simeon Marcelo.
Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor
General and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose
Flamiano, former Deputy Speaker of the House Raul Daza, Atty. Siegfried Fortun and his
brother, Atty. Raymund Fortun. The day to day trial was covered by live TV and during its
course enjoyed the highest viewing rating. Its high and low points were the constant
conversational piece of the chattering classes. The dramatic point of the December hearings
was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank. She
testified that she was one foot away from petitioner Estrada when he affixed the signature
Jose Velarde on documents involving a P500 million investment agreement with their
bank on February 4, 2000.[15]

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of
Christmas. When it resumed on January 2, 2001, more bombshells were exploded by the
prosecution. On January 11, Atty. Edgardo Espiritu who served as petitioners Secretary of
Finance took the witness stand. He alleged that the petitioner jointly owned BW Resources
Corporation with Mr. Dante Tan who was facing charges of insider trading.[16] Then came
the fateful day of January 16, when by a vote of 11-10[17] the senator-judges ruled against
the opening of the second envelop which allegedly contained evidence showing that
petitioner held P3.3 billion in a secret bank account under the name Jose Velarde. The
public and private prosecutors walked out in protest of the ruling. In disgust, Senator
Pimentel resigned as Senate President.[18] The ruling made at 10:00 p.m. was met by a
spontaneous outburst of anger that hit the streets of the metropolis. By midnight,
thousands had assembled at the EDSA Shrine and speeches full of sulphur were delivered
against the petitioner and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering
their collective resignation. They also filed their Manifestation of Withdrawal of
Appearance with the impeachment tribunal.[19] Senator Raul Roco quickly moved for the
indefinite postponement of the impeachment proceedings until the House of
Representatives shall have resolved the issue of resignation of the public prosecutors. Chief
Justice Davide granted the motion.[20]

January 18 saw the high velocity intensification of the call for petitioners resignation. A 10-
kilometer line of people holding lighted candles formed a human chain from the Ninoy
Aquino Monument on Ayala Avenue in Makati City to the EDSA Shrine to symbolize the
peoples solidarity in demanding petitioners resignation. Students and teachers walked out
of their classes in Metro Manila to show their concordance. Speakers in the continuing
rallies at the EDSA Shrine, all masters of the physics of persuasion, attracted more and more
people.[21]

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the
petitioner informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief
of Staff of the Armed Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed
to the holding of a snap election for President where he would not be a candidate. It did not
diffuse the growing crisis. At 3:00 p.m., Secretary of National Defense Orlando Mercado and
General Reyes, together with the chiefs of all the armed services went to the EDSA
Shrine.[22] In the presence of former Presidents Aquino and Ramos and hundreds of
thousands of cheering demonstrators, General Reyes declared that on behalf of your
Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that
we are withdrawing our support to this government.[23] A little later, PNP Chief, Director
General Panfilo Lacson and the major service commanders gave a similar stunning
announcement.[24] Some Cabinet secretaries, undersecretaries, assistant secretaries, and
bureau chiefs quickly resigned from their posts.[25] Rallies for the resignation of the
petitioner exploded in various parts of the country. To stem the tide of rage, petitioner
announced he was ordering his lawyers to agree to the opening of the highly controversial
second envelop.[26] There was no turning back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations
for the peaceful and orderly transfer of power started at Malacaangs Mabini Hall, Office of
the Executive Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary
Ramon Bagatsing, Political Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and
Atty. Macel Fernandez, head of the presidential Management Staff, negotiated for the
petitioner. Respondent Arroyo was represented by now Executive Secretary Renato de
Villa, now Secretary of Finance Alberto Romulo and now Secretary of Justice Hernando
Perez.[27] Outside the palace, there was a brief encounter at Mendiola between pro and
anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The
negotiations consumed all morning until the news broke out that Chief Justice Davide would
administer the oath to respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as
President of the Philippines.[28] At 2:30 p.m., petitioner and his family hurriedly left
Malacaang Palace.[29] He issued the following press statement:[30]

20 January 2001

STATEMENT FROM

PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines. While along with many other legal minds of
our country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of
unity and order in our civil society.

It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I
leave the Palace of our people with gratitude for the opportunities given to me for service to
our people. I will not shirk from any future challenges that may come ahead in the same
service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive
national spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!

(Sgd.) JOSEPH EJERCITO ESTRADA

It also appears that on the same day, January 20, 2001, he signed the following letter:[31]

Sir:

By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice-President shall be the Acting President.

(Sgd.) JOSEPH EJERCITO ESTRADA

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m., on January 20.[32]
Another copy was transmitted to Senate President Pimentel on the same day although it
was received only at 9:00 p.m.[33]

On January 22, the Monday after taking her oath, respondent Arroyo immediately
discharged the powers and duties of the Presidency. On the same day, this Court issued the
following Resolution in Administrative Matter No. 01-1-05-SC, to wit:

A.M. No. 01-1-05-SC In re: Request of Vice President Gloria Macapagal-Arroyo to Take
her Oath of Office as President of the Republic of the Philippines before the Chief Justice
Acting on the urgent request of Vice-President Gloria Macapagal-Arroyo to be sworn in as
President of the Republic of the Philippines, addressed to the Chief Justice and confirmed by
a letter to the Court, dated January 20, 2001, which request was treated as an
administrative matter, the court Resolved unanimously to confirm the authority given by
the twelve (12) members of the Court then present to the Chief Justice on January 20, 2001
to administer the oath of office to Vice President Gloria Macapagal-Arroyo as President of
the Philippines, at noon of January 20, 2001.

This resolution is without prejudice to the disposition of any justiciable case that maybe
filed by a proper party.

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.[34] Recognition of respondent Arroyos government by foreign governments
swiftly followed. On January 23, in a reception or vin d honneur at Malacaang, led by the
Dean of the Diplomatic Corps, Papal Nuncio Antonio Franco, more than a hundred foreign
diplomats recognized the government of respondent Arroyo.[35] US President George W.
Bush gave the respondent a telephone call from the White House conveying US recognition
of her government.[36]

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.[37] The House then passed Resolution No. 175 expressing the full
support of the House of Representatives to the administration of Her Excellency Gloria
Macapagal-Arroyo, President of the Philippines.[38] It also approved Resolution No. 176
expressing the support of the House of Representatives to the assumption into office by
Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines,
extending its congratulations and expressing its support for her administration as a partner
in the attainment of the nations goals under the Constitution.[39]

On January 26, the respondent signed into law the Solid Waste Management Act.[40] A few
days later, she also signed into law the Political Advertising Ban and Fair Election Practices
Act.[41]

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.[42] the next day, February 7, the Senate adopted Resolution No. 82 confirming
the nomination of Senator Guingona, Jr.[43] Senators Miriam Defensor-Santiago, Juan Ponce
Enrile, and John Osmea voted yes with reservations, citing as reason therefore the
pending challenge on the legitimacy of respondent Arroyos presidency before the Supreme
Court. Senators Teresa Aquino-Oreta and Robert Barbers were absent.[44] The House of
Representatives also approved Senator Guingonas nomination in Resolution No. 178.[45]
Senator Guingona took his oath as Vice President two (2) days later.[46]

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is
functus officio and has been terminated.[47] Senator Miriam Defensor-Santiago stated for
the record that she voted against the closure of the impeachment court on the grounds that
the Senate had failed to decide on the impeachment case and that the resolution left open
the question of whether Estrada was still qualified to run for another elective post.[48]

Meanwhile, in a survey conducted by Pulse Asia, President Arroyos public acceptance
rating jacked up from 16% on January 20, 2001 to 38% on January 26, 2001.[49] In another
survey conducted by the ABS-CBN/SWS from February 2-7, 2001, results showed that 61%
of the Filipinos nationwide accepted President Arroyo as replacement of petitioner Estrada.
The survey also revealed that President Arroyo is accepted by 60% in Metro Manila, by also
60% in the balance of Luzon, by 71% in the Visayas, and 55% in Mindanao. Her trust rating
increased to 52%. Her presidency is accepted by majorities in all social classes:

58% in the ABC or middle-to-upper classes, 64% in the D or mass, and 54% among the Es
or very poor class.[50]

After his fall from the pedestal of power, the petitioners legal problems appeared in
clusters. Several cases previously filed against him in the Office of the Ombudsman were set
in motion. These are: (1) OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October
23, 2000 for bribery and graft and corruption; (2) OMB Case No. 0-00-1754 filed by the
Volunteers Against Crime and Corruption on November 17, 2000 for plunder, forfeiture,
graft and corruption, bribery, perjury, serious misconduct, violation of the Code of Conduct
for government Employees, etc; (3) OMB Case No. 0-00-1755 filed by the Graft Free
Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by
Romeo Capulong, et al., on November 28, 2000 for malversation of public funds, illegal use
of public funds and property, plunder, etc., (5) OMB Case No. 0-00-1757 filed by Leonard de
Vera, et al., on November 28, 2000 for bribery, plunder, indirect bribery, violation of PD
1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto B.
Francisco, Jr. on December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to
investigate the charges against the petitioner. It is chaired by Overall Deputy Ombudsman
Margarito P. Gervasio with the following as members, viz: Director Andrew Amuyutan,
Prosecutor Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel Laureso. On January 22,
the panel issued an Order directing the petitioner to file his counter-affidavit and the
affidavits of his witnesses as well as other supporting documents in answer to the
aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court
GR No. 146710-15, a petition for prohibition with a prayer for a writ of preliminary
injunction. It sought to enjoin the respondent Ombudsman from conducting any further
proceedings in Case Nos. OMB 0-00-1629, 1754, 1755, 1756, 1757 and 1758 or in any other
criminal complaint that may be filed in his office, until after the term of petitioner as
President is over and only if legally warranted. Thru another counsel, petitioner, on
February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment confirming
petitioner to be the lawful and incumbent President of the Republic of the Philippines
temporarily unable to discharge the duties of his office, and declaring respondent to have
taken her oath as and to be holding the Office of the President, only in an acting capacity
pursuant to the provisions of the Constitution. Acting on GR Nos. 146710-15, the Court, on
the same day, February 6, required the respondents to comment thereon within a non-
extendible period expiring on 12 February 2001. On February 13, the Court ordered the
consolidation of GR Nos. 146710-15 and GR No. 146738 and the filing of the respondents
comments on or before 8:00 a.m. of February 15.

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before
the hearing, Chief Justice Davide, Jr.,[51] and Associate Justice Artemio Panganiban[52]
recused themselves on motion of petitioners counsel, former Senator Rene A. Saguisag.
They debunked the charge of counsel Saguisag that they have compromised themselves by
indicating that they have thrown their weight on one side but nonetheless inhibited
themselves. Thereafter, the parties were given the short period of five (5) days to file their
memoranda and two (2) days to submit their simultaneous replies.

In a resolution dated February 20, acting on the urgent motion for copies of resolution and
press statement for Gag Order on respondent Ombudsman filed by counsel for petitioner
in G.R. No. 146738, the Court resolved:

(1) to inform the parties that the Court did not issue a resolution on January 20, 2001
declaring the office of the President vacant and that neither did the Chief Justice issue a
press statement justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain
of being cited for contempt to refrain from making any comment or discussing in public the
merits of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his
office against petitioner Joseph E. Estrada and subject of the cases at bar, it appearing from
news reports that the respondent Ombudsman may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001,
which action will make the cases at bar moot and academic.[53]

The parties filed their replies on February 24. On this date, the cases at bar were deemed
submitted for decision.

The bedrock issues for resolution of this Court are:

I

Whether the petitions present a justiciable controversy.

II

Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is
a President on leave while respondent Arroyo is an Acting President.

III

Whether conviction in the impeachment proceedings is a condition precedent for the
criminal prosecution of petitioner Estrada. In the negative and on the assumption that
petitioner is still President, whether he is immune from criminal prosecution.

IV

Whether the prosecution of petitioner Estrada should be enjoined on the ground of
prejudicial publicity.

We shall discuss the issues in seriatim.

I

Whether or not the cases at bar involve a political question

Private respondents[54] raise the threshold issue that the cases at bar pose a political
question, and hence, are beyond the jurisdiction of this Court to decide. They contend that
shorn of its embroideries, the cases at bar assail the legitimacy of the Arroyo
administration. They stress that respondent Arroyo ascended the presidency through
people power; that she has already taken her oath as the 14th President of the Republic;
that she has exercised the powers of the presidency and that she has been recognized by
foreign governments. They submit that these realities on ground constitute the political
thicket which the Court cannot enter.

We reject private respondents submission. To be sure, courts here and abroad, have tried
to lift the shroud on political question but its exact latitude still splits the best of legal
minds. Developed by the courts in the 20th century, the political question doctrine which
rests on the principle of separation of powers and on prudential considerations, continue to
be refined in the mills constitutional law.[55] In the United States, the most authoritative
guidelines to determine whether a question is political were spelled out by Mr. Justice
Brennan in the 1962 case of Baker v. Carr,[56] viz:

x x x Prominent on the surface on 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 discretions; or the impossibility of a courts undertaking independent resolution
without expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by various departments
on question. Unless one of these formulations is inextricable from the case at bar, there
should be no dismissal for non justiciability on the ground of a political questions presence.
The doctrine of which we treat is one of political questions, not of political cases.

In the Philippine setting, this Court has been continuously confronted with cases calling for
a firmer delineation of the inner and outer perimeters of a political question.[57] Our
leading case is Tanada v. Cuenco,[58] where this Court, through former Chief Justice
Roberto Concepcion, 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. To a great degree, the 1987 Constitution has narrowed the reach of the
political question doctrine when it expanded the power of judicial review of this court 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
government.[59] Heretofore, the judiciary has focused on the thou shalt nots of the
Constitution directed against the exercise of its jurisdiction.[60] With the new provision,
however, courts are given a greater prerogative to determine what it can do to prevent
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Clearly, the new provision did not just grant the
Court power of doing nothing. In sync and symmetry with this intent are other provisions
of the 1987 Constitution trimming the so called political thicket. Prominent of these
provisions is section 18 of Article VII which empowers this Court in limpid language to x x
x 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 (of
habeas corpus) or the extension thereof x x x.

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.[61] and related cases[62] to support their
thesis that since the cases at bar involve the legitimacy of the government of respondent
Arroyo, ergo, they present a political question. A more cerebral reading of the cited cases
will show that they are inapplicable. In the cited cases, we held that the government of
former President Aquino was the result of a successful revolution by the sovereign people,
albeit a peaceful one. No less than the Freedom Constitution[63] declared that the Aquino
government was installed through a direct exercise of the power of the Filipino people in
defiance of the provisions of the 1973 Constitution, as amended. It is familiar learning that
the legitimacy of a government sired by a successful revolution by people power is beyond
judicial scrutiny for that government automatically orbits out of the constitutional loop. In
checkered contrast, the government of respondent Arroyo is not revolutionary in character.
The oath that she took at the EDSA Shrine is the oath under the 1987 Constitution.[64] In
her oath, she categorically swore to preserve and defend the 1987 Constitution. Indeed, she
has stressed that she is discharging the powers of the presidency under the authority of the
1987 Constitution.

In fine, the legal distinction between EDSA People Power I and EDSA People Power II is
clear. EDSA I involves the exercise of the people power of revolution which overthrew the
whole government. EDSA II is an exercise of people power of freedom of speech and
freedom of assembly to petition the government for redress of grievances which only
affected the office of the President. EDSA I is extra constitutional and the legitimacy of the
new government that resulted from it cannot be the subject of judicial review, but EDSA II is
intra constitutional and the resignation of the sitting President that it caused and the
succession of the Vice President as President are subject to judicial review. EDSA I
presented political question; EDSA II involves legal questions. A brief discourse on freedom
of speech and of the freedom of assembly to petition the government for redress of
grievance which are the cutting edge of EDSA People Power II is not inappropriate.

Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these
rights was one of the reasons of our 1898 revolution against Spain. Our national hero, Jose
P. Rizal, raised the clarion call for the recognition of freedom of the press of the Filipinos
and included it as among the reforms sine quibus non.[65] The Malolos Constitution,
which is the work of the revolutionary Congress in 1898, provided in its Bill of Rights that
Filipinos shall not be deprived (1) of the right to freely express his ideas or opinions, orally
or in writing, through the use of the press or other similar means; (2) of the right of
association for purposes of human life and which are not contrary to public means; and (3)
of the right to send petitions to the authorities, individually or collectively. These
fundamental rights were preserved when the United States acquired jurisdiction over the
Philippines. In the instruction to the Second Philippine Commission of April 7, 1900 issued
by President McKinley, it is specifically provided that no law shall be passed abridging the
freedom of speech or of the press or of the rights of the people to peaceably assemble and
petition the Government for redress of grievances. The guaranty was carried over in the
Philippine Bill, the Act of Congress of July 1, 1902 and the Jones Law, the Act of Congress of
August 29, 1966.[66]

Thence on, the guaranty was set in stone in our 1935 Constitution,[67] and the 1973[68]
Constitution. These rights are now safely ensconced in section 4, Article III of the 1987
Constitution, viz:

Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the
press, or the right of the people peaceably to assemble and petition the government for
redress of grievances.

The indispensability of the peoples freedom of speech and of assembly to democracy is now
self-evident. The reasons are well put by Emerson: first, freedom of expression is essential
as a means of assuring individual fulfillment; second, it is an essential process for advancing
knowledge and discovering truth; third, it is essential to provide for participation in
decision-making by all members of society; and fourth, it is a method of achieving a more
adaptable and hence, a more stable community of maintaining the precarious balance
between healthy cleavage and necessary consensus.[69] In this sense, freedom of speech
and of assembly provides a framework in which the conflict necessary to the progress of a
society can take place without destroying the society.[70] In Hague v. Committee for
Industrial Organization,[71] this function of free speech and assembly was echoed in the
amicus curiae brief filed by the Bill of Rights Committee of the American Bar Association
which emphasized that the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all.[72] In the relatively recent case of Subayco v. Sandiganbayan,[73] this Court similarly
stressed that "... it should be clear even to those with intellectual deficits that when the
sovereign people assemble to petition for redress of grievances, all should listen. For in a
democracy, it is the people who count; those who are deaf to their grievances are ciphers.

Needless to state, the cases at bar pose legal and not political questions. The principal
issues for resolution require the proper interpretation of certain provisions in the 1987
Constitution, notably section 1 of Article II,[74] and section 8[75]of Article VII, and the
allocation of governmental powers under section 11[76] of Article VII. The issues likewise
call for a ruling on the scope of presidential immunity from suit. They also involve the
correct calibration of the right of petitioner against prejudicial publicity. As early as the
1803 case of Marbury v. Madison,[77] the doctrine has been laid down that it is
emphatically the province and duty of the judicial department to say what the law is . . .
Thus, respondents invocation of the doctrine of political is but a foray in the dark.

II

Whether or not the petitioner resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a
political question. Indeed, it involves a legal question whose factual ingredient is
determinable from the records of the case and by resort to judicial notice. Petitioner denies
he resigned as President or that he suffers from a permanent disability. Hence, he submits
that the office of the President was not vacant when respondent Arroyo took her oath as
president.

The issue brings under the microscope of the meaning of section 8, Article VII of the
Constitution which provides:

Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In
case of death, permanent disability, removal from office, or resignation of both the
President and Vice President, the President of the Senate or, in case of his inability, the
Speaker of the House of Representatives, shall then acts as President until President or Vice
President shall have been elected and qualified.

x x x.

The issue then is whether the petitioner resigned as President or should be considered
resigned as of January 20, 2001 when respondent took her oath as the 14th President of the
Republic. Resignation is not a high level legal abstraction. It is a factual question and its
elements are beyond quibble: there must be an intent to resign and the intent must be
coupled by acts of relinquishment.[78] The validity of a resignation is not governed by any
formal requirement as to form. It can be oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be given legal effect.

In the cases at bar, the facts shows that petitioner did not write any formal letter of
resignation before he evacuated Malacaang Palace in the Afternoon of January 20, 2001
after the oath-taking of respondent Arroyo. Consequently, whether or not petitioner
resigned has to be determined from his acts and omissions before, during and after January
20, 2001 or by the totality of prior, contemporaneous and posterior facts and circumstantial
evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important
to follow the succession of events after the expos of Governor Singson. The Senate Blue
Ribbon Committee investigated. The more detailed revelations of petitioners alleged
misgovernance in the Blue Ribbon investigation spiked the hate against him. The Articles of
Impeachment filed in the House of Representatives which initially was given a near cipher
chance of succeeding snowballed. In express speed, it gained the signatures of 115
representatives or more than 1/3 of the House of Representatives. Soon, petitioners
powerful political allies began deserting him. Respondent Arroyo quit as Secretary of Social
Welfare. Senate President Drilon and Former Speaker Villar defected with 47
representatives in tow. Then, his respected senior economic advisers resigned together
with his Secretary of Trade and Industry.

As the political isolation of the petitioner worsened, the peoples call for his resignation
intensified. The call reached a new crescendo when the eleven (11) members of the
impeachment tribunal refused to open the second envelope. It sent the people to
paroxysms of outrage. Before the night of January 16 was over, the EDSA Shrine was
swarming with people crying for redress of their grievance. Their number grew
exponentially. Rallies and demonstration quickly spread to the countryside like a brush
fire.

As events approached January 20, we can have an authoritative window on the state of
mind of the petitioner. The window is provided in the Final Days of Joseph Ejercito
Estrada, the diary of Executive Secretary Angara serialized in the Philippine Daily
Inquirer.[79] The Angara Diary reveals that in morning of January 19, petitioners loyal
advisers were worried about the swelling of the crowd at EDSA, hence, they decided to crate
an ad hoc committee to handle it. Their worry would worsen. At 1:20 p.m., petitioner
pulled Secretary Angara into his small office at the presidential residence and exclaimed:
Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has
defected.)[80] An hour later or at 2:30, p.m., the petitioner decided to call for a snap
presidential election and stressed he would not be a candidate. The proposal for a snap
election for president in May where he would not be a candidate is an indicium that
petitioner had intended to give up the presidency even at that time. At 3:00 p.m., General
Reyes joined the sea of EDSA demonstrators demanding the resignation of the petitioner
and dramatically announced the AFPs withdrawal of support from the petitioner and their
pledge of support to respondent Arroyo. The seismic shift of support left petitioner weak as
a president. According to Secretary Angara, he asked Senator Pimentel to advise petitioner
to consider the option of dignified exit or resignation.[81] Petitioner did nor disagree but
listened intently.[82] The sky was falling fast on the petitioner. At 9:30 p.m., Senator
Pimentel repeated to the petitioner the urgency of making a graceful and dignified exit. He
gave the proposal a sweetener by saying that petitioner would allowed to go abroad with
enough funds to support him and his family.[83] Significantly, the petitioner expressed no
objection to the suggestion for a graceful and dignified exit but said he would never leave
the country.[84] At 10:00 p.m., petitioner revealed to Secretary Angara, Ed, Angie (Reyes)
guaranteed that I would have five days to a week in the palace.[85] This is proof that
petitioner had reconciled himself to the reality that he had to resign. His mind was already
concerned with the five-day grace period he could stay in the palace. It was a matter of
time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up
Secretary Angara and requested, Ed, magtulungan tayo para magkaroon tayo ng (lets
cooperate to ensure a) peaceful and orderly transfer of power.[86] There was no defiance
to the request. Secretary Angara readily agreed. Again, we note that at this stage, the
problem was already about a peaceful and orderly transfer of power. The resignation of the
petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at
12:20 a.m. of January 20, that fateful Saturday. The negotiation was limited to three (3)
points: (1) the transition period of five days after the petitioners resignation; (2) the
guarantee of the safety of the petitioner and his family, and (3) the agreement to open the
second envelope to vindicate the name of the petitioner.[87] Again, we note that the
resignation of petitioner was not a disputed point. The petitioner cannot feign ignorance of
this fact. According to Secretary Angara, at 2:30 a.m., he briefed the petitioner on the three
points and the following entry in the Angara Diary shows the reaction of the petitioner, viz:

x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod na
ako sa red tape, bureaucracy, intriga. (I am very tired. I dont want any more of this its
too painful. Im tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go.[88]

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is
clear when he said x x x Ayoko na masyado nang masakit. Ayoko na are words of
resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the
following happened:

Oppositions deal

7:30 a.m. Rene arrives with Bert Romulo and (Ms. Macapagals spokesperson) Rene
Corona. For this round, I am accompanied by Dondon Bagatsing and Macel.

Rene pulls out a document titled Negotiating Points. It reads:

1. The President shall sign a resignation document within the day, 20 January 2001, that
will be effective on Wednesday, 24 January 2001, on which day the Vice President will
assume the Presidency of the Republic of the Philippines.

2. Beginning today, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice president to various
positions and offices of the government shall start their orientation activities in
coordination with the incumbent officials concerned.

3. The Armed Forces of the Philippines and the Philippine National Police shall function
under the Vice President as national military and police effective immediately.

4. The Armed Forces of the Philippines, through its Chief of Staff, shall guarantee the
security of the president and his family as approved by the national military and police
authority (Vice President).

5. It is to be noted that the Senate will open the second envelope in connection with the
alleged savings account of the President in the Equitable PCI Bank in accordance with the
rules of the Senate, pursuant to the request to the Senate President.

Our deal

We bring out, too, our discussion draft which reads:

The undersigned parties, for and in behalf of their respective principals, agree and
undertake as follows:

1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.

2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guaranteed freedom from persecution or retaliation from government and the
private sector throughout their natural lifetimes.

This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP)
through the Chief of Staff, as approved by the national military and police authorities Vice
President (Macapagal).

3. Both parties shall endeavor to ensure that the Senate siting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the
subject savings account does not belong to President Estrada.

4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
Transition Period), the incoming Cabinet members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the orientation program.

During the Transition Period, the AFP and the Philippine National Police (PNP) shall
function under Vice President (Macapagal) as national military and police authorities.

Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all
the necessary signatures as affixed to this agreement and insure faithful implementation
and observance thereof.

Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in Annex A heretofore attached to this agreement.[89]

The second round of negotiation cements the reading that the petitioner has resigned. It
will be noted that during this second round of negotiation, the resignation of the petitioner
was again treated as a given fact. The only unsettled points at that time were the measures
to be undertaken by the parties during and after the transition period.

According to Secretary Angara, the draft agreement which was premised on the resignation
of the petitioner was further refined. It was then signed by their side and he was ready to
fax it to General Reyes and Senator Pimentel to await the signature of the United
Opposition. However, the signing by the party of the respondent Arroyo was aborted by her
oath-taking. The Angara Diary narrates the fateful events, viz:[90]

x x x

11:00 a.m. Between General Reyes and myself, there is a firm agreement on the five points
to effect a peaceful transition. I can hear the general clearing all these points with a group
he is with. I hear voices in the background.

Agreement

The agreement starts: 1. The President shall resign today, 20 January 2001, which
resignation shall be effective on 24 January 2001, on which day the Vice President will
assume the presidency of the Republic of the Philippines.

x x x

The rest of the agreement follows:

2. The transition process for the assumption of the new administration shall commence on
20 January 2001, wherein persons designated by the Vice President to various government
positions shall start orientation activities with incumbent officials.

3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety
and security of the President and his families throughout their natural lifetimes as approved
by the national military and police authority Vice President.

4. The AFP and the Philippine National Police (PNP) shall function under the Vice
President as national military and police authorities.

5. Both parties request the impeachment court to open the second envelope in the
impeachment trial, the contents of which shall be offered as proof that the subject savings
account does not belong to the President.

The Vice President shall issue a public statement in the form and tenor provided for in
Annex B heretofore attached to this agreement.

x x x

11:20 a.m. I am all set to fax General Reyes and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United Opposition.

And then it happens. General Reyes calls me to say that the Supreme Court has decided that
Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.

Bakit hindi naman kayo nakahintay? Paano na ang agreement (Why couldnt you wait?
What about the agreement)? I asked.

Reyes answered: Wala na, sir (Its over, sir).

I asked him: Di yung transition period, moot and academic na?

And General Reyes answer: Oo nga, i-delete na natin, sir (Yes, were deleting that part).

Contrary to subsequent reports, I do not react and say that there was a double cross.

But I immediately instruct Macel to delete the first provision on resignation since this
matter is already moot and academic. Within moments, Macel erases the first provision and
faxes the documents, which have been signed by myself, Dondon and Macel to Nene
Pimentel and General Reyes.

I direct Demaree Ravel to rush the original document to General Reyes for the signatures of
the other side, as it is important that the provision on security, at least, should be respected.

I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.

The president is too stunned for words.

Final meal

12 noon Gloria takes her oath as President of the Republic of the Philippines.

12:20 p.m. The PSG distributes firearms to some people inside the compound.

The President is having his final meal at the Presidential Residence with the few friends and
Cabinet members who have gathered.

By this time, demonstrators have already broken down the first line of defense at Mendiola.
Only the PSG is there to protect the Palace, since the police and military have already
withdrawn their support for the President.

1 p.m. The Presidents personal staff is rushing to pack as many of the Estrada familys
personal possessions as they can.

During lunch, Ronie Puno mentions that the President needs to release a final statement
before leaving Malacaang.

The statement reads: At twelve oclock noon today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the Philippines. While along with many other
legal minds of our country, I have strong and serious doubts about the legality and
constitutionality of her proclamation as president, I do not wish to be a factor that will
prevent the restoration of unity and order in our civil society.

It is for this reason that I now leave Malacaang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I
leave the Palace of our people with gratitude for the opportunities given to me for service to
our people. I will not shrik from any future challenges that may come ahead in the same
service of our country.

I call on all my supporters and followers to join me in the promotion of a constructive
national spirit of reconciliation and solidarity.

May the Almighty bless our country and our beloved people.

MABUHAY!

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed
by his leaving Malacaang. In the press release containing his final statement, (1) he
acknowledged the oath-taking of the respondent as President of the Republic albeit with the
reservation about its legality; (2) he emphasized he was leaving the Palace, the seat of the
presidency, for the sake of peace and in order to begin the healing process of our nation. He
did not say he was leaving the Palace due to any kind of inability and that he was going to
re-assume the presidency as soon as the disability disappears; (3) he expressed his
gratitude to the people for the opportunity to serve them. Without doubt, he was referring
to the past opportunity given him to serve the people as President; (4) he assured that he
will not shirk from any future challenge that may come ahead in the same service of our
country. Petitioners reference is to a future challenge after occupying the office of the
president which he has given up; and (5) he called on his supporters to join him in the
promotion of a constructive national spirit of reconciliation and solidarity. Certainly, the
national spirit of reconciliation and solidarity could not be attained if he did not give up the
presidency. The press release was petitioners valedictory, his final act of farewell. His
presidency is now in the past tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave of
absence due to his inability to govern. In support of this thesis, the letter dated January 20,
2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited.
Again, we refer to the said letter, viz:

Sir

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby
transmitting this declaration that I am unable to exercise the powers and duties of my office.
By operation of law and the Constitution, the Vice President shall be the Acting President.

(Sgd.) Joseph Ejercito Estrada

To say the least, the above letter is wrapped in mystery.[91] The pleadings filed by the
petitioner in the cases at bar did not discuss, nay even intimate, the circumstances that led
to its preparation. Neither did the counsel of the petitioner reveal to the Court these
circumstances during the oral argument. It strikes the Court as strange that the letter,
despite its legal value, was never referred to by the petitioner during the week-long crisis.
To be sure, there was not the slightest hint of its existence when he issued his final press
release. It was all too easy for him to tell the Filipino people in his press release that he was
temporarily unable to govern and that he was leaving the reins of government to
respondent Arroyo for the time being. Under any circumstance, however, the mysterious
letter cannot negate the resignation of the petitioner. If it was prepared before the press
release of the petitioner clearly showing his resignation from the presidency, then the
resignation must prevail as a later act. If, however, it was prepared after the press release,
still, it commands scant legal significance. Petitioners resignation from the presidency
cannot be the subject of a changing caprice nor of a whimsical will especially if the
resignation is the result of his repudiation by the people. There is another reason why this
Court cannot give any legal significance to petitioners letter and this shall be discussed in
issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he
could not resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, which allegedly prohibits his
resignation, viz:

Sec. 12. No public officer shall be allowed to resign or retire pending an investigation,
criminal or administrative, or pending a prosecution against him, for any offense under this
Act or under the provisions of the Revised Penal Code on bribery.

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the
petitioner. RA No. 3019 originated from Senate Bill No. 293. The original draft of the bill,
when it was submitted to the Senate, did not contain a provision similar to section 12 of the
law as it now stands. However, in his sponsorship speech, Senator Arturo Tolentino, the
author of the bill, reserved to propose during the period of amendments the inclusion of a
provision to the effect that no public official who is under prosecution for any act of graft or
corruption, or is under administrative investigation, shall be allowed to voluntarily resign
or retire.[92] During the period of amendments, the following provision was inserted as
section 15:

Sec. 15. Termination of office No public official shall be allowed to resign or retire
pending an investigation, criminal or administrative, or pending a prosecution against him,
for any offense under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official from office shall not be a bar to his
prosecution under this Act for an offense committed during his incumbency.[93]

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the
second paragraph of the provision and insisted that the Presidents immunity should extend
even after his tenure.

Senate Bill No. 571, which was substantially similar to Senate Bill No. 293, was thereafter
passed. Section 15 above became section 13 under the new bill, but the deliberations on this
particular provision mainly focused on the immunity of the President which was one of the
reasons for the veto of the original bill. There was hardly any debate on the prohibition
against the resignation or retirement of a public official with pending criminal and
administrative cases against him. Be that as it may, the intent of the law ought to be
obvious. It is to prevent the act of resignation or retirement from being used by a public
official as a protective shield to stop the investigation of a pending criminal or
administrative case against him and to prevent his prosecution under the Anti-Graft Law or
prosecution for bribery under the Revised Penal Code. To be sure, no person can be
compelled to render service for that would be a violation of his constitutional right.[94] A
public official has the right not to serve if he really wants to retire or resign. Nevertheless, if
at the time he resigns or retires, a public official is facing administrative or criminal
investigation or prosecution, such resignation or retirement will not cause the dismissal of
the criminal or administrative proceedings against him. He cannot use his resignation or
retirement to avoid prosecution.

There is another reason why petitioners contention should be rejected. In the cases at bar,
the records show that when petitioner resigned on January 20, 2001, the cases filed against
him before the Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-
1757 and 0-00-1758. While these cases have been filed, the respondent Ombudsman
refrained from conducting the preliminary investigation of the petitioner for the reason that
as the sitting President then, petitioner was immune from suit. Technically, the said cases
cannot be considered as pending for the Ombudsman lacked jurisdiction to act on them.
Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for it contemplates
of cases whose investigation or prosecution do not suffer from any insuperable legal
obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation
that, under section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact
nature of an impeachment proceeding is debatable. But even assuming arguendo that it is
an administrative proceeding, it can not be considered pending at the time petitioner
resigned because the process already broke down when a majority of the senator-judges
voted against the opening of the second envelope, the public and private prosecutors
walked out, the public prosecutors filed their Manifestation of Withdrawal of Appearance,
and the proceedings were postponed indefinitely. There was, in effect, no impeachment
case pending against petitioner when he resigned.

III

Whether or not the petitioner is only temporarily unable to act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to
perform the powers and duties of the presidency, and hence is a President on leave. As
aforestated, the inability claim is contained in the January 20, 2001 letter of petitioner sent
on the same day to Senate President Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the
inability of the petitioner to discharge the powers and duties of the presidency. His
significant submittal is that Congress has the ultimate authority under the Constitution to
determine whether the President is incapable of performing his functions in the manner
provided for in section 11 of Article VII.[95] This contention is the centerpiece of
petitioners stance that he is a President on leave and respondent Arroyo is only an Acting
President.

An examination of section 11, Article VII is in order. It provides:

SEC. 11. Whenever the President transmit to the President of the Senate and the Speaker
of the House of Representatives his written declaration that he is unable to discharge the
powers and duties of his office, and until he transmits to them a written declaration to the
contrary, such powers and duties shall be discharged by the Vice-President as Acting
President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the
Senate and to the Speaker of the House of Representatives their written declaration that the
President is unable to discharge the powers and duties of his office, the Vice-President shall
immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker
of the House of Representatives his written declaration that no inability exists, he shall
reassume the powers and duties of his office. Meanwhile, should a majority of all the
Members of the Cabinet transmit within five days to the President of the Senate and to the
Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Congress shall decide the issue.
For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours,
in accordance with its rules and without need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in
session within twelve days after it is required to assemble, determines by a two-thirds vote
of both Houses, voting separately, that the President is unable to discharge the powers and
duties of his office, the Vice-President shall act as President; otherwise, the President shall
continue exercising the powers and duties of his office."

That is the law. Now the operative facts:

(1) Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;

(2) Unaware of the letter, respondent Arroyo took her oath of office as President on January
20, 2001 at about 12:30 p.m.;

(3) Despite receipt of the letter, the House of Representative passed on January 24, 2001
House Resolution No. 175;[96]

On the same date, the House of the Representatives passed House Resolution No.
176[97]which states:

RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE
ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS
AND EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE
ATTAINMENT OF THE NATIONS GOALS UNDER THE CONSTITUTION

WHEREAS, as a consequence of the peoples loss of confidence on the ability of former
President Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines,
the Philippine National Police and majority of his cabinet had withdrawn support from him;

WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President
Gloria Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001
before Chief Justice Hilario G. Davide, Jr.;

WHEREAS, immediately thereafter, members of the international community had extended
their recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of
the Philippines;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of
national healing and reconciliation with justice for the purpose of national unity and
development;

WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is
divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the
people, the House of Representatives must ensure to the people a stable, continuing
government and therefore must remove all obstacles to the attainment thereof;

WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to
unify the nation, to eliminate fractious tension, to heal social and political wounds, and to be
an instrument of national reconciliation and solidarity as it is a direct representative of the
various segments of the whole nation;

WHEREAS, without surrendering its independence, it is vital for the attainment of all the
foregoing, for the House of Representatives to extend its support and collaboration to the
administration of Her Excellency, President Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the national interest demanding no less: Now,
therefore, be it

Resolved by the House of Representatives, To express its support to the assumption into
office by Vice President Gloria Macapagal-Arroyo as President of the Republic of the
Philippines, to extend its congratulations and to express its support for her administration
as a partner in the attainment of the Nations goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General

On February 7, 2001, the House of the Representatives passed House Resolution No.
178[98] which states:

RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS NOMINATION
OF SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES

WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event
of such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate
Minority Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of
the Philippines;

WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true
statesmanship, having served the government in various capacities, among others, as
Delegate to the Constitutional Convention, Chairman of the Commission on Audit, Executive
Secretary, Secretary of Justice, Senator of the Philippines - qualities which merit his
nomination to the position of Vice President of the Republic: Now, therefore, be it

Resolved as it is hereby resolved by the House of Representatives, That the House of
Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.

Adopted,

(Sgd) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on February 7, 2001.

(Sgd.) ROBERTO P. NAZARENO

Secretary General

(4) Also, despite receipt of petitioners letter claiming inability, some twelve (12) members
of the Senate signed the following:

RESOLUTION

WHEREAS, the recent transition in government offers the nation an opportunity for
meaningful change and challenge;

WHEREAS, to attain desired changes and overcome awesome challenges the nation needs
unity of purpose and resolute cohesive resolute (sic) will;

WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in
unity despite diversities in perspectives;

WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge our duties to attain desired changes and
overcome the nations challenges.[99]

On February 7, the Senate also passed Senate Resolution No. 82[100] which states:

RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYOS NOMINATION
OF SEN. TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES

WHEREAS, there is it vacancy in the Office of the Vice-President due to the assumption to
the Presidency of Vice President Gloria Macapagal-Arroyo;

WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and
the House of Representatives who shall assume office upon confirmation by a majority vote
of all members of both Houses voting separately;

WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate
Minority Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of
the Phillippines;

WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity,
competence, and courage; who has served the Filipino people with dedicated responsibility
and patriotism;

WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary,
Secretary of Justice. Senator of the land - which qualities merit his nomination to the
position of Vice President of the Republic: Now, therefore, be it

Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto
T. Guingona, Jr. as Vice President of the Republic of the Philippines.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate

On the same date, February 7, the Senate likewise passed Senate Resolution No. 83[101]
which states:

RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO

Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court is
functus officio and has been terminated.

Resolved, further, That the Journals of the Impeachment Court of Monday, January 15,
Tuesday, January 16 and Wednesday, January 17, 2001 be considered approved.

Resolved, further, That the records of the Impeachment Court including the second
envelope be transferred to the Archives of the Senate for proper safekeeping and
preservation in accordance with the Rules of the Senate. Disposition and retrieval thereof
shall be made only upon written approval of the Senate President.

Resolved, finally. That all parties concerned be furnished copies of this Resolution.

Adopted,

(Sgd.) AQUILINO Q. PIMENTEL, JR.

President of the Senate

This Resolution was adopted by the Senate on February 7, 2001.

(Sgd.) LUTGARDO B. BARBO

Secretary of the Senate

(5) On February 8, the Senate also passed Resolution No. 84 certifying to the existence of a
vacancy in the Senate and calling on the COMELEC to fill up such vacancy through election
to be held simultaneously with the regular election on May 14, 2001 and the senatorial
candidate garnering the thirteenth (13th) highest number of votes shall serve only for the
unexpired term of Senator Teofisto T. Guingona, Jr.

(6) Both houses of Congress started sending bills to be signed into law by respondent
Arroyo as President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any
recognition from any sector of government, and without any support from the Armed
Forces of the Philippines and the Philippine National Police, the petitioner continues to
claim that his inability to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada is no longer temporary. Congress has clearly
rejected petitioners claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses of Congress
recognizing respondent Arroyo as President of the Philippines. Following Taada v.
Cuenco,[102] we hold that this Court cannot exercise its judicial power for this is an issue
in regard to which full discretionary authority has been delegated to the Legislative x x x
branch of the government. Or to use the language in Baker vs. Carr,[103] there is 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.
Clearly, the Court cannot pass upon petitioners claim of inability to discharge the powers
and duties of the presidency. The question is political in nature and addressed solely to
Congress by constitutional fiat. It is a political issue which cannot be decided by this Court
without transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure President made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit. Assuming he enjoys immunity,
the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the
respondent Ombudsman should be prohibited because he has not been convicted in the
impeachment proceedings against him; and second, he enjoys immunity from all kinds of
suit, whether criminal or civil.

Before resolving petitioners contentions, a revisit of our legal history on executive
immunity will be most enlightening. The doctrine of executive immunity in this jurisdiction
emerged as a case law. In the 1910 case of Forbes, etc. vs. Chuoco tiaco and Crossfield,[104]
the respondent Tiaco, a Chinese citizen, sued petitioner W. Cameron Forbes, Governor-
General of the Philippine Islands, J.E. Harding and C.R. Trowbridge, Chief of Police and Chief
of the Secret Service of the City of Manila, respectively, for damages for allegedly conspiring
to deport him to China. In granting a writ of prohibition, this Court, speaking thru Mr.
Justice Johnson, held:

The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained. Such a construction would mean that
tyranny, under the guise of the execution of the law, could walk defiantly abroad, destroying
rights of person and of property, wholly free from interference of courts or legislatures.
This does not mean, either, that a person injured by the executive authority by an act
unjustifiable under the law has no remedy, but must submit in silence. On the contrary, it
means, simply, that the Governor-General, like the judges of the courts and the members of
the Legislature, may not be personally mulcted in civil damages for the consequences of an
act executed in the performance of his official duties. The judiciary has full power to, and
will, when the matter is properly presented to it and the occasion justly warrants it, declare
an act of the Governor-General illegal and void and place as nearly as possible in status quo
any person who has been deprived his liberty or his property by such act. This remedy is
assured to every person, however humble or of whatever country, when his personal or
property rights have been invaded, even by the highest authority of the state. The thing
which the judiciary can not do is mulct the Governor-General personally in damages which
result from the performance of his official duty, any more that it can a member of the
Philippine Commission or the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be
personally sued at all in relation to acts which he claims to perform as such official. On the
contrary, it clearly appears from the discussion heretofore had, particularly that portion
which touched the liability of judges and drew an analogy between such liability and that of
the Governor-General, that the latter is liable when he acts in a case so plainly outside of his
power and authority that he can not be said to have exercise discretion in determining
whether or not he had the right to act. What is held here is that he will be protected from
personal liability for damages not only when he acts within his authority, but also when he
is without authority, provided he actually used discretion and judgment, that is, the judicial
faculty, in determining whether he had authority to act or not. In other words, he is entitled
to protection in determining the question of his authority. If he decide wrongly, he is still
protected provided the question of his authority was one over which two men, reasonably
qualified for that position, might honestly differ; but he is not protected if the lack of
authority to act is so plain that two such men could not honestly differ over its
determination. In such case, he acts, not as Governor-General but as a private individual,
and, as such, must answer for the consequences of his act.

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted
immunity from suit, viz: x x x. Action upon important matters of state delayed; the time
and substance of the chief executive spent in wrangling litigation; disrespect engendered for
the person of one of the highest officials of the State and for the office he occupies; a
tendency to unrest and disorder; resulting in a way, in a distrust as to the integrity of
government itself.[105]

Our 1935 Constitution took effect but it did not contain any specific provision on executive
immunity. Then came the tumult of the martial law years under the late President
Ferdinand E. Marcos and the 1973 Constitution was born. In 1981, it was amended and one
of the amendments involved executive immunity. Section 17, Article VII stated:

The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever
shall lie for official acts done by him or by others pursuant to his specific orders during his
tenure.

The immunities herein provided shall apply to the incumbent President referred to in
Article XVII of this Constitution.

In his second Vicente G. Sinco Professional Chair Lecture entitled, Presidential Immunity
And All The Kings Men: The Law Of Privilege As A Defense To Actions For Damages,[106]
petitioners learned counsel, former Dean of the UP college of Law, Atty. Pacifico Agabin,
brightlined the modifications effected by this constitutional amendment on the existing law
on executive privilege. To quote his disquisition:

In the Philippines, though, we sought to do the Americans one better by enlarging and
fortifying the absolute immunity concept. First, we extended it to shield the President not
only from civil claims but also from criminal cases and other claims. Second, we enlarged its
scope so that it would cover even acts of the President outside the scope of official duties.
And third, we broadened its coverage so as to include not only the President but also other
persons, be they government officials or private individuals, who acted upon orders of the
President. It can be said that at that point most of us were suffering from AIDS (or absolute
immunity defense syndrome).

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept
of executive immunity in the 1973 Constitution. The move was led by then Member of
Parliament, now Secretary of Finance, Alberto Romulo, who argued that the after
incumbency immunity granted to President Marcos violated the principle that a public
office is a public trust. He denounced the immunity as a return to the anachronism the king
can do no wrong.[107] The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the
People Power revolution in 1986. When the 1987 Constitution was crafted, its framers did
not reenact the executive immunity provision of the 1973 Constitution. The following
explanation was given by delegate J. Bernas, viz:[108]

Mr. Suarez. Thank you.

The last question is with reference to the committees omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the
Committee did very well in striking out this second sentence, at the very least, of the
original provision on immunity from suit under the 1973 Constitution. But would the
Committee members not agree to a restoration of at least the first sentence that the
President shall be immune from suit during his tenure, considering that if we do not provide
him that kind of an immunity, he might be spending all his time facing litigations, as the
President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the
1973 Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I thank the Commissioner for the clarification.

We shall now rule on the contentions of petitioner in the light of this history. We reject his
argument that he cannot be prosecuted for the reason that he must first be convicted in the
impeachment proceedings. The impeachment trial of petitioner Estrada was aborted by the
walkout of the prosecutors and by the events that led to his loss of the presidency. Indeed,
on February 7, 2001, the Senate passed Senate Resolution No. 83 Recognizing that the
Impeachment Court is Functus Officio.[109] Since the Impeachment Court is now functus
officio, it is untenable for petitioner to demand that he should first be impeached and then
convicted before he can be prosecuted. The plea if granted, would put a perpetual bar
against his prosecution. Such a submission has nothing to commend itself for it will place
him in a better situation than a non-sitting President who has not been subjected to
impeachment proceedings and yet can be the object of a criminal prosecution. To be sure,
the debates in the Constitutional Commission make it clear that when impeachment
proceedings have become moot due to the resignation of the President, the proper criminal
and civil cases may already be filed against him, viz:[110]

x x x

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgment of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts.

This is in accord with our ruling in In re: Saturnino Bermudez[111]that incumbent
Presidents are immune from suit or from being brought to court during the period of their
incumbency and tenure but not beyond. Considering the peculiar circumstance that the
impeachment process against the petitioner has been aborted and thereafter he lost the
presidency, petitioner Estrada cannot demand as a condition sine qua non to his criminal
prosecution before the Ombudsman that he be convicted in the impeachment proceedings.
His reliance in the case of Lecaroz vs. Sandiganbayan[112] and related cases[113]are
inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting
President. The cases filed against petitioner Estrada are criminal in character. They involve
plunder, bribery and graft and corruption. By no stretch of the imagination can these
crimes, especially plunder which carries the death penalty, be covered by the allege mantle
of immunity of a non-sitting president. Petitioner cannot cite any decision of this Court
licensing the President to commit criminal acts and wrapping him with post-tenure
immunity from liability. It will be anomalous to hold that immunity is an inoculation from
liability for unlawful acts and omissions. The rule is that unlawful acts of public officials are
not acts of the State and the officer who acts illegally is not acting as such but stands in the
same footing as any other trespasser.[114] Indeed, a critical reading of current literature on
executive immunity will reveal a judicial disinclination to expand the privilege especially
when it impedes the search for truth or impairs the vindication of a right. In the 1974 case
of US v. Nixon,[115] US President Richard Nixon, a sitting President, was subpoenaed to
produce certain recordings and documents relating to his conversations with aids and
advisers. Seven advisers of President Nixons associates were facing charges of conspiracy
to obstruct justice and other offenses which were committed in a burglary of the
Democratic National Headquarters in Washingtons Watergate Hotel during the 1972
presidential campaign. President Nixon himself was named an unindicted co-conspirator.
President Nixon moved to quash the subpoena on the ground, among others, that the
President was not subject to judicial process and that he should first be impeached and
removed from office before he could be made amenable to judicial proceedings. The claim
was rejected by the US Supreme Court. It concluded that when the ground for asserting
privilege as to subpoenaed materials sought for use in a criminal trial is based only on the
generalized interest in confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice. In the 1982 case of Nixon
v. Fitzgerald,[116] the US Supreme Court further held that the immunity of the President
from civil damages covers only official acts. Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones[117] where it held that the
US Presidents immunity from suits for money damages arising out of their official acts is
inapplicable to unofficial conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive
immunity in our jurisdiction. One of the great themes of the 1987 Constitution is that a
public office is a public trust.[118] It declared as a state policy that (t)he State shall
maintain honesty and integrity in the public service and take positive and effective
measures against graft and corruption."[119] It ordained that (p)ublic officers and
employees must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead
modest lives.[120] It set the rule that (t)he right of the State to recover properties
unlawfully acquired by public officials or employees, from them or from their nominees or
transferees, shall not be barred by prescription, laches or estoppel.[121] It maintained the
Sandiganbayan as an anti-graft court.[122] It created the office of the Ombudsman and
endowed it with enormous powers, among which is to "(i)nvestigate on its own, or on
complaint by any person, any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.[123] The Office of the Ombudsman was also given fiscal autonomy.[124] These
constitutional policies will be devalued if we sustain petitioners claim that a non-sitting
president enjoys immunity from suit for criminal acts committed during his incumbency.

V

Whether or not the prosecution of petitioner Estrada should be enjoined due to prejudicial
publicity

Petitioner also contends that the respondent Ombudsman should be stopped from
conducting the investigation of the cases filed against him due to the barrage of prejudicial
publicity on his guilt. He submits that the respondent Ombudsman has developed bias and
is all set to file the criminal cases in violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with
the rain of unrestrained publicity during the investigation and trial of high profile
cases.[125] The British approach the problem with the presumption that publicity will
prejudice a jury. Thus, English courts readily stay and stop criminal trials when the right of
an accused to fair trial suffers a threat.[126] The American approach is different. US courts
assume a skeptical approach about the potential effect of pervasive publicity on the right of
an accused to a fair trial. They have developed different strains of tests to resolve this issue,
i.e., substantial probability of irreparable harm, strong likelihood, clear and present danger,
etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop
the trials or annul convictions in high profile criminal cases.[127] In People vs. Teehankee,
Jr.,[128] later reiterated in the case of Larranaga vs. Court of Appeals, et al.,[129] we laid
down the doctrine that:

We cannot sustain appellants claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar
pervasive publicity, just like all high profile and high stake criminal trials. Then and now,
we now rule that the right of an accused to a fair trial is not incompatible to a free press. To
be sure, responsible reporting enhances an accuseds right to a fair trial for, as well pointed
out, a responsible press has always been regarded as the handmaiden of effective judicial
administration, especially in the criminal field x x x. The press does not simply publish
information about trials but guards against the miscarriage of justice by subjecting the
police, prosecutors, and judicial processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere
fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the trial judge and impaired his
impartiality. For one, it is impossible to seal the minds of members of the bench from pre-
trial and other off-court publicity of sensational criminal cases. The state of the art of our
communication system brings news as they happen straight to our breakfast tables and
right to our bedrooms. These news form part of our everyday menu of the facts and fictions
of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of
touch with the world. We have not installed the jury system whose members are overly
protected from publicity lest they lose their impartiality. x x x x x x x x x. Our
judges are learned in the law and trained to disregard off-court evidence and on-camera
performances of parties to a litigation. Their mere exposure to publications and publicity
stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due
to the barrage of publicity that characterized the investigation and trial of the case. In
Martelino, et al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and
adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial
publicity, there must be allegation and proof that the judges have been unduly influenced,
not simply that they might be, by the barrage of publicity. In the case at bar, the records do
not show that the trial judge developed actual bias against appellant as a consequence of the
extensive media coverage of the pre-trial and trial of his case. The totality of circumstances
of the case does not prove that the trial judge acquired a fixed opinion as a result of
prejudicial publicity which is incapable if change even by evidence presented during the
trial. Appellant has the burden to prove this actual bias and he has not discharged the
burden.

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de
Leon, etc.[130] and its companion cases. viz.:

Again, petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.

x x x

The democratic settings, media coverage of trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and
their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the
press and public. Inn the seminal case of Richmond Newspapers, Inc. v. Virginia, it was
wisely held:

x x x

(a) The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that the time this Nations organic laws were adopted, criminal
trials both here and in England had long been presumptively open, thus giving assurance
that the proceedings were conducted fairly to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on secret bias or partiality. In addition, the
significant community therapeutic value of public trials was recognized: when a shocking
crime occurs, a community reaction of outrage and public protest often follows, and
thereafter the open processes of justice serve an important prophylactic purpose, providing
an outlet for community concern, hostility, and emotion. To work effectively, it is important
that societys criminal process satisfy the appearance of justice, Offutt v. United States, 348
US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe
such process. From this unbroken, uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a presumption of openness inheres in
the very nature of a criminal trial under this Nations system of justice, Cf., e.g., Levine v.
United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.

(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedoms such as those
of speech and press, the First Amendment can be read as protecting the right of everyone to
attend trials so as give meaning to those explicit guarantees; the First Amendment right to
receive information and ideas means, in the context of trials, that the guarantees of speech
and press, standing alone, prohibit government from summarily closing courtroom doors
which had long been open to the public at the time the First Amendment was adopted.
Moreover, the right of assembly is also relevant, having been regarded not only as an
independent right but also as a catalyst to augment the free exercise of the other First
Amendment rights with which it was deliberately linked by the draftsmen. A trial
courtroom is a public place where the people generally and representatives of the media
have a right to be present, and where their presence historically has been thought to
enhance the integrity and quality of what takes place.

(c) Even though the Constitution contains no provision which by its terms guarantees to
the public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights.
The right to attend criminal trial is implicit in the guarantees of the First Amendment:
without the freedom to attend such trials, which people have exercised for centuries,
important aspects of freedom of speech and of the press could be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus, in
Martelino, et al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity
there must be allegation and proof that the judges have been unduly influenced, not simply
that they might be, by the barrage of publicity. In the case at bar, we find nothing in the
records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ
Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors.
Their long experience in criminal investigation is a factor to consider in determining
whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page
Resolution carries no indubitable indicia of bias for it does not appear that they considered
any extra-record evidence except evidence properly adduced by the parties. The length of
time the investigation was conducted despite its summary nature and the generosity with
which they accommodated the discovery motions of petitioners speak well of their fairness.
At no instance, we note, did petitioners seek the disqualification of any member of the DOJ
Panel on the ground of bias resulting from their bombardment of prejudicial publicity.
(emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court
to enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof.[131]
He needs to show more weighty social science evidence to successfully prove the impaired
capacity of a judge to render a bias-free decision. Well to note, the cases against the
petitioner are still undergoing preliminary investigation by a special panel of prosecutors in
the office of the respondent Ombudsman. No allegation whatsoever has been made by the
petitioner that the minds of the members of this special panel have already been infected by
bias because of the pervasive prejudicial publicity against him. Indeed, the special panel has
yet to come out with its findings and the Court cannot second guess whether its
recommendation will be unfavorable to the petitioner.

The records show that petitioner has instead charged respondent Ombudsman himself with
bias. To quote petitioners submission, the respondent Ombudsman has been influenced by
the barrage of slanted news reports, and he has buckled to the threats and pressures
directed at him by the mobs.[132] News reports have also been quoted to establish that the
respondent Ombudsman has already prejudged the cases of the petitioner[133]and it is
postulated that the prosecutors investigating the petitioner will be influenced by this bias of
their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of
the news reports referred to by the petitioner cannot be the subject of judicial notice by this
Court especially in light of the denials of the respondent Ombudsman as to his alleged
prejudice and the presumption of good faith and regularity in the performance of official
duty to which he is entitled. Nor can we adopt the theory of derivative prejudice of
petitioner, i.e., that the prejudice of respondent Ombudsman flows to his subordinates. In
truth, our Revised Rules of Criminal Procedure, give investigating prosecutors the
independence to make their own findings and recommendations albeit they are reviewable
by their superiors.[134] They can be reversed but they can not be compelled to change their
recommendations nor can they be compelled to prosecute cases which they believe deserve
dismissal. In other words, investigating prosecutors should not be treated like unthinking
slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against
the petitioner and the latter believes that the finding of probable cause against him is the
result of bias, he still has the remedy of assailing it before the proper court.

VI.

Epilogue

A word of caution to the hooting throng. The cases against the petitioner will now acquire
a different dimension and then move to a new stage - - - the Office of the Ombudsman.
Predictably, the call from the majority for instant justice will hit a higher decibel while the
gnashing of teeth of the minority will be more threatening. It is the sacred duty of the
respondent Ombudsman to balance the right of the State to prosecute the guilty and the
right of an accused to a fair investigation and trial which has been categorized as the most
fundamental of all freedoms.[135] To be sure, the duty of a prosecutor is more to do justice
and less to prosecute. His is the obligation to insure that the preliminary investigation of the
petitioner shall have a circus-free atmosphere. He has to provide the restraint against what
Lord Bryce calls the impatient vehemence of the majority. Rights in a democracy are not
decided by the mob whose judgment is dictated by rage and not by reason. Nor are rights
necessarily resolved by the power of number for in a democracy, the dogmatism of the
majority is not and should never be the definition of the rule of law. If democracy has
proved to be the best form of government, it is because it has respected the right of the
minority to convince the majority that it is wrong. Tolerance of multiformity of thoughts,
however offensive they may be, is the key to mans progress from the cave to civilization.
Let us not throw away that key just to pander to some peoples prejudice.

IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent
Gloria Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

Bellosillo, Melo, Quisumbing, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., no part in view of expression given in the open court and in the extended
explanation.
Vitug, J., see concurring opinion.
Kapunan, J., concur in the result and reserve the right to write a separate opinion.
Mendoza, J., see concurring opinion.
Panganiban, J., no part per letter of Inhibition dated Feb. 15, 2000 mention in footnote 51 of
ponencia.
Pardo, J., in the result; believes that petitioner was constrained to resign and reserve his
vote in immunity from suit
Buena, J., in the result.
Ynares-Santiago, J., concur in the result and reserve the filing of a separate opinion.
Sandoval-Gutierrez, J., concur in the result and reserve the right to write a separate opinion.

[1] Philippine Daily Inquirer (PDI), October 5, 2000, pp. A1 and A17.

[2] PDI, October 6, 2000, pp. A1 and A18.

[3] Ibid., October 12, 2000, pp. A1 and A17.

[4] Ibid., October 14, 2000, p. A1.

[5] Ibid., October 18, 2000, p. A1.

[6] Ibid., October 13, 2000, pp. A1 and A21.

[7] Ibid., October 26, 2000, p. A1.

[8] Ibid., November 2, 2000, p. A1.

[9] Ibid., November 3, 2000, p. A1.

[10] Ibid., November 4, 2000, p. A1.

[11] The complaint for impeachement was based on the following grounds: bribery, graft
and corruption, betrayal of public trust, and culpable violation of the Cnstitution.

[12] Ibid., November 14, 2000, p. A1.

[13] Ibid., November 21, 2000, p. A1.

[14] Ibid., December 8, 2000, p. A1.

[15] Ibid., December 23, 2000, pp. A1 and A19.

[16] Ibid., January 12, 2001, p. A1.

[17] Those who voted yes to open the envelop were: Senators Pimentel, Guingona, Drilon,
Cayetano, Roco, Legarda, Magsaysay, Flavier, Biazon, Osmea III. Those who vote no were
Senators Ople, Defensor-Santiago, John Osmea, Aquino-Oreta, Coseteng, Enrile, Honasan,
Jaworski, Revilla, Sotto III and Tatad.

[18] Philippine Star, January 17, 2001, p. 1.

[19] Ibid., January 18, 2001, p. 4.

[20] Ibid., p. 1.

[21] Ibid., January 19, 2001, pp. 1 and 8.

[22] Eraps Final Hours Told by Edgardo Angara, (hereinafter referred to as Angara
Diary), PDI, February 4, 2001, p. A16.

[23] Philippine Star, January 20, 2001, p. 4.

[24] PDI, February 4, 2001, p. A16.

[25] Philippine Star, January 20, 2001, pp. 1 and 11.

[26] Ibid., January 20, 2001, p. 3.

[27] PDI, February 5, 2001, pp. A1 and A6.

[28] Philippine Star, January 21, 2001, p. 1.

[29] PDI, February 6, 2001, p. A12.

[30] Annex A, DOJ-OSG, Joint Comment; Rollo, G.R. Nos. 146710-15, p. 288.

[31] Annex A-1, Petition, G.R. Nos. 146710-15; Rollo, p. 34.

[32] Ibid.

[33] Annex A, Petition, G.R. Nos. 146710-15; Rollo, p. 33.

[34] Philippine Star, January 21, 2001, p. 1; January 23, 2001, pp. 1 and 4; January 24, 2001,
p. 3; PDI, January 25, 2001, pp. A1 and A15.

[35] Philippine Star, January 24, 2001, p. 1.

[36] PDI, January 25, 2001, p. 1.

[37] Ibid., p. 2.

[38] Annex C, DOJ-OSG Joint Comment; Rollo, GR Nos. 146710-15 p. 290.

[39] Annex D, id; ibid., p. 292.

[40] PDI, January 27, 2001, p. 1.

[41] PDI, February 13, 2001, p. A2.

[42] Philippine Star, February 13, 2001, p. A2.

[43] Annex E, id.; ibid., p. 295.

[44] PDI, February 8, 2001, pp. A1 & A19.

[45] Annex F, id.; ibid., p. 297.

[46] PDI, February 10, 2001, p. A2.

[47] Annex G., id.; ibid., p. 299.

[48] PDI, February 8, 2001, p. A19.

[49] Philippine Star, February 3, 2001, p. 4.

[50] Acceptance of Gloria is Nationwide, Mahar Mangahas, Manila Standard, February 16,
2001, p. 14.

[51] See The Chief Justices Extended Explanation for His Voluntary Inhibition; Rollo, GR
Nos. 146710-15, pp. 525-527.

[52] See Letter of Inhibition of Associate Justice Panganiban; Rollo, GR No. 146738, pp. 120-
125.

[53] Rollo, G.R. No. 146738, p. 134.

[54] Leonard de Vera and Dennis Funa; see their Memorandum, pp. 16-27; Rollo, GR Nos.
146710-15, Vol. III, pp. 809-820.

[55] Gunther and Sullivan, Constitutional Law, 13th ed., pp. 45-46.

[56] 369 US 186, 82 S.Ct. 691, 7 L ed 2d 663, 686 (1962).

[57] See e.g., Integrated Bar of the Philippines v. Hon. Zamora, et al., GR No. 141284, 15
August 2000; Miranda v. Aguirre, 314 SCRA 603 (1999); Santiago v. Guingona, 298 SCRA
756 (1998); Tatad v. Secretary of the Department of Energy, 281 SCRA 330 (1997); Marcos
v. Manglapus, 177 SCRA 668 (1989); Gonzales v. COMELEC, 129 Phil 7 (1967); Mabanag v.
Lopez Vito, 78 Phil 1 (1947); Avelino v. Cuenco 83 Phil. 17 (1949); Vera v. Avelino, 77 Phil
192 (1946); Alejandrino v. Quezon, 46 Phil 83 (1942).

[58] 103 Phil 1051, 1068 (1957).

[59] Section 1, Article VIII, 1987 Constitution.

[60] Note that the early treatises on Constitutional Law are discourses on limitations of
power typical of which is, Cooleys Constitutional Limitations.

[61] Joint Resolution, Lawyers League for a Better Philippines and/or Oliver A. Lozano v.
Pres. Corazon C. Aquino, et al., GR No. 73748; Peoples Crusade for Supremacy of the
Constitution, etc. v. Mrs. Cory Aquino, et al., GR No. 73972; and Councilor Clifton U. Ganay v.
Corazon C. Aquino, et al., GR No. 73990, May 22, 1986.

[62] Letter of Associate Justice Reynato S. Puno, 210 SCRA 597 [1992].

[63] Proclamation No. 3. (1986)

[64] It states:

I, Gloria Macapagal-Arroyo, Vice President of the Philippines, do solemnly swear
that I will faithfully and conscientiously fulfill my duties as President of the Philippines,
preserve and defend its Constitution, execute its laws, do justice to every man, and
consecrate myself to the service of the nation.

So help me God.

(Annex I, Comment of the Ombudsman; Rollo, GR Nos. 146710-15 Vol. II, p. 332)

[65] See Filipinas Despues de Cien Aos (The Philippines a Century Hence), p. 62.

[66] The guaranty was taken from Amendment I of the US Constitution which provides:
Congress shall make no law respecting an establishment of religion or prohibiting the free
exercise thereof of abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievance.

[67] See section 8, Article IV.

[68] See section 9, Article IV.

[69] Emerson, The System of Freedom of Expression, 1970 ed., p. 6, et seq.

[70] Ibid., See also concurring opinion of Justice Branders in Whitney v. California (74 US
357, 375-76) where he said ... the greatest menace to freedom is an inert people...

[71] 307 US 496 (1939).

[72] Chafee, Jr., Free Speech in the United States, 1946 ed., pp. 413-415, 421.

[73] 260 SCRA 798 (1996).

[74] Section 1, Article II of the 1987 Constitution reads:

The Philippines is a democratic and republican State. Sovereignty resides in the
people and all government authority emanates from them.

[75] Infra at 26.

[76] Infra at 41.

[77] 1 Cranch (5 US) 137, 2 L ed 60 (1803).

[78] Gonzales v. Hernandez, 2 SCRA 228 (1961).

[79] See its February 4, 5, and 6, 2001 issues.

[80] PDI, February 4, 2001, p. A1.

[81] Ibid.

[82] Ibid.

[83] Ibid.

[84] Ibid.

[85] Ibid.

[86] PDI, February 5, 2001, p. A1.

[87] Ibid., p. A-1.

[88] Ibid.

[89] PDI, February 5, 2001, p. A6.

[90] PDI, February 6, 2001, p. A1.

[91] In the Angara Diary which appeared in the PDI issue of February 5, 2001, Secretary
Angara stated that the letter came from Asst. Secretary Boying Remulla; that he and Political
Adviser Banayo opposed it; and that PMS head Macel Fernandez believed that the petitioner
would not sign the letter.

[92] Congressional Record, 4th Congress, 2nd Session, March 4, 1959, pp. 603-604.

[93] Id., May 9, 1959, p. 1988.

[94] Section 18 (2), Article III of the 1987 Constitution provides: No involuntary servitude
in any form shall exist except as a punishment for a crime whereof the party shall have been
duly convicted.

[95] Reply Memorandum, p. 3; Rollo, G.R. Nos. 146710-15, Vol. IV.

[96] House Resolution No. 175, 11th Congress, 3rd Session (2001), reads:

RESOLUTION EXPRESSING THE FULL SUPPORT OF THE HOUSE OF REPRESENTATIVES TO
THE ADMINISTRATION OF HER EXCELLENCY, GLORIA MACAPAGAL-ARROYO, PRESIDENT
OF THE PHILIPPINES

WHEREAS, on January 20, 2001, Vice President Gloria Macapagal-Arroyo was
sworn in as the 14th President of the Philippines;

WHEREAS, her ascension to the highest office of the land under the dictum, the
voice of the people is the voice of God establishes the basis of her mandate on integrity and
morality in government;

WHEREAS, the House of Representatives joins the church, youth, labor and
business sectors in fully supporting the Presidents strong determination to succeed;

WHEREAS, the House of representative is likewise one with the people in
supporting President Gloria Macapagal-Arroyos call to start the healing and cleansing
process for a divided nation in order to build an edifice of peace, progress and economic
stability for the country: Now, therefore, be it Resolved by the House of Representatives,
To express its full support to the administration of Her Excellency, Gloria Macapagal-
Arroyo, 14th President of the Philippines.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by House of Representatives on January 24, 2001.

(Sgd.) Roberto P. Nazareno

Secretary General

[97] 11th Congress, 3rd Session (2001).

[98] 11th Congress, 3rd Session (2001).

[99] Annex 2, Comment of Private Respondents De Vera, et al.; Rollo, GR No. 146710-15, Vol.
II, p. 231.

[100] 11th Congress, 3rd Session (2001).

[101] 11th Congress, 3rd Session (2001).

[102] 103 Phil 1051, 1067 (1957).

[103] Baker vs. Carr, supra at 686 headnote 29.

[104] 16 Phil 534 (1910).

[105] The logical basis for executive immunity from suit was originally founded upon the
idea that the King can do no wrong. [R.J. Gray, Private Wrongs of Public Servants, 47 CAL.
L. REV.. 303 (1959)]. The concept thrived at the time of absolute monarchies in medieval
England when it was generally accepted that the seat of sovereignty and governmental
power resides in the throne. During that historical juncture, it was believed that allowing
the King to be sued in his court was a contradiction to the sovereignty of the King.

With the development of democratic thoughts and institutions, this kind of
rationalization eventually lost its moral force. In the United States, for example, the
common law maxim regarding the Kings infallibility had limited reception among the
framers of the Constitution. [J. Long, How to Sue the President: A Proposal for Legislation
Establishing the Extent of Presidential Immunity, 30 VAL. U.L. REV. 283 (1995)]. Still, the
doctrine of presidential immunity found its way of surviving in modern political times,
retaining both its relevance and vitality. The privilege, however, is now justified for
different reasons. First, the doctrine is rooted in the constitutional tradition of separation of
powers and supported by history. [Nixon v. Fitzgerald, 451 U.S. 731 (1982)]. The
separation of powers principle is viewed as demanding the executives independence from
the judiciary, so that the President should not be subject to the judiciarys whim. Second, by
reason of public convenience, the grant is to assure the exercise of presidential duties and
functions free from any hindrance or distraction, considering that the Chief Executive is a
job that, aside from requiring all of the office-holders time, also demands undivided
attention. [Soliven v. Makasiar, 167 SCRA 393 (1988)]. Otherwise, the time and substance
of the chief executive will be spent on wrangling litigation, disrespect upon his person will
be generated, and distrust in the government will soon follow. [Forbes v. Chouco Tiaco, 16
Phil. 534 (1910)]. Third, on grounds of public policy, it was recognized that the gains from
discouraging official excesses might be more than offset by the losses from diminished zeal
[Agabin, op. cit., at 121.]. Without immunity, the president would de disinclined to exercise
decision-making functions in a manner that might detrimentally affect an individual or
group of individuals. [See H. Schnechter, Immunity of Presidential Aides from Criminal
Prosecution, 57 Geo. Wash. L. Rev. 779 (1989)].1

[106] 62 Phil. L.J. 113 (1987).

[107] See Bulletin Today, August 16, 1984, p. 1; December 18, 1984, p. 7.

[108] Records of the Constitutional Commission of 1986, Vol. II, Records, p. 423, July 29,
1986.

[109] Supra at 47.

[110] Records of Constitutional Commission, Vol. II, July 28, 1986, p. 355.

[111] 145 SCRA 160 (1986).

[112] 128 SCRA 324 (1984).

[113] In Re: Raul Gonzales, 160 SCRA 771 (1988); Cuenco v. Fernan, 158 29 (1988); and
Jarque v. Desierto, A.C. No. 4509, 250 SCRA xi-xiv (1995).

[114] Wallace v. Board of Education, 280 Ala. 635, 197 So 2d 428 (1967).

[115] 418 US 683, 94 S. Ct. 3090, 41 L ed 1039 (1974).

[116] 457 US 731, 73 L ed. 349, 102 S Ct. 2690 (1982).

[117] 520 U.S. 681 (1997).

[118] See section 1, Art. XI of the 1987 Constitution.

[119] See section 27, Art. II of the 1987 Constitution.

[120] See section 1, Art. XI of the 1987 Constitution.

[121] See section 15, Art. XI of the 1987 Constitution.

[122] See section 4, Art. XI of the 1987 Constitution.

[123] See section 13 (1), Art. XI of the 1987 Constitution.

[124] See section 14, Art. XI of the 1987 Constitution.

[125] See Brandwood, Notes: You Say Fair Trial and I say Free Press: British and
American Approaches to Protecting Defendants Rights in High Profile Trials, NYU Law
Rev., Vol. 75, No. 5, pp. 1412-1451 (November 2000).

[126] Id., p. 1417.

[127] See e.g., Martelino, et al. V. Alejandro, et al., 32 SCRA 106 (1970); People v. Teehankee,
249 SCRA 54 (1995).

[128] 249 SCRA 54 (1995).

[129] 287 SCRA 581 at pp. 596-597 (1988).

[130] 247 SCRA 652 (1995).

[131] Extensive publicity did not result in the conviction of well known personalities. E.g.,
OJ Simpson, John Mitchell, William Kennedy Smith and Imelda Marcos.

[132] Memorandum, p. 25; Rollo, GR Nos. 146710-15, Vol. III, p. 647.

[133] Memorandum, pp. 29-30; Rollo, GR Nos. 146710-15, Vol. III, pp. 572-573.

[134] See section 4, Rule 112.

[135] Estes v. Texas, 381 US 532, 540 (1965).

Republic of the Philippines
SUPREME COURT
Manila


G.R. No. 76180 October 24, 1986

IN RE: SATURNINO V. BERMUDEZ, petitioner.

R E S O L U T IO N



PER CURIAM:

In a petition for declaratory relief impleading no respondents, petitioner, as a lawyer,
quotes the first paragraph of Section 5 (not Section 7 as erroneously stated) of Article XVIII
of the proposed 1986 Constitution, which provides in full as follows:

Sec. 5. The six-year term of the incumbent President and Vice-President elected in the
February 7, 1986 election is, for purposes of synchronization of elections, hereby extended
to noon of June 30, 1992.

The first regular elections for the President and Vice-President under this Constitution shall
be held on the second Monday of May, 1992.

Claiming that the said provision "is not clear" as to whom it refers, he then asks the Court
"to declare and answer the question of the construction and definiteness as to who, among
the present incumbent President Corazon Aquino and Vice-President Salvador Laurel and
the elected President Ferdinand E. Marcos and Vice-President Arturo M. Tolentino being
referred to under the said Section 7 (sic) of ARTICLE XVIII of the TRANSITORY PROVISIONS
of the proposed 1986 Constitution refers to, . ...

The petition is dismissed outright for lack of jurisdiction and for lack for cause of action.

Prescinding from petitioner's lack of personality to sue or to bring this action, (Tan vs.
Macapagal, 43 SCRA 677), it is elementary that this Court assumes no jurisdiction over
petitions for declaratory relief. More importantly, the petition amounts in effect to a suit
against the incumbent President of the Republic, President Corazon C. Aquino, and it is
equally elementary that incumbent Presidents are immune from suit or from being brought
to court during the period of their incumbency and tenure.

The petition furthermore states no cause of action. Petitioner's allegation of ambiguity or
vagueness of the aforequoted provision is manifestly gratuitous, it being a matter of public
record and common public knowledge that the Constitutional Commission refers therein to
incumbent President Corazon C. Aquino and Vice-President Salvador H. Laurel, and to no
other persons, and provides for the extension of their term to noon of June 30, 1992 for
purposes of synchronization of elections. Hence, the second paragraph of the cited section
provides for the holding on the second Monday of May, 1992 of the first regular elections
for the President and Vice-President under said 1986 Constitution. In previous cases, the
legitimacy of the government of President Corazon C. Aquino was likewise sought to be
questioned with the claim that it was not established pursuant to the 1973 Constitution.
The said cases were dismissed outright by this court which held that:

Petitioners have no personality to sue and their petitions state no cause of action. For the
legitimacy of the Aquino government is not a justiciable matter. It belongs to the realm of
politics where only the people of the Philippines are the judge. And the people have made
the judgment; they have accepted the government of President Corazon C. Aquino which is
in effective control of the entire country so that it is not merely a de facto government but in
fact and law a de jure government. Moreover, the community of nations has recognized the
legitimacy of tlie present government. All the eleven members of this Court, as reorganized,
have sworn to uphold the fundamental law of the Republic under her government. (Joint
Resolution of May 22, 1986 in G.R. No. 73748 [Lawyers League for a Better Philippines, etc.
vs. President Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for Supremacy of
the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and G.R. No. 73990 [Councilor Clifton U.
Ganay vs. Corazon C. Aquino, et al.])

For the above-quoted reason, which are fully applicable to the petition at bar, mutatis
mutandis, there can be no question that President Corazon C. Aquino and Vice-President
Salvador H. Laurel are the incumbent and legitimate President and Vice-President of the
Republic of the Philippines.or the above-quoted reasons, which are fully applicable to the
petition at bar,

ACCORDINGLY, the petition is hereby dismissed.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Alampay and Paras, JJ., concur.

MELENCIO-HERRERA, J., concurring:

GUTIERREZ, Jr., J., concurring:

FELICIANO, JJ., concurring.

The petitioner asks the Court to declare who are "the incumbent President and Vice
President elected in the February 7, 1986 elections" as stated in Article XVIII, Section 5 of
the Draft Constitution adopted by the Constitutional Commission of 1986.

We agree that the petition deserves outright dismissal as this Court has no original
jurisdiction over petitions for declaratory relief.

As to lack of cause of action, the petitioner's prayer for a declaration as to who were elected
President and Vice President in the February 7, 1986 elections should be addressed not to
this Court but to other departments of government constitutionally burdened with the task
of making that declaration.

The 1935 Constitution, the 1913 Constitution as amended, and the 1986 Draft Constitution
uniformly provide 'that boards of canvassers in each province and city shall certified who
were elected President and Vice President in their respective areas. The certified returns
are transmitted to the legislature which proclaims, through the designated Presiding Head,
who were duty elected.

Copies of the certified returns from the provincial and city boards of canvassers have not
been furnished this Court nor is there any need to do so. In the absence of a legislature, we
cannot assume the function of stating, and neither do we have any factual or legal capacity
to officially declare, who were elected President and Vice President in the February 7, 1986
elections.

As to who are the incumbent President and Vice President referred to in the 1986 Draft
Constitution, we agree that there is no doubt the 1986 Constitutional Commission referred
to President Corazon C. Aquino and Vice President Salvador H. Laurel.

Finally, we agree with the Resolution of the Court in G.R. Nos. 73748, 73972, and 73990.

For the foregoing reasons, we vote to DISMISS the instant petition.

CRUZ, J., concurring:

I vote to dismiss this petition on the ground that the Constitution we are asked to interpret
has not yet been ratified and is therefore not yet effective. I see here no actual conflict of
legal rights susceptible of judicial determination at this time. (Aetna Life Insurance Co. vs.
Haworth, 300 U.S. 227; PACU vs. Secretary of Education, 97 Phil. 806.)