Professional Documents
Culture Documents
CASE 1
SUPREME COURT
Manila
EN BANC
MAKASIAR, J:
In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged
respondent Judge Elias B. Asuncion of the Court of First Instance of Leyte, now Associate
Justice of the Court of Appeals, with "acts unbecoming a judge." The factual setting of
the case is stated in the report dated May 27, 1971 of then Associate Justice Cecilia
Muoz Palma of the Court of Appeals now retired Associate Justice of the Supreme Court,
to whom this case was referred on October 28, 1968 for investigation, thus: Civil Case No.
3010 of the Court of First Instance of Leyte was a complaint for partition filed by
Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes, and
Priscilla Reyes, plaintiffs, against Bernardita R. Macariola, defendant, concerning the
properties left by the deceased Francisco Reyes, the common father of the plaintiff and
defendant. In her defenses to the complaint for partition, Mrs. Macariola alleged among
other things that;
a) plaintiff Sinforosa R. Bales was not a daughter of the deceased Francisco Reyes;
b) the only legal heirs of the deceased were defendant Macariola, she being the
only offspring of the first marriage of Francisco Reyes with Felisa Espiras, and the
remaining plaintiffs who were the children of the deceased by his second marriage
with Irene Ondez;
c) the properties left by the deceased were all the conjugal properties of the latter
and his first wife, Felisa Espiras, and no properties were acquired by the
deceased during his second marriage;
d)
if there was any partition to be made, those conjugal properties should first
be partitioned into two parts, and one part is to be adjudicated solely to defendant
it being the share of the latter's deceased mother, Felisa Espiras, and the other half
which is the share of the deceased Francisco Reyes was to be divided equally
among his children by his two marriages.
On June 8, 1963, a decision was rendered by respondent Judge Asuncion in Civil Case
3010, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, upon a preponderance of
evidence, finds and so holds, and hereby renders judgment
(1) Declaring the plaintiffs Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes and Priscilla Reyes as the only children legitimated by the subsequent
marriage of Francisco Reyes Diaz to Irene Ondez;
(2) Declaring the plaintiff Sinforosa R. Bales to have been an illegitimate child of
Francisco Reyes Diaz
(3) Declaring Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 and 1/4 of Lot
1145 as belonging to the conjugal partnership of the spouses Francisco Reyes
Diaz and Felisa Espiras;
(4) Declaring Lot No. 2304 and 1/4 of Lot No. 3416 as belonging to the spouses
Francisco Reyes Diaz and Irene Ondez in common partnership;
(5) Declaring that 1/2 of Lot No. 1184 as belonging exclusively to the deceased
Francisco Reyes Diaz
(6) Declaring the defendant Bernardita R. Macariola, being the only legal and
forced heir of her mother Felisa Espiras, as the exclusive owner of one-half of
each of Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506; and the remaining
one-half (1/2) of each of said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581,
4506 and one-half (1/2) of one-fourth (1/4) of Lot No. 1154 as belonging to the
estate of Francisco Reyes Diaz;
(7) Declaring Irene Ondez to be the exclusive owner of one-half (1/2) of Lot No.
2304 and one-half (1/2) of one-fourth (1/4) of Lot No. 3416; the remaining onehalf (1/2) of Lot 2304 and the remaining one-half (1/2) of one-fourth (1/4) of Lot
No. 3416 as belonging to the estate of Francisco Reyes Diaz;
(8) Directing the division or partition of the estate of Francisco Reyes Diaz in such
a manner as to give or grant to Irene Ondez, as surviving widow of Francisco
Reyes Diaz, a hereditary share of. one-twelfth (1/12) of the whole estate of
Francisco Reyes Diaz (Art. 996 in relation to Art. 892, par 2, New Civil Code),
and the remaining portion of the estate to be divided among the plaintiffs
(9) Directing the parties, within thirty days after this judgment shall have become
final to submit to this court, for approval a project of partition of the hereditary
estate in the proportion above indicated, and in such manner as the parties
may, by agreement, deemed convenient and equitable to them taking into
consideration the location, kind, quality, nature and value of the properties
involved;
(10)
The decision in civil case 3010 became final for lack of an appeal, and on October 16,
1963, a project of partition was submitted to Judge Asuncion which is marked Exh. A.
Notwithstanding the fact that the project of partition was not signed by the parties
themselves but only by the respective counsel of plaintiffs and defendant, Judge Asuncion
approved it in his Order dated October 23, 1963, which for convenience is quoted
hereunder in full:
The parties, through their respective counsels, presented to this Court for approval the
following project of partition:
COMES NOW, the plaintiffs and the defendant in the above-entitled case, to this
Honorable Court respectfully submit the following Project of Partition:
l. The whole of Lots Nos. 1154, 2304 and 4506 shall belong exclusively to
Bernardita Reyes Macariola;
2. A portion of Lot No. 3416 consisting of 2,373.49 square meters along the eastern
part of the lot shall be awarded likewise to Bernardita R. Macariola;
3. Lots Nos. 4803, 4892 and 5265 shall be awarded to Sinforosa Reyes Bales;
4. A portion of Lot No. 3416 consisting of 1,834.55 square meters along the
western part of the lot shall likewise be awarded to Sinforosa Reyes-Bales;
5. Lots Nos. 4474 and 4475 shall be divided equally among Luz Reyes Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal shares;
6. Lot No. 1184 and the remaining portion of Lot No. 3416 after taking the portions
awarded under item (2) and (4) above shall be awarded to Luz Reyes
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela Reyes and Priscilla Reyes in equal
shares, provided, however that the remaining portion of Lot No. 3416 shall belong
exclusively to Priscilla Reyes.
WHEREFORE, it is respectfully prayed that the Project of Partition indicated above which is
made in accordance with the decision of the Honorable Court be approved.
Tacloban City, October 16, 1963.
(SGD) BONIFACIO RAMO Atty. for the Defendant Tacloban City
(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff Tacloban City
While the Court thought it more desirable for all the parties to have signed this
Project of Partition, nevertheless, upon assurance of both counsels of the respective
parties to this Court that the Project of Partition, as above- quoted, had been made after a
conference and agreement of the plaintiffs and the defendant approving the above
Project of Partition, and that both lawyers had represented to the Court that they are
given full authority to sign by themselves the Project of Partition, the Court, therefore,
finding the above-quoted Project of Partition to be in accordance with law, hereby
approves the same. The parties, therefore, are directed to execute such papers,
documents or instrument sufficient in form and substance for the vesting of the rights,
interests and participations which were adjudicated to the respective parties, as outlined
in the Project of Partition and the delivery of the respective properties adjudicated to each
one in view of said Project of Partition, and to perform such other acts as are legal and
necessary to effectuate the said Project of Partition.
SO ORDERED.
Given in Tacloban City, this 23rd day of October, 1963.
(SGD) ELIAS B. ASUNCION Judge
EXH. B.
The above Order of October 23, 1963, was amended on November 11, 1963, only for the
purpose of giving authority to the Register of Deeds of the Province of Leyte to issue the
corresponding transfer certificates of title to the respective adjudicatees in conformity
with the project of partition (see Exh. U). One of the properties mentioned in the project
of partition was Lot 1184 or rather one-half thereof with an area of 15,162.5 sq. meters.
This lot, which according to the decision was the exclusive property of the deceased
Francisco Reyes, was adjudicated in said project of partition to the plaintiffs Luz,
Anacorita Ruperto, Adela, and Priscilla all surnamed Reyes in equal shares, and when the
project of partition was approved by the trial court the adjudicatees caused Lot 1184 to
be subdivided into five lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V). Lot
1184-D was conveyed to Enriqueta D. Anota, a stenographer in Judge Asuncion's court
(Exhs. F, F-1 and V-1), while Lot 1184-E which had an area of 2,172.5556 sq. meters was
sold on July 31, 1964 to Dr. Arcadio Galapon (Exh. 2) who was issued transfer certificate
of title No. 2338 of the Register of Deeds of the city of Tacloban (Exh. 12). On March 6,
1965, Dr. Arcadio Galapon and his wife Sold a portion of Lot 1184-E with an area of
around 1,306 sq. meters to Judge Asuncion and his wife, Victoria S. Asuncion (Exh. 11),
which particular portion was declared by the latter for taxation purposes (Exh. F). On
August 31, 1966, spouses Asuncion and spouses Galapon conveyed their respective
shares and interest in Lot 1184-E to "The Traders Manufacturing and Fishing Industries
Inc." (Exit 15 & 16). At the time of said sale the stockholders of the corporation were
Dominador Arigpa Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and the
latter's wife, Victoria S. Asuncion, with Judge Asuncion as the President and Mrs. Asuncion
as the secretary (Exhs. E-4 to E-7). The Articles of Incorporation of "The Traders
Manufacturing and Fishing Industries, Inc." which we shall henceforth refer to as
"TRADERS" were registered with the Securities and Exchange Commission only on
January 9, 1967 (Exh. E) [pp. 378-385, rec.]. Complainant Bernardita R. Macariola filed on
August 9, 1968 the instant complaint dated August 6, 1968 alleging four causes of action,
to wit:
[1] that respondent Judge Asuncion violated Article 1491, paragraph 5, of the New
Civil Code in acquiring by purchase a portion of Lot No. 1184-E which was one of
those properties involved in Civil Case No. 3010 decided by him;
[2] that he likewise violated Article 14, paragraphs I and 5 of the Code of
Commerce, Section 3, paragraph H, of R.A. 3019, otherwise known as the AntiGraft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil Service Rules,
and Canon 25 of the Canons of Judicial Ethics, by associating himself with the
Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a ranking
officer while he was a judge of the Court of First Instance of Leyte;
[3] that respondent was guilty of coddling an impostor and acted in disregard of
judicial decorum by closely fraternizing with a certain Dominador Arigpa Tan who
openly and publicly advertised himself as a practising attorney when in truth and in
fact his name does not appear in the Rolls of Attorneys and is not a member of the
Philippine Bar; and
[4] that there was a culpable defiance of the law and utter disregard for ethics by
respondent Judge (pp. 1-7, rec.).
Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply was
filed on October 16, 1968 by herein complainant. In Our resolution of October 28, 1968,
We referred this case to then Justice Cecilia Muoz Palma of the Court of Appeals, for
investigation, report and recommendation. After hearing, the said Investigating Justice
submitted her report dated May 27, 1971 recommending that respondent Judge should
be reprimanded or warned in connection with the first cause of action alleged in the
complaint, and for the second cause of action, respondent should be warned in case of a
finding that he is prohibited under the law to engage in business. On the third and fourth
causes of action, Justice Palma recommended that respondent Judge be exonerated. The
records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.),
complainant herein instituted an action before the Court of First Instance of Leyte,
entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales, et al., defendants,"
which was docketed as Civil Case No. 4235, seeking the annulment of the project of
partition made pursuant to the decision in Civil Case No. 3010 and the two orders issued
by respondent Judge approving the same, as well as the partition of the estate and the
subsequent conveyances with damages. It appears, however, that some defendants were
dropped from the civil case. For one, the case against Dr. Arcadio Galapon was dismissed
because he was no longer a real party in interest when Civil Case No. 4234 was filed,
having already conveyed on March 6, 1965 a portion of lot 1184-E to respondent Judge
and on August 31, 1966 the remainder was sold to the Traders Manufacturing and Fishing
Industries, Inc. Similarly, the case against defendant Victoria Asuncion was dismissed on
the ground that she was no longer a real party in interest at the time the aforesaid Civil
Case No. 4234 was filed as the portion of Lot 1184 acquired by her and respondent Judge
from Dr. Arcadio Galapon was already sold on August 31, 1966 to the Traders
Manufacturing and Fishing industries, Inc. Likewise, the cases against defendants Serafin
P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus Perez, Traders Manufacturing and
Fishing Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo Petilla and
Remedios Petilla, Salvador Anota and Enriqueta Anota and Atty. Zotico A. Tolete were
dismissed with the conformity of complainant herein, plaintiff therein, and her counsel.
On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of Leyte,
who was directed and authorized on June 2, 1969 by the then Secretary (now Minister) of
Justice and now Minister of National Defense Juan Ponce Enrile to hear and decide Civil
Case No. 4234, rendered a decision, the dispositive portion of which reads as follows:
(1) declaring that only Branch IV of the Court of First Instance of Leyte has
jurisdiction to take cognizance of the issue of the legality and validity of the Project
of Partition [Exhibit "B"] and the two Orders [Exhibits "C" and "C- 3"] approving the
partition;
(1) Dismissing the complaint against the defendants Mariquita Villasin and the
heirs of the deceased Gerardo Villasin;
(2) Directing the plaintiff to pay the defendants Mariquita Villasin and the heirs of
Gerardo Villasin the cost of the suit.
C. IN THE CASE AGAINST THE DEFENDANT SINFOROSA R. BALES, ET AL., WHO
WERE PLAINTIFFS IN CIVIL CASE NO. 3010
It is further disclosed by the record that the aforesaid decision was elevated to
the Court of Appeals upon perfection of the appeal on February 22, 1971.
I
WE find that there is no merit in the contention of complainant Bernardita R. Macariola,
under her first cause of action, that respondent Judge Elias B. Asuncion violated Article
1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No.
1184-E which was one of those properties involved in Civil Case No. 3010. 'That Article
provides:
Galapon who earlier purchased on July 31, 1964 Lot 1184-E from three of the plaintiffs,
namely, Priscilla Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the
decision in Civil Case No. 3010. It may be recalled that Lot 1184 or more specifically onehalf thereof was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz
Bakunawa, Ruperto Reyes and Anacorita Reyes in the project of partition, and the same
was subdivided into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot
1184-E was sold on July 31, 1964 to Dr. Galapon for which he was issued TCT No. 2338 by
the Register of Deeds of Tacloban City, and on March 6, 1965 he sold a portion of said lot
to respondent Judge and his wife who declared the same for taxation purposes only. The
subsequent sale on August 31, 1966 by spouses Asuncion and spouses Galapon of their
respective shares and interest in said Lot 1184-E to the Traders Manufacturing and Fishing
Industries, Inc., in which respondent was the president and his wife was the secretary,
took place long after the finality of the decision in Civil Case No. 3010 and of the
subsequent two aforesaid orders therein approving the project of partition.
While it appears that complainant herein filed on or about November 9 or 11, 1968 an
action before the Court of First Instance of Leyte docketed as Civil Case No. 4234, seeking
to annul the project of partition and the two orders approving the same, as well as the
partition of the estate and the subsequent conveyances, the same, however, is of no
moment. The fact remains that respondent Judge purchased on March 6, 1965 a portion
of Lot 1184-E from Dr. Arcadio Galapon; hence, after the finality of the decision which he
rendered on June 8, 1963 in Civil Case No. 3010 and his two questioned orders dated
October 23, 1963 and November 11, 1963. Therefore, the property was no longer subject
of litigation. The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can
no longer alter, change or affect the aforesaid facts that the questioned sale to
respondent Judge, now Court of Appeals Justice, was effected and consummated long
after the finality of the aforesaid decision or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken place
over one year after the finality of the decision in Civil Case No. 3010 as well as the two
orders approving the project of partition, and not during the pendency of the litigation,
there was no violation of paragraph 5, Article 1491 of the New Civil Code.
It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to Dr.
Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a mere
scheme to conceal the illegal and unethical transfer of said lot to respondent Judge as a
consideration for the approval of the project of partition.In this connection, We agree with
the findings of the Investigating Justice thus And so we are now confronted with this allimportant question whether or not the acquisition by respondent of a portion of Lot 1184E and the subsequent transfer of the whole lot to "TRADERS" of which respondent was the
President and his wife the Secretary, was intimately related to the Order of respondent
approving the project of partition, Exh. A. Respondent vehemently denies any interest or
participation in the transactions between the Reyeses and the Galapons concerning Lot
1184-E, and he insists that there is no evidence whatsoever to show that Dr. Galapon had
acted, in the purchase of Lot 1184-E, in mediation for him and his wife. (See p. 14 of
Respondent's Memorandum).
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On this point, I agree with respondent that there is no evidence in the record showing
that Dr. Arcadio Galapon acted as a mere "dummy" of respondent in acquiring Lot 1184-E
from the Reyeses. Dr. Galapon appeared to this investigator as a respectable citizen,
credible and sincere, and I believe him when he testified that he bought Lot 1184-E in
good faith and for valuable consideration from the Reyeses without any intervention of, or
1) Exh. 9 Certified true copy of OCT No. 19520 covering Lot 1154 of the Tacloban
Cadastral Survey in which the deceased Francisco Reyes holds a "1/4 share" (Exh.
9-a). On tills certificate of title the Order dated November 11, 1963, (Exh. U)
approving the project of partition was duly entered and registered on November
26, 1963 (Exh. 9-D);
2) Exh. 7 Certified copy of a deed of absolute sale executed by Bernardita Reyes
Macariola on October 22, 1963, conveying to Dr. Hector Decena the one-fourth
share of the late Francisco Reyes-Diaz in Lot 1154. In this deed of sale the vendee
stated that she was the absolute owner of said one-fourth share, the same having
been adjudicated to her as her share in the estate of her father Francisco Reyes
Diaz as per decision of the Court of First Instance of Leyte under case No. 3010
(Exh. 7-A). The deed of sale was duly registered and annotated at the back of OCT
19520 on December 3, 1963 (see Exh. 9-e). In connection with the
abovementioned documents it is to be noted that in the project of partition dated
October 16, 1963, which was approved by respondent on October 23, 1963,
followed by an amending Order on November 11, 1963, Lot 1154 or rather 1/4
thereof was adjudicated to Mrs. Macariola. It is this 1/4 share in Lot 1154 which
complainant sold to Dr. Decena on October 22, 1963, several days after the
preparation of the project of partition. Counsel for complainant stresses the view,
however, that the latter sold her one-fourth share in Lot 1154 by virtue of the
decision in Civil Case 3010 and not because of the project of partition, Exh. A. Such
contention is absurd because from the decision, Exh. C, it is clear that one-half of
one- fourth of Lot 1154 belonged to the estate of Francisco Reyes Diaz while the
other half of said one-fourth was the share of complainant's mother, Felisa Espiras;
in other words, the decision did not adjudicate the whole of the one-fourth of Lot
1154 to the herein complainant (see Exhs. C-3 & C-4). Complainant became the
owner of the entire one-fourth of Lot 1154 only by means of the project of partition,
Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on October 22, 1963, it was for no
other reason than that she was wen aware of the distribution of the properties of
her deceased father as per Exhs. A and B. It is also significant at this point to state
that Mrs. Macariola admitted during the cross-examination that she went to
Tacloban City in connection with the sale of Lot 1154 to Dr. Decena (tsn p. 92,
November 28, 1968) from which we can deduce that she could not have been kept
ignorant of the proceedings in civil case 3010 relative to the project of partition.
Complainant also assails the project of partition because according to her the
properties adjudicated to her were insignificant lots and the least valuable.
Complainant, however, did not present any direct and positive evidence to prove
the alleged gross inequalities in the choice and distribution of the real properties
when she could have easily done so by presenting evidence on the area, location,
kind, the assessed and market value of said properties. Without such evidence
there is nothing in the record to show that there were inequalities in the
distribution of the properties of complainant's father (pp. 386389, rec.). Finally,
while it is. true that respondent Judge did not violate paragraph 5, Article 1491 of
the New Civil Code in acquiring by purchase a portion of Lot 1184-E which was in
litigation in his court, it was, however, improper for him to have acquired the same.
He should be reminded of Canon 3 of the Canons of Judicial Ethics which requires
that: "A judge's official conduct should be free from the appearance of impropriety,
and his personal behavior, not only upon the bench and in the performance of
judicial duties, but also in his everyday life, should be beyond reproach." And as
aptly observed by the Investigating Justice: "... it was unwise and indiscreet on the
part of respondent to have purchased or acquired a portion of a piece of property
that was or had been in litigation in his court and caused it to be transferred to a
corporation of which he and his wife were ranking officers at the time of such
transfer. One who occupies an exalted position in the judiciary has the duty and
responsibility of maintaining the faith and trust of the citizenry in the courts of
justice, so that not only must he be truly honest and just, but his actuations must
be such as not give cause for doubt and mistrust in the uprightness of his
administration of justice. In this particular case of respondent, he cannot deny that
the transactions over Lot 1184-E are damaging and render his actuations open to
suspicion and distrust. Even if respondent honestly believed that Lot 1184-E was
no longer in litigation in his court and that he was purchasing it from a third person
and not from the parties to the litigation, he should nonetheless have refrained
from buying it for himself and transferring it to a corporation in which he and his
wife were financially involved, to avoid possible suspicion that his acquisition was
related in one way or another to his official actuations in civil case 3010. The
conduct of respondent gave cause for the litigants in civil case 3010, the lawyers
practising in his court, and the public in general to doubt the honesty and fairness
of his actuations and the integrity of our courts of justice" (pp. 395396, rec.).
II
With respect to the second cause of action, the complainant alleged that respondent
Judge violated paragraphs 1 and 5, Article 14 of the Code of Commerce when he
associated himself with the Traders Manufacturing and Fishing Industries, Inc. as a
stockholder and a ranking officer, said corporation having been organized to engage in
business. Said Article provides that:
Article 14 The following cannot engage in commerce, either in person or by proxy, nor
can they hold any office or have any direct, administrative, or financial intervention in
commercial or industrial companies within the limits of the districts, provinces, or towns
1. Justices of the Supreme Court, judges and officials of the department of public
prosecution in active service. This provision shall not be applicable to mayors,
municipal judges, and municipal prosecuting attorneys nor to those who by chance
are temporarily discharging the functions of judge or prosecuting attorney.
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5. Those who by virtue of laws or special provisions may not engage in commerce
in a determinate territory.
It is Our considered view that although the aforestated provision is incorporated in the
Code of Commerce which is part of the commercial laws of the Philippines, it, however,
partakes of the nature of a political law as it regulates the relationship between the
government and certain public officers and employees, like justices and judges.
Political Law has been defined as that branch of public law which deals with the
organization and operation of the governmental organs of the State and define
the relations of the state with the inhabitants of its territory (People vs.
Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled that political law embraces
constitutional law, law of public corporations, administrative law including the law on
public officers and elections. Specifically, Article 14 of the Code of Commerce partakes
more of the nature of an administrative law because it regulates the conduct of certain
public officers and employees with respect to engaging in business: hence, political in
essence.
It is significant to note that the present Code of Commerce is the Spanish Code of
Commerce of 1885, with some modifications made by the "Commission de Codificacion
de las Provincias de Ultramar," which was extended to the Philippines by the Royal
Decree of August 6, 1888, and took effect as law in this jurisdiction on December 1, 1888.
Upon the transfer of sovereignty from Spain to the United States and later on from the
United States to the Republic of the Philippines, Article 14 of this Code of Commerce must
be deemed to have been abrogated because where there is change of sovereignty, the
political laws of the former sovereign, whether compatible or not with those of the new
sovereign, are automatically abrogated, unless they are expressly re-enacted by
affirmative act of the new sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:
By well-settled public law, upon the cession of territory by one nation to another, either
following a conquest or otherwise, ... those laws which are political in their nature and
pertain to the prerogatives of the former government immediately cease upon the
transfer of sovereignty.
(Opinion, Atty. Gen., July 10, 1899).
While municipal laws of the newly acquired territory not in conflict with the, laws of the
new sovereign continue in force without the express assent or affirmative act of the
conqueror, the political laws do not. (Halleck's Int. Law, chap. 34, par. 14). However, such
political laws of the prior sovereignty as are not in conflict with the constitution or
institutions of the new sovereign, may be continued in force if the conqueror shall so
declare by affirmative act of the commander-in-chief during the war, or by Congress in
time of peace. (Ely's Administrator vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the
case of American and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, 542, 7
L. Ed. 242), Chief Justice Marshall said:
On such transfer (by cession) of territory, it has never been held that the relations of the
inhabitants with each other undergo any change. Their relations with their former
sovereign are dissolved, and new relations are created between them and the
government which has acquired their territory. The same act which transfers their
country, transfers the allegiance of those who remain in it; and the law which may be
denominated political, is necessarily changed, although that which regulates the
intercourse and general conduct of individuals, remains in force, until altered by the
newly- created power of the State.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is a
general principle of the public law that on acquisition of territory the previous political
relations of the ceded region are totally abrogated. "
There appears no enabling or affirmative act that continued the effectivity of the
aforestated provision of the Code of Commerce after the change of sovereignty from
Spain to the United States and then to the Republic of the Philippines. Consequently,
Article 14 of the Code of Commerce has no legal and binding effect and cannot apply to
the respondent, then Judge of the Court of First Instance, now Associate Justice of the
Court of Appeals.
It is also argued by complainant herein that respondent Judge violated
paragraph H, Section 3 of Republic Act No. 3019, otherwise known as the AntiGraft and Corrupt Practices Act, which provides that:
Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of
public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful:
xxx xxx xxx
(h) Directly or indirectly having financial or pecuniary interest in any business,
contract or transaction in connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the Constitution or by any Iaw from
having any interest.
Respondent Judge cannot be held liable under the aforestated paragraph because there is
no showing that respondent participated or intervened in his official capacity in the
business or transactions of the Traders Manufacturing and Fishing Industries, Inc. In the
case at bar, the business of the corporation in which respondent participated has
obviously no relation or connection with his judicial office. The business of said
corporation is not that kind where respondent intervenes or takes part in his capacity as
Judge of the Court of First Instance. As was held in one case involving the application of
Article 216 of the Revised Penal Code which has a similar prohibition on public officers
against directly or indirectly becoming interested in any contract or business in which it is
his official duty to intervene, "(I)t is not enough to be a public official to be subject to this
crime; it is necessary that by reason of his office, he has to intervene in said contracts or
transactions; and, hence, the official who intervenes in contracts or transactions which
have no relation to his office cannot commit this crime.' (People vs. Meneses, C.A. 40 O.G.
11th Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p. 1174, Vol. 11
[1976]).
It does not appear also from the records that the aforesaid corporation gained any undue
advantage in its business operations by reason of respondent's financial involvement in
it, or that the corporation benefited in one way or another in any case filed by or against
it in court. It is undisputed that there was no case filed in the different branches of the
Court of First Instance of Leyte in which the corporation was either party plaintiff or
defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff, versus
Sinforosa O. Bales, et al.," wherein the complainant herein sought to recover Lot 1184-E
from the aforesaid corporation. It must be noted, however, that Civil Case No. 4234 was
filed only on November 9 or 11, 1968 and decided on November 2, 1970 by CFI Judge
Jose D. Nepomuceno when respondent Judge was no longer connected with the
corporation, having disposed of his interest therein on January 31, 1967. Furthermore,
respondent is not liable under the same paragraph because there is no provision in both
the 1935 and 1973 Constitutions of the Philippines, nor is there an existing law expressly
prohibiting members of the Judiciary from engaging or having interest in any lawful
business. It may be pointed out that Republic Act No. 296, as amended, also known as
the Judiciary Act of 1948, does not contain any prohibition to that effect. As a matter of
fact, under Section 77 of said law, municipal judges may engage in teaching or other
vocation not involving the practice of law after office hours but with the permission of the
district judge concerned. Likewise, Article 14 of the Code of Commerce which prohibits
judges from engaging in commerce is, as heretofore stated, deemed abrogated
automatically upon the transfer of sovereignty from Spain to America, because it is
political in nature. Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil
Code against the purchase by judges of a property in litigation before the court within
whose jurisdiction they perform their duties, cannot apply to respondent Judge because
the sale of the lot in question to him took place after the finality of his decision in Civil
Case No. 3010 as well as his two orders approving the project of partition; hence, the
property was no longer subject of litigation.
In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant to
the Civil Service Act of 1959 prohibits an officer or employee in the civil service from
engaging in any private business, vocation, or profession or be connected with any
commercial, credit, agricultural or industrial undertaking without a written permission
from the head of department, the same, however, may not fall within the purview of
paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last
portion of said paragraph speaks of a prohibition by the Constitution or law on any public
officer from having any interest in any business and not by a mere administrative rule or
regulation. Thus, a violation of the aforesaid rule by any officer or employee in the civil
service, that is, engaging in private business without a written permission from the
Department Head may not constitute graft and corrupt practice as defined by law. On the
contention of complainant that respondent Judge violated Section 12, Rule XVIII of the
Civil Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260) and the Civil
Service Rules promulgated thereunder, particularly Section 12 of Rule XVIII, do not apply
to the members of the Judiciary.
Under said Section 12: "No officer or employee shall engage directly in any private
business, vocation, or profession or be connected with any commercial, credit,
agricultural or industrial undertaking without a written permission from the Head of
Department "
It must be emphasized at the outset that respondent, being a member of the Judiciary, is
covered by Republic Act No. 296, as amended, otherwise known as the Judiciary Act of
1948 and by Section 7, Article X, 1973 Constitution.
Under Section 67 of said law, the power to remove or dismiss judges was then vested in
the President of the Philippines, not in the Commissioner of Civil Service, and only on two
grounds, namely, serious misconduct and inefficiency, and upon the recommendation of
the Supreme Court, which alone is authorized, upon its own motion, or upon information
of the Secretary (now Minister) of Justice to conduct the corresponding investigation.
Clearly, the aforesaid section defines the grounds and prescribes the special procedure
for the discipline of judges.
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme Court
can discipline judges of inferior courts as well as other personnel of the Judiciary. It is true
that under Section 33 of the Civil Service Act of 1959: "The Commissioner may, for ...
violation of the existing Civil Service Law and rules or of reasonable office regulations, or
in the interest of the service, remove any subordinate officer or employee from the
service, demote him in rank, suspend him for not more than one year without pay or fine
him in an amount not exceeding six months' salary." Thus, a violation of Section 12 of
Rule XVIII is a ground for disciplinary action against civil service officers and employees.
However, judges cannot be considered as subordinate civil service officers or employees
subject to the disciplinary authority of the Commissioner of Civil Service; for, certainly,
the Commissioner is not the head of the Judicial Department to which they belong. The
Revised Administrative Code (Section 89) and the Civil Service Law itself state that the
Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260)
[1959]); and under the 1973 Constitution, the Judiciary is the only other or second branch
of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of Section 12,
Rule XVIII cannot be considered as a ground for disciplinary action against judges
because to recognize the same as applicable to them, would be adding another ground
for the discipline of judges and, as aforestated, Section 67 of the Judiciary Act recognizes
only two grounds for their removal, namely, serious misconduct and inefficiency.
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner of
Civil Service who has original and exclusive jurisdiction "(T)o decide, within one hundred
twenty days, after submission to it, all administrative cases against permanent officers
and employees in the competitive service, and, except as provided by law, to have final
authority to pass upon their removal, separation, and suspension and upon all matters
relating to the conduct, discipline, and efficiency of such officers and employees; and
prescribe standards, guidelines and regulations governing the administration of
discipline" (emphasis supplied). There is no question that a judge belong to the noncompetitive or unclassified service of the government as a Presidential appointee and is
therefore not covered by the aforesaid provision. WE have already ruled that "... in
interpreting Section 16(i) of Republic Act No. 2260, we emphasized that only permanent
officers and employees who belong to the classified service come under the exclusive
jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar, 15 SCRA 710,713
[1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]). Although the actuation of respondent
Judge in engaging in private business by joining the Traders Manufacturing and Fishing
Industries, Inc. as a stockholder and a ranking officer, is not violative of the provissions of
Article 14 of the Code of Commerce and Section 3(h) of the Anti-Graft and Corrupt
Practices Act as well as Section 12, Rule XVIII of the Civil Service Rules promulgated
pursuant to the Civil Service Act of 1959, the impropriety of the same is clearly
unquestionable because Canon 25 of the Canons of Judicial Ethics expressly declares
that:
A judge should abstain from making personal investments in enterprises which are apt to
be involved in litigation in his court; and, after his accession to the bench, he should not
retain such investments previously made, longer than a period sufficient to enable him to
dispose of them without serious loss. It is desirable that he should, so far as reasonably
possible, refrain from all relations which would normally tend to arouse the suspicion that
such relations warp or bias his judgment, or prevent his impartial attitude of mind in the
administration of his judicial duties. ...
WE are not, however, unmindful of the fact that respondent Judge and his wife had
withdrawn on January 31, 1967 from the aforesaid corporation and sold their respective
shares to third parties, and it appears also that the aforesaid corporation did not in
anyway benefit in any case filed by or against it in court as there was no case filed in the
different branches of the Court of First Instance of Leyte from the time of the drafting of
the Articles of Incorporation of the corporation on March 12, 1966, up to its incorporation
on January 9, 1967, and the eventual withdrawal of respondent on January 31, 1967 from
said corporation. Such disposal or sale by respondent and his wife of their shares in the
corporation only 22 days after the incorporation of the corporation, indicates that
respondent realized that early that their interest in the corporation contravenes the
aforesaid Canon 25. Respondent Judge and his wife therefore deserve the commendation
for their immediate withdrawal from the firm after its incorporation and before it became
involved in any court litigation
III
With respect to the third and fourth causes of action, complainant alleged that
respondent was guilty of coddling an impostor and acted in disregard of judicial decorum,
and that there was culpable defiance of the law and utter disregard for ethics. WE agree,
however, with the recommendation of the Investigating Justice that respondent Judge be
exonerated because the aforesaid causes of action are groundless, and WE quote the
pertinent portion of her report which reads as follows:
The basis for complainant's third cause of action is the claim that respondent associated
and closely fraternized with Dominador Arigpa Tan who openly and publicly advertised
himself as a practising attorney (see Exhs. I, I-1 and J) when in truth and in fact said
Dominador Arigpa Tan does not appear in the Roll of Attorneys and is not a member of
the Philippine Bar as certified to in Exh. K.
The "respondent denies knowing that Dominador Arigpa Tan was an "impostor" and
claims that all the time he believed that the latter was a bona fide member of the bar. I
see no reason for disbelieving this assertion of respondent. It has been shown by
complainant that Dominador Arigpa Tan represented himself publicly as an attorney-atlaw to the extent of putting up a signboard with his name and the words "Attorney-at
Law" (Exh. I and 1- 1) to indicate his office, and it was but natural for respondent and any
person for that matter to have accepted that statement on its face value. "Now with
respect to the allegation of complainant that respondent is guilty of fraternizing with
Dominador Arigpa Tan to the extent of permitting his wife to be a godmother of Mr. Tan's
child at baptism (Exh. M & M-1), that fact even if true did not render respondent guilty of
violating any canon of judicial ethics as long as his friendly relations with Dominador A.
Tan and family did not influence his official actuations as a judge where said persons were
concerned. There is no tangible convincing proof that herein respondent gave any undue
privileges in his court to Dominador Arigpa Tan or that the latter benefitted in his practice
of law from his personal relations with respondent, or that he used his influence, if he had
any, on the Judges of the other branches of the Court to favor said Dominador Tan. Of
course it is highly desirable for a member of the judiciary to refrain as much as possible
from maintaining close friendly relations with practising attorneys and litigants in his
court so as to avoid suspicion 'that his social or business relations or friendship constitute
an element in determining his judicial course" (par. 30, Canons of Judicial Ethics), but if a
Judge does have social relations, that in itself would not constitute a ground for
disciplinary action unless it be clearly shown that his social relations be clouded his
official actuations with bias and partiality in favor of his friends (pp. 403-405, rec.).
In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of
Appeals, did not violate any law in acquiring by purchase a parcel of land which was in
litigation in his court and in engaging in business by joining a private corporation during
his incumbency as judge of the Court of First Instance of Leyte, he should be reminded to
be more discreet in his private and business activities, because his conduct as a member
of the Judiciary must not only be characterized with propriety but must always be above
suspicion.
SO ORDERED.
CASE 2
CASE 3
CASE 4
SECOND DIVISION
QUISUMBING, J.,
CARPIO,
CARPIO MORALES,
TINGA, and
SANDIGANBAYAN and VELASCO, JR., JJ.
OFFICECO HOLDINGS, N.V.,
Respondents.
Promulgated:
August 14, 2007
x-----------------------------------------------------------------------------------x
DECISION
TINGA, J.:
Before this Court is a Petition for Certiorari and Prohibition with Prayer for Issuance of a
Temporary Restraining Order filed by the Presidential Commission on Good Government
(PCGG) to restrain and enjoin respondent Sandiganbayan from further proceeding with
Civil Case No. 0164, and to declare null and void the Resolutions of the Sandiganbayan
(Second Division) dated 11 January 1996 and 29 March 1996, which denied PCGGs
motion to dismiss and motion for reconsideration, respectively, in Civil Case No. 0164.
The antecedent facts follow.
On 7 April 1986, in connection with criminal proceedings initiated in the Philippines to
locate, sequester and seek restitution of alleged ill-gotten wealth amassed by the
Marcoses and other accused from the Philippine Government,1[1] the Office of the
Solicitor General (OSG) wrote the Federal Office for Police Matters in Berne, Switzerland,
requesting assistance for the latter office to: (a) ascertain and provide the OSG with
information as to where and in which cantons the ill-gotten fortune of the Marcoses and
other accused are located, the names of the depositors and the banks and the amounts
involved; and (b) take necessary precautionary measures, such as sequestration, to
freeze the assets in order to preserve their existing value and prevent any further
transfer thereof (herein referred to as the IMAC request).2[2] On 29 May 1986, the Office
of the District Attorney in Zurich, pursuant to the OSGs request, issued an Order directing
the Swiss Banks in Zurich to freeze the accounts of the accused in PCGG I.S. No. 1 and in
the List of Companies and Foundations.3[3] In compliance with said Order, Bankers Trust
A.G. (BTAG) of Zurich froze the accounts of Officeco Holdings, N.V. (Officeco).4[4] Officeco
appealed the Order of the District Attorney to the Attorney General of the Canton of
Zurich. The Attorney General affirmed the Order of the District Attorney.5[5] Officeco
further appealed to the Swiss Federal Court which likewise dismissed the appeal on 31
May 1989.6[6]Thereafter, in late 1992, Officeco made representations with the OSG and
the PCGG for them to officially advise the Swiss Federal Office for Police Matters to
unfreeze Officecos assets.7[7] The PCGG required Officeco to present countervailing
evidence to support its request. Instead of complying with the PCGG requirement for it to
submit countervailing evidence, on 12 September 1994, Officeco filed the complaint8[8]
which was docketed as Civil Case No. 0164 of the Sandiganbayan. The complaint prayed
for the PCGG and the OSG to officially advise the Swiss government to exclude from the
freeze or sequestration order the account of Officeco with BTAG and to unconditionally
release the said account to Officeco. The OSG filed a joint answer9[9] on 24 November
1994 in behalf of all the defendants in Civil Case No. 0164.10[10] On 12 May 1995, the
PCGG itself filed a motion to dismiss11[11] which was denied by the Sandiganbayan
(Third Division) in its Resolution promulgated on 11 January 1996.12[12] PCGGs motion
for reconsideration was likewise denied in another Resolution dated 29 March
1996.13[13] Hence, this petition. On 20 May 1996, the Sandiganbayan issued an order in
Civil Case No. 0164 canceling the pre-trial scheduled on said date in deference to
whatever action the Court may take on this petition.14[14]
The issues raised by the PCGG in its Memorandum15[15] may be summarized as follows:
whether the Sandiganbayan erred in not dismissing Civil Case No. 0164 on the grounds of
(1) res judicata;
According to petitioners, the 31 May 1989 Decision of the Swiss Federal Court denying
Officecos appeal from the 29 May 1986 and 16 August 1988 freeze orders of the Zurich
District Attorney and the Attorney General of the Canton of Zurich, respectively, is
conclusive upon Officecos claims or demands for the release of the subject deposit
accounts with BTAG. Thus, a relitigation of the same claims or demands cannot be done
without violating the doctrine of res judicata or conclusiveness of judgment.16[16] Next,
petitioners claim that Civil Case No. 0164 in effect seeks a judicial review of the legality
or illegality of the acts of the Swiss government since the Sandiganbayan would
inevitably examine and review the freeze orders of Swiss officials in resolving the case.
This would be in violation of the act of state doctrine which states that courts of one
country will not sit in judgment on the acts of the government of another in due
deference
to
the
independence
of
sovereignty
of
every
sovereign
state.17[17]Furthermore, if the Sandiganbayan allowed the complaint in Civil Case No.
0164 to prosper, this would place the Philippine government in an uncompromising
position as it would be constrained to take a position contrary to that contained in the
IMAC request. Petitioners allege that Officeco failed to exhaust the administrative
remedies available under Secs. 5 and 6 of the PCGG Rules and Regulations Implementing
Executive Orders No. 1 and No. 2. This failure, according to petitioners, stripped Officeco
of a cause of action thereby warranting the dismissal of the complaint before the
Sandiganbayan. Petitioners further contend that the complaint before the Sandiganbayan
is actually one for mandamus but the act sought by Officeco is discretionary in nature.
Petitioners add that they did not commit grave abuse of discretion in denying Officecos
request to unfreeze its account with BTAG since the denial was based on Officecos failure
to present countervailing evidence to support its claim. The action for mandamus does
not lie, petitioners conclude. In its comment,18[18] Officeco questions the competence of
the PCGG lawyers to appear in the case since they are not properly authorized by the
OSG to represent the Philippine government and/or the PCGG in ill-gotten wealth cases
such as the one in the case at bar. However, this issue has been rendered moot by an
agreement by and among the PCGG Chairman, the Solicitor General, the Chief
Presidential Legal Counsel, and the Secretary of Justice that the PCGG lawyers would
enter their appearance as counsel of PCGG or the Republic and shall directly attend to the
various cases of the PCGG, by virtue of their deputization as active counsel.19[19]
Furthermore, the Memorandum in this case which was prepared by the OSG reiterated
the arguments in support of the petition which was initially filed by PCGG. Nevertheless,
the petition is bereft of merit. We find that the Sandiganbayan did not act with grave
abuse of discretion in denying petitioners motion to dismiss.
Res judicata
Res judicata means a matter adjudged, a thing judicially acted upon or decided; a thing
or matter settled by judgment.20[20] The doctrine of res judicata provides that a final
judgment on the merits rendered by a court of competent jurisdiction is conclusive as to
the rights of the parties and their privies and constitutes an absolute bar to subsequent
actions involving the same claim, demand, or cause of action.21[21] For the preclusive
effect of res judicata to be enforced, the following requisites must obtain: (1) The former
judgment or order must be final; (2) It must be a judgment or order on the merits, that is,
it was rendered after a consideration of the evidence or stipulations submitted by the
parties at the trial of the case; (3) It must have been rendered by a court having
jurisdiction over the subject matter and the parties; and (4) There must be, between the
first and second actions, identity of parties, of subject matter and of cause of action. This
requisite is satisfied if the two actions are substantially between the same parties.22[22]
While the first three elements above are present in this case, we rule that the fourth
element is absent. Hence, res judicata does not apply to prevent the Sandiganbayan from
proceeding with Civil Case No. 0164.Absolute identity of parties is not a condition sine
qua non for res judicata to apply, a shared identity of interest being sufficient to invoke
the coverage of the principle.23[23] In this regard, petitioners claim that while the
Philippine government was not an impleaded party respondent in Switzerland, it is
undisputed that the interest of the Philippine government is identical to the interest of the
Swiss officials, harping on the fact that the Swiss officials issued the freeze order on the
basis of the IMAC request.24[24] However, we fail to see how petitioners can even claim
an interest identical to that of the courts of Switzerland. Petitioners interest, as reflected
in their legal mandate, is to recover ill-gotten wealth, wherever the same may be
located.25[25] The interest of the Swiss court, on the other hand, is only to settle the
issues raised before it, which include the propriety of the legal assistance extended by
the Swiss authorities to the Philippine government.
Secondly, a subject matter is the item with respect to which the controversy has arisen,
or concerning which the wrong has been done, and it is ordinarily the right, the thing, or
the contract under dispute.26[26] In the case at bar, the subject matter in the Swiss
Federal Court was described in the 31 May 1989 decision itself as ruling on temporary
measures (freezing of accounts) and of taking of evidence (gathering bank
information).27[27] It was thus concerned with determining (1) whether there is a reason
of exclusion as defined in Art. 2 lit. b and [Art. ] 3 par. 1 IRSG28[28] or an applicable case
of Art. 10 Par. 2 IRSG; 29[29] (2) whether legal assistance should be refused on the basis
of Art. 2 lit. a IRSG;30[30] (3) whether Officeco should be regarded as a disinterested
party owing to the fact that its name was not included in the list accompanying the IMAC
request as well as in the order of the District Attorney of Zurich; and (4)
whether the grant of legal assistance is proper considering the actions of Gapud.31[31] In
short, the subject matter before the Swiss courts was the propriety of the legal assistance
extended to the Philippine government. On the other hand, the issue in Civil Case No.
0164 is whether the PCGG may be compelled to officially advise the Swiss government to
exclude or drop from the freeze or sequestration order the account of Officeco with BTAG
and to release the said account to Officeco. In short, the subject matter in Civil Case No.
0164 is the propriety of PCGGs stance regarding Officecos account with BTAG. In arguing
that there is identity of causes of action, petitioners claim that the proofs required to
sustain a judgment for [Officeco] in Switzerland is no different from the proofs that it
would offer in the Philippines. We disagree.
A cause of action is an act or omission of one party in violation of the legal right of the
other.32[32] Causes of action are identical when there is an identity in the facts essential
to the maintenance of the two actions, or where the same evidence will sustain both
actions.33[33] The test often used in determining whether causes of action are identical
is to ascertain whether the same facts or evidence would support and establish the
former and present causes of action.34[34] More significantly, there is identity of causes
of action when the judgment sought will be inconsistent with the prior judgment.35[35] In
the case at bar, allowing Civil Case No. 0164 to proceed to its logical conclusion will not
result in any inconsistency with the 31 May 1989 decision of the Swiss Federal Court.
Even if the Sandiganbayan finds for Officeco, the same will not automatically result in the
lifting of the questioned freeze orders. It will merely serve as a basis for requiring the
PCGG (through the OSG) to make the appropriate representations with the Swiss
government agencies concerned.
account of Officeco with BTAG belongs to the Marcoses nor their cronies. Information on
this matter was even requested by the OSG from the PCGG and the latter from Swiss
authorities who, up to the present, have not responded positively on the request;48[48]
and (3) Requests49[49] by Officeco to the PCGG and OSG to make representations
Section 5. Duties of Public Officials and Employees. In the performance of their duties,
all
(a) Act promptly on letters and requests. All public officials and employees shall, within
with the Swiss authorities for the latter to release Officecos account with the BTAG from
the freeze order remain unacted upon despite the mandate in Section 5(a) of Republic Act
No. 6713.The truth of the above allegations, which must be deemed hypothetically
admitted for the purpose of considering the motion to dismiss, may properly be
determined only if Civil Case No. 0164 is allowed to proceed, such that if they are found
to be supported by preponderance of evidence, adverse findings may properly be made
against PCGG and the corresponding reliefs granted in favor of Officeco.Furthermore,
Officeco claims that on two separate occasions, upon request of counsel for Security Bank
and Trust Company (SBTC), the PCGG and the OSG formally advised the Swiss authorities
to release from the freeze orders two other securities accounts with BTAG. Because of
these representations, the release of the two accounts from the freeze order was
effected. Gapud also assisted in the establishment and administration of these accounts
with BTAG.50[50] According to Officeco, the continuous refusal of the PCGG and the OSG
to act favorably on its request while acting favorably on the above two requests of SBTC
is a clear violation of its right to equal protection under the 1987 Constitution.51[51] The
guarantee of equal protection, according to Tolentino v. Board of Accountancy, et
al.,52[52] simply means that no person or class of persons shall be deprived of the said
protection of the laws which is enjoyed by other persons or other classes in the same
place and in like circumstances.53[53] Indeed, if it were true that the PCGG and the OSG
facilitated the release of two deposit accounts upon the request of SBTC and these
accounts are similarly situated to Officecos frozen account with BTAG, the operation of
the equal protection clause of the Constitution dictates that Officecos account should
likewise be ordered released. Again, this matter can properly be resolved if Civil Case No.
0164 is allowed to proceed.
No pronouncement as to costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice
CASE 5
EN BANC
Petitioners,
- versus -
x -----------------------------------------------------------------------------------------x
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality of
Republic Act No. 95221 (RA 9522) adjusting the countrys archipelagic baselines and
classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime
baselines of the Philippines as an archipelagic State.3 This law followed the framing of the
Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS I),4
codifying, among others, the sovereign right of States parties over their territorial sea,
the breadth of which, however, was left undetermined. Attempts to fill this void during
the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile. Thus,
domestically, RA 3046 remained unchanged for nearly five decades, save for legislation
passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical errors and
reserving the drawing of baselines around Sabah in North Borneo. In March 2009,
Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The
change was prompted by the need to make RA 3046 compliant with the terms of the
United Nations Convention on the Law of the Sea (UNCLOS III),5 which the Philippines
ratified on 27 February 1984.6 Among others, UNCLOS III prescribes the water-land ratio,
length, and contour of baselines of archipelagic States like the Philippines7 and sets the
deadline for the filing of application for the extended continental shelf.8 Complying with
these requirements, RA 9522 shortened one baseline, optimized the location of some
basepoints around the Philippine archipelago and classified adjacent territories, namely,
the Kalayaan Island Group (KIG) and the Scarborough Shoal, as regimes of islands whose
islands generate their own applicable maritime zones. Petitioners, professors of law, law
students and a legislator, in their respective capacities as citizens, taxpayers or x x x
legislators,9 as the case may be, assail the constitutionality of RA 9522 on two principal
grounds, namely: (1) RA 9522 reduces Philippine maritime territory, and logically, the
reach of the Philippine states sovereign power, in violation of Article 1 of the 1987
Constitution,10 embodying the terms of the Treaty of Paris11 and ancillary treaties,12
and (2) RA 9522 opens the countrys waters landward of the baselines to maritime
passage by all vessels and aircrafts, undermining Philippine sovereignty and national
security, contravening the countrys nuclear-free policy, and damaging marine resources,
in violation of relevant constitutional provisions.13 In addition, petitioners contend that
RA 9522s treatment of the KIG as regime of islands not only results in the loss of a large
maritime area but also prejudices the livelihood of subsistence fishermen.14 To buttress
their argument of territorial diminution, petitioners facially attack RA 9522 for what it
excluded and included its failure to reference either the Treaty of Paris or Sabah and its
use of UNCLOS IIIs framework of regime of islands to determine the maritime zones of the
KIG and the Scarborough Shoal.Commenting on the petition, respondent officials raised
threshold issues questioning (1) the petitions compliance with the case or controversy
requirement for judicial review grounded on petitioners alleged lack of locus standi and
(2) the propriety of the writs of certiorari and prohibition to assail the constitutionality of
RA 9522. On the merits, respondents defended RA 9522 as the countrys compliance with
the terms of UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the countrys security, environment
and economic interests or relinquish the Philippines claim over Sabah. Respondents also
question the normative force, under international law, of petitioners assertion that what
Spain ceded to the United States under the Treaty of Paris were the islands and all the
waters found within the boundaries of the rectangular area drawn under the Treaty of
Paris. We left unacted petitioners prayer for an injunctive writ.
The Issues
1. Preliminarily
1. Whether petitioners possess locus standi to bring this suit; and
2. Whether the writs of certiorari and prohibition are the proper remedies to assail
the constitutionality of RA 9522.
2. On the merits, whether RA 9522 is unconstitutional.
petitioners.18
Respondents submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition,
viewed the writs of certiorari and prohibition as proper remedial vehicles to test the
constitutionality of statutes,19 and indeed, of acts of other branches of government.20
Issues of constitutional import are sometimes crafted out of statutes which, while having
no bearing on the personal interests of the petitioners, carry such relevance in the life of
this nation that the Court inevitably finds itself constrained to take cognizance of the case
and pass upon the issues raised, non-compliance with the letter of procedural rules
notwithstanding. The statute sought to be reviewed here is one such law.
RA 9522 is Not Unconstitutional
RA 9522 is a Statutory Tool to Demarcate the Countrys Maritime Zones and Continental
Shelf Under UNCLOS III, not to Delineate Philippine Territory
Petitioners submit that RA 9522 dismembers a large portion of the national territory21
because it discards the pre-UNCLOS III demarcation of Philippine territory under the
Treaty of Paris and related treaties, successively encoded in the definition of national
territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this
constitutional definition trumps any treaty or statutory provision denying the Philippines
sovereign control over waters, beyond the territorial sea recognized at the time of the
Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that
from the Treaty of Paris technical description, Philippine sovereignty over territorial waters
extends hundreds of nautical miles around the Philippine archipelago, embracing the
rectangular area delineated in the Treaty of Paris.22Petitioners theory fails to persuade
us.UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical
miles from the baselines], exclusive economic zone [200 nautical miles from the
baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify
norms regulating the conduct of States in the worlds oceans and submarine areas,
recognizing coastal and archipelagic States graduated authority over a limited span of
waters and submarine lands along their coasts.On the other hand, baselines laws such as
RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along
their coasts from which baselines are drawn, either straight or contoured, to serve as
geographic starting points to measure the breadth of the maritime zones and continental
shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the
exclusive
economic zone and the continental shelf. The breadth of the territorial sea, the
contiguous zone, the exclusive economic zone and the continental shelf shall be
measured from archipelagic baselines drawn in accordance with article 47. (Emphasis
supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties
to delimit with precision the extent of their maritime zones and continental shelves. In
turn, this gives notice to the rest of the international community of the scope of the
maritime space and submarine areas within which States parties exercise treaty-based
rights, namely, the exercise of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the contiguous
zone (Article 33), and the right to exploit the living and non-living resources in the
exclusive economic zone (Article 56) and continental shelf (Article 77).
Even under petitioners theory that the Philippine territory embraces the islands and all
the waters within the rectangular area delimited in the Treaty of Paris, the baselines of
the Philippines would still have to be drawn in accordance with RA 9522 because this is
the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot
be drawn from the boundaries or other portions of the rectangular area delineated in the
Treaty of Paris, but from the outermost islands and drying reefs of the
archipelago.24UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription,25 not by executing multilateral treaties
on the regulations of sea-use rights or enacting statutes to comply with the treatys terms
to delimit maritime zones and continental shelves. Territorial claims to land features are
outside UNCLOS III, and are instead governed by the rules on general international law.26
RA 9522s Use of the Framework of Regime of Islands to Determine the Maritime Zones of
the KIG and the
Scarborough Shoal, not Inconsistent with the Philippines Claim of Sovereignty Over these
Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework to
draw the baselines, and to measure the breadth of the applicable maritime zones of the
KIG, weakens our territorial claim over that area.27 Petitioners add that the KIGs (and
Scarborough Shoals) exclusion from the Philippine archipelagic baselines results in the
loss of about 15,000 square nautical miles of territorial waters, prejudicing the livelihood
of subsistence fishermen.28 A comparison of the configuration of the baselines drawn
under RA 3046 and RA 9522 and the extent of maritime space encompassed by each law,
coupled with a reading of the text of RA 9522 and its congressional deliberations, vis--vis
the Philippines obligations under UNCLOS III, belie this view.The configuration of the
baselines drawn under RA 3046 and RA 9522 shows that RA 9522 merely followed the
basepoints mapped by RA 3046, save for at least nine basepoints that RA 9522 skipped
to optimize the location of basepoints and adjust the length of one baseline (and thus
comply with UNCLOS IIIs limitation on the maximum length of baselines). Under RA 3046,
as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn
around the Philippine archipelago. This undeniable cartographic fact takes the wind out of
petitioners argument branding RA 9522 as a statutory renunciation of the Philippines
claim over the KIG, assuming that baselines are relevant for this purpose.Petitioners
assertion of loss of about 15,000 square nautical miles of territorial waters under RA 9522
is similarly unfounded both in fact and law. On the contrary, RA 9522, by optimizing the
location of basepoints, increased the Philippines total maritime space (covering its
internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical
miles, as shown in the table below:29 Extent of maritime area using RA 3046, as
amended, taking into account the Treaty of Paris delimitation (in square nautical miles)
Extent of maritime area using RA 9522, taking into account UNCLOS III (in square nautical
miles) Internal or archipelagic waters 166,858 171,435 Territorial Sea 274,136 32,106
Exclusive Economic Zone TOTAL 440,994 586,210 382,669 .
Thus, as the map below shows, the reach of the exclusive economic zone drawn under RA
9522 even extends way beyond the waters covered by the rectangular demarcation
under the Treaty of Paris. Of course, where there are overlapping exclusive economic
zones of opposite or adjacent States, there will have to be a delineation of maritime
boundaries in accordance with UNCLOS III.30Further, petitioners argument that the KIG
now lies outside Philippine territory because the baselines that RA 9522 draws do not
enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the
Philippines continued claim of sovereignty and jurisdiction over the KIG and the
Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise exercises
sovereignty and jurisdiction shall be determined as Regime of Islands under the Republic
of the Philippines consistent with Article 121 of the United Nations Convention on the Law
of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the
Philippine archipelago, adverse legal effects would have ensued. The Philippines would
have committed a breach of two provisions of UNCLOS
III. First, Article 47 (3) of UNCLOS III requires that [t]he drawing of such baselines shall not
depart to any appreciable extent from the general configuration of the archipelago.
Second, Article 47 (2) of UNCLOS III requires that the length of the baselines shall not
exceed 100 nautical miles, save for three per cent (3%) of the total number of baselines
which can reach up to 125 nautical miles.31Although the Philippines has consistently
claimed sovereignty over the KIG32 and the Scarborough Shoal for several decades,
these outlying areas are located at an appreciable distance from the nearest shoreline of
the Philippine archipelago,33 such that any straight baseline loped around them from the
nearest basepoint will inevitably depart to an appreciable extent from the general
configuration of the archipelago. The principal sponsor of RA 9522 in the Senate, Senator
Miriam Defensor-Santiago, took pains to emphasize the foregoing during the Senate
deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys
and the Scarborough Shoal are outside our archipelagic baseline because if we put them
inside our baselines we might be accused of violating the provision of international law
which states: The drawing of such baseline shall not depart to any appreciable extent
from the general configuration of the archipelago. So sa loob ng ating baseline, dapat
magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin
masasabing malapit sila sa atin although we are still allowed by international law to claim
them as our own. This is called contested islands outside our configuration. We see that
our archipelago is defined by the orange line which [we] call[] archipelagic baseline.
Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong
malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating
archipelago kaya kung ilihis pa natin ang dating archipelagic baselines para lamang
masama itong dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng
United Nations because of the rule that it should follow the natural configuration of the
archipelago.34 (Emphasis supplied)Similarly, the length of one baseline that RA 3046
drew exceeded UNCLOS IIIs limits. The need to shorten this baseline, and in addition, to
optimize the location of basepoints using current maps, became imperative as discussed
by respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to draw
the outer limits of its maritime zones including the extended continental shelf in the
manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by
R.A. 5446, the baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash to Tongquil
Point) is 140.06 nautical miles x x x. This exceeds the maximum length allowed under
Article 47(2) of the [UNCLOS III], which states that The length of such baselines shall not
exceed 100 nautical miles, except that up to 3 per cent of the total number of baselines
enclosing any archipelago may exceed that length, up to a maximum length of 125
nautical miles.
2. The selection of basepoints is not optimal. At least 9 basepoints can be skipped or
deleted from the baselines system. This will enclose an additional 2,195 nautical miles of
water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not established by
geodetic survey methods. Accordingly, some of the points, particularly along the west
coasts of Luzon down to Palawan were later found to be located either inland or on water,
not on low-water line and drying reefs as prescribed by Article 47.35
Hence, far from surrendering the Philippines claim over the KIG and the Scarborough
Shoal, Congress decision to classify the KIG and the Scarborough Shoal as Regime[s] of
Islands under the Republic of the Philippines consistent with Article 12136 of UNCLOS III
manifests the Philippine States responsible observance of its pacta sunt servanda
obligation under UNCLOS III. Under Article 121 of UNCLOS III, any naturally formed area of
land, surrounded by water, which is above water at high tide, such as portions of the KIG,
qualifies under the category of regime of islands, whose islands generate their own
applicable maritime zones.37Statutory Claim Over Sabah under RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the
Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446,
which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of the baselines
of the territorial sea around the territory of Sabah, situated in North Borneo, over which
the Republic of the Philippines has acquired dominion and sovereignty. (Emphasis
supplied)
UNCLOS III and RA 9522 not Incompatible with the Constitutions Delineation of Internal
Waters As their final argument against the validity of RA 9522, petitioners contend that
the law unconstitutionally converts internal waters into archipelagic waters, hence
subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III,
including overflight. Petitioners extrapolate that these passage rights indubitably expose
Philippine internal waters to nuclear and maritime pollution hazards, in violation of the
Constitution.38Whether referred to as Philippine internal waters under Article I of the
Constitution39 or as archipelagic waters under UNCLOS III (Article 49 [1]), the Philippines
exercises sovereignty over the body of water lying landward of the baselines, including
the air space over it and the submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters
and of their bed and subsoil.
1. The sovereignty of an archipelagic State extends to the waters enclosed by the
archipelagic baselines drawn in accordance with article 47, described as archipelagic
waters, regardless of their depth or distance from the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as well as to
their bed and subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall not in other
respects affect the status of the archipelagic waters, including the sea lanes, or the
exercise by the archipelagic State of its sovereignty over such waters and their air space,
bed and subsoil, and the resources contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to necessary,
if not marginal, burdens in the interest of maintaining unimpeded, expeditious
international navigation, consistent with the international law principle of freedom of
navigation. Thus, domestically, the political branches of the Philippine government, in the
competent discharge of their constitutional powers, may pass legislation designating
routes within the archipelagic waters to regulate innocent and sea lanes passage.40
Indeed, bills drawing nautical highways for sea lanes passage are now pending in
Congress.41 In the absence of municipal legislation, international law norms, now codified
in UNCLOS III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treatys limitations and conditions for their exercise.42
Significantly, the right of innocent passage is a customary international law,43 thus
automatically incorporated in the corpus of Philippine law.44 No modern State can validly
invoke its sovereignty to absolutely forbid innocent passage that is exercised in
accordance with customary international law without risking retaliatory measures from
the international community. The fact that for archipelagic States, their archipelagic
waters are subject to both the right of innocent passage and sea lanes passage45 does
not place them in lesser footing vis--vis continental coastal States which are subject, in
their territorial sea, to the right of innocent passage and the right of transit passage
through international straits. The imposition of these passage rights through archipelagic
waters under UNCLOS III was a concession by archipelagic States, in exchange for their
right to claim all the waters landward of their baselines, regardless of their depth or
distance from the coast, as archipelagic waters subject to their territorial sovereignty.
More importantly, the recognition of archipelagic States archipelago and the waters
enclosed by their baselines as one cohesive entity prevents the treatment of their islands
as separate islands under UNCLOS III.46 Separate islands generate their own maritime
zones, placing the waters between islands separated by more than 24 nautical miles
beyond the States territorial sovereignty, subjecting these waters to the rights of other
States under UNCLOS III.47 Petitioners invocation of non-executory constitutional
provisions in Article II (Declaration of Principles and State Policies)48 must also fail. Our
present state of jurisprudence considers the provisions in Article II as mere legislative
CASE 6
SECOND DIVISION
CIPER
ELECTRICAL
&
ENGINEERING,
SEPTA
DECISION
BUENA, J.:
Trial Court of Quezon City, Branch 226, in Civil Case No. Q-96-29243,1[1]
dismissing the Petition for Mandamus filed by
[2] where the latter undertook to develop the housing site and construct
thereon 145 housing units.
By virtue of the MOA, the Ministry of Public Works and Highways forged
individual contracts with herein
Construction Inc., World Builders Inc., Glass World Inc., Performance Builders
Development Co. and De Leon Araneta
Construction Co., for the construction of the housing units. Under the
contracts, the scope of construction and funding
therefor covered only around 2/3 of each housing unit.3[3] After complying
with the terms of said contracts, and by reason
of the verbal request and assurance of then DPWH Undersecretary Aber Canlas
that additional funds would be available
constructions.
Petitioners then received payment for the construction work duly covered by
the individual written contracts, thereby
payment
was
favorably
consideration and approval. The money claims were then referred to COA which
returned the same to the DPWH Auditor
for auditorial action. On the basis of the Inspection Report of the Auditors
Technical Staff, the DPWH Auditor interposed
In a Second Indorsement dated 27 July 1992, the COA returned the documents
to the DPWH, stating that funds
should first be made available before COA could pass upon and act on the
money claims. In a Memorandum dated 30 July
1992, then DPWH Secretary Jose De Jesus requested the Secretary of Budget
and Management to release public funds for
the payment of petitioners money claims, stating that the amount is urgently
needed in order to settle once and for all this
In
Letter
of
the
December 1994, the amount of P5,819,316.00 was then released for the
payment of petitioners money claims, under
In an Indorsement dated 27 December 1995, the COA referred anew the money
claims to the DPWH pursuant to
Area, Manila, the above-captioned subject (Re: Claim of Ten (10) contractors for
payment of Work accomplishments on
the construction of the COGEO II Housing Project, Pasig, Metro Manila) and
reiterating the policy of this office as
embodied in COA Circular No. 95-006 dated May 18, 1995 totally lifting its preaudit activities on all financial
transactions
of
the
agencies
of
the
government
implementation/prosecution of projects and/or payment of
involving
prompting herein petitioners to file before the Regional Trial Court of Quezon
City, Branch 226, a Petition for Mandamus
On 07 November 1997, the lower court denied the Petition for Mandamus, in a
Decision which disposed as follows:
WHEREFORE, in view of all the foregoing, the instant Petition for Mandamus is
dismissed. The order of September
24, 1997, submitting the Manifestation and Motion for Resolution, is hereby
withdrawn.
SO ORDERED.
Hence, this petition where the core issue for resolution focuses on the right of
petitioners-contractors to compensation
In the case before us, respondent, citing among others Sections 466[6] and
47,7[7] Chapter 7, Sub-Title B, Title I, Book
V of the Administrative Code of 1987 (E.O 292), posits that the existence of
appropriations and availability of funds as
certified to and verified by the proper accounting officials are conditions sine
qua non for the execution of government
contracts.8[8] Respondent harps on the fact that the additional work was
pursued through the verbal request of then DPWH
public funds and in excess of the public officials contracting authority, the
same is not binding on the government and
Although this Court agrees with respondents postulation that the implied
contracts, which covered the additional
nonetheless find the instant petition laden with merit and uphold, in the
interest of substantial justice, petitioners-
In Royal Trust Construction vs. COA, a case involving the widening and
deepening of the Betis River in
Pampanga at the urgent request of the local officials and with the knowledge
and consent of the Ministry of Public
Works, even without a written contract and the covering appropriation, the
project was undertaken to prevent the
completed portion in the sum of over P1 million. While the payment was
favorably recommended by the Ministry of
Public Works, it was denied by the respondent COA on the ground of violation
of mandatory legal provisions as the
1986, its existing policy is to allow recovery from covering contracts on the
basis of quantum meruit if there is delay in
In the Royal Construction case, this Court, applying the principle of quantum
meruit in allowing recovery by the
contractor, elucidated:
The work done by it (the contractor) was impliedly authorized and later
expressly acknowledged by the Ministry of
favorable
action
on
the
fund allotted by law to the Betis River project. Substantial compliance with the
said resolution, in view of the
circumstances of this case, should suffice. The Court also feels that the remedy
suggested by the respondent, to wit,
channel improvement of the Betis River in Pampanga and to allow the payment
thereof immediately upon completion of
Similarly, this Court applied the doctrine of quantum meruit in Melchor vs.
Commission on Audit14[14] and explained
additional constructions, despite the illegality and void nature of the implied
contracts forged between the DPWH and
money claimson the basis of quantum meruit for work accomplished on the
government housing project.
the housing units, believing in good faith and in the interest of the government
and, in effect, the public in general, that
available and forthcoming. On this particular score, the records reveal that the
verbal request and assurance of then
this case, covered only the completion and final phase of construction of the
housing units, which structures,
concededly, were already existing, albeit not yet finished in their entirety at
the time the implied contracts were entered
contracts existed and that the money claims had ample basis applying the
principle of quantum meruit. Moreover, as can
be gleaned from the records, even the DPWH Auditor interposed no objection
to the payment of the money claims,
Equally important is the glaring fact that the construction of the housing units
had already been completed by petitioners-
contractors and the subject housing units had been, since their completion,
under the control and disposition of the
To our mind, it would be the apex of injustice and highly inequitable for us to
defeat petitioners-contractors right to
be duly compensated for actual work performed and services rendered, where
both the government and the public have,
for years, received and accepted benefits from said housing project and reaped
the fruits of petitioners-contractors honest
Incidentally, respondent likewise argues that the State may not be sued in the
instant case, invoking the constitutional
before us.
Under these circumstances, respondent may not validly invoke the Royal
against
suit,
exceptions. True enough, the rule, in any case, is not absolute for it does not
say that the state may not be sued under any
circumstance.18[18]
Thus, in Amigable vs. Cuenca,19[19] this Court, in effect, shred the protective
shroud which shields the State from suit,
reiterating our decree in the landmark case of Ministerio vs. CFI of Cebu20[20]
that the doctrine of governmental immunity
that there be fidelity to legal norms on the part of officialdom if the rule of law
were to be maintained.21[21]
Although the Amigable and Ministerio cases generously tackled the issue of the
States immunity from suit vis a vis
were to uphold, in this particular instance, the States immunity from suit.
To be sure, this Court as the staunch guardian of the citizens rights and welfare
SO ORDERED.
CASE 7
SUPREME COURT
thereof
upon
the
completion
of
said
Manila
SECOND DIVISION
DIVISION OF ALBAY
DIVISION SUPERINTENDENT,
CARPIO,
CARPIO MORALES,
Promulgated:
CELSO OATE,
x-----------------------------------------------------------------------------------------x
DECISION
The Case
of the Legaspi City Regional Trial Court (RTC), Branch I, declaring as null and
void the December 21, 1998 Deed of
respondent Celso Oate the possession of the portion of land occupied by the
school site of the Daraga North Central
Elementary School.
The Facts
Spouses Claro Oate and Gregoria Los Baos owned Lot No. 6849 (disputed lot)
with an area of around 27,907
square meters registered under the Torrens System of land registration under
Original Certificate of Title (OCT) No. 2563.
Claro Oate had three children, namely: Antonio, Rafael, and Francisco, all
surnamed Oate. Respondent Celso Oate is the
Elementary
School.
The
Legaspi City RTC, Branch V after due notice, publication, and hearing.
Consequently, OCT No. RO-1897158[5] was issued
his three (3) sisters, namely: Melba O. Napil, Cielo O. Lardizabal, and Maria
Visia O. Maldo, who waived their
Oate, from the latters father, Claro Oate, by virtue of a prior partition among
Los Baos, respondent in turn claimed ownership of said lot through the deed of
extrajudicial settlement.
prior partition among Claro Oates three (3) children had been passed upon in
another case, Civil Case No. 8724 for
Partition, Reconveyance and Damages filed by the heirs of Rafael Oate before
the Legaspi City RTC, Branch IX.59[6] In
said case, respondent Celso Oate, the defendant, prevailed and the case was
dismissed by the trial court.
Thereafter, respondent caused Lot No. 6849 to be subdivided into five (5) lots,
all under his name, except Lot No.
6849-B which is under the name of Mariano M. Lim. On October 26, 1992, the
subdivided lots were issued Transfer
Certificate of Titles (TCTs): (1) Lot No. 6849-A (13,072 square meters) under
TCT No. T-83946;60[7] (2) Lot No. 6849-B
(3,100 square meters) under TCT No. T-84049;61[8] (3) Lot No. 6849-C (10,000
square meters) under TCT No. T-83948;62[9]
(4) Lot No. 6849-D (1,127 square meters) under TCT No. T-83949;63[10] and (5)
Lot No. 6849-E (608 square meters) under
circumstances affecting the elementary school and its occupancy of Lot No.
6849-A with an area of 13,072 square meters.
Respondent proposed to petitioner DECS that it purchase Lot No. 6849-A at the
Fair Market Value (FMV) of PhP 400 per
square meter and also requested for reasonable rentals from 1960.65[12] The
records show that then DECS Director IV
the
matter
to
the
DECS
Division
investigation.66[13]
On February 24, 1993, through his counsel, respondent likewise wrote to Engr.
Orlando Roces, District Engineer,
respondents counsel that petitioner DECS is the owner of the school site having
acquired the disputed lot by virtue of a
Quieting of Title with Recovery of Possession of Lot No. 6849 located at Barrio
Bagumbayan, Daraga, Albay before the
Legaspi City RTC, docketed as Civil Case No. 8715, against petitioner DECS,
Division of Albay, represented by the
D.
Saquido;
and
the
In its April 28, 1993 Answer,70[17] the Municipality of Daraga, Albay, through
Mayor Cicero Triunfante, denied
Oate, respondents grandfather, and since then it had continually occupied said
lot openly and publicly in the concept of an
owner until 1988 when the Municipality donated the school site to petitioner
DECS; thus asserting that it could also claim
laches and was estopped from assailing ownership over the disputed lot.
Daraga, Albay and further contended that respondent had no cause of action
because it acquired ownership over the
which was already sold to the Municipality of Daraga, Albay in 1940. Petitioner
likewise assailed the issuance of a
reconstituted OCT over Lot 6849 when the lower court granted respondents
petition for reconstitution without notifying
petitioner.
During the ensuing trial where both parties presented documentary and
testimonial evidence, respondent testified
that he came to know of the disputed lot in 1973 when he was 23 years old;
that he took possession of the said lot in the
same year; that he came to know that the elementary school occupied a
portion of the said lot only in 1991; and that it was
only in 1992 that he came to know of the Deed of Donation executed by the
Municipality of Daraga, Albay.72[19] Also,
However, after respondent testified, defendants in said case filed a Joint Motion
to Dismiss74[21] on the ground that
respondents suit was against the State which was prohibited without the
latters consent. Respondent countered with his
Aside from the reconstituted OCT No. RO-18971, respondent presented the
TCTs covering the five (5) portions
of the partitioned Lot 6849, Tax Declaration No. 04-006-0068177[24] issued for
said lot, and the April 20, 1992
After respondent rested his case, the defense presented and marked their
documentary exhibits of Tax Declaration
No. 30235 issued in the name of the late Claro Oate, which was cancelled in
1938; Tax Declaration 31954,79[26] which
accounts and the issuance of TCT No. 4812 in favor of the Municipality; Tax
Declaration No. 892680[27] in the name of the
Municipality which cancelled Tax Declaration No. 31954; and the subsequent
Tax Declaration Nos. 22184,81[28] 332,82[29]
and 04-006-00068.83[30]
The defense presented the testimony of Mr. Jose Adra,84[31] the Principal of
Daraga North Central Elementary
As mentioned earlier, Civil Case No. 8724 for Partition, Reconveyance and
Damages was instituted by the heirs
of Rafael Oate in Legaspi City RTC, Branch IX against Spouses Celso Oate and
Allem Vellez, involving the same
said case, but it was overtaken by the resolution of the case on August 14,
1995 with the trial court dismissing the
complaint.
the defendant Department of Education Culture and Sports through the Albay
Schools
2. Declaring the plaintiff as the owner in fee simple of Lots Nos. 6849-A, 6849C, 6849-D and
4. Ordering the plaintiff for reason of equity, to pay the defendant Municipality
of Daraga,
Albay the amount of Fifty Thousand (50,000.00) Pesos pursuant to Article 479
of the New
provisions of Article 448 of the New Civil Code of the Philippines shall be
observed by the
parties; and
6. Ordering the defendants to pay the costs of the suit. No attorneys fees is
hereby adjudged in
SO ORDERED.86[33]
The trial court ratiocinated that it was clear that subject Lot 6849 was
originally registered under the Torrens
System in the name of Spouses Claro Oate and Gregoria Los Baos as evidenced
by OCT No. RO-18971. The right of
respondent Celso Oate over the disputed lot had not been proven otherwise or
overturned in Civil Case No. 8724, and this
successional rights in his favor. Thus, the trial court ruled in favor of
respondents title. Besides, it further ruled that
While the Municipality of Daraga, Albay anchored its prior ownership over the
disputed lot by virtue of a sale in
1940 and mentioned TCT No. 4812 supposedly issued in its name, it however
failed to submit any deed of conveyance in
its favor, as well as a copy of the alleged TCT No. 4812. Hence, the trial court
held that its claim over disputed Lot 6849
was based solely on adverse prescription which could not prevail over
respondents registered title.
The trial court concluded that given these factual and evidentiary proofs,
petitioner had no right to occupy Lot
Finally, the trial court awarded PhP 50,000 to the Municipality of Daraga, Albay
for the cost of landfill and ordered that
Article 44887[34] of the New Civil Code be followed by the parties as petitioner
was a builder in good faith.
assailing the trial courts Decision before the CA. However, on June 17, 1998,
the appellate court declared the appeals of
both petitioners abandoned and dismissed for their failure to pay the required
docket fees within the reglementary period.89
[36] Petitioner then filed a Motion for Reconsideration90[37] of the said June
17, 1998 Resolution and its appeal was
Moreover, the appellate court held that there was no jurisdictional defect in the
reconstitution proceeding being
one in rem, and in the issuance of OCT No. RO-18971 based on the destroyed or
lost OCT No. 2563, even if no notice
was sent to petitioner. Thus, the CA ruled that respondents claim of ownership
over Lot 6849-A occupied by the school is
conclusive for being soundly predicated on TCT No. T-83946 which cancelled
the reconstituted OCT No. RO-18971.
Municipality of Daraga, Albay in 1940 in lieu of OCT No. 2563 and the Deed of
Conveyance executed by the original
no title in the name of the Municipality ever existed and thus it could not have
validly donated the subject property to
petitioner.
case that to uphold the States immunity from suit would subvert the ends of
justice. In fine, the appellate court pointed out
courts decision in toto. It reasoned that laches does not apply, its application
rests on the sound discretion of the court, and
where the court believes that its application would result in manifest wrong or
injustice, it is constrained not to be guided
strictly by said doctrine. Besides, it opined that laches could not defeat the
rights of a registered owner.
The Issues
Hence, we have the instant petition where petitioner raises the following
assignment of errors:
THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURTS FINDING THAT
II
III
IV
Petitioner basically raises two issuesthe application of laches and the nonsuability of the State.
The threshold issue is whether petitioner DECS can be sued in Civil Case No.
8715 without its consent. A
We rule that petitioner DECS can be sued without its permission as a result of
its being privy to the Deed of
to the donation, any dispute that may arise from it would necessarily bring
petitioner DECS down to the level of an
below, this issue is deemed mooted. Besides, at this point, we deem it best to
lift such procedural technicality in order to
finally resolve the long litigation this case has undergone. Moreover, even if we
give due course to said issue, we will
that it impliedly gave its approval to the involvement of petitioner DECS in the
Deed of Donation. In a situation involving
party to a suit resulting from said contract as it is assumed that the authority
granted to such department to enter into such
contract carries with it the full responsibility and authority to sue and be sued
in its name.
of
Daraga,
Albay
had
the concept of an owner over the disputed lot since 1940 until December 21,
1988 or for about 48 years. Significantly, it
maintains that Tax Declaration No. 31954 covering the disputed lot in the name
of the Municipality of Daraga, Albay
contains an annotation certifying that said lot was under voucher No. 69,
August, 1940 accounts. The corresponding
Transfer Title No. 4812 has been issued by the Register of Deeds Office of Albay
on August 3, 1940.98[45]
respondent instituted the instant case in 1993, petitioner and its predecessorin-interest Municipality of Daraga, Albay had
possessed the subject lot for a combined period of about fifty two (52) years.
Petitioner strongly avers that Claro Oate, the original owner of subject lot, sold
it to the Municipality. At the very
least it asserts that said Claro Oate allowed the Municipality to enter, possess,
and enjoy the lot without protest. In fact,
Claro Oate neither protested nor questioned the cancellation of his Tax
Declaration No. 30235 covering the disputed lot
and its substitution by Tax Declaration No. 31954 in the name of the
Municipality on account of his sale of the lot to the
latter. In the same vein, when Claro Oate and his spouse died, their children
Antonio, Rafael, and Francisco who
succeeded them also did not take any steps to question the ownership and
possession by the Municipality of the disputed
lot until they died on June 8, 1990, June 12, 1991, and October 22, 1957,
respectively.
owners, from his death on October 22, 1957also did not take any action to
recover the questioned lot from 1957 until 1993
when the instant suit was commenced. Petitioner avers that if they were really
the owners of said lot, they would not have
waited 52 long years to institute the suit assuming they have a cause of action
against the Municipality or petitioner. Thus,
petitioner submits that the equitable principle of laches has indubitably set in
to bar respondents action to recover
Indeed, it is settled that rights and actions can be lost by delay and by the
effect of delay as the equitable defense
of laches does not concern itself with the character of the defendants title, but
only with plaintiffs long inaction or
to any judicial remedies. Its elements are: (1) conduct on the part of the
defendant, or of one under whom the defendant
claims, giving rise to the situation which the complaint seeks a remedy; (2)
delay in asserting the complainant's rights, the
institute a suit; (3) lack of knowledge or notice on the part of the defendant
that the complainant would assert the right in
which the defendant bases the suit; and (4) injury or prejudice to the
defendant in the event relief is accorded to the
In Felix Gochan and Sons Realty Corporation, we held that [t]hough laches
applies even to imprescriptible
the CA for its failure to pay the required docket fees within the reglementary
period. As a result, a Partial Entry of
Judgment was made on July 9, 1998 and consequently, the dispositions in the
November 3, 1997 Decision, rendered by
the Legaspi City RTC, Branch I in favor of respondent Celso Oate, became final
and executory as against defendant
was annulledrespondent Oate was declared owner in fee simple of the disputed
lots and entitled to possession but was
required to pay PhP 50,000 to the Daraga Municipal Government and the costs
of suit. By reason of the finality of the
Decision against the Municipality of Daraga, Tax Declaration Nos. 04-00600068, 332, 22184, 31954, and 8926 are all
What are the effects of the final judgment against Municipality of Daraga on its
co-defendant, petitioner DECS?
Generally, it has no impact on the appeal of DECS unless the decision affects its
defenses. In this petition, DECS
no longer questions the declaration of nullity of the Deed of Donation over the
disputed lot and hence can be considered
as a final resolution of the issue. Likewise, it does not challenge the ownership
of Oate of the disputed lots, but merely
relied on the defense of laches. The final directive for Municipality of Daraga to
return possession of the land has no
1997
Decision
against
the
The only remaining issue left is whether laches can inure to the benefit of
petitioner DECS considering the fact
that Lot No. 6849-A was devoted to public education when the elementary
school was built in 1940 under the supervision
and control of DECS up to 1993 when Civil Case No. 8715 was filed by
respondent Oate.
A brief scrutiny of the records does show tell-tale signs of laches. The first
element is undisputed: the then
No. 6849-A containing 13,072 square meters under TCT No. T-83946. Moreover,
Mrs. Toribia Milleza,103[50] a retired
Q: How long have you been residing in this place, Bagumbayan, Daraga, Albay?
xxxx
Q: Now, can you further recall the kind of building that was constructed in this
property?
Q: Now, how many buildings were first constructed in [sic] this property?
A: In 1955 only one, the Seva type, then there was constructed five (5) Marcos
Type buildings
The devotion of Lot No. 6849-A to education started in 1940 and continued up
to December 21, 1988 when said
lot was donated to the DECS. From then on, DECS built various buildings and
introduced improvements on said lot. Lot
No. 6849-A was continuously used for public education until March 18, 1993
when respondent Oate filed Civil Case No.
Thus, for a total period of more than fifty-two (52) years, Lot No. 6849-A was
exclusively and completely utilized
by DECS for public education. This fact was not successfully challenged nor
refuted by respondent.
The second element of laches was likewise proven. No evidence was presented
to show that respondent or his
to
show
that
his
of ownership over the lot. Thus, as early as 1940, when the first Seva type
school building was constructed over a portion
of the disputed lot, now Lot 6849-A, respondent must prove that his
predecessors-in-interest indeed undertook activities to
contest the occupation of the portion of the lot by the Municipality and
subsequently by petitioner DECS. Unfortunately,
Respondent testified that he came to know of Lot 6849 only in 1973 when he
was 23 years old.106[53] He asserted
that he took possession of said lot in the same year when his two (2) uncles,
the brothers of his late father, passed on to
him the disputed lot as his fathers share of the inheritance from the late Claro
Oate and Gregoria Los Baos (his
school was built on a portion of Lot 6849, now Lot 6849-A. These assertions are
irreconcilable. Common experience tells
us that one who owns a property and takes possession of it cannot fail to
discover and know that an existing elementary
school was built and standing on the lot from the time that the owner starts
possessing a property.
Nonetheless, even granting that respondent indeed only came to know of such
encroachment or occupation in
1991, his rights cannot be better than that of his predecessors-in-interest, that
is, Claro Oate and his uncles, Antonio and
Rafael, who died in 1990 and 1991, respectively. Since respondents right over
the lot originated from his predecessors-in-
interest, then he cannot have better rights over Lot No. 6849-A than the latter.
The spring cannot rise higher than its
source. Besides, respondent has not proffered any explanation why his
predecessors-in-interest did not protest and
challenge the Municipalitys occupancy over a portion of their lot. Verily, with
the span of around 52 years afforded
unjustified.
In the third element, the records clearly bear out the fact that petitioner DECS
did not know nor anticipate that
school buildings and facilities on the school site amounting to more than PhP
11 million. Mr. Jose Adra, School Principal
of the Daraga North Central Elementary School, testified on the donation of the
disputed lot to petitioner and the cost of
lot after the lapse of such long occupation coupled with a tax declaration in the
name of the Daraga Municipality.
Finally, the last element is likewise proven by the antecedent facts that clearly
show grave prejudice to the
of the construction of the school buildings and facilities and the deleterious
effect on the school children and affected
equitable
considerations.
In
the
instant
case,
with
the
foregoing
approbation to the trial and appellate courts ruling that the application of the
principle of laches would subvert the ends of
justice. Indeed, it is unjust for the State and the affected citizenry to suffer
after respondent and his predecessors-in-
Also, the inaction of respondent Oate and his predecessors-in-interest for over
50 years has reduced their right to
Laches holds over the actual area possessed and occupied by petitioner
We, however, make the clear distinction that laches applies in favor of
petitioner only as regards Lot 6849-A
which is actually possessed and occupied by it. Laches does not apply to Lot
Nos. 6849-B, 6849-C, 6849-D, and 6849-E.
his father, Antonio Armenta, started cultivating portions of Lot 6849 way back
in the 1940s and that he took over the
tenancy in 1960 when his father stopped tilling the land. Besides, if the
Municipality indeed owned Lot 6849 by virtue of
Petitioner contends that the reconstitution of OCT No. 2563covering subject lot
in 1991 or 52 years after the
Municipality owned said lotdoes not in any way affect the latters preferential
and superior right over the disputed lot. In
the same vein, it maintains that it is inconsequential that petitioner and the
Municipality failed to present as evidence the
6849.
We disagree.
true that laches has set in so far as it pertains to the portion of Lot 6849,
specifically Lot 6849-A where the Municipality
and petitioner DECS had constructed the existing school, such does not hold
true for the totality of Lot 6849 as explained
above. Indeed, the reconstitution proceeding being one in rem, the consequent
issuance of OCT No. RO-18971 in lieu of
Anent the issue of non-notification, we agree with the observation of the courts
a quo that even granting arguendo
that petitioner was not notified about the reconstitution proceeding, such
deficiency is not jurisdictional as to nullify and
prevail over the final disposition of the trial court in a proceeding in rem.
More so, while petitioner strongly asserts that the certification in Tax
Declaration No. 31954 attesting to the
payment of the disputed lot under Municipal Voucher No. 69 and the issuance
of TCT No. 4812, which was never
the presumptions of regularity and validity of such official act have not been
overcome, such documents cannot defeat the
albeit done in an official capacity, the former holds as the latter is only
persuasive evidence. Indeed, tax declarations in
land cases per se do not constitute ownership without other substantial pieces
of evidence.
The records do not show and petitioner has not given any cogent explanation
why the Deed of Conveyance in
favor of the Municipality of Daraga, Albay and TCT No. 4812 were not
presented. With clear and affirmative defenses set
Municipality. Consequently, the TCTs cancelling OCT No. RO-18971 covering Lot
Nos. 6849-A, 6849-B, 6849-C, 6849-
Thus, notwithstanding valid titles over the portions of Lot 6849, respondent
Oate cannot now take possession over
Lot No. 6849-A for reason of laches. In the recent case of De Vera-Cruz v.
Miguel, we reiterated the principle we have
indefeasible and imprescriptible, the registered landowner may lose his right to
recover the possession of
Thus, with our resolution of the principal issue of applicability of the equitable
remedy of laches, the issue of
iniquitous for respondent Oate to pay PhP 50,000 to the Municipality of Daraga,
Albay considering that he is not entitled
WHEREFORE, the instant petition is GRANTED and the January 14, 2004
Decision of the CA in CA-G.R. CV
No. 60659 affirming the November 3, 1997 Decision of the Legaspi City RTC is
AFFIRMED with the following
MODIFICATIONS:
1) Declaring the DepEd (formerly DECS), Division of Albay to have the rights of
possession and usufruct
over Lot 6849-A with an area of 13,072 square meters under TCT No. T-83946 of
the Registry of Deeds of Albay, as a
result of laches on the part of respondent Celso Oate and his predecessors-ininterest. Respondent Celso Oate, his heirs,
is still being used and occupied by petitioner DECS. However, the rights of
possession and usufruct will be restored to
respondent the moment petitioner DECS no longer needs the said lot. The
Registry of Deeds of Albay is ordered to
annotate the aforementioned restrictions and conditions at the back of TCT No.
T-83946-A in the name of respondent
Celso Oate. Item No. 2 of the November 3, 1997 Decision of the Legaspi City
RTC is modified accordingly;
2) Declaring Celso Oate as the true and legal owner in fee simple of the
following lots:
a. Lot 6849-C with an area of 10,000 square meters under TCT No. T-83948 of
the Registry
of Deeds of Albay;
b. Lot 6849-D with an area of 1,127 square meters under TCT No. T-83949 of
the Registry
c. Lot 6849-E with an area of 608 square meters under TCT No. T-83950 of the
Registry of
Deeds of Albay.
3) Declaring Mariano M. Lim as true and legal owner of Lot 6849-B with an area
of 3,100 square meters
4) Ordering petitioner DECS and all other persons claiming under said
department to return the possession
of Lots 6849-C, 6849-D, and 6849-E to respondent Celso Oate and Lot 6849-B to
Mariano M. Lim; and
5) Deleting Item No. 4 of the November 3, 1997 Decision of the Legaspi City
RTC, which ordered
respondent Celso Oate to pay Fifty Thousand Pesos (PhP 50,000) to defendant
Municipality of Daraga, Albay.
The November 3, 1997 Decision of the Legaspi City RTC is AFFIRMED in all other
respects.
No costs.
SO ORDERED.
CASE 8
FIRST DIVISION
Petitioner,
- versus -
MENDOZA,
Present:
PUNO, C.J.,Chairperson,
SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
GARCIA, JJ.
Respondents.
Promulgated:
October 4, 2007
x----------------------------------------------------------------------------------------x
DECISION
GARCIA, J.:
Via this verified petition for certiorari and prohibition under Rule 65 of the
Rules of Court, the Republic of the
Philippines (Republic, for short), thru the Office of the Solicitor General (OSG),
comes to this Court to nullify and set
aside the decision dated August 27, 2003 and other related issuances of the
Regional Trial Court (RTC) of Manila, Branch
37, in its Civil Case No. 99-94075. In directly invoking the Courts original
jurisdiction to issue the extraordinary writs of
certiorari and prohibition, without challenge from any of the respondents, the
Republic gave as justification therefor the
fact that the case involves an over TWO BILLION PESO judgment against the
State, allegedly rendered in blatant
By any standard, the case indeed involves a colossal sum of money which, on
the face of the assailed decision,
shall be the liability of the national government or, in fine, the taxpayers. This
consideration, juxtaposed with the
118527 of the Registry of Deeds of Manila in the name of the herein private
respondent Tarcila Laperal Mendoza
House which was home to two (2) former Presidents of the Republic and now
appears to be used as office building of the
The facts:
Sometime in June 1999, Mendoza filed a suit with the RTC of Manila for
reconveyance and the corresponding
declaration of nullity of a deed of sale and title against the Republic, the
Register of Deeds of Manila and one Atty. Fidel
Vivar. In her complaint, as later amended, docketed as Civil Case No. 99-94075
and eventually raffled to Branch 35 of the
court, Mendoza essentially alleged being the owner of the disputed Arlegui
property which the Republic forcibly
dispossessed her of and over which the Register of Deeds of Manila issued TCT
No. 118911 in the name of the Republic.
Answering, the Republic set up, among other affirmative defenses, the States
immunity from suit.
The intervening legal tussles are not essential to this narration. What is
material is that in an Order of March 17,
2000, the RTC of Manila, Branch 35, dismissed Mendozas complaint. The court
would also deny, in another order dated
May 12, 2000, Mendozas omnibus motion for reconsideration. On a petition for
certiorari, however, the Court of Appeals
(CA), in CA-G.R. SP No. 60749, reversed the trial courts assailed orders and
remanded the case to the court a quo for
From Branch 35 of the trial court whose then presiding judge inhibited himself
from hearing the remanded Civil
Case No. 99-94075, the case was re-raffled to Branch 37 thereof, presided by
the respondent judge.
On May 5, 2003, Mendoza filed a Motion for Leave of Court to file a Third
Amended Complaint with a copy of the
intended third amended complaint thereto attached. In the May 16, 2003
setting to hear the motion, the RTC, in open court
and in the presence of the Republics counsel, admitted the third amended
complaint, ordered the Republic to file its answer
thereto within five (5) days from May 16, 2003 and set a date for pre-trial.
In her adverted third amended complaint for recovery and reconveyance of the
Arlegui property, Mendoza
sought the declaration of nullity of a supposed deed of sale dated July 15, 1975
which provided the instrumentation
toward the issuance of TCT No. 118911 in the name of the Republic. And aside
from the cancellation of TCT No.
of
her
TCT
No.
Mendoza averred that, since time immemorial, she and her predecessors-ininterest had been in peaceful and adverse
possession of the property as well as of the owners duplicate copy of TCT No.
118527. Such possession, she added,
continued until the first week of July 1975 when a group of armed men
representing themselves to be members of the
ordered [her] to turn over to them her Copy of TCT No. 118525 and compelled
her and the members of her household to
vacate the same ; thus, out of fear for their lives, [she] handed her Owners
Duplicate Certificate Copy of TCT No. 118527
and had left and/or vacated the subject property. Mendoza further alleged the
following:
1. Per verification, TCT No. 118527 had already been cancelled by virtue of a
deed of sale in favor of the Republic
allegedly executed by her and her deceased husband on July 15, 1975 and
acknowledged before Fidel Vivar which deed
was annotated at the back of TCT No. 118527 under PE: 2035/T-118911 dated
July 28, 1975; and
2. That the aforementioned deed of sale is fictitious as she (Mendoza) and her
husband have not executed any deed
PESOS a month with a five (5%) per cent yearly increase, plus interest thereon
at the legal rate, beginning
PER CENT of the current value of the subject property and/or whatever amount
is recovered under the
premises; Further, plaintiff prays for such other relief, just and equitable under
the premises.
On May 21, 2003, the Republic, represented by the OSG, filed a Motion for
Extension (With Motion for
accordingly, asked that it be given a period of thirty (30) days from May 21,
2003 or until June 20, 2003 within which to
submit an Answer.114[5] June 20, 2003 came and went, but no answer was
filed. On July 18, 2003 and again on August 19,
2003, the OSG moved for a 30-day extension at each instance. The filing of the
last two motions for extension proved to be
an idle gesture, however, since the trial court had meanwhile issued an
order115[6] dated July 7, 2003 declaring the petitioner
The evidence for the private respondent, as plaintiff a quo, consisted of her
testimony denying having executed the
alleged deed of sale dated July 15, 1975 which paved the way for the issuance
of TCT No. 118911. According to her, said
for Manila and the second (Exh. F), by the Office of Clerk of Court, RTC Manila.
Exhibit E116[7] states that a copy of the
Fidel Vivar was not a commissioned notary public for and in the City of Manila
for the year 1975. Three other witnesses118
[9] testified, albeit their testimonies revolved around the appraisal and rental
values of the Arlegui property.
court, the Republic had veritably confiscated Mendozas property, and deprived
her not only of the use thereof but also
denied her of the income she could have had otherwise realized during all the
years she was illegally dispossessed of the
same.
Dated August 27, 2003, the trial courts decision dispositively reads as follows:
1. Declaring the deed of sale dated July 15, 1975, annotated at the back of
[TCT] No.
2. Declaring that [TCT] No. 118911 of the defendant Republic of the Philippines
has no
3. Ordering the defendant Register of Deeds for the City of Manila to reinstate
plaintiff
4. Ordering the defendant Republic to pay just compensation in the sum of ONE
(P143,600,000.00) PESOS, plus interest at the legal rate, until the whole
amount is paid
5. Ordering the plaintiff, upon payment of the just compensation for the
acquisition of her
; and, on the other hand, directing the defendant Register of Deeds, upon
presentation of
the said deed of conveyance, to cancel plaintiffs TCT No. 118527 and to issue,
in lieu
6. Ordering the defendant Republic to pay the plaintiff the sum of ONE BILLION
FOUR
reasonable rental for the use of the subject property, the interest thereon at
the legal rate,
and the opportunity cost at the rate of three (3%) per cent per annum,
commencing July
1975 continuously up to July 30, 2003, plus an additional interest at the legal
rate,
commencing from this date until the whole amount is paid in full;
equivalent to FIFTEEN (15%) PER CENT of the amount due to the plaintiff.
Subsequently, the Republic moved for, but was denied, a new trial per order of
the trial court of October 7,
orders and processes issued by the trial court on separate dates as hereunder
indicated:
1. November 27, 2003 - - Certificate of Finality declaring the August 27, 2003
decision final and executory.122[13]
2. December 17, 2003 - - Order denying the Notice of Appeal filed on November
27, 2003, the same having
By Resolution126[17] of November 20, 2006, the case was set for oral
arguments. On January 22, 2007, when this
case was called for the purpose, both parties manifested their willingness to
settle the case amicably, for which reason the
Court gave them up to February 28, 2007 to submit the compromise agreement
for approval. Following several approved
extensions of the February 28, 2007 deadline, the OSG, on August 6, 2007,
manifested that it is submitting the case for
In this recourse, the petitioner urges the Court to strike down as a nullity the
trial courts order declaring it in
default and the judgment by default that followed. Sought to be nullified, too,
also on the ground that they were issued in
Petitioner lists five (5) overlapping grounds for allowing its petition. It starts
off by impugning the order of default
proceeded to hear the case and eventually awarded the private respondent a
staggering amount without so much as giving
be laid at the doorstep of the respondent judge on account of his having issued
the default order against the petitioner, then
proceeding with the hearing and eventually rendering a default judgment. For,
what the respondent judge did hew with
what Section 3, Rule 9 of the Rules of Court prescribes and allows in the event
the defending party fails to seasonably file
SEC. 3. Default; declaration of.- If the defending party fails to answer within
the time allowed
therefor, the court shall, upon motion of the claiming party with notice to the
defending party, and proof
of such failure, declare the defending party in default. Thereupon, the court
shall proceed to render
judgment granting the claimant such relief as his pleading may warrant, unless
the court in its discretion
While the ideal lies in avoiding orders of default,129[20] the policy of the law
on its full merits,130[21] the act of the respondent judge in rendering the
default judgment after an order of default was
The term grave abuse of discretion, in its juridical sense, connotes capricious,
despotic, oppressive or whimsical
capricious manner. The word capricious, usually used in tandem with arbitrary,
conveys the notion of willful and
unreasoning action.132[23]
Under the premises, the mere issuance by the trial court of the order of default
followed by a judgment by default
can easily be sustained as correct and doubtless within its jurisdiction. Surely,
a disposition directing the Republic to pay
an enormous sum without the trial court hearing its side does not, without
more, vitiate, on due procedural ground, the
validity of the default judgment. The petitioner may have indeed been deprived
of such hearing, but this does not mean
that its right to due process had been violated. For, consequent to being
deemed to have waived his right to be heard or to take part in the trial. The
handling solicitors simply squandered the
Republics opportunity to be heard. But more importantly, the law itself imposes
such deprivation of the right to participate
And going to another point, the petitioner would ascribe jurisdictional error on
the respondent judge for denying
its motion for new trial based on any or a mix of the following factors, viz., (1)
the failure to file an answer is attributable
to the negligence of the former handling solicitor; (2) the meritorious nature of
the petitioners defense; and (3) the value
The Court is not convinced. Even as the Court particularly notes what the trial
court had said on the matter of
negligence: that all of the petitioners pleadings below bear at least three
signatures, that of the handling solicitor, the
assistant solicitor and the Solicitor General himself, and hence accountability
should go up all the way to the top of the
totem pole of authority, the cited reasons advanced by the petitioner for a new
trial are not recognized under Section 1,
court of the motion for new trial and the denial of the reiterative motion for
reconsideration.
Then, too, the issuance by the trial court of the Order dated December 17,
2003134[25] denying the petitioners notice
of appeal after the court caused the issuance on November 27, 2003 of a
certificate of finality of its August 27, 2003
decision can hardly be described as arbitrary, as the petitioner would have this
Court believe. In this regard, the Court
takes stock of the following key events and material dates set forth in the
assailed December 17, 2003 order, supra: (a)
The petitioner, thru the OSG, received on August 29, 2003 a copy of the RTC
decision in this case, hence had up to
its motion for new trial, which the RTC denied, the OSG receiving a copy of the
order of denial on October 9, 2003; and
(c) On October 24, 2003, the OSG sought reconsideration of the order denying
the motion for new trial. The motion for
reconsideration was denied per Order dated November 25, 2003, a copy of
which the OSG received on the same date.
Given the foregoing time perspective, what the trial court wrote in its
aforementioned impugned order of
In the case at bar, it is clear that the motion for new trial filed on the fifteenth
(15th) day after the
decision was received on August 29, 2003 was denied and the moving party has
only the remaining
period from notice of notice of denial within which to file a notice of appeal.
xxx
Accordingly, when defendants [Republic et al.] filed their motion for new trial
on the last day of
the fifteen day (15) prescribed for taking an appeal, which motion was
subsequently denied, they had one
(1) day from receipt of a copy of the order denying new trial within which to
perfect [an] appeal . Since
defendants had received a copy of the order denying their motion for new trial
on 09 October 2003,
reckoned from that date, they only have one (1) day left within which to file the
notice of appeal. But
instead of doing so, the defendants filed a motion for reconsideration which
was later declared by the
Court as pro forma motion in the Order dated 25 November 2003. The running
of the prescriptive
period, therefore, can not be interrupted by a pro forma motion. Hence the
filing of the notice of appeal
on 27 November 2007 came much too late for by then the judgment had
already become final and
discussed under the first ground for allowing its petition, about the trial court
taking cognizance of the case
action
being
barred
by
favorably. For, let alone the fact that an action for the declaration of the
inexistence of a contract, as here, does not
The evidence adduced below indeed adequately supports a conclusion that the
Office of the President, during the
of title over it without a conveying deed having been executed to legally justify
the cancellation of the old title (TCT No.
118527) in the name of the private respondent and the issuance of a new one
(TCT No. 118911) in the name of petitioner
hers all along, and the reinstatement of her cancelled certificate of title are
legally correct as they are morally right. While
not exactly convenient because the Office of the President presently uses it for
mix residence and office purposes,
before us, after all, is a registered owner of a piece of land who, during the
early days of the martial law regime, lost
possession thereof to the Government which appropriated the same for some
public use, but without going through the
legal process of expropriation, let alone paying such owner just compensation.
The Court cannot, however, stop with just restoring the private respondent to
her possession and ownership of her
deprived of the beneficial use thereof, but not, however, in the varying
amounts and level fixed in the assailed decision of
the trial court and set to be executed by the equally assailed writ of execution.
The Court finds the monetary award set
As may be noted, private respondent fixed the assessed value of her Arlegui
property at P2,388,990.00. And in
the prayer portion of her third amended complaint for recovery, she asked to
be restored to the possession of her property
beginning July 1975. From July 1975 when the PSG allegedly took over the
subject property to July 2003, a month before
pay private respondent the total amount of over P1.48 Billion or the mindboggling amount of P1,480,627,688.00, to be
exact, representing the reasonable rental for the property, the interest rate
trial court would have the Republic pay the total amount of about P1.624
Billion, exclusive of interest, for the taking of a
In doing so, the respondent judge brazenly went around the explicit command
of Rule 9, Section 3(d) of the Rules
of Court139[30] which defines the extent of the relief that may be awarded in a
judgment by default, i.e., only so much as has
been alleged and proved. The court acts in excess of jurisdiction if it awards an
amount beyond the claim made in the
trial court, the Rules of Court and certainly the imperatives of fair play see to it
that any decision against him must be in
accordance with law.141[32] In the abstract, this means that the judgment
must not be characterized by outrageous one-
sidedness, but by what is fair, just and equitable that always underlie the
enactment of a law.
Given the above perspective, the obvious question that comes to mind is the
level of compensation which for the
use and occupancy of the Arlegui property - would be fair to both the petitioner
and the private respondent and, at the
same time, be within acceptable legal bounds. The process of balancing the
interests of both parties is not an easy one. But
surely, the Arlegui property cannot possibly be assigned, even perhaps at the
present real estate business standards, a
considered. To the Court, an award of P20,000.00 a month for the use and
occupancy of the Arlegui property, while
perhaps a little bit arbitrary, is reasonable and may be granted pro hac vice
considering the following hard realities which
1. The property is relatively small in terms of actual area and had an assessed
value of only P2,388,900.00;
2. What the martial law regime took over was not exactly an area with a new
and imposing structure, if there
3. The Arlegui property had minimal rental value during the relatively long
martial law years, given the very
restrictive entry and egress conditions prevailing at the vicinity at that time
and even after.
feasible.
The award of attorneys fees equivalent to 15% of the amount due the private
respondent, as reduced herein, is
affirmed.
The assessment of costs of suit against the petitioner is, however, nullified,
costs not being allowed against the
judgment is also nullified. It is basic that government funds and properties may
not be seized under writs of execution or
operates merely to liquidate and establish the plaintiffs claim in the absence of
express provision; otherwise, they can not
Albeit title to the Arlegui property remains in the name of the petitioner
Republic, it is actually the Office of the
President which has beneficial possession of and use over it since the 1975
takeover. Accordingly, and in accord with the
private respondent what is due her under the premises. This, to us, is the right
thing to do. The imperatives of fair dealing
demand no less. And the Court would be remiss in the discharge of its duties as
dispenser of justice if it does not exhort
the Office of the President to comply with what, in law and equity, is its
obligation. If the same office will undertake to
perhaps delayed, will have its day. Private respondent is in the twilight of her
life, being now over 90 years of age.148[39]
WHEREFORE, the decision of the Regional Trial Court of Manila dated August
27, 2003 insofar as it nullified
TCT No. 118911 of petitioner Republic of the Philippines and ordered the
Register of Deeds of Manila to reinstate private
It is MODIFIED in the sense that for the use and occupancy of the Arlegui
property, petitioner Republic is
same and the possession thereof restored to the private respondent, plus an
additional interest of 6% per annum on the
total amount due upon the finality of this Decision until the same is fully paid.
Petitioner is further ordered to pay private
respondent attorney's fees equivalent to 15% of the amount due her under the
premises.
Philippines to pay private respondent Tarcila L. Mendoza the sum of One Billion
Four Hundred Eighty Million Six
Eighty
Eight
Pesos
use of the property in question, the interest thereon and the opportunity cost
at the rate of 3% per annum plus the interest
at the legal rate added thereon is nullified. The portion assessing the petitioner
Republic for costs of suit is also declared
2. The Order of the respondent court dated December 19, 2003 for the issuance
of a writ of execution and the Writ
of Execution dated December 22, 2003 against government funds are hereby
declared null and void. Accordingly, the
presiding judge of the respondent court, the private respondent, their agents
and persons acting for and in their behalves
However, consistent with the basic tenets of justice, fairness and equity,
petitioner Republic, thru the Office of
the President, is hereby strongly enjoined to take the necessary steps, and,
with reasonable dispatch, make the appropriate
this disposition.
SO ORDERED.
CASE 9
Supreme Court
Manila
SECOND DIVISION
(PCGG),
Petitioner,
Present:
- versus -
SANDOVAL-GUTIERREZ,
CORONA,
AZCUNA, and
GARCIA, JJ.
Respondents.
Promulgated:
March 6, 2006
x----------------------------------------x
DECISION
GARCIA, J.:
Before the Court is this petition for certiorari under Rule 65 of the Rules of
Court to nullify and set
aside the March 28, 1995149[1] and March 13, 1997150[2] Resolutions of the
Sandiganbayan, Second Division, in
Civil Case No. 0034, insofar as said resolutions ordered the Presidential
Commission on Good Government
the Negros Occidental Golf and Country Club, Inc. (NOGCCI) at P150,000.00 per
share, registered in the name
The facts:
Civil Case No. 0034 entitled Republic of the Philippines, plaintiff, v. Roberto S.
Benedicto, et al.,
reversion,
accounting,
Pursuant to its mandate under EO No. 1,152[4] series of 1986, the PCGG issued
writs placing under
sequestration all business enterprises, entities and other properties, real and
majority interest. Among the properties thus sequestered and taken over by
PCGG fiscal agents were the 227
resolution, an investor purchasing more than one NOGCCI share was exempt
from paying monthly
membership due for the second and subsequent shares that he/she owned.
1987,
the
NOGCCI
Board
passed
another
the monthly membership due from P150.00 to P250.00 for each share.
As sequestrator of the 227 shares of stock in question, PCGG did not pay the
corresponding monthly
shares, PCGG filed a complaint for injunction with the Regional Trial Court (RTC)
of Bacolod City, thereat
docketed as Civil Case No. 5348. The complaint, however, was dismissed,
paving the way for the auction sale
for the delinquent 227 shares of stock. On August 5, 1989, an auction sale was
conducted.
and
bound
itself
to
lift
the
Benedictos capacity to acquire the same shares out of his income from
business and the exercise of his
provision therein.
On February 22, 1994, Benedicto filed in Civil Case No. 0034 a Motion for
Release from Sequestration
Benedictos aforementioned motion but placed the subject shares under the
custody of its Clerk of Court, thus:
WHEREFORE, in the light of the foregoing, the said Motion for Release From
On March 28, 1995, the Sandiganbayan came out with the herein first assailed
Resolution,156[8]
(b) To deliver to the Clerk of Court the 227 sequestered shares of [NOGCCI]
registered in the name
thereof, to pay their value at P150,000.00 per share which can be deducted
from [the
Supplied).
Owing to PCGGs failure to comply with the above directive, Benedicto filed in
Civil Case No. 0034 a
Motion for Compliance dated July 25, 1995, followed by an Ex-Parte Motion for
WHEREFORE, finding merit in the instant motion for early resolution and
considering that,
indeed, the PCGG has not shown any justifiable ground as to why it has not
complied with its obligation
as set forth in the Order of December 6, 1994 up to this date and which Order
was issued pursuant to
the Compromise Agreement and has already become final and executory,
accordingly, the Presidential
hereof within which to comply with the Order of December 6, 1994 as stated
hereinabove.
Manifestation
with
Motion
for
setting aside of the Resolution of February 23, 1996. On April 11, 1996, private
respondent Benedicto filed a
Resolving
these
two
motions,
the
Resolution159[11] dated March 13, 1997, denied that portion of the PCGGs
Manifestation with Motion for
Judgment Levy.
Hence, the Republics present recourse on the sole issue of whether or not the
public respondent
paying the membership dues on the 227 sequestered NOGCCI shares of stock, a
failing which eventually led to
To begin with, PCGG itself does not dispute its being considered as a receiver
insofar as the
It
contends,
however,
that
exercised due diligence to prevent the loss through delinquency sale of the
subject NOGCCI shares, specifically
inviting attention to the injunctive suit, i.e., Civil Case No. 5348, it filed before
the RTC of Bacolod City to
The filing of the injunction complaint adverted to, without more, cannot
plausibly tilt the balance in
favor of PCGG. To the mind of the Court, such filing is a case of acting too little
and too late. It cannot be
the value of the shares of stock under their administration. But far from acting
as such father, what the fiscal
agents did under the premises was to allow the element of delinquency to set
in before acting by embarking
on a tedious process of going to court after the auction sale had been
announced and scheduled.
The PCGGs posture that to the owner of the sequestered shares rests the
burden of paying the
membership dues is untenable. For one, it lost sight of the reality that such
dues are basically obligations
attached to the shares, which, in the final analysis, shall be made liable, thru
delinquency sale in case of
earlier, duty bound to preserve the value of such shares. Needless to state,
adopting timely measures to
obviate the loss of those shares forms part of such duty and due diligence.
the 227 NOGCCI shares. There can be no quibbling, as indeed the graft court so
declared in its assailed and
related resolutions respecting the NOGCCI shares of stock, that PCGGs fiscal
agents, while sitting in the
not amiss to state, as did the Sandiganbayan, that the PCGG-designated fiscal
agents, no less, had a direct
hand in the loss of the sequestered shares through delinquency and their
eventual sale through public auction.
have come to pass had those fiscal agents prudently not agreed to the passage
of the NOGCCI board
resolutions
charging
representatives.
membership
dues
on
shares
without
playing
Given the circumstances leading to the auction sale of the subject NOGCCI
shares, PCGGs lament
about public respondent Sandiganbayan having erred or, worse still, having
gravely abused its discretion in its
determination as to who is at fault for the loss of the shares in question can
hardly be given cogency.
For sure, even if the Sandiganbayan were wrong in its findings, which does not
seem to be in this case,
The term grave abuse of discretion connotes capricious and whimsical exercise
of judgment as is
Lest it be overlooked, the issue of liability for the shares in question had, as
both public and private
intervening pleadings which served as basis for the decisions reached therein.
As it were, the present petition
questions only and focuses on the March 28, 1995168[20] and March 13,
1997169[21] resolutions, which merely
immunity from suit.170[22] As argued, the order for it to pay the value of the
delinquent shares would fix
thus
respondent
necessitating
Benedicto
the
correctly
one of the exceptions to the state immunity principle, i.e., when the
government itself is the suitor, as in Civil
Case No. 0034. Where, as here, the State itself is no less the plaintiff in the
main case, immunity from suit
Petitioner Republics act of filing its complaint in Civil Case No. 0034 constitutes
a waiver of its immunity from
suit. Being itself the plaintiff in that case, petitioner Republic cannot set up its
immunity against private
Republic thereby stripped itself of its immunity from suit and placed itself in
the same level of its adversary.
When the State enters into contract, through its officers or agents, in
furtherance of a legitimate aim and
rights and obligations arise therefrom, the State may be sued even without its
express consent, precisely
because by entering into a contract the sovereign descends to the level of the
citizen. Its consent to be sued is
implied from the very act of entering into such contract,174[26] breach of
which on its part gives the
Finally, it is apropos to stress that the Compromise Agreement in Civil Case No.
0034 envisaged the
on the part of the aging Benedicto.175[27] Sadly, that stated objective has
come to naught as not only had the
with the trial of Civil Case No. 0034 still in swing, so much so that the late
Benedicto had to be substituted by
SO ORDERED.
CASE 10
SUPREME COURT
Manila
EN BANC
vs.
THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial
Court of Makati,
QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to
reverse and set aside the Orders
dated June 20, 1991 and September 19, 1991 of the Regional Trial Court,
Branch 61, Makati, Metro Manila in
The Order dated June 20, 1991 denied the motion of petitioner to dismiss the
complaint in Civil Case No. 90-
183, while the Order dated September 19, 1991 denied the motion for
reconsideration of the June 20,1991
Order.
Petitioner is the Holy See who exercises sovereignty over the Vatican City in
Rome, Italy, and is represented in
Enterprises,
Inc.,
is
domestic
business.
This petition arose from a controversy over a parcel of land consisting of 6,000
square meters (Lot 5-A,
Said Lot 5-A is contiguous to Lots 5-B and 5-D which are covered by Transfer
Certificates of Title Nos. 271108
and 265388 respectively and registered in the name of the Philippine Realty
Corporation (PRC).
The three lots were sold to Ramon Licup, through Msgr. Domingo A. Cirilos, Jr.,
acting as agent to the sellers.
In view of the refusal of the squatters to vacate the lots sold to private
the parties has the responsibility of evicting and clearing the land of squatters.
Complicating the relations of the
parties was the sale by petitioner of Lot 5-A to Tropicana Properties and
Development Corporation
(Tropicana).
On January 23, 1990, private respondent filed a complaint with the Regional
Trial Court, Branch 61, Makati,
Metro Manila for annulment of the sale of the three parcels of land, and
specific performance and damages
Papal
Nuncio,
and
three
other
90-183).
The complaint alleged that: (1) on April 17, 1988, Msgr. Cirilos, Jr., on behalf of
petitioner and the PRC, agreed
to sell to Ramon Licup Lots 5-A, 5-B and 5-D at the price of P1,240.00 per
square meters; (2) the agreement to
sell was made on the condition that earnest money of P100,000.00 be paid by
Licup to the sellers, and that the
sellers clear the said lots of squatters who were then occupying the same; (3)
Licup paid the earnest money to
Msgr. Cirilos; (4) in the same month, Licup assigned his rights over the
property to private respondent and
informed the sellers of the said assignment; (5) thereafter, private respondent
demanded from Msgr. Cirilos
that the sellers fulfill their undertaking and clear the property of squatters;
however, Msgr. Cirilos informed
undertake the eviction or that the earnest money be returned to the latter; (6)
private respondent
be reduced from P1,240.00 to P1,150.00 per square meter; (7) Msgr. Cirilos
returned the earnest money of
P100,000.00 and wrote private respondent giving it seven days from receipt of
the letter to pay the original
purchase price in cash; (8) private respondent sent the earnest money back to
the sellers, but later discovered
that on March 30, 1989, petitioner and the PRC, without notice to private
respondent, sold the lots to
Tropicana, as evidenced by two separate Deeds of Sale, one over Lot 5-A, and
and that the sellers' transfer certificate of title over the lots were cancelled,
transferred and registered in the
name of Tropicana; (9) Tropicana induced petitioner and the PRC to sell the lots
to it and thus enriched itself at
and the reconveyance of the lots, to no avail; and (11) private respondent is
willing and able to comply with the
terms of the contract to sell and has actually made plans to develop the lots
into a townhouse project, but in
view of the sellers' breach, it lost profits of not less than P30,000.000.00.
Private respondent thus prayed for: (1) the annulment of the Deeds of Sale
between petitioner and the PRC on
the one hand, and Tropicana on the other; (2) the reconveyance of the lots in
question; (3) specific
performance of the agreement to sell between it and the owners of the lots;
and (4) damages.
On June 8, 1990, petitioner and Msgr. Cirilos separately moved to dismiss the
complaint petitioner for lack
of jurisdiction based on sovereign immunity from suit, and Msgr. Cirilos for
being an improper party. An
On June 20, 1991, the trial court issued an order denying, among others,
petitioner's motion to dismiss after
finding that petitioner "shed off [its] sovereign immunity by entering into the
business contract in question"
On July 12, 1991, petitioner moved for reconsideration of the order. On August
30, 1991, petitioner filed a
"Motion for a Hearing for the Sole Purpose of Establishing Factual Allegation
for claim of Immunity as a
Private respondent
reconsideration.
opposed
this
motion
as
well
as
the
motion
for
On October 1, 1991, the trial court issued an order deferring the resolution on
the motion for reconsideration
until after trial on the merits and directing petitioner to file its answer (Rollo,
p. 22).
immunity only on its own behalf and on behalf of its official representative, the
Papal Nuncio.
claiming that it has a legal interest in the outcome of the case as regards the
diplomatic immunity of petitioner,
arguments relative to its claim of sovereign immunity from suit" (Rollo, p. 87).
resolution of this Court, both parties and the Department of Foreign Affairs
submitted their respective
memoranda.
II
The general rule is that an order denying a motion to dismiss is not reviewable
by the appellate courts, the
remedy of the movant being to file his answer and to proceed with the hearing
general rule admits of exceptions, and one of these is when it is very clear in
the records that the trial court has
Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it
would be a sheer waste of time
Department of Foreign Affairs to intervene in the case in behalf of the Holy See
(Rollo, pp. 186-190).
immunity in a foreign court, it requests the Foreign Office of the state where it
is sued to convey to the court
he, in turn, asks the Attorney General to submit to the court a "suggestion"
that the defendant is entitled to
SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to
the Secretary of Labor and
Affairs sent the trial court a telegram to that effect. In Baer v. Tizon, 57 SCRA 1
(1974), the U.S. Embassy
asked the Secretary of Foreign Affairs to request the Solicitor General to make,
in behalf of the Commander of
In the case at bench, the Department of Foreign Affairs, through the Office of
Legal Affairs moved with this
Ryukyus Command, 80 Phil. 262 [1948]; United States of America v. Guinto, 182
SCRA 644 [1990] and
companion cases). In cases where the foreign states bypass the Foreign Office,
the courts can inquire into the
facts and make their own determination as to the nature of the acts and
transactions involved.
III
The burden of the petition is that respondent trial court has no jurisdiction
over petitioner, being a foreign state
not anymore absolute and that petitioner has divested itself of such a cloak
when, of its own free will, it entered
into a commercial transaction for the sale of a parcel of land located in the
Philippines.
Before we determine the issue of petitioner's non-suability, a brief look into its
status as a sovereign state is in
order.
Before the annexation of the Papal States by Italy in 1870, the Pope was the
monarch and he, as the Holy
See, was considered a subject of International Law. With the loss of the Papal
States and the limitation of the
territory under the Holy See to an area of 108.7 acres, the position of the Holy
See in International Law
became controversial (Salonga and Yap, Public International Law 36-37 [1992]).
In 1929, Italy and the Holy See entered into the Lateran Treaty, where Italy
recognized the exclusive dominion
and sovereign jurisdiction of the Holy See over the Vatican City. It also
receive foreign diplomats, to send its own diplomats to foreign countries, and
to enter into treaties according to
The Lateran Treaty established the statehood of the Vatican City "for the
purpose of assuring to the Holy See
Holy See or in the Vatican City. Some writers even suggested that the treaty
created two international persons
the Holy See and Vatican City (Salonga and Yap, supra, 37).
The Vatican City fits into none of the established categories of states, and the
attribution to it of "sovereignty"
represents an entity organized not for political but for ecclesiastical purposes
its size and object, the Vatican City has an independent government of its own,
with the Pope, who is also
head of the Roman Catholic Church, as the Holy See or Head of State, in
conformity with its traditions, and the
demands of its mission in the world. Indeed, the world-wide interests and
activities of the Vatican City are such
160 [1956]).
One authority wrote that the recognition of the Vatican City as a state has
significant implication that it is
possible for any entity pursuing objects essentially different from those
pursued by states to be invested with
Inasmuch as the Pope prefers to conduct foreign relations and enter into
transactions as the Holy See and not
in the name of the Vatican City, one can conclude that in the Pope's own view,
it is the Holy See that is the
international person.
The Republic of the Philippines has accorded the Holy See the status of a
foreign sovereign. The Holy See,
through its Ambassador, the Papal Nuncio, has had diplomatic representations
with the Philippine government
B. Sovereign Immunity
There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According
only with regard to public acts or acts jure imperii of a state, but not with
regard to private acts or acts jure
gestionis
(United States of America v. Ruiz, 136 SCRA 487 [1987]; Coquia and DefensorSantiago, Public International
may be considered as jure gestionis. The United States passed the Foreign
Sovereign Immunities Act of 1976,
sovereign immunity, has created problems of its own. Legal treatises and the
decisions in countries which
The restrictive theory came about because of the entry of sovereign states into
purely commercial activities
This Court has considered the following transactions by a foreign state with
private parties as acts jure imperii:
(1) the lease by a foreign government of apartment buildings for use of its
military officers (Syquia v. Lopez, 84
Phil. 312 [1949]; (2) the conduct of public bidding for the repair of a wharf at a
United States Naval Station
(United States of America v. Ruiz, supra.); and (3) the change of employment
status of base employees
On the other hand, this Court has considered the following transactions by a
foreign state with private parties
as acts jure gestionis: (1) the hiring of a cook in the recreation center,
consisting of three restaurants, a
cafeteria, a bakery, a store, and a coffee and pastry shop at the John Hay Air
Station in Baguio City, to cater to
(2) the bidding for the operation of barber shops in Clark Air Base in Angeles
City (United States of America v.
Guinto, 182 SCRA 644 [1990]). The operation of the restaurants and other
facilities open to the general public
contract with the cook in the discharge of its proprietary function, the United
States government impliedly
constituting acts jure gestionis, we have to come out with our own guidelines,
tentative they may be.
Certainly, the mere entering into a contract by a foreign state with a private
party cannot be the ultimate test.
Such an act can only be the start of the inquiry. The logical question is whether
the foreign state is engaged in
the activity in the regular course of business. If the foreign state is not
engaged regularly in a business or trade,
the particular act or transaction must then be tested by its nature. If the act is
in pursuit of a sovereign activity,
There is no question that the United States of America, like any other state,
will be deemed to
have impliedly waived its non-suability if it has entered into a contract in its
proprietary or private
In the case at bench, if petitioner has bought and sold lands in the ordinary
course of a real estate business,
acquisition and subsequent disposal of Lot 5-A were made for profit but
claimed that it acquired said property
for the site of its mission or the Apostolic Nunciature in the Philippines. Private
respondent failed to dispute
said claim.
for commercial purpose, but for the use of petitioner to construct thereon the
official place of residence of the
jurisdiction of the receiving state over any real action relating to private
immovable property situated in the
territory of the receiving state which the envoy holds on behalf of the sending
state for the purposes of the
mission. If this immunity is provided for a diplomatic envoy, with all the more
reason should immunity be
recognized as regards the sovereign itself, which in this case is the Holy See.
The decision to transfer the property and the subsequent disposal thereof are
likewise clothed with a
5-A for profit or gain. It merely wanted to dispose off the same because the
squatters living thereon made it
almost impossible for petitioner to use it for the purpose of the donation. The
fact that squatters have occupied
and are still occupying the lot, and that they stubbornly refuse to leave the
premises, has been admitted by
Affairs. As the department tasked with the conduct of the Philippines' foreign
relations (Administrative Code of
1987, Book IV, Title I, Sec. 3), the Department of Foreign Affairs has formally
intervened in this case and
officially certified that the Embassy of the Holy See is a duly accredited
diplomatic mission to the Republic of
the Philippines exempt from local jurisdiction and entitled to all the rights,
privileges and immunities of a
courts to accept this claim so as not to embarrass the executive arm of the
government in conducting the
Ordinarily, the procedure would be to remand the case and order the trial court
to conduct a hearing to
however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v.
Judge Tirso Velasco, G.R. No.
IV
Private respondent is not left without any legal remedy for the redress of its
grievances. Under both Public
International Law and Transnational Law, a person who feels aggrieved by the
acts of a foreign sovereign can
ask his own government to espouse his cause through diplomatic channels.
Private respondent can ask the Philippine government, through the Foreign
Office, to espouse its claims
against the Holy See. Its first task is to persuade the Philippine government to
take up with the Holy See the
validity of its claims. Of course, the Foreign Office shall first make a
determination of the impact of its espousal
on the relations between the Philippine government and the Holy See (Young,
Remedies of Private Claimants
[1964]). Once the Philippine government decides to espouse the claim, the
latter ceases to be a private cause.
action or international
judicial proceedings on his behalf, a State is in reality asserting its own rights
its right to
ensure, in the person of its subjects, respect for the rules of international law
(The Mavrommatis
WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil
Case No. 90-183 against
petitioner is DISMISSED.
SO ORDERED.
CASE 11
SUPREME COURT
Manila
EN BANC
vs.
HON. ELIODORO B. GUINTO, Presiding Judge, Branch LVII, Regional Trial Court,
Angeles City,
vs.
vs.
vs.
COURT, Angeles City, and RICKY SANCHEZ, FREDDIE SANCHEZ AKA FREDDIE
RIVERA, EDWIN
CRUZ, J.:
These cases have been consolidated because they all involve the doctrine of
state immunity. The
United States of America was not impleaded in the complaints below but has
moved to dismiss on the
ground that they are in effect suits against it to which it has not consented. It
is now contesting the
In G.R. No. 76607, the private respondents are suing several officers of the U.S.
Air Force stationed in
Clark Air Base in connection with the bidding conducted by them for contracts
for barber services in
On February 24, 1986, the Western Pacific Contracting Office, Okinawa Area
Exchange, U.S. Air Force,
solicited bids for such contracts through its contracting officer, James F. Shaw.
Among those who
respondents
Roberto
T.
Valencia,
C. del Pilar. Valencia had been a concessionaire inside Clark for 34 years; del
Pilar for 12 years; and
The bidding was won by Ramon Dizon, over the objection of the private
respondents, who claimed that
he had made a bid for four facilities, including the Civil Engineering Area, which
solicitation. Dizon was already operating this concession, then known as the
NCO club concession,
and the expiration of the contract had been extended from June 30, 1986 to
August 31, 1986. They
On June 30, 1986, the private respondents filed a complaint in the court below
to compel PHAX and the
Upon the filing of the complaint, the respondent court issued an ex parte order
directing the individual
On July 22, 1986, the petitioners filed a motion to dismiss and opposition to the
petition for preliminary
injunction on the ground that the action was in effect a suit against the United
States of America,
which had not waived its non-suability. The individual defendants, as official
employees of the U.S. Air
On the same date, July 22, 1986, the trial court denied the application for a writ
of preliminary
injunction.
On October 10, 1988, the trial court denied the petitioners' motion to dismiss,
holding in part as
follows:
From the pleadings thus far presented to this Court by the parties, the Court's
attention
binding contract between the plaintiffs as well as the defendants, including the
US
neither the US Government nor the herein principal defendants would become
the
employer/s of the plaintiffs but that the latter are the employers themselves of
the
barbers, etc. with the employer, the plaintiffs herein, remitting the stipulated
percentage
in effect when the Philippine Area Exchange opened for bidding or solicitation
the
transaction has been entered, and for purposes of the said solicitation, would
The Court, further, is of the view that Article XVIII of the RP-US Bases
Agreement does
not cover such kind of services falling under the concessionaireship, such as a
barber
shop concession. 2
On December 11, 1986, following the filing of the herein petition for certiorari
and prohibition with
court below. 3
In G.R. No. 79470, Fabian Genove filed a complaint for damages against
petitioners Anthony Lamachia,
Wilfredo Belsa, Rose Cartalla and Peter Orascion for his dismissal as cook in
the U.S. Air Force
Recreation Center at the John Hay Air Station in Baguio City. It had been
ascertained after
investigation, from the testimony of Belsa Cartalla and Orascion, that Genove
had poured urine into
the soup stock used in cooking the vegetables served to the club customers.
Lamachia, as club
collective bargaining agreement between the Center and its employees. The
board unanimously found
him guilty and recommended his dismissal. This was effected on March 5, 1986,
by Col. David C.
Kimball, Commander of the 3rd Combat Support Group, PACAF Clark Air Force
Base. Genove's
reaction was to file Ms complaint in the Regional Trial Court of Baguio City
against the individual
petitioners. 4
On March 13, 1987, the defendants, joined by the United States of America,
moved to dismiss the
complaint, alleging that Lamachia, as an officer of the U.S. Air Force stationed
at John Hay Air Station,
was immune from suit for the acts done by him in his official capacity. They
argued that the suit was in
effect against the United States, which had not given its consent to be sued.
This motion was denied by the respondent judge on June 4, 1987, in an order
which read in part:
beyond what their functions called for brought them out of the protective
mantle of
whatever immunities they may have had in the beginning. Thus, the allegation
that the
acts complained of were illegal, done. with extreme bad faith and with preconceived
sinister plan to harass and finally dismiss the plaintiff, gains significance. 5
The petitioners then came to this Court seeking certiorari and prohibition with
preliminary injunction.
In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy in Camp
O' Donnell, an
petitioners herein, namely, Tomi J. King, Darrel D. Dye and Stephen F. Bostick,
officers of the U.S. Air
Force and special agents of the Air Force Office of Special Investigators
(AFOSI). On the basis of the
Dangerous Drugs Act, was filed against Bautista in the Regional Trial Court of
Tarlac. The above-
named officers testified against him at his trial. As a result of the filing of the
charge, Bautista was
dismissed from his employment. He then filed a complaint for damages against
the individual
petitioners herein claiming that it was because of their acts that he was
removed. 6
During the period for filing of the answer, Mariano Y. Navarro a special counsel
assigned to the
International Law Division, Office of the Staff Judge Advocate of Clark Air Base,
entered a special
appearance for the defendants and moved for an extension within which to file
an "answer and/or
other pleadings." His reason was that the Attorney General of the United
States had not yet designated
counsel to represent the defendants, who were being sued for their official
acts. Within the extended
period, the defendants, without the assistance of counsel or authority from the
U.S. Department of
Justice, filed their answer. They alleged therein as affirmative defenses that
they had only done their
duty in the enforcement of the laws of the Philippines inside the American
bases pursuant to the RP-
On May 7, 1987, the law firm of Luna, Sison and Manas, having been retained
to represent the
defendants, filed with leave of court a motion to withdraw the answer and
dismiss the complaint. The
ground invoked was that the defendants were acting in their official capacity
when they did the acts
complained of and that the complaint against them was in effect a suit against
the United States
The motion was denied by the respondent judge in his order dated September
11, 1987, which held that
the claimed immunity under the Military Bases Agreement covered only
criminal and not civil cases.
Moreover, the defendants had come under the jurisdiction of the court when
they submitted their
answer. 7
Following the filing of the herein petition for certiorari and prohibition with
preliminary injunction, we
In G.R. No. 80258, a complaint for damages was filed by the private
respondents against the herein
plaintiffs, the defendants beat them up, handcuffed them and unleashed dogs
on them which bit them
in several parts of their bodies and caused extensive injuries to them. The
defendants deny this and
claim the plaintiffs were arrested for theft and were bitten by the dogs because
they were struggling
and resisting arrest, The defendants stress that the dogs were called off and
the plaintiffs were
In a motion to dismiss the complaint, the United States of America and the
individually named
defendants argued that the suit was in effect a suit against the United States,
which had not given its
consent to be sued. The defendants were also immune from suit under the RPUS Bases Treaty for
The motion to dismiss was denied by the trial court in its order dated August
10, 1987, reading in part
as follows:
The defendants certainly cannot correctly argue that they are immune from
suit. The
admitted and whatever ground the defendants may have, had to be ventilated
during the
trial of the case on the merits. The complaint alleged criminal acts against the
individually-named defendants and from the nature of said acts it could not be
said that
they are Acts of State, for which immunity should be invoked. If the Filipinos
themselves
are duty bound to respect, obey and submit themselves to the laws of the
country, with
more reason, the members of the United States Armed Forces who are being
treated as
guests of this country should respect, obey and submit themselves to its laws.
10
and so was the motion for reconsideration. The defendants submitted their
answer as required but
subsequently filed their petition for certiorari and prohibition with preliminary
injunction with this
II
The rule that a state may not be sued without its consent, now expressed in
Article XVI, Section 3, of
of
the
generally
accepted
principles
of
adopted as part of the law of our land under Article II, Section 2. This latter
provision merely reiterates
a policy earlier embodied in the 1935 and 1973 Constitutions and also intended
to manifest our resolve
of states, such principles are deemed incorporated in the law of every civilized
state as a condition and
As applied to the local state, the doctrine of state immunity is based on the
justification given by
Justice Holmes that "there can be no legal right against the authority which
makes the law on which
the right depends." 12 There are other practical reasons for the enforcement of
the doctrine. In the case
of the foreign state sought to be impleaded in the local jurisdiction, the added
inhibition is expressed
in the maxim par in parem, non habet imperium. All states are sovereign equals
and cannot assert
While the doctrine appears to prohibit only suits against the state without its
consent, it is also
applicable to complaints filed against officials of the state for acts allegedly
performed by them in the
discharge of their duties. The rule is that if the judgment against such officials
will require the state
to pay the damages awarded against them, the suit must be regarded as
against the state itself
although it has not been formally impleaded. 14 In such a situation, the state
may move to dismiss the
complaint on the ground that it has been filed without its consent.
derisively
called
"the
royal
prerogative
of
privilege it grants the state to defeat any legitimate claim against it by simply
invoking its non-
suability. That is hardly fair, at least in democratic societies, for the state is not
an unfeeling tyrant
unmoved by the valid claims of its citizens. In fact, the doctrine is not absolute
and does not say the
state may not be sued under any circumstance. On the contrary, the rule says
that the state may not be
sued without its consent, which clearly imports that it may be sued if it
consents.
The general law waiving the immunity of the state from suit is found in Act No.
3083, under which the
arising from contract, express or implied, which could serve as a basis of civil
action between private
person to sue the government for an alleged tort. When the government enters
into a contract, it is
deemed to have descended to the level of the other contracting party and
divested of its sovereign
immunity from suit with its implied consent. 16 Waiver is also implied when the
government files a
The above rules are subject to qualification. Express consent is effected only by
the will of the
its sovereign and proprietary acts. 19 As for the filing of a complaint by the
government, suability will
result only where the government is claiming affirmative relief from the
defendant. 20
In the case of the United States of America, the customary rule of international
law on state immunity
is expressed with more specificity in the RP-US Bases Treaty. Article III thereof
provides as follows:
It is mutually agreed that the United States shall have the rights, power and
authority
within the bases which are necessary for the establishment, use, operation and
defense
thereof or appropriate for the control thereof and all the rights, power and
authority
within the limits of the territorial waters and air space adjacent to, or in the
vicinity of, the
bases which are necessary to provide access to them or appropriate for their
control.
The petitioners also rely heavily on Baer v. Tizon, 21 along with several other
decisions, to support their
position that they are not suable in the cases below, the United States not
having waived its sovereign
The invocation of the doctrine of immunity from suit of a foreign state without
its consent
speaking for the Court, cited Coleman v. Tennessee, where it was explicitly
declared: 'It
criminal jurisdiction of the place.' Two years later, in Tubb and Tedrow v. Griess,
this
Court relied on the ruling in Raquiza v. Bradford and cited in support thereof
excerpts
from the works of the following authoritative writers: Vattel, Wheaton, Hall,
Lawrence,
provisions
should
control
on
such
matter,
the
plaintiffs as lessors sued the Commanding General of the United States Army in
the
leased to the United States armed forces stationed in the Manila area. A
motion to
matter was taken to this Court in a mandamus proceeding. It failed. It was the
ruling that
U.S.
Government.
The
opinion
of
Justice
Montemayor
clear that the courts of the Philippines including the Municipal Court of Manila
have no
jurisdiction over the present case for unlawful detainer. The question of lack of
jurisdiction was raised and interposed at the very beginning of the action. The
U.S.
Government has not given its consent to the filing of this suit which is
essentially
against her, though not in name. Moreover, this is not only a case of a citizen
filing a suit
against his own Government without the latter's consent but it is of a citizen
firing an
more obvious the lack of jurisdiction of the courts of his country. The principles
of law
behind this rule are so elementary and of such general acceptance that we
deem it
held as falling within the above doctrine as the suit against it would eventually
be a
charge against or financial liability of the United States Government because ...
, the
Commission has no funds of its own for the purpose of paying money
judgments.' The
Syquia ruling was again explicitly relied upon in Marquez Lim v. Nelson,
involving a
complaint for the recovery of a motor launch, plus damages, the special
defense
interposed being 'that the vessel belonged to the United States Government,
that the
defendants merely acted as agents of said Government, and that the United
States
Administration v. Castelo, where it was held that a suit against Alien Property
Custodian
and the Attorney General of the United States involving vested property under
the
Trading with the Enemy Act is in substance a suit against the United States. To
the same
made a part of the law of the land (Article II, Section 3 of the Constitution),
that a foreign
state may not be brought to suit before the courts of another state or its own
courts
Commanding General, Philippine Command (Air Force, with office at Clark Field)
from a
certificates
known as scrip money. In reversing the lower court decision, this Tribunal,
through
sustained.
It bears stressing at this point that the above observations do not confer on
the United States of
America a blanket immunity for all acts done by it or its agents in the
Philippines. Neither may the
other petitioners claim that they are also insulated from suit in this country
merely because they have
acted as agents of the United States in the discharge of their official functions.
There is no question that the United States of America, like any other state,
will be deemed to have
be implied. This was our ruling in United States of America v. Ruiz, 22 where
the transaction in question
dealt with the improvement of the wharves in the naval installation at Subic
governmental function, we held that the contract did not operate to divest the
United States of its
sovereign immunity from suit. In the words of Justice Vicente Abad Santos:
The traditional rule of immunity exempts a State from being sued in the courts
of another
State without its consent or waiver. This rule is a necessary consequence of the
Law are not petrified; they are constantly developing and evolving. And
because the
sovereign and governmental acts (jure imperii) and private, commercial and
proprietary
acts (jure gestionis). The result is that State immunity now extends only to acts
jure
imperii The restrictive application of State immunity is now the rule in the
United States,
an individual and can thus be deemed to have tacitly given its consent to be
sued only
when it enters into business contracts. It does not apply where the contract
relates to the
exercise of its sovereign functions. In this case the projects are an integral part
of the
naval base which is devoted to the defense of both the United States and the
Philippines,
indisputably a function of the government of the highest order; they are not
utilized for
The other petitioners in the cases before us all aver they have acted in the
discharge of their official
against them may not be summarily dismissed on their mere assertion that
their acts are imputable to
the United States of America, which has not given its consent to be sued. In
fact, the defendants are
sought to be held answerable for personal torts in which the United States
itself is not involved. If
found liable, they and they alone must satisfy the judgment.
private land and converted it into public irrigation ditches. Sued for the value
of the lots invalidly taken
by him, he moved to dismiss the complaint on the ground that the suit was in
effect against the
Philippine government, which had not given its consent to be sued. This Court
sustained the denial of
the motion and held that the doctrine of state immunity was not applicable.
The director was being
III
It is clear from a study of the records of G.R. No. 80018 that the individuallynamed petitioners therein
were acting in the exercise of their official functions when they conducted the
buy-bust operation
against the complainant and thereafter testified against him at his trial. The
said petitioners were in
fact connected with the Air Force Office of Special Investigators and were
charged precisely with the
guilty of such acts. It cannot for a moment be imagined that they were acting
in their private or
unofficial capacity when they apprehended and later testified against the
complainant. It follows that
for discharging their duties as agents of the United States, they cannot be
directly impleaded for acts
imputable to their principal, which has not given its consent to be sued. As we
observed in Sanders v.
Veridiano: 24
petitioners were, legally speaking, being sued as officers of the United States
government. As they have acted on behalf of that government, and within the
scope of
their authority, it is that government, and not the petitioners personally, that is
The private respondent invokes Article 2180 of the Civil Code which holds the
government liable if it
acts through a special agent. The argument, it would seem, is premised on the
ground that since the
officers are designated "special agents," the United States government should
be liable for their torts.
two terms are synonymous. Suability depends on the consent of the state to be
sued, liability on the
applicable law and the established facts. The circumstance that a state is
suable does not necessarily
mean that it is liable; on the other hand, it can never be held liable if it does
not first consent to be
sued. Liability is not conceded by the mere fact that the state has allowed itself
to be sued. When the
state does waive its sovereign immunity, it is only giving the plaintiff the
chance to prove, if it can, that
The said article establishes a rule of liability, not suability. The government
this rule only if it first allows itself to be sued through any of the accepted
forms of consent.
Moreover, the agent performing his regular functions is not a special agent
even if he is so
relations of the local state with its inhabitants and, hence, applies only to the
Philippine government
We reject the conclusion of the trial court that the answer filed by the special
counsel of the Office of
the Sheriff Judge Advocate of Clark Air Base was a submission by the United
States government to its
such answer come under the implied forms of consent as earlier discussed.
But even as we are certain that the individual petitioners in G.R. No. 80018
were acting in the discharge
of their official functions, we hesitate to make the same conclusion in G.R. No.
80258. The
contradictory factual allegations in this case deserve in our view a closer study
of what actually
discharging their official duties or had actually exceeded their authority when
the incident in question
occurred. Lacking this information, this Court cannot directly decide this case.
The needed inquiry
must first be made by the lower court so it may assess and resolve the
conflicting claims of the parties
on the basis of the evidence that has yet to be presented at the trial. Only after
it shall have determined
in what capacity the petitioners were acting at the time of the incident in
question will this Court
In G.R. No. 79470, private respondent Genove was employed as a cook in the
Main Club located at the
U.S. Air Force Recreation Center, also known as the Open Mess Complex, at
John Hay Air Station. As
cafeteria, a bakery, a Class VI store, a coffee and pantry shop, a main cashier
cage, an administrative
items. He supervises 167 employees, one of whom was Genove, with whom the
United States
From these circumstances, the Court can assume that the restaurant services
offered at the John Hay
in its proprietary capacity. Such services are not extended to the American
servicemen for free as a
the general public as well, including the tourists in Baguio City, many of whom
make it a point to visit
John Hay for this reason. All persons availing themselves of this facility pay for
the privilege like all
governmental activity.
The consequence of this finding is that the petitioners cannot invoke the
doctrine of state immunity to
justify the dismissal of the damage suit against them by Genove. Such defense
will not prosper even if
it be established that they were acting as agents of the United States when
they investigated and later
dismissed Genove. For that matter, not even the United States government
itself can claim such
immunity. The reason is that by entering into the employment contract with
Genove in the discharge of
court below must still be dismissed. While suable, the petitioners are
nevertheless not liable. It is
obvious that the claim for damages cannot be allowed on the strength of the
evidence before us, which
The dismissal of the private respondent was decided upon only after a
thorough investigation where it
was established beyond doubt that he had polluted the soup stock with urine.
The investigation, in
fact, did not stop there. Despite the definitive finding of Genove's guilt, the
case was still referred to
investigators
and
recommended
Genove's
the temerity to file his complaint for damages after committing his utterly
disgusting offense.
Concerning G.R. No. 76607, we also find that the barbershops subject of the
concessions granted by
agencies of the United States Armed Forces nor are their facilities demandable
as a matter of right by
and offer not only the basic haircut and shave (as required in most military
organizations) but such
improve his tonsorial business, presumably for the benefit of his customers. No
less significantly, if
not more so, all the barbershop concessionaires are under the terms of their
contracts, required to
This being the case, the petitioners cannot plead any immunity from the
complaint filed by the private
reached in the United States of America v. Ruiz case cannot be applied here.
The Court would have directly resolved the claims against the defendants as
we have done in G.R. No.
79470, except for the paucity of the record in the case at hand. The evidence of
the alleged irregularity
in the grant of the barbershop concessions is not before us. This means that,
as in G.R. No. 80258, the
respondent court will have to receive that evidence first, so it can later
determine on the basis thereof
if the plaintiffs are entitled to the relief they seek. Accordingly, this case must
also be remanded to the
IV
There are a number of other cases now pending before us which also involve
the question of the
immunity of the United States from the jurisdiction of the Philippines. This is
cause for regret, indeed,
as they mar the traditional friendship between two countries long allied in the
cause of democracy. It is
hoped that the so-called "irritants" in their relations will be resolved in a spirit
of mutual
WHEREFORE, after considering all the above premises, the Court hereby
1. In G.R. No. 76607, the petition is DISMISSED and the respondent judge is
directed to
proceed with the hearing and decision of Civil Case No. 4772. The temporary
restraining
2. In G.R. No. 79470, the petition is GRANTED and Civil Case No. 829-R(298) is
DISMISSED.
3. In G.R. No. 80018, the petition is GRANTED and Civil Case No. 115-C-87 is
DISMISSED.
The temporary restraining order dated October 14, 1987, is made permanent.
4. In G.R. No. 80258, the petition is DISMISSED and the respondent court is
directed to
proceed with the hearing and decision of Civil Case No. 4996. The temporary
restraining
SO ORDERED.
Fernan,
C.J.,
Narvasa,
Melencio-Herrera,
Gutierrez,
Jr.,
Paras,
Feliciano,
CASE 12
SUPREME COURT
Manila
EN BANC
vs.
HON. LUIS R. REYES, as Presiding Judge of Branch 22, Regional Trial Court of
Cavite, and NELIA T.
MONTOYA, respondents.
This is a petition for certiorari and prohibition under Rule 65 of the Rules of
Court. Petitioners would have Us
annul and set aside, for having been issued with grave abuse of discretion
amounting to lack of jurisdiction, the
The said resolution denied, for lack of merit, petitioners' motion to dismiss the
said case and granted the
aside is the writ of attachment subsequently issued by the RTC on 28 July 1987.
searched after she had bought some items from the retail store of the NEX
JUSMAG, where she had
purchasing privileges, and while she was already at the parking area, Montoya
filed on
7 May 1987 a complaint 1 with the Regional Trial Court of her place of
residence Cavite against Bradford
for damages due to the oppressive and discriminatory acts committed by the
latter in excess of her authority as
store manager of the NEX JUSMAG. The complaint, docketed as Civil Case No.
224-87 and subsequently
3. That on January 22, 1987, after working as the duty ID checker from 7:45 to
11:45 a.m.,
plaintiff went shopping and left the store at l2:00 noon of that day;
4. That on the way to her car while already outside the store, Mrs. Yong
Kennedy, also an ID
checker, upon the instruction of the store manager, Ms. Maxine Bradford,
approached plaintiff
5. That plaintiff went to defendant, who was then outside the store talking to
some men, to
protest the search but she was informed by the defendant that the search is to
be made on all
6. That the search was thereafter made on the person, car and bags of the
plaintiff by Mrs.
7. That having found nothing irregular on her person and belongings, plaintiff
was allowed to
8. That feeling aggrieved, plaintiff checked the records and discovered that she
was the only
one whose person and belonging was (sic) searched that day contrary to
defendant's allegation
9. That moreover, a check with Navy Exchange Security Manager, R.L. Roynon
on January 27,
1987 was made and she was informed by Mr. Roynon that it is a matter of
policy that customers
and employees of NEX Jusmag are not searched outside the store unless there
is a very strong
evidence of a wrongdoing;
her part but on the other hand, is aware of the propensity of defendant to lay
suspicion on
11. That plaintiff formally protested the illegal search on February 14, 1987 in a
letter addressed
to Mr. R.L. Roynon, a photocopy of which is hereto attached as ANNEX "B" and
made integral
(sic) part hereof; but no action was undertaken by the said officer;
12. That the illegal search on the person and belongings of the plaintiff in front
of many people
has subjected the plaintiff to speculations of theft, shoplifting and such other
wrongdoings and
has exposed her to contempt and ridicule which was caused her undue
embarrassment and
indignity;
13. That since the act could not have been motivated by other (sic) reason than
racial
discrimination in our own land, the act constitute (sic) a blow to our national
pride and dignity
which has caused the plaintiff a feeling of anger for which she suffers sleepless
nights and
wounded feelings;
15. That to serve as a deterrent to those inclined to follow the oppressive act
of the defendant,
She then prayed for judgment ordering Bradford to pay her P500,000.00 as
moral damages, P100,000.00 as
exemplary damages and reasonable attorney's fees plus the costs of the suit. 3
filed two (2) motions for extension of time to file her Answer which were both
granted by the trial court. The first
was filed through Atty. Miguel Famularcano, Jr., who asked for a 20-day
extension from 28 May 1987. The
second, filed through the law firm of Luna, Sison and Manas, sought a 15-day
extension from 17 June 1987. 4
Thus, Bradford had up to 1 July 1987 to file her Answer. Instead of doing so,
however, she, together with the
1987, also through the law firm of Luna, Sison and Manas, a Motion to Dismiss
5 based on the following
grounds:
immune from suit without its consent for the cause of action pleaded in the
complaint; and
Quezon City, is immune from suit for act(s) done by her in the performance of
her official
Military Bases Agreement of 1947. Thereunder, "it is mutually agreed that the
United States shall have the
rights, power and authority within the bases which are necessary for the
establishment, use and operation and
defense thereof or appropriate for the control thereof." The 1979 amendment
of the Military Bases Agreement
made it clear that the United States shall have "the use of certain facilities and
areas within the bases and shall
have effective command and control over such facilities and over United States
personnel, employees,
on 22 January 1987 was made in the exercise of her duties as Manager of the
NEX-JUSMAG.
reliable source, at the lowest practicable cost, of articles and services required
for the well-being of Navy
personnel, and of funds to be used for the latter's welfare and recreation.
Montoya's complaint, relating as it
authority granted by the Philippine government to the United States within the
U.S. installations would be
illusory and academic unless the latter has effective command and control over
such facilities and over
can only be exercised by the United States through the officers and officials of
its armed forces, such as
depart from the country and was in the process of removing and/or disposing
of her properties with intent to
defraud her creditors. On 14 July 1987, Montoya filed her opposition to the
motion to dismiss 11 alleging therein
that the grounds proffered in the latter are bereft of merit because (a)
Bradford, in ordering the search upon her
person and belongings outside the NEX JUSMAG store in the presence of
onlookers, had committed an
her authority; (b) having exceeded her authority, Bradford cannot rely on the
sovereign immunity of the public
petitioner because her liability is personal; (c) Philippine courts are vested with
jurisdiction over the case
because Bradford is a civilian employee who had committed the challenged act
outside the U.S. Military
Bases; such act is not one of those exempted from the jurisdiction of Philippine
courts; and (d) Philippine
courts can inquire into the factual circumstances of the case to determine
whether or not Bradford had acted
On 17 July 1987, 13 the trial court 14 resolved both the motion to dismiss and
the motion for preliminary
On the motion to dismiss, the grounds and arguments interposed for the
dismissal of this case
are determined to be not indubitable. Hence, the motion is denied for lack of
merit.
Upon Montoya's filing of the required bond, the trial court issued on 28 July
1987 an Order 15 decreeing the
issuance of a writ of attachment and directing the sheriff to serve the writ
immediately at the expense of the
private respondent. The writ of attachment was issued on that same date. 16
Instead of filing a motion to reconsider the last two (2) orders, or an answer
insofar as Bradford is
concerned both the latter and the public petitioner filed on 6 August 1987
the instant petition to annul and
set aside the above Resolution of 17 July 1987 and the writ of attachment
issued pursuant thereto. As grounds
jurisdiction in denying the motion to dismiss the complaint in Civil Case No.
224-87 "for lack of
merit." For the action was in effect a suit against the United States of America,
a foreign
sovereign immune from suit without its consent for the cause of action pleaded
in the complaint,
while its co-petitioner was immune from suit for act(s) done by her in the
performance of her
On 5 August 1987, the trial court set Civil Case No. 224-87 for pre-trial and trial
on 27 August 1987 at 9:30
a.m. 18
In the meantime, however, for failure to file an answer, Bradford was declared
in default in Civil Case No. 224-
87 and Montoya was allowed to present her evidence ex-parte. 22 She thus
took the witness stand and
presented Mrs. Nam Thi Moore and Mrs. Miss Yu as her witnesses.
On 10 September 1987, the trial court rendered its decision 23 in Civil Case No.
224-87, the dispositive portion
of which reads:
plaintiff's person and bag caused (sic) done recklessly and oppressively by the
defendant,
her to moral and exemplary damages against the defendant. The search has
unduly subjected
WHEREFORE, judgment is hereby rendered for the plaintiff and against the
defendant Maxine
Bradford assessing the latter to pay unto the former the sums of P300,000.00
for moral
attorney's fees.
No costs.
SO ORDERED. 24
petitioner filed with this Court a Petition for Restraining Order 25 which sought
to have the trial court's decision
vacated and to prevent the execution of the same; it was also prayed that the
trial court be enjoined from
continuing with Civil Case No. 224-87. We noted this pleading in the Resolution
of 23 September 1987. 26
Also on 14 October 1987, Montoya filed her Comment with Opposition to the
Petition for Restraining Order. 28
Respondent Judge had earlier filed his own Comment to the petition on 14
September 1987. 29
On 27 October 1987, Montoya filed before the trial court a motion for the
execution of the Decision of 10
September 1987 which petitioners opposed on the ground that although this
Court had not yet issued in this
petition. It was further averred that execution thereof would cause Bradford
grave injury; moreover,
in view of the public petitioner's position on the issue of the immunity of its
employees. In its Resolution of 11
November 1987, the trial court directed the issuance of a writ of execution. 30
incidents obtaining before the trial court and praying that their petition for a
restraining order be resolved. 31
Provincial Sheriff of Pasig, Metro Manila, from enforcing the Decision dated
September 10, 1987, and the Writs
Comments filed by the petitioners, this Court gave due course to the petition
and required the parties to submit
1990. 34
The kernel issue presented in this case is whether or not the trial court
committed grave abuse of discretion in
denying the motion to dismiss based on the following grounds: (a) the
complaint in Civil Case No. 224-87 is in
effect a suit against the public petitioner, a foreign sovereign immune from suit
which has not given consent to
such suit and (b) Bradford is immune from suit for acts done by her in the
performance of her official functions
as manager of the U.S. Navy Exchange of JUSMAG pursuant to the PhilippinesUnited States Military
Aside from maintaining the affirmative view, the public petitioner and Bradford
even go further by asserting that
even if the latter's act were ultra vires she would still be immune from suit for
the rule that public officers or
employees may be sued in their personal capacity for ultra vires and tortious
acts is "domestic law" and not
the lawlessness of the act or omission attributable to the foreign national for if
this were the case, the concept
On the other hand, Montoya submits that Bradford is not covered by the
protective mantle of the doctrine of
governmental functions, she would still remain outside the coverage of the
doctrine of state immunity since the
act complained of is ultra vires or outside the scope of her authority. What is
being questioned is not the fact of
search alone, but also the manner in which the same was conducted as well as
the fact of discrimination
with restraint and should have been in accordance with the guidelines and
procedures laid down by the cited
and criminal acts, are his private acts and may not be considered as acts of the
State. Such officer or
employee alone is answerable for any liability arising therefrom and may thus
be proceeded against in his
personal capacity.
Montoya further argues that both the acts and person of Bradford are not
exempt from the Philippine courts'
jurisdiction because (a) the search was conducted in a parking lot at Scout
Borromeo, Quezon City, outside the
JUSMAG store and, therefore, outside the territorial control of the U.S. Military
Bases in the Philippines; (b)
Bradford does not possess diplomatic immunity under Article 16(b) of the 1953
Military Assistance Agreement
creating the JUSMAG which provides that only the Chief of the Military Advisory
Group and not more than six
complained of do not fall under those offenses where the U.S. has been given
the right to exercise its
August 1965). 36
Finally, Montoya maintains that at the very least, Philippine courts may inquire
into the factual circumstances of
To rule otherwise would render the Philippine courts powerless as they may be
easily divested of their
jurisdiction upon the mere invocation of this principle of immunity from suit.
A careful review of the records of this case and a judicious scrutiny of the
arguments of both parties yield
nothing but the weakness of the petitioners' stand. While this can be easily
demonstrated, We shall first
Despite the fact that public petitioner was not impleaded as a defendant in
Civil Case No. 224-87, it
nevertheless joined Bradford in the motion to dismiss on the theory that the
without, however, first having obtained leave of court to intervene therein. This
was a procedural lapse, if not a
downright improper legal tack. Since it was not impleaded as an original party,
the public petitioner could, on its
own volition, join in the case only by intervening therein; such intervention, the
grant of which is discretionary
upon the court, 37 may be allowed only upon a prior motion for leave with
notice to all the parties in the action.
Since the trial court entertained the motion to dismiss and the subsequent
pleadings filed by the public
Moreover, the said motion does not specify any of the grounds for a motion to
dismiss enumerated in Section
1, Rule 16 of the Rules of Court. It merely recites state immunity on the part of
the public petitioner and
immunity on the part of Bradford for the reason that the act imputed to her
was done in the performance of her
the public petitioner and Bradford, resulting in damage or injury to the former,
both would not be liable therefor,
alleged in the complaint, the court could render a valid judgment upon the
same, in accordance with the prayer
in the complaint. 38
hearing and determination of the same if the ground alleged does not appear
to be indubitable. 39 In the instant
case, while the trial court concluded that "the grounds and arguments
interposed for the dismissal" are not
"indubitable," it denied the motion for lack of merit. What the trial court should
have done was to defer there
In any event, whatever may or should have been done, the public petitioner
and Bradford were not expected to
accept the verdict, making their recourse to this Court via the instant petition
inevitable. Thus, whether the trial
pertinent or relevant.
The complaint in Civil Case No. 224-87 is for damages arising from what
Montoya describes as an "illegal
upon the orders of Bradford, who has the propensity for laying suspicion on
Filipinos for theft or shoplifting. It is
averred that the said search was directed only against Montoya.
complained of were committed by Bradford not only outside the scope of her
authority or more specifically,
in her private capacity but also outside the territory where she exercises
such authority, that is, outside the
NEX-JUSMAG particularly, at the parking area which has not been shown to
form part of the facility of which
she was the manager. By their motion to dismiss, public petitioner and
Bradford are deemed to have
The doctrine of state immunity and the exceptions thereto are summarized in
Shauf vs. Court of Appeals, 40
thus:
I. The rule that a state may not be sued without its consent, now expressed in
Article XVI
law that we have adopted as part of the law of our land under Article II, Section
2. This latter
provision merely reiterates a policy earlier embodied in the 1935 and 1973
Constitutions and
also intended to manifest our resolve to abide by the rules of the international
community. 41
While the doctrine appears to prohibit only suits against the state without its
consent, it is also
applicable to complaints filed against officials of the state for acts allegedly
performed by them
in the discharge of their duties. The rule is that if the judgment against such
officials will require
the state itself to perform an affirmative act to satisfy the same, such as the
appropriation of the
amount needed to pay the damages awarded against them, the suit must be
regarded as
against the state itself although it has not been formally impleaded. 42 It must
be noted, however,
acts contrary to law and injurious to the rights of plaintiff. As was clearly set
forth by Justice
"Inasmuch as the State authorizes only legal acts by its officers, unauthorized
acts of
government officials or officers are not acts of the State, and an action against
the officials or
officers by one whose rights have been invaded or violated by such acts, for
the protection of
his rights, is not a suit against the State within the rule of immunity of the
State from suit. In the
same tenor, it has been said that an action at law or suit in equity against a
State officer or the
director of a State department on the ground that, while claiming to act or the
State, he violates
under an assumption of authority which he does not have, is not a suit against
the State within
the constitutional provision that the State may not be sued without its
consent." 44 The rationale
for this ruling is that the doctrinaire of state immunity cannot be used as an
instrument for
perpetrating an injustice. 45
In the case of Baer, etc. vs. Tizon, etc., et al., 46 it was ruled that:
proceeded against in his personal capacity, or when the action taken by him
Also, in Animos, et al. vs. Philippine Veterans Affairs Office, et al., 47 we held
that:
loss of property, the public official proceeded against not being liable in his
had to be instituted because of his failure to comply with the duty imposed by
The aforecited authorities are clear on the matter. They state that the doctrine
of immunity from
suit will not apply and may not be invoked where the public official is being
agents of the government is removed the moment they are sued in their
individual capacity. This
situation usually arises where the public official acts without authority or in
excess of the powers
personal private capacity for whatever damage he may have caused by his act
done
with malice and in bad faith, or beyond the scope of his authority or
jurisdiction. 48
The agents and officials of the United States armed forces stationed in Clark Air
Base are no
exception to this rule. In the case of United States of America, et al. vs. Guinto,
etc., et al., ante,
49 we declared:
It bears stressing at this point that the above observations do not confer on
the
United States of America Blanket immunity for all acts done by it or its agents
in
the Philippines. Neither may the other petitioners claim that they are also
insulated from suit in this country merely because they have acted as agents of
Since it is apparent from the complaint that Bradford was sued in her private or
personal capacity for acts
allegedly done beyond the scope and even beyond her place of official
functions, said complaint is not then
In the recent cases of Williams vs. Rarang 50 and Minucher vs. Court of
Appeals, 51 this Court reiterated this
that
the
two
(2)
petitioners
actively
features and articles in the POD as part of their official functions. Under the
rule that U.S.
officials in the performance of their official functions are immune from suit,
then it should follow
that petitioners may not be held liable for the questioned publication.
The question, therefore, arises are American naval officers who commit a
crime or tortious
act while discharging official functions still covered by the principle of state
immunity from suit?
Pursuing the question further, does the grant of rights, power, and authority to
the United States
under the RP-US Bases Treaty cover immunity of its officers from crimes and
torts? Our answer
is No.
In the latter, even on the claim of diplomatic immunity which Bradford does
not in fact pretend to have in the
instant case as she is not among those granted diplomatic immunity under
Article 16(b) of the 1953 Military
reads:
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving State. He shall also enjoy immunity from its civil and administrative
There can be no doubt that on the basis of the allegations in the complaint,
Montoya has a sufficient and viable
Since Bradford did not file her Answer within the reglementary period, the trial
court correctly declared her in
default upon motion of the private respondent. The judgment then rendered
against her on 10 September 1987
after the ex parte reception of the evidence for the private respondent and
before this Court issued the
the knowledge thereof by the trial court did not prevent the latter from
proceeding with Civil Case No.
224-87. "It is elementary that the mere pendency of a special civil action for
certiorari, commenced in relation
to a case pending before a lower Court, does not interrupt the course of the
latter when there is no writ of
WHEREFORE, the instant petition is DENIED for lack of merit. The Temporary
Restraining Order of 7
SO ORDERED.
CASE 13
SUPREME COURT
Manila
EN BANC
October 9, 2007
vs.
NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F.
DEL MUNDO; and
GAKO, respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
The Court and all parties involved are in agreement that the best nourishment
for an infant is mother's milk.
There is nothing greater than for a mother to nurture her beloved child straight
from her bosom. The ideal is, of
course, for each and every Filipino child to enjoy the unequaled benefits of
breastmilk. But how should this end
be attained?
Before the Court is a petition for certiorari under Rule 65 of the Rules of Court,
seeking to nullify Administrative
entitled,
Revised
"Milk
Implementing
Code,"
Relevant
Rules
and
International
Thereof, and for Other Purposes (RIRR). Petitioner posits that the RIRR is not
valid as it contains provisions
that are not constitutional and go beyond the law it is supposed to implement.
agency.1
Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on
October 28, 1986 by virtue of
president
under
the
Freedom
of the Milk Code states that the law seeks to give effect to Article 112 of the
2006, the WHA adopted several Resolutions to the effect that breastfeeding
should be supported, promoted
and protected, hence, it should be ensured that nutrition and health claims are
not permitted for breastmilk
substitutes.
and ensure that all segments of society, specially parents and children, are
informed of the advantages of
breastfeeding.
On May 15, 2006, the DOH issued herein assailed RIRR which was to take effect
on July 7, 2006.
However, on June 28, 2006, petitioner, representing its members that are
manufacturers of breastmilk
substitutes, filed the present Petition for Certiorari and Prohibition with Prayer
for the Issuance of a Temporary
The main issue raised in the petition is whether respondents officers of the
DOH acted without or in excess of
On August 15, 2006, the Court issued a Resolution granting a TRO enjoining
respondents from implementing
After the Comment and Reply had been filed, the Court set the case for oral
arguments on June 19, 2007. The
Court issued an Advisory (Guidance for Oral Arguments) dated June 5, 2007, to
wit:
2.1 Whether the RIRR is in accord with the provisions of Executive Order No. 51
(Milk Code);
2.2
Whether
pertinent
international
agreements1
entered
into
by
the
the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the
2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due
process clause and are in
_____________
1 (1) United Nations Convention on the Rights of the Child; (2) the WHO and
Unicef "2002 Global
Strategy on Infant and Young Child Feeding;" and (3) various World Health
Assembly (WHA)
Resolutions.
With regard to the issue of whether petitioner may prosecute this case as the
suit for its workers despite its lack of direct interest if its members are affected
by the action. An
xxxx
embodied therein. The respondent is, thus, the appropriate party to assert the
rights of its
members, because it and its members are in every practical sense identical. x x
x The
more effective the expression of their voices and the redress of their
grievances. 5 (Emphasis
supplied)
association has the legal personality to represent its members because the
results of the case will affect their
vital interests.7
pharmaceutical and health care industry before the Philippine Government and
any of its agencies, the medical
agencies and the courts any grievance suffered by its members which are
directly affected by the RIRR.
be remiss in its duties if it fails to act on governmental action that would affect
any of its industry members, no
matter how few or numerous they are. Hence, petitioner, whose legal identity
is deemed fused with its
Petitioner assails the RIRR for allegedly going beyond the provisions of the Milk
Code, thereby amending and
expanding the coverage of said law. The defense of the DOH is that the RIRR
implements not only the Milk
Code but also various international instruments10 regarding infant and young
child nutrition. It is respondents'
position that said international instruments are deemed part of the law of the
land and therefore the DOH may
Nations Convention on the Rights of the Child; (2) The International Covenant
on Economic, Social and
Cultural Rights; and (3) the Convention on the Elimination of All Forms of
Discrimination Against Women, only
provide in general terms that steps must be taken by State Parties to diminish
infant and child mortality and
inform society of the advantages of breastfeeding, ensure the health and wellbeing of families, and ensure
that women are provided with services and nutrition in connection with
pregnancy and lactation. Said
Under the 1987 Constitution, international law can become part of the sphere
of domestic law either by
mere
constitutional
declaration,
Treaties become part of the law of the land through transformation pursuant to
Article VII, Section 21 of the
The ICMBS and WHA Resolutions are not treaties as they have not been
concurred in by at least two-thirds of
all members of the Senate as required under Section 21, Article VII of the 1987
Constitution.
However, the ICMBS which was adopted by the WHA in 1981 had been
transformed into domestic law through
local legislation, the Milk Code. Consequently, it is the Milk Code that has the
force and effect of law in this
The Milk Code is almost a verbatim reproduction of the ICMBS, but it is well to
emphasize at this point that the
Code did not adopt the provision in the ICMBS absolutely prohibiting
advertising or other forms of
promotion to the general public of products within the scope of the ICMBS.
Instead, the Milk Code expressly
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)
of
international
law,
by
virtue
of
the
Constitution, form part of the laws of the land even if they do not derive from
treaty obligations. The
the
established,
known
as
the
widespread,
opinion
juris
and
sive
necessity). Implicit in the latter element is a belief that the practice in question
is rendered obligatory by
sovereign immunity,18 a person's right to life, liberty and due process,19 and
pacta sunt servanda,20 among
others. The concept of "generally accepted principles of law" has also been
depicted in this wise:
Some legal scholars and judges look upon certain "general principles of law" as
a primary source of
international law because they have the "character of jus rationale" and are
"valid through all kinds of
human societies." (Judge Tanaka in his dissenting opinion in the 1966 South
West Africa Case, 1966 I.C.J.
296). O'Connell holds that certain priniciples are part of international law
because they are "basic to legal
systems generally" and hence part of the jus gentium. These principles, he
believes, are established by a
disagreement, one must look to state practice and determine whether the
municipal law principle provides a
basic elements of custom: the material factor, that is, how states behave, and
the psychological
or subjective factor, that is, why they behave the way they do.
xxxx
The initial factor for determining the existence of custom is the actual behavior
of states. This includes
xxxx
Duration therefore is not the most important element. More important is the
consistency and the
xxxx
states behave the way they do. Do states behave the way they do because they
consider it
WHA Resolutions have not been embodied in any local legislation. Have they
attained the status of customary
law and should they then be deemed incorporated as part of the law of the
land?
Constitution, it is the WHA which determines the policies of the WHO,26 and
has the power to adopt regulations
Regulations, along with conventions and agreements, duly adopted by the WHA
bind member states thus:
Article 19. The Health Assembly shall have authority to adopt conventions or
agreements with respect
Article 20. Each Member undertakes that it will, within eighteen months after
the adoption by the
does not accept such convention or agreement within the time limit, it will
furnish a statement of the
Article 21. The Health Assembly shall have authority to adopt regulations
concerning: (a) sanitary and
(b) nomenclatures with respect to diseases, causes of death and public health
practices; (c) standards
with respect to diagnostic procedures for international use; (d) standards with
respect to the safety,
commerce.
Article 22. Regulations adopted pursuant to Article 21 shall come into force for
all Members after due
notice has been given of their adoption by the Health Assembly except for such
Members as may notify
supplied)
On the other hand, under Article 23, recommendations of the WHA do not come
into force for members,
Article 23. The Health Assembly shall have authority to make recommendations
to Members with
The former Senior Legal Officer of WHO, Sami Shubber, stated that WHA
recommendations are generally not
binding, but they "carry moral and political weight, as they constitute the
judgment on a health issue of the
In January 1981, the Executive Board of the World Health Organization at its
sixty-seventh session,
considered the fourth draft of the code, endorsed it, and unanimously
recommended to the Thirty-fourth
World Health Assembly the text of a resolution by which it would adopt the
code in the form of a
Constitution, to wit:
Art. 62. Each member shall report annually on the action taken with respect to
recommendations made
Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA
Resolutions urging member states
done with the ICMBS whereby the legislature enacted most of the provisions
into law which is the Milk
It is propounded that WHA Resolutions may constitute "soft law" or nonbinding norms, principles and practices
"Soft law" does not fall into any of the categories of international law set forth
in Article 38, Chapter III of the
Assembly fall under this category.34 The most notable is the UN Declaration of
Human Rights, which this Court
v.
Raada37
and
Shangri-la
norm creation, in order "to reflect and respond to the changing needs and
demands of its constituents."39 Other
Food and Agriculture Organization (in the form of the Codex Alimentarius).40
WHO has resorted to soft law. This was most evident at the time of the Severe
Acute Respiratory Syndrome
Although the IHR Resolution does not create new international law binding on
WHO member
International lawyers
law-"hard law"-from
typically
distinguish
binding
rules
of
international
during its existence generated many soft law norms, creating a "soft law
regime" in
The "soft law" SARS and IHR Resolutions represent significant steps in laying
the political groundwork
on
infectious
diseases.
These
member states' normative duty to cooperate fully with other countries and with
WHO in connection with
This duty is neither binding nor enforceable, but, in the wake of the SARS
epidemic, the duty is
powerful politically for two reasons. First, the SARS outbreak has taught the
lesson that participating
x x x if this warning is heeded, the "soft law" in the SARS and IHR Resolution
could inform the
the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201
on April 26, 2003 and E.O. No.
agricultural products.
IHR Resolution was still considered not binding or enforceable, although said
resolutions had great political
influence.
that such rule is being followed by states because they consider it obligatory to
comply with such rules
(opinio juris). Respondents have not presented any evidence to prove that the
WHA Resolutions, although
the
provisions
of
pertinent
WHA
The provisions of the WHA Resolutions cannot be considered as part of the law
of the land that can be
Second, the Court will determine whether the DOH may implement the
provisions of the WHA Resolutions by
virtue of its powers and functions under the Revised Administrative Code even
in the absence of a domestic
law.
the national health policy and implement a national health plan within the
framework of the government's
general policies and plans, and issue orders and regulations concerning the
implementation of
policy.
Respondents submit that the national policy on infant and young child feeding
is embodied in A.O. No. 2005-
0014, dated May 23, 2005. Basically, the Administrative Order declared the
following policy guidelines: (1)
In view of the enactment of the Milk Code which does not contain a total ban on
the advertising and promotion
Thus, only the provisions of the Milk Code, but not those of subsequent WHA
Resolutions, can be validly
Third, the Court will now determine whether the provisions of the RIRR are in
accordance with those of the
Milk Code.
In support of its claim that the RIRR is inconsistent with the Milk Code,
petitioner alleges the following:
1. The Milk Code limits its coverage to children 0-12 months old, but the RIRR
extended its coverage to
"young children" or those from ages two years old and beyond:
products;
(36 months).
2. The Milk Code recognizes that infant formula may be a proper and possible
substitute for breastmilk
in certain instances; but the RIRR provides "exclusive breastfeeding for infants
from 0-6 months" and
premised upon:
products;
and
does
not
impose
unreasonable
infants from 0-24 months old or beyond, and forbids the use of health and
nutritional claims. Section 13
of the RIRR, which provides for a "total effect" in the promotion of products
within the scope of the
Code, is vague:
Mothers.
breastmilk.
premised upon:
xxxx
this Code.
unsubstantiated claim.
breastmilk supplements;
supplements;
4. The RIRR imposes additional labeling requirements not found in the Milk
Code:
discourage breastfeeding.
points:
equivalent;
breastfeeding;
equivalent;
breastfeeding;
breastmilk;
methods of use;
inappropriate preparation.
8(b).
of Health.
of breasfeeding.
7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.
Mothers.
accepted or otherwise.
8. The RIRR provides for administrative sanctions not imposed by the Milk
Code.
product;
Registration (CPR);
year;
Industry (DTI);
infraction.
The Court shall resolve the merits of the allegations of petitioner seriatim.
1. Petitioner is mistaken in its claim that the Milk Code's coverage is limited
only to children 0-12 months old.
SECTION 3. Scope of the Code The Code applies to the marketing, and
practices related thereto, of
bottles and teats. It also applies to their quality and availability, and to
information concerning their use.
Clearly, the coverage of the Milk Code is not dependent on the age of the child
but on the kind of product
being marketed to the public. The law treats infant formula, bottle-fed
complementary food, and breastmilk
Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute
x x x to satisfy the normal
person falling within the age bracket 0-12 months. It is the nourishment of this
group of infants or children aged
0-12 months that is sought to be promoted and protected by the Milk Code.
that purpose." This section conspicuously lacks reference to any particular agegroup of children.
Hence, the provision of the Milk Code cannot be considered exclusive for
children aged 0-12 months.
In other words, breastmilk substitutes may also be intended for young children
more than 12 months of age.
Evidently, as long as what is being marketed falls within the scope of the Milk
Code as provided in Section 3,
then it can be subject to regulation pursuant to said law, even if the product is
to be used by children aged over
12 months.
There is, therefore, nothing objectionable with Sections 242 and 5(ff)43 of the
RIRR.
2. It is also incorrect for petitioner to say that the RIRR, unlike the Milk Code,
does not recognize that
The entirety of the RIRR, not merely truncated portions thereof, must be
considered and construed together.
as detached and isolated expressions, but the whole and every part thereof
must be considered in fixing the
Section 7 of the RIRR provides that "when medically indicated and only when
necessary, the use of
based
on
complete
and
updated
Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases,
the use of breastmilk
3. The Court shall ascertain the merits of allegations 345 and 446 together as
they are interlinked with each
other.
valid, it is important to deal first with the nature, purpose, and depth of the
regulatory powers of the DOH, as
Health is a legitimate subject matter for regulation by the DOH (and certain
other administrative agencies) in
duty to protect the health of the people, and vested it with such powers as "(g)
the dissemination of hygienic
of
preventing
and
combating
dangerous
Seventy years later, the 1987 Administrative Code tasked respondent DOH to
carry out the state policy
pronounced under Section 15, Article II of the 1987 Constitution, which is "to
protect and promote the right to
health of the people and instill health consciousness among them."52 To that
end, it was granted under
supplements and related products; and the power to control such information.
These are expressly provided
xxxx
principally
responsible
for
the
provisions of this Code. For this purpose, the Ministry of Health shall have the
following powers and
functions:
(1) To promulgate such rules and regulations as are necessary or proper for the
implementation
xxxx
(4) To exercise such other powers and functions as may be necessary for or
incidental to the
(a) The government shall ensure that objective and consistent information is
provided on infant
feeding, for use by families and those involved in the field of infant nutrition.
This responsibility shall
cover the planning, provision, design and dissemination of information, and the
control thereof, on
Further, DOH is authorized by the Milk Code to control the content of any
information on breastmilk vis--vis
SECTION 5. x x x
infants and intended to reach pregnant women and mothers of infants, shall
include clear information
on all the following points: (1) the benefits and superiority of breastfeeding;
(2) maternal nutrition, and
the preparation for and maintenance of breastfeeding; (3) the negative effect
on breastfeeding of
introducing partial bottlefeeding; (4) the difficulty of reversing the decision not
to breastfeed; and (5)
When such materials contain information about the use of infant formula, they
shall include the
social and financial implications of its use; the health hazards of inappropriate
foods or feeding
formula and other breastmilk substitutes. Such materials shall not use any
picture or text which
xxxx
and
distributors
to
health
within the scope of this Code shall be restricted to scientific and factual
matters, and such
xxxx
(d) The term "humanized," "maternalized" or similar terms shall not be used.
(Emphasis supplied)
The DOH is also authorized to control the purpose of the information and to
whom such information may be
disseminated under Sections 6 through 9 of the Milk Code54 to ensure that the
information that would reach
restricted to scientific and factual matters and shall not imply or create a belief
that bottlefeeding is equivalent
or superior to breastfeeding.
It bears emphasis, however, that the DOH's power under the Milk Code to
control information regarding
The following are the provisions of the Milk Code that unequivocally indicate
that the control over information
given to the DOH is not absolute and that absolute prohibition is not
contemplated by the Code:
SECTION 2. Aim of the Code The aim of the Code is to contribute to the
provision of safe and
by
the
protection
and
promotion
of
b) Section 3 which specifically states that the Code applies to the marketing of
and practices related to
c) Section 5(a) which provides that the government shall ensure that objective
and consistent
d) Section 5(b) which provides that written, audio or visual informational and
educational materials shall
not use any picture or text which may idealize the use of breastmilk substitutes
and should include
e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC
to review and examine
f) Section 8(b) which states that milk companies may provide information to
health professionals but
such information should be restricted to factual and scientific matters and shall
not imply or create a
It is in this context that the Court now examines the assailed provisions of the
RIRR regarding labeling and
advertising.
Sections 1355 on "total effect" and 2656 of Rule VII of the RIRR contain some
labeling requirements, specifically:
appropriately. Section 1657 of the RIRR prohibits all health and nutrition claims
for products within the scope of
the Milk Code, such as claims of increased emotional and intellectual abilities
of the infant and young child.
xxxx
and
distributors
to
health
within the scope of this Code shall be restricted to scientific and factual
matters, and such
(Emphasis supplied)
and Section 10(d)59 which bars the use on containers and labels of the terms
"humanized," "maternalized," or
similar terms.
These provisions of the Milk Code expressly forbid information that would
imply or create a belief that there is
or
which
is
humanized
or
It may be argued that Section 8 of the Milk Code refers only to information
given to health workers regarding
8(b) will result in the absurd situation in which milk companies and distributors
are forbidden to claim to health
containers and labels of their products the exact opposite message. That
askewed interpretation of the Milk
Code is precisely what Section 5(a) thereof seeks to avoid by mandating that
all information regarding
Thus, Section 26(c) of the RIRR which requires containers and labels to state
that the product offered is not a
SECTION 5. x x x
xxxx
infants and intended to reach pregnant women and mothers of infants, shall
include clear information
on all the following points: x x x (5) where needed, the proper use of infant
formula, whether
infant formula, they shall include the social and financial implications of its
use; the health hazards of
any picture or text which may idealize the use of breastmilk substitutes.
(Emphasis supplied)
The label of a product contains information about said product intended for the
buyers thereof. The buyers of
Petitioners counsel has admitted during the hearing on June 19, 2007 that
formula milk is prone to
Ineluctably, the requirement under Section 26(f) of the RIRR for the label to
contain the message regarding
within the scope of this Code shall be printed, published, distributed, exhibited
and broadcast unless
the Milk Code invested regulatory authority over advertising, promotional and
marketing materials to an IAC,
thus:
(3) To prescribe the internal and operational procedure for the exercise of its
powers and
(4) To promulgate such rules and regulations as are necessary or proper for the
activities for breastmilk substitutes intended for infants and young children up
to twenty-four (24)
in line with the RIRRs declaration of principle under Section 4(f), to wit:
xxxx
The DOH, through its co-respondents, evidently arrogated to itself not only the
regulatory authority given to the
Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the
Milk Code in Section 6 thereof for
Even respondents, through the OSG, acknowledged the authority of IAC, and
repeatedly insisted, during the
oral arguments on June 19, 2007, that the prohibition under Section 11 is not
actually operational, viz:
xxxx
because this is the standard they tend to convey or give subliminal messages
or impression undermine
We have to read Section 11 together with the other Sections because the other
Section, Section 12,
provides for the inter agency committee that is empowered to process and
evaluate all the advertising
xxxx
What AO 2006-12, what it does, it does not prohibit the sale and manufacture,
it simply regulates the
xxxx
Now, the prohibition on advertising, Your Honor, must be taken together with
the provision on the Inter-
Agency Committee that processes and evaluates because there may be some
information
is any material that will undermine the practice of breastfeeding, Your Honor.
xxxx
Madam Solicitor General, under the Milk Code, which body has authority or
power to promulgate Rules
Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.
xxxx
x x x Don't you think that the Department of Health overstepped its rule
making authority when it totally
banned advertising and promotion under Section 11 prescribed the total effect
rule as well as the
Your Honor, please, first we would like to stress that there is no total absolute
ban. Second, the Inter-
xxxx
x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on
advertising of
But, would you nevertheless agree that there is an absolute ban on advertising
of breastmilk substitutes
It's not an absolute ban, Your Honor, because we have the Inter-Agency
Committee that can evaluate
xxxx
particularly 12 and 13 and 15, Your Honor, because it is recognized that the
Inter-Agency Committee
We can proudly say that the general rule is that there is a prohibition, however,
we take exceptions and
standards have been set. One of which is that, the Inter-Agency Committee can
allow if the advertising
Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.
provision must be related to Section 6 thereof which in turn provides that the
rules and regulations must be
8(b), and 10 of the Code, which, at the risk of being repetitious, and for easy
reference, are quoted hereunder:
xxxx
infants and intended to reach pregnant women and mothers of infants, shall
on all the following points: (1) the benefits and superiority of breastfeeding;
(2) maternal nutrition, and
the preparation for and maintenance of breastfeeding; (3) the negative effect
on breastfeeding of
introducing partial bottlefeeding; (4) the difficulty of reversing the decision not
to breastfeed; and (5)
When such materials contain information about the use of infant formula, they
shall include the social
and financial implications of its use; the health hazards of inappropriate foods
of feeding methods; and,
substitutes. Such materials shall not use any picture or text which may idealize
the use of breastmilk
substitutes.
xxxx
xxxx
and
distributors
to
health
within the scope of this Code shall be restricted to scientific and factual
matters and such information
shall not imply or create a belief that bottle feeding is equivalent or superior to
breastfeeding. It shall
xxxx
(b) Each container shall have a clear, conspicuous and easily readable and
understandable message in
Pilipino or English printed on it, or on a label, which message can not readily
become separated from it,
(iii) a statement that the product shall be used only on the advice of a health
worker as to the
need for its use and the proper methods of use; and
(iv) instructions for appropriate preparation, and a warning against the health
hazards of
inappropriate preparation.
the
DOH
as
the
principal
that:
(a) The government shall ensure that objective and consistent information is
provided on infant
feeding, for use by families and those involved in the field of infant nutrition.
This responsibility shall
cover the planning, provision, design and dissemination of information, and the
control thereof, on
Thus, the DOH has the significant responsibility to translate into operational
forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen
advertising, promotional,
It is pursuant to such responsibility that the DOH correctly provided for Section
13 in the RIRR which reads as
follows:
SECTION 13. "Total Effect" - Promotion of products within the scope of this Code
must be objective
and should not equate or make the product appear to be as good or equal to
breastmilk or
breastfeeding. The "total effect" should not directly or indirectly suggest that
buying their product would
bring better health to the baby or other such exaggerated and unsubstantiated
claim.
Such standards bind the IAC in formulating its rules and regulations on
advertising, promotion, and marketing.
Through that single provision, the DOH exercises control over the information
content of advertising,
on
breastmilk
vis-a-vis
breastmilk
related products. It also sets a viable standard against which the IAC may
screen such materials before they
and
welfare," and
"simplicity,
there is no inconsistency between the provisions of the Milk Code and the
RIRR. Section 7(b)66 of the Milk
Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the
giving of information to health
distributor of the products covered by the Code in activities for the promotion,
education and production of
(IEC)
materials
regarding
5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk
manufacturers and distributors to
32 of the RIRR absolutely forbid the same. Petitioner also assails Section 4(i)69
of the RIRR prohibiting milk
breastfeeding.
Section 4(i) of the RIRR provides that milk companies and their representatives
should not form part of any
provisions which contravenes the Milk Code. Note that under Section 12(b) of
the Milk Code, it is the DOH
Code. It is entirely up to the DOH to decide which entities to call upon or allow
to be part of policymaking
Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk
companies from giving
with breastfeeding promotion and education for women and children. Nothing
in Section 22 of the RIRR
It is Sections 971 and 1072 of the RIRR which govern research assistance. Said
sections of the RIRR provide
that research assistance for health workers and researchers may be allowed
upon approval of an
The Milk Code endows the DOH with the power to determine how such research
or educational assistance
may be given by milk companies or under what conditions health workers may
accept the assistance. Thus,
Sections 9 and 10 of the RIRR imposing limitations on the kind of research done
or extent of assistance given
Petitioner complains that Section 3273 of the RIRR prohibits milk companies
from giving assistance, support,
8(e)74 of the Milk Code, which provides that manufacturers and distributors of
breastmilk substitutes may assist
education,
of
health
6(f) of the Milk Code provides that donations may be made by manufacturers
and distributors of breastmilk
substitutes upon the request or with the approval of the DOH. The law does not
proscribe the refusal of
donations. The Milk Code leaves it purely to the discretion of the DOH whether
to request or accept such
donations. The DOH then appropriately exercised its discretion through Section
5175 of the RIRR which sets
forth its policy not to request or approve donations from manufacturers and
distributors of breastmilk
substitutes.
It was within the discretion of the DOH when it provided in Section 52 of the
RIRR that any donation from milk
companies not covered by the Code should be coursed through the IAC which
shall determine whether such
Milk Code to accept donations. For that matter, no person or entity can be
forced to accept a donation. There
is, therefore, no real inconsistency between the RIRR and the law because the
Milk Code does not prohibit the
difference in said case and the present case before the Court is that, in the
Civil Aeronautics Board, the Civil
Aeronautics Administration (CAA) was expressly granted by the law (R.A. No.
776) the power to impose
fines and civil penalties, while the Civil Aeronautics Board (CAB) was granted
by the same law the power to
review on appeal the order or decision of the CAA and to determine whether to
impose, remit, mitigate,
increase or compromise such fine and civil penalties. Thus, the Court upheld
the CAB's Resolution imposing
administrative fines.
circular provided for fines for the commission of prohibited acts. The Court
found that nothing in the circular
contravened the law because the DOE was expressly authorized by B.P. Blg. 33
and R.A. No. 7638 to impose
fines or penalties.
In the present case, neither the Milk Code nor the Revised Administrative Code
grants the DOH the authority
to fix or impose administrative fines. Thus, without any express grant of power
to fix or impose such fines, the
DOH cannot provide for those fines in the RIRR. In this regard, the DOH again
exceeded its authority by
providing for such fines or sanctions in Section 46 of the RIRR. Said provision
is, therefore, null and void.
The DOH is not left without any means to enforce its rules and regulations.
Section 12(b) (3) of the Milk Code
authorizes the DOH to "cause the prosecution of the violators of this Code and
other pertinent laws on
products covered by this Code." Section 13 of the Milk Code provides for the
penalties to be imposed on
violators of the provision of the Milk Code or the rules and regulations issued
pursuant to it, to wit:
(a) Any person who violates the provisions of this Code or the rules and
regulations issued
year imprisonment or a fine of not less than One Thousand Pesos (P1,000.00)
nor more than Thirty
(b) Any license, permit or authority issued by any government agency to any
health worker, distributor,
revoked in the event of repeated violations of this Code, or of the rules and
regulations issued pursuant
8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are
Section 57 reads:
SECTION 57. Repealing Clause - All orders, issuances, and rules and regulations
or parts thereof
inconsistent with these revised rules and implementing regulations are hereby
repealed or modified
accordingly.
Section 57 of the RIRR does not provide for the repeal of laws but only orders,
issuances and rules and
An administrative agency like respondent possesses quasi-legislative or rulemaking power or the power to
make rules and regulations which results in delegated legislation that is within
the confines of the granting
which they are to implement the provisions of a law,80 in order to make it more
In fine, only Sections 4(f), 11 and 46 are ultra vires, beyond the authority of the
DOH to promulgate and in
contravention of the Milk Code and, therefore, null and void. The rest of the
provisions of the RIRR are in
supplied)
Petitioner refers to Sections 4(f),82 4(i),83 5(w),84 11,85 22,86 32,87 46,88
and 5289 as the provisions that suppress the
trade of milk and, thus, violate the due process clause of the Constitution.
The framers of the constitution were well aware that trade must be subjected
to some form of regulation for the
public good. Public interest must be upheld over business interests.90 In Pest
Management Association of the
Authority, despite the fact that "our present Constitution enshrines free
enterprise as a policy, it
the general welfare." There can be no question that the unregulated use or
proliferation of pesticides
would be hazardous to our environment. Thus, in the aforecited case, the Court
declared that "free
and proven by competent evidence just exactly how such protective regulation
would result in
show
that
the
proscription
of
milk
policymaking body (Section 4(i)), classes and seminars for women and children
(Section 22); the giving of
assistance, support and logistics or training (Section 32); and the giving of
donations (Section 52) would
Petitioner also failed to convince the Court that Section 5(w) of the RIRR is
unreasonable and oppressive. Said
section provides for the definition of the term "milk company," to wit:
(d) "Distributor" means a person, corporation or any other entity in the public
or private sector engaged
xxxx
under contract with it) of manufacturing a products within the scope of this
Code.
Notably, the definition in the RIRR merely merged together under the term
"milk company" the entities defined
separately under the Milk Code as "distributor" and "manufacturer." The RIRR
also enumerated in Section 5(w)
Milk Code, what is used is the phrase "products within the scope of this Code."
between the definitions given in the Milk Code and the definition as re-stated
in the RIRR.
Since all the regulatory provisions under the Milk Code apply equally to both
manufacturers and distributors,
the Court sees no harm in the RIRR providing for just one term to encompass
both entities. The definition of
definitions
of
"distributor"
and
The Court is not convinced that the definition of "milk company" provided in
the RIRR would bring about any
Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective,
health and welfare and, as such, the rest of the RIRR do not constitute illegal
restraint of trade nor are they
2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra
vires. The Department of Health
The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar
as the rest of the provisions of
SO ORDERED.
Ynares-Santiago,
Sandoval-Gutierrez,
Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ., concur.
CASE 14
Syllabus
1. The fundamental theory of liberty upon which all governments of this Union
rest excludes any general power
U. S. 535.
2. The Oregon Compulsory Education Act (Oreg. Ls., 5259) which, with certain
exemptions, requires every
parent, guardian or other person having control of a child between the ages of
eight and sixteen years to send
him to the public school in the district where he resides, for the period during
which the school is held for the
as to enable him to restrain exercise of proper power by the State upon the
ground that he will be deprived of
patronage;
4. But where corporations owning and conducting schools are threatened with
destruction of their business and
U. S. 535.
parents and others having control of young children to send them to the
primary schools of the State. The
These appeals are from decrees, based upon undenied allegations, which
restraining
to
enforce
the
Compulsory
1922, under the initiative provision of her Constitution by the voters of Oregon.
Jud.Code, 266. They present
the same points of law; there are no controverted questions of fact. Rights said
to be guaranteed by the federal
Constitution were specially set up, and appropriate prayers asked for their
protection.
control or charge or custody of a child between eight and sixteen years to send
him "to a public school for the
period of time a public school shall be held during the current year" in the
district where the child resides, and
exemptions not specially important here -- for children who are not normal, or
who have completed he eighth
public schools by normal children, between eight and sixteen, who have not
completed the eighth grade. And
educate and instruct the youth, establish and maintain academies or schools,
and acquire necessary real and
personal
property. It has long devoted its property and effort to the secular and
religious education and care of children,
and has acquired the valuable good will of many parents and guardians. It
conducts interdependent primary
and high schools and junior colleges, and maintains orphanages for the custody
and control of children
between eight and sixteen. In its primary schools, many children between
those ages are taught the subjects
usually pursued in Oregon public schools during the first eight years.
Systematic religious instruction and moral
training according to the tenets of the Roman Catholic Church are also
regularly provided. All courses of study,
continuity
of
training
under
are essential to the system and the most profitable. It owns valuable buildings,
especially constructed and
exceeds thirty thousand dollars -- and the successful conduct of this requires
long-time contracts with teachers
and parents. The Compulsory Education Act of 1922 has already caused the
withdrawal from its schools of
children who would otherwise continue, and their income has steadily declined.
The appellants, public officers,
After setting out the above facts, the Society's bill alleges that the enactment
conflicts with the right of parents
to choose schools where their children will receive appropriate mental and
religious training, the right of the
child to influence the parents' choice of a school, the right of schools and
teachers therein to engage in a
injury.
for
profit
an
elementary,
college
for boys between the ages of five and twenty-one years. The average
attendance is one hundred, and the
annual fees received for each student amount to some eight hundred dollars.
The elementary department is
divided into eight grades, as in the public schools; the college preparatory
department has four grades, similar
to those of the public high schools; the courses of study conform to the
requirements of the State Board of
training
are
also
given,
under
the
considerable real and personal property, some useful only for school purposes.
The business and incident
good will are very valuable. In order to conduct its affairs, long time contracts
must be made for supplies,
equipment, teachers and pupils. Appellants, law officers of the State and
County, have publicly announced that
the Act of November 7, 1922, is valid, and have declared their intention to
enforce it. By reason of the statute
guardians are refusing to make contracts for the future instruction of their
sons, and some are being withdrawn.
The Academy's bill states the foregoing facts and then alleges that the
challenged Act contravenes the
proclaiming its validity and threatening to enforce it, irreparable injury will
result. The prayer is for an
appropriate injunction.
No answer was interposed in either cause, and, after proper notices, they were
heard by three judges
deprivation of their property without due process of law consequent upon the
unlawful interference by
appellants with the free choice of patrons, present and prospective. It declared
the right to conduct schools
was property, and that parents and guardians, as a part of their liberty, might
direct the education of children by
selecting reputable teachers and places. Also, that these schools were not unfit
or harmful to the public, and
their owners' business and property. Finally, that the threats to enforce the Act
would continue to cause
supervise and examine them, their teachers and pupils; to require that all
children of proper age attend some
school, that teachers shall be of good moral character and patriotic disposition,
that certain studies plainly
essential to good citizenship must be taught, and that nothing be taught which
public welfare.
The inevitable practical result of enforcing the Act under consideration would
be destruction of appellees'
primary schools, and perhaps all other private primary schools for normal
children within the State of Oregon.
These parties are engaged in a kind of undertaking not inherently harmful, but
long regarded as useful and
unreasonably interferes with the liberty of parents and guardians to direct the
upbringing and education of
children
under their control: as often heretofore pointed out, rights guaranteed by the
Constitution may not be abridged
fundamental theory of liberty upon which all governments in this Union repose
excludes any general power of
the State to standardize its children by forcing them to accept instruction from
public teachers only. The child is
not the mere creature of the State; those who nurture him and direct his
destiny have the right, coupled with
the high duty, to recognize and prepare him for additional obligations.
Appellees are corporations, and therefore, it is said, they cannot claim for
themselves the liberty which the
Riggs, 203 U. S. 243, 203 U. S. 255; Western Turf Association v. Greenberg, 204
U. S. 359, 204 U. S. 363.
But they have business and property for which they claim protection. These are
threatened with destruction
their schools. And this court has gone very far to protect against loss
threatened by such action. Truax v.
Raich, 239 U. S. 33; Truax v. Corrigan, 257 U. S. 312; Terrace v. Thompson, 263
U. S. 197.
The courts of the State have not construed the Act, and we must determine its
meaning for ourselves.
will be deprived
of patronage. But the injunctions here sought are not against the exercise of
any proper power. Plaintiffs asked
Truax v. Raich, Truax v. Corrigan and Terrace v. Thompson, supra, and many
other cases where injunctions
Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229; Duplex Printing Press Co.
v. Deering, 254 U. S. 443;
The suits were not premature. The injury to appellees was present and very
real, not a mere possibility in the
remote future. If no relief had been possible prior to the effective date of the
Act, the injury would have become
Affirmed.
"Section 1. That Section 5259, Oregon Laws, be and the same is hereby
amended so as to read as follows:"
"Sec. 5259. Children Between the Ages of Eight and Sixteen Years -- Any
parent, guardian or other person in
the State of Oregon, having control or charge or custody of a child under the
age of sixteen years and of the
resides, who shall fail or neglect or refuse to send such child to a public school
for the period of time a public
school shall be held during the current year in said district, shall be guilty of a
misdemeanor and each day's
failure to send such child to a public school shall constitute a separate offense;
provided, that, in the following
"(b) Children Who Have Completed the Eighth Grade -- Any child who has
completed the eighth grade, in
"(c) Distance from school -- Children between the ages of eight and ten years,
inclusive, whose place of
residence is more than one and one-half miles, and children over ten years of
age whose place of residence is
more than three miles, by the nearest traveled road, from public school;
provided, however, that, if
"(d) Private Instruction -- Any child who is being taught for a like period of time
by the parent or private teacher
such subjects as are usually taught in the first eight years in the public school;
but before such child can be
county superintendent, and such permission shall not extend longer than the
end of the current school year.
Such child must report to the county school superintendent or some person
designated by him at least once
every three months and take an examination in the work covered. If, after such
examination, the county
superintendent shall determine that such child is not being properly taught,
then the county superintendent
shall order the parent, guardian or other person, to send such child to the
public school the remainder of the
school year."
"If any parent, guardian or other person having control or charge or custody of
any child between the ages of
eight and sixteen years shall fail to comply with any provision of this section,
he shall be guilty of a
to imprisonment in the county jail not less than two nor more than thirty days,
or by both such fine and
"This Act shall take effect and be and remain in force from and after the first
day of September, 1926."
Disclaimer: Official Supreme Court case law is only found in the print version of
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Justia case law is provided for general informational purposes only, and may
not reflect current legal
CASE 15
EN BANC
CENTER
FOR
KAUNLARAN
ALTERNATIVE
FOUNDATION,
INC.,
DEMOKRATIKONG
DEVELOPMENT
PHILIPPINE
RURAL
INITIATIVES,
RECONSTRUCTION
LIKAS-KAYANG
MOVEMENT,
DECISION
PANGANIBAN, J.:
states. It has irreversibly propelled the world towards trade liberalization and
economic globalization.
and
privatization,
the
third-
restrictions, tax exemptions and currency controls. Finding market niches and
becoming the best in specific
discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank
International Monetary Fund (IMF) which was to deal with currency problems;
and the third, the International
Trade Organization (ITO), which was to foster order and predictability in world
trade and to minimize unilateral
protectionist policies that invite challenge, even retaliation, from other states.
However, for a variety of reasons,
including its non-ratification by the United States, the ITO, unlike the IMF and
WB, never took off. What
remained was only GATT -- the General Agreement on Tariffs and Trade. GATT
was a collection of treaties
of
treaty
adherents
with
no
After half a century and several dizzying rounds of negotiations, principally the
Kennedy Round, the Tokyo
world
finally
gave
birth
to
that
Organization -- with the signing of the Final Act in Marrakesh, Morocco and the
ratification of the WTO
foreign markets, especially its major trading partners, through the reduction of
tariffs on its exports, particularly
agricultural and industrial products. The President also saw in the WTO the
opening of new opportunities for
the services sector x x x, (the reduction of) costs and uncertainty associated
with exporting x x x, and (the
attraction of) more investments into the country. Although the Chief Executive
did not expressly mention it in
his letter, the Philippines - - and this is of special interest to the legal
profession - - will benefit from the WTO
(1) Dispute Settlement Panels and (2) Appellate Tribunal. Heretofore, trade
disputes were settled mainly
weak
and
underdeveloped
countries
were
at
Arguing mainly (1) that the WTO requires the Philippines to place nationals and
products of member-
countries on the same footing as Filipinos and local products and (2) that the
WTO intrudes, limits and/or
impairs the constitutional powers of both Congress and the Supreme Court, the
instant petition before this
Court assails the WTO Agreement for violating the mandate of the 1987
Constitution to develop a self-reliant
Filipinos (and to) promote the preferential use of Filipino labor, domestic
materials and locally produced goods.
Does
it
prescribe
Philippine
liberalized, deregulated and privatized? These are the main questions raised in
this petition for certiorari,
prohibition and mandamus under Rule 65 of the Rules of Court praying (1) for
the nullification, on constitutional
public officials and employees, as well as the use of government properties and
resources by respondent-
The Facts
Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay
Round of Multilateral Negotiations
(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective
procedures; and
On August 12, 1994, the members of the Philippine Senate received a letter
dated August 11, 1994 from
the President of the Philippines,24[3] stating among others that the Uruguay
Round Final Act is hereby submitted
to the Senate for its concurrence pursuant to Section 21, Article VII of the
Constitution.
On August 13, 1994, the members of the Philippine Senate received another
letter from the President of
the Philippines25[4] likewise dated August 11, 1994, which stated among
others that the Uruguay Round Final
Act, the Agreement Establishing the World Trade Organization, the Ministerial
Declarations and Decisions, and
Organization.26[5]
On December 14, 1994, the Philippine Senate adopted Resolution No. 97 which
Resolved, as it is hereby
resolved, that the Senate concur, as it hereby concurs, in the ratification by the
President of the Philippines of
the Agreement Establishing the World Trade Organization.27[6] The text of the
WTO Agreement is written on
ANNEX 1
Agreement on Agriculture
Phytosanitary Measures
Agreement on Safeguards
1994
ANNEX 2
ANNEX 3
(1), two (2) and three (3) of that Agreement which are integral parts thereof,
signed at Marrakesh,
Morocco on 15 April 1994, do hereby ratify and confirm the same and every
Article and Clause
thereof.
On the other hand, the Final Act signed by Secretary Navarro embodies not
only the WTO Agreement
but
also
(1)
the
Ministerial
International
Monetary
Fund
(IMF),
and
petition
was
filed.
After
careful
and petitioners reply thereto, the Court resolved on December 12, 1995, to
give due course to the petition, and
the parties thereafter filed their respective memoranda. The Court also
requested the Honorable Lilia R.
During the Oral Argument held on August 27, 1996, the Court directed:
(a) the petitioners to submit the (1) Senate Committee Report on the matter in
controversy and
(b) the Solicitor General, as counsel for respondents, to file (1) a list of
Philippine treaties signed
prior to the Philippine adherence to the WTO Agreement, which derogate from
Philippine sovereignty
and (2) copies of the multi-volume WTO Agreement and other documents
mentioned in the Final Act,
as soon as possible.
After receipt of the foregoing documents, the Court said it would consider the
case submitted for
the
other
hand,
submitted
their
The Issues
In their Memorandum dated March 11, 1996, petitioners summarized the issues
as follows:
leading to the concurrence are estopped from impugning the validity of the
Agreement
the provisions of Sec. 19, Article II, and Secs. 10 and 12, Article XII, all of the
1987 Philippine
Constitution.
D. Whether provisions of
Organization unduly limit,
the
Agreement
Establishing
the
World
Trade
Agreement
Establishing
the
World
Trade
lack or excess of jurisdiction when they concurred only in the ratification of the
Agreement
Establishing the World Trade Organization, and not with the Presidential
submission which
Act,
Ministerial
Declaration
and
Decisions,
and
the
General
as
counsel
for
respondents
1. Whether or not the provisions of the Agreement Establishing the World Trade
Organization and
the Agreements and Associated Legal Instruments included in Annexes one (1),
two (2) and three (3)
Section 19, Article II and Sections 10 and 12, Article XII of the 1987
Constitution.
By raising and arguing only four issues against the seven presented by
petitioners, the Solicitor General
has effectively ignored three, namely: (1) whether the petition presents a
political question or is otherwise not
are estopped from joining this suit; and (3) whether the respondent-members
of the Senate acted in grave
abuse of discretion when they voted for concurrence in the ratification of the
WTO Agreement. The foregoing
notwithstanding, this Court resolved to deal with these three issues thus:
(1) The political question issue -- being very fundamental and vital, and being a
matter that
probes into the very jurisdiction of this Court to hear and decide this case -was deliberated upon by
the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this defense is
waivable and the
issue, even if ruled in respondents favor, will not cause the petitions dismissal
as there are petitioners
other than the two senators, who are not vulnerable to the defense of
estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of the respondent
senators will be
taken up as an integral part of the disposition of the four issues raised by the
Solicitor General.
During its deliberations on the case, the Court noted that the respondents did
not question the locus standi
of petitioners. Hence, they are also deemed to have waived the benefit of such
issue. They probably realized
nation are involved here, and that transcendental public interest requires that
the substantive issues be met
DOES THE PETITION INVOLVE A POLITICAL QUESTION OVER WHICH THIS COURT
HAS
NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE
SEC. 19, ARTICLE II, AND SECS. 10 AND 12, ARTICLE XII, OF THE PHILIPPINE
CONSTITUTION?
(5) WAS THE CONCURRENCE OF THE SENATE IN THE WTO AGREEMENT AND ITS
ANNEXES
SUFFICIENT AND/OR VALID, CONSIDERING THAT IT DID NOT INCLUDE THE FINAL
ACT,
The First Issue: Does the Court Have Jurisdiction Over the Controversy?
to have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the
dispute. The question thus posed is judicial rather than political. The duty (to
adjudicate) remains to assure that
constitutional provision is raised before this Court (as in the instant case), it
becomes a legal issue which the
Constitution,36[15] as follows:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving
The foregoing text emphasizes the judicial departments duty and power to
strike down grave abuse of
former
Chief
Justice
Roberto
excess of jurisdiction. This is not only a judicial power but a duty to pass
judgment on matters of this nature.
As this Court has repeatedly and firmly emphasized in many cases,39[18] it will
not shirk, digress from or
abandon its sacred duty and authority to uphold the Constitution in matters
that involve grave abuse of
As the petition alleges grave abuse of discretion and as there is no other plain,
speedy or adequate
due course and the vital questions raised therein ruled upon under Rule 65 of
the Rules of Court. Indeed,
equivocation.
We should stress that, in deciding to take jurisdiction over this petition, this
Court will not review the
wisdom of the decision of the President and the Senate in enlisting the country
into the WTO, or pass upon the
other import/trade barriers. Rather, it will only exercise its constitutional duty
to determine whether or not there
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the letter, spirit and intent of the Constitution
mandating economic
parts not only of the WTO Agreement and its annexes but also in the Ministerial
Decisions and Declarations
Article II
xx xx xx
Sec. 19. The State shall develop a self-reliant and independent national
economy effectively
controlled by Filipinos.
xx xx xx
Article XII
xx xx xx
Sec. 10. x x x. The Congress shall enact measures that will encourage the
formation and
xx xx xx
Sec. 12. The State shall promote the preferential use of Filipino labor, domestic
materials and
locally produced goods, and adopt measures that help make them competitive.
xx
xx
xx
xx
Article 2
any TRIM that is inconsistent with the provisions of Article III or Article XI of
GATT 1994.
ANNEX
Illustrative List
paragraph 4 of Article III of GATT 1994 include those which are mandatory or
enforceable
provided for in paragraph 1 of Article XI of GATT 1994 include those which are
mandatory or
laws
or
under
administrative
rulings,
or
(c) the exportation or sale for export specified in terms of particular products,
in terms of
it exports;
other contracting party shall be accorded treatment no less favorable than that
accorded
of transport and not on the nationality of the product. (Article III, GATT 1947,
as amended by
the Protocol Modifying Part II, and Article XXVI of GATT, 14 September 1948, 62
UMTS 82-
The products of the territory of any contracting party imported into the
territory of any
b) In the area of trade related aspects of intellectual property rights (TRIPS, for
brevity):
favourable than that it accords to its own nationals with regard to the
protection of
Property rights, Vol. 31, Uruguay Round, Legal Instruments, p.25432 (emphasis
supplied)
Each Member shall accord to the nationals of other Members treatment no less
1. In the sectors inscribed in its schedule, and subject to any conditions and
qualifications set
National Treatment
out therein, each Member shall accord to services and service suppliers of any
other
favourable than it accords to its own like services and service suppliers.
treatment to that it accords to its own like services and service suppliers.
On the other hand, respondents through the Solicitor General counter (1) that
such Charter provisions are
not self-executing and merely set out general policies; (2) that these
nationalistic portions of the Constitution
XII, particularly Secs. 1 and 13 thereof; (3) that read properly, the cited WTO
clauses do not conflict with the
Constitution; and (4) that the WTO Agreement contains sufficient provisions to
protect developing countries like
Vicente Sinco.43[22] These principles in Article II are not intended to be selfexecuting principles ready for
enforcement through the courts.44[23] They are used by the judiciary as aids
or as guides in the exercise of its
sections of Article XII are not self-executing provisions, the disregard of which
can give rise to a cause of
legislation.
In the same light, we held in Basco vs. Pagcor46[25] that broad constitutional
principles need legislative
13 (Role of Youth) of Article II; Section 13 (Social Justice) of Article XIII and
Section 2 (Educational
Values) of Article XIV of the 1987 Constitution, suffice it to state also that these
are merely statements
principles ready for enforcement through the courts. They were rather
directives addressed
to the executive and to the legislature. If the executive and the legislature
failed to heed the
directives of the article, the available remedy was not judicial but political. The
electorate
could express their displeasure with the failure of the executive and the
legislature through
sourced from basic considerations of due process and the lack of judicial
authority to wade into the uncharted
ocean of social and economic policy making. Mr. Justice Florentino P. Feliciano
in his concurring opinion in
My suggestion is simply that petitioners must, before the trial court, show a
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
reasons. One is that unless the legal right claimed to have been violated or
disregarded is given
and effectively; in other words, there are due process dimensions to this
matter.
which reads:
Section 1. x x x
Judicial power includes the duty of the courts of justice to settle actual
controversies
not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on
courts into the uncharted ocean of social and economic policy making. At least
in respect of the vast
standards are shown to exist, then the policy making departments -- the
legislative and executive
and standards, and to implement them before the courts should intervene.
Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying
down general principles
should
be
read
and
Section 1. The goals of the national economy are a more equitable distribution
of opportunities,
income, and wealth; a sustained increase in the amount of goods and services
produced by the nation
for the benefit of the people; and an expanding productivity as the key to
raising the quality of life for
The State shall promote industrialization and full employment based on sound
agricultural
development and agrarian reform, through industries that make full and
efficient use of human and
natural resources, and which are competitive in both domestic and foreign
markets. However, the
State shall protect Filipino enterprises against unfair foreign competition and
trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the
country shall be
xxxxxxxxx
Sec. 13. The State shall pursue a trade policy that serves the general welfare
and utilizes all
As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of
national economic
development, as follows:
people; and
3. An expanding productivity as the key to raising the quality of life for all
especially the underprivileged.
With these goals in context, the Constitution then ordains the ideals of
economic nationalism (1) by
the national economy and patrimony48[27] and in the use of Filipino labor,
domestic materials and locally-
produced goods; (2) by mandating the State to adopt measures that help make
them competitive;49[28] and (3)
requires the pursuit of a trade policy that serves the general welfare and
utilizes all forms and arrangements of
It is true that in the recent case of Manila Prince Hotel vs. Government Service
Insurance System, et al.,52
[31] this Court held that Sec. 10, second par., Art. XII of the 1987 Constitution
is a mandatory, positive command
enforcement. From its very words the provision does not require any legislation
to put it in operation. It is per
the grants of rights, privileges and concessions covering national economy and
patrimony and not to every
aspect of trade and commerce. It refers to exceptions rather than the rule. The
issue here is not whether this
All told, while the Constitution indeed mandates a bias in favor of Filipino
goods, services, labor and
enterprises, at the same time, it recognizes the need for business exchange
with the rest of the world on the
and trade practices that are unfair.53[32] In other words, the Constitution did
not intend to pursue an isolationist
policy. It did not shut out foreign investments, goods and services in the
development of the Philippine
economy. While the Constitution does not encourage the unlimited entry of
foreign goods, services and
investments into the country, it does not prohibit them either. In fact, it allows
an exchange on the basis of
Upon the other hand, respondents maintain that the WTO itself has some builtin advantages to protect
weak and developing economies, which comprise the vast majority of its
members. Unlike in the UN where
major states have permanent seats and veto powers in the Security Council, in
the WTO, decisions are made
on the basis of sovereign equality, with each members vote equal in weight to
that of any other. There is no
Conference and the General Council shall be taken by the majority of the votes
cast, except in cases
require
two
thirds
vote
in
general.
and the Amendments provision will require assent of all members. Any member
may withdraw from
the Agreement upon the expiration of six months from the date of notice of
withdrawals.54[33]
Hence, poor countries can protect their common interests more effectively
through the WTO than through
blocs to push their economic agenda more decisively than outside the
Organization. This is not merely a
matter of practical alliances but a negotiating strategy rooted in law. Thus, the
basic principles underlying the
WTO Agreement recognize the need of developing countries like the Philippines
to share in the growth in
the
needs
of
their
economic
Recognizing that their relations in the field of trade and economic endeavour
should be
growing volume of real income and effective demand, and expanding the
production of and trade in
goods and services, while allowing for the optimal use of the worlds resources
in accordance with the
enhance the means for doing so in a manner consistent with their respective
needs and concerns at
Recognizing further that there is need for positive efforts designed to ensure
that developing
countries, and especially the least developed among them, secure a share in
the growth in
international trade
development,
commensurate
with
the
needs
of
their
economic
encompassing the General Agreement on Tariffs and Trade, the results of past
trade liberalization
efforts, and all of the results of the Uruguay Round of Multilateral Trade
Negotiations,
So too, the Solicitor General points out that pursuant to and consistent with
the foregoing basic principles,
some protection from the rush of foreign competition. Thus, with respect to
tariffs in general, preferential
agricultural products by 20% over six (6) years, as compared to only 13% for
developing countries to be
budgetary outlays for export subsidy by 36% and export volumes receiving
export subsidy by 21% within a
period of six (6) years. For developing countries, however, the reduction rate is
only two-thirds of that
prescribed for developed countries and a longer period of ten (10) years within
which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair foreign
competition and trade practices
hardly therefore any basis for the statement that under the WTO, local
industries and enterprises will all be
wiped out and that Filipinos will be deprived of control of the economy. Quite
the contrary, the weaker
situations of developing nations like the Philippines have been taken into
account; thus, there would be no
basis to say that in joining the WTO, the respondents have gravely abused their
discretion. True, they have
made a bold decision to steer the ship of state into the yet uncharted sea of
economic liberalization. But such
decision cannot be set aside on the ground of grave abuse of discretion, simply
because we disagree with it or
this case will not pass upon the advantages and disadvantages of trade
liberalization as an economic policy. It
will only perform its constitutional duty of determining whether the Senate
committed grave abuse of discretion.
necessarily rule out the entry of foreign investments, goods and services. It
contemplates neither economic
overdependence on external assistance for even its most basic needs. It does
not mean autarky or
Independence refers to the freedom from undue foreign control of the national
economy, especially in
The WTO reliance on most favored nation, national treatment, and trade
without discrimination cannot be
clear policy against a sheltered domestic trade environment, but one in favor
of the gradual development of
robust industries that can compete with the best in the foreign markets.
Indeed, Filipino managers and Filipino
The Constitution has not really shown any unbalanced bias in favor of any
business or enterprise, nor
available to the Filipino consumer the best goods and services obtainable
anywhere in the world at the most
question
boils
down
to
whether
Will adherence to the WTO treaty bring this ideal (of favoring the general
welfare) to reality?
The responses to these questions involve judgment calls by our policy makers,
for which they are
electoral
exercises.
Such
No doubt, the WTO Agreement was not yet in existence when the Constitution
was drafted and ratified in
1987. That does not mean however that the Charter is necessarily flawed in the
sense that its framers might
not have anticipated the advent of a borderless world of business. By the same
token, the United Nations was
not yet in existence when the 1935 Constitution became effective. Did that
necessarily mean that the then
signed the UN Charter, thereby effectively surrendering part of its control over
its foreign relations to the
credit of its drafters that a Constitution can withstand the assaults of bigots
and infidels but at the same time
The Constitution must be quintessential rather than superficial, the root and
not the blossom, the
base and framework only of the edifice that is yet to rise. It is but the core of
the dream that must take
hearts, where it will in time develop its sinews and gradually gather its
strength and finally achieve its
substance. In fine, the Constitution cannot, like the goddess Athena, rise fullgrown from the brow of
society it seeks to re-structure and march apace with the progress of the race,
drawing from the
vicissitudes of history the dynamism and vitality that will keep it, far from
becoming a petrified rule, a
The WTO Agreement provides that (e)ach Member shall ensure the conformity
of its laws, regulations and
and
impairs
Philippine
legislation that will be good for our national interest and general welfare if
such legislation will not conform with
the WTO Agreement, which not only relates to the trade in goods x x x but also
to the flow of investments and
More specifically, petitioners claim that said WTO proviso derogates from the
power to tax, which is
rates, import and export quotas, tonnage and wharfage dues, and other duties
or imposts, such authority is
This Court notes and appreciates the ferocity and passion by which petitioners
stressed their arguments
a hermit-type isolation of the country from the rest of the world. In its
Declaration of Principles and State
generally
accepted
equality,
principles
justice,
of
freedom,
treaty engagement is not a mere moral obligation but creates a legally binding
obligation on the parties x x x. A
as may be necessary
undertaken.66[45]
to
ensure
the
fulfillment
of
the
obligations
act, nations may surrender some aspects of their state power in exchange for
greater benefits granted by or
derived from a convention or pact. After all, states, like individuals, live with
coequals, and in pursuit of mutually
covenanted objectives and benefits, they also commonly agree to limit the
exercise of their otherwise absolute
rights. Thus, treaties have been used to record agreements between States
concerning such widely diverse
matters as, for example, the lease of naval bases, the sale or cession of
territory, the termination of war, the
of claims, the laying down of rules governing conduct in peace and the
establishment of international
Certain restrictions enter into the picture: (1) limitations imposed by the very
nature of membership in the family
can build its destiny alone. The age of self-sufficient nationalism is over. The
age of interdependence is here.68
[47]
Thus, when the Philippines joined the United Nations as one of its 51 charter
members, it consented to
restrict its sovereign rights under the concept of sovereignty as autolimitation.6947-A Under Article 2 of the UN
Charter, (a)ll members shall give the United Nations every assistance in any
action it takes in accordance with
the present Charter, and shall refrain from giving assistance to any state
against which the United Nations is
merely in administrative expenses but also in expenditures for the peacekeeping operations of the
organization. In its advisory opinion of July 20, 1961, the International Court of
Justice held that money used by
the United Nations Emergency Force in the Middle East and in the Congo were
expenses of the United
Nations under Article 17, paragraph 2, of the UN Charter. Hence, all its
members must bear their
So too, under Article 105 of the said Charter, the UN and its representatives
enjoy diplomatic privileges and
Security Council for the maintenance of international peace and security under
Chapter VII of the Charter. A
final example: under Article 103, (i)n the event of a conflict between the
obligations of the Members of the
United Nations under the present Charter and their obligations under any other
obligation under the present charter shall prevail, thus unquestionably denying
the Philippines -- as a member -
Apart from the UN Treaty, the Philippines has entered into many other
international pacts -- both bilateral
(a) Bilateral convention with the United States regarding taxes on income,
where the Philippines
agreed, among others, to exempt from tax, income received in the Philippines
by, among others,
the Federal Reserve Bank of the United States, the Export/Import Bank of the
United States, the
wages, salaries and similar remunerations paid by the United States to its
citizens for labor and
(b) Bilateral agreement with Belgium, providing, among others, for the
avoidance of double taxation
(c) Bilateral convention with the Kingdom of Sweden for the avoidance of
double taxation.
(d) Bilateral convention with the French Republic for the avoidance of double
taxation.
(e) Bilateral air transport agreement with Korea where the Philippines agreed
to exempt from all
customs duties, inspection fees and other duties or taxes aircrafts of South
Korea and the regular
(f) Bilateral air service agreement with Japan, where the Philippines agreed to
exempt from customs
duties, excise taxes, inspection fees and other similar duties, taxes or charges
fuel, lubricating
oils, spare parts, regular equipment, stores on board Japanese aircrafts while
on Philippine soil.
(g) Bilateral air service agreement with Belgium where the Philippines granted
Belgian air carriers the
same privileges as those granted to Japanese and Korean air carriers under
agreements.
(h) Bilateral notes with Israel for the abolition of transit and visitor visas where
the Philippines
(I) Bilateral agreement with France exempting French nationals from the
requirement of obtaining
Missions in the Philippines are inviolable and its agents can not enter said
premises without
consent of the Head of Mission concerned. Special Missions are also exempted
from customs
Court of Justice. The International Court of Justice has jurisdiction in all legal
disputes concerning
In the foregoing treaties, the Philippines has effectively agreed to limit the
exercise of its sovereign powers
immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine
the law of the sea, or trade, constrain domestic political sovereignty through
the assumption of
most cases we accept that the benefits of the reciprocal obligations involved
outweigh the costs
associated with any loss of political sovereignty. (T)rade treaties that structure
relations by reference
disproportionately from trade liberalization. This is due to the simple fact that
liberalization will provide
access to a larger set of potential new trading relationship than in case of the
larger country gaining
violating the Constitution, based on the rationale that the Philippines adopts
the generally accepted principles
of international law as part of the law of the land and adheres to the policy of x
x x cooperation and amity with
all nations.
Supreme Court to
procedures.72[50]
promulgate
rules
Intellectual
concerning
Property
pleading,
Rights
practice
and
follows:
Article 34
product, the judicial authorities shall have the authority to order the defendant
to prove that the
shall provide, in at least one of the following circumstances, that any identical
product when produced
without the consent of the patent owner shall, in the absence of proof to the
contrary, be deemed to
(b) if there is a substantial likelihood that the identical product was made by
the process and
the owner of the patent has been unable through reasonable efforts to
determine the
2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on
patented process shall be deemed to have been obtained by the (illegal) use of
the said patented process, (1)
where such product obtained by the patented product is new, or (2) where
there is substantial likelihood that
the identical product was made with the use of the said patented process but
the owner of the patent could not
determine the exact process used in obtaining such identical product. Hence,
the burden of proof contemplated
forward) placed on the producer of the identical (or fake) product to show that
his product was produced
The foregoing notwithstanding, the patent owner still has the burden of proof
since, regardless of the
presumption provided under paragraph 1 of Article 34, such owner still has to
introduce evidence of the
existence of the alleged identical product, the fact that it is identical to the
genuine one produced by the
patented process and the fact of newness of the genuine product or the fact of
substantial likelihood that the
the subject, Republic Act No. 165, as amended, otherwise known as the Patent
Law, provides a similar
consist in unauthorized copying of the patented design or utility model for the
purpose of trade or
industry in the article or product and in the making, using or selling of the
article or product copying
the patented design or utility model. Identity or substantial identity with the
patented design or utility
only if (1) the product obtained by the patented process is NEW or (2) there is
a substantial likelihood that the
identical product was made by the process and the process owner has not been
to determine the process used. Where either of these two provisos does not
obtain, members shall be free to
and processes.
By and large, the arguments adduced in connection with our disposition of the
third issue -- derogation of
legislative power - will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than
justifies such intrusion, if any actually exists. Besides, Article 34 does not
contain an unreasonable burden,
system.
Fifth Issue: Concurrence Only in the WTO Agreement and Not in Other
Documents Contained in the
Final Act
Petitioners allege that the Senate concurrence in the WTO Agreement and its
annexes -- but not in the
other documents referred to in the Final Act, namely the Ministerial Declaration
and Decisions and the
abuse of discretion. They submit that such concurrence in the WTO Agreement
alone is flawed because it is in
effect a rejection of the Final Act, which in turn was the document signed by
Secretary Navarro, in
conventions, recommendations and other acts agreed upon and signed by the
plenipotentiaries attending the
which may have taken place over several years. The text of the Final Act
Embodying the Results of the
and
The Ministerial Declarations and Decisions were deemed adopted without need
for ratification. They were
members can meet to give effect to those provisions of this Agreement which
invoke joint action, and generally
with a view to facilitating the operation and furthering the objectives of this
Agreement.78[56]
business.79[57]
On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed
Article II
1. The WTO shall provide the common institutional framework for the conduct
of trade relations
Plurilateral Trade Agreements) are also part of this Agreement for those
Members that have accepted
them, and are binding on those Members. The Plurilateral Trade Agreements do
not create either
as GATT 1994) is legally distinct from the General Agreement on Tariffs and
Trade, dated 30 October
1947, annexed to the Final Act adopted at the conclusion of the Second Session
of the Preparatory
It should be added that the Senate was well-aware of what it was concurring in
as shown by the members
deliberation on August 25, 1994. After reading the letter of President Ramos
dated August 11, 1994,81[59] the
senators of the Republic minutely dissected what the Senate was concurring in,
as follows: 82[60]
THE CHAIRMAN: Yes. Now, the question of the validity of the submission came
up in the first
day hearing of this Committee yesterday. Was the observation made by Senator
Taada that what was
submitted to the Senate was not the agreement on establishing the World
Trade Organization by the
final act of the Uruguay Round which is not the same as the agreement
establishing the World Trade
briefings for Senators until the question of the submission could be clarified.
MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should
be no
Can this Committee hear from Senator Taada and later on Senator Tolentino
since they were the
Based on what Secretary Romulo has read, it would now clearly appear that
what is being
submitted to the Senate for ratification is not the Final Act of the Uruguay
Round, but rather the
I am now satisfied with the wording of the new submission of President Ramos.
THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator
Tolentino? And after
SEN TOLENTINO, Mr. Chairman, I have not seen the new submission actually
transmitted to us
but I saw the draft of his earlier, and I think it now complies with the provisions
of the Constitution, and
with the Final Act itself. The Constitution does not require us to ratify the Final
Act. It requires us to
ratify the Agreement which is now being submitted. The Final Act itself
specifies what is going to be
In other words, it is not the Final Act that was agreed to be submitted to the
governments for
Trade Organization Agreement. And if that is the one that is being submitted
now, I think it satisfies
THE CHAIRMAN. Thank you, Senator Tolentino, May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on this matter are already a matter of
record. And
they had been adequately reflected in the journal of yesterdays session and I
dont see any need for
THE CHAIRMAN. Thank you, Senator Gonzales. Senator Lina, do you want to
make any
comment on this?
SEN. LINA. Mr. President, I agree with the observation just made by Senator
Gonzales out of the
abundance of question. Then the new submission is, I believe, stating the
obvious and therefore I
By signing the present Final Act, the representatives agree: (a) to submit as
appropriate
Epilogue
issued by the Court under Rule 65 of the Rules of Court when it is amply shown
that petitioners have no other
In rendering this Decision, this Court never forgets that the Senate, whose act
is under review, is one of
two sovereign houses of Congress and is thus entitled to great respect in its
actions. It is itself a constitutional
body independent and coordinate, and thus its actions are presumed regular
and done in good faith. Unless
resolve every doubt in its favor. Using the foregoing well-accepted definition of
grave abuse of discretion and
the presumption of regularity in the Senates processes, this Court cannot find
any cogent reason to impute
products, domestic materials and locally produced goods. But it is equally true
that such principles -- while
a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis
markets, thereby justifying its acceptance of said treaty. So too, the alleged
impairment of sovereignty in the
international law as part of the law of the land and the adherence of the
Constitution to the policy of
That the Senate, after deliberation and voting, voluntarily and overwhelmingly
gave its consent to the WTO
such exercise. It is not impossible to surmise that this Court, or at least some
of its members, may even agree
But that is not a legal reason to attribute grave abuse of discretion to the
Senate and to nullify its decision. To
do so would constitute grave abuse in the exercise of our own judicial power
and duty. Ineludably, what the
Senate did was a valid exercise of its authority. As to whether such exercise
was wise, beneficial or viable is
outside the realm of judicial inquiry and review. That is a matter between the
elected policy makers and the
people. As to whether the nation should join the worldwide march toward trade
liberalization and economic
The eminent futurist John Naisbitt, author of the best seller Megatrends,
predicts an Asian Renaissance87
[65] where the East will become the dominant region of the world economically,
politically and culturally in the
next century. He refers to the free market espoused by WTO as the catalyst in
this coming Asian ascendancy.
There are at present about 31 countries including China, Russia and Saudi
Arabia negotiating for membership
as the only viable structure for multilateral trading and the veritable forum for
the development of international
trade law. The alternative to WTO is isolation, stagnation, if not economic selfdestruction. Duly enriched with
experience, and endowed with a vision of the future, the Philippines now
straddles the crossroads of an
SO ORDERED.
CASE 16
SUPREME COURT
Manila
EN BANC
vs.
RESOLUTION
TINGA, J.:
Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for
President on December 17, 2003.
Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision,
however, was not unanimous since
Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on
petitioners Motion for
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
violation of his right to "equal access to opportunities for public service" under
Section 26, Article II of the 1987
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
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.
office" is the claim that there is a constitutional right to run for or hold public
office and, particularly in his case, to
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
and State Policies." The provisions under the Article are generally considered
not self-executing,2 and there is no
enumerated in Article II, the provision does not contain any judicially
enforceable constitutional right but merely
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
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
not mandate the State to make the government the number one employer and
to limit offices only to
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
not properly defined. Broadly written, the myriad of claims that can be
subsumed under this rubric appear to be
such
as
"equal
access,"
may be sourced.
valid limitations specifically on the privilege to seek elective office are found in
the provisions9 of the Omnibus
the instances wherein the COMELEC may motu proprio refuse to give due
course to or cancel a Certificate of
Candidacy.
any one who is minded to file a certificate of candidacy. In the case at bar,
there is no showing that any person is
Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their
presumed validity stands and has
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
the election. These practical difficulties should, of course, never exempt the
State from the conduct of a mandated
but a rot that erodes faith in our democratic institutions. As the United States
Supreme Court held:
practical
considerations
when
it
January 2004, adopting the study Memorandum of its Law Department dated 11
January 2004. As observed in the
COMELECs Comment:
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 elections. Our election laws provide various entitlements for candidates for
public office, such as watchers in
there are election rules and regulations the formulations of which are
dependent on the number of candidates in a
given election.
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
and detract from the larger purpose. The COMELEC is mandated by the
Constitution with the administration of
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.
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
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
determination is not before this Court. Thus, the remand of this case for the
reception of further evidence is in order.
strictly complies with Section 74 of the Omnibus Election Code. This provision
specifically enumerates what a
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
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, SandovalGutierrez, Carpio, Austria-Martinez,
CASE 17
CASE 18
SUPREME COURT
Manila
EN BANC
(Formerly A.M. OCA IPI No. 04- 2022-P and A.M. No. 04-434-RTC)
vs.
DECISION
Per curiam:*
This complaint for gross misconduct against Rene de Guzman (De Guzman),
Clerk, Regional Trial Court (RTC) of
Guimba, Nueva Ecija, Branch 31, is an offshoot of the complaint filed by Atty.
Hugo B. Sansano, Jr. (Atty. Sansano)
In our Resolution dated September 17, 2007, we adopted the findings and
recommendation of the Office of the
and
terminated
the
(Reyes), the Officer-in-Charge of the RTC of Guimba, Nueva Ecija, Branch 31.
drugs and had been manifesting irrational and queer behavior while at work.
According to Reyes, De Guzmans
x x x Mr. Rene de Guzman, the Docket Clerk, was [in] charge of the preparation
and transmission of the records on
records of the appealed cases [for more than] a dozen times, even personally
confronting Mr. Rene de Guzman
and with the empty assurance that the task is as good as finished and what x x
x need[s] to be done [is] simply
retyping of the corrected indices or the like and that he would submit the same
in [no] time at all. This was after a
number of weeks from March 26, 2003 after Mr. De Guzman made the
undersigned sign the transmittal of PP v.
Manangan which he allegedly did not transmit before owing to some minor
corrections in the indexing. All too often,
(it seems to have been customary on his part, for this he would do to other
pressing assignment) he would come to
the office the next day, jubilant that the problem has been solved at last! But to
no avail. This attitude seemingly
That Mr. De Guzman could brush aside even the personal importuning by the
judge is a fete no other of our co-
On May 24, 2004, Judge Sta. Romana requested the Nueva Ecija Provincial
Crime Laboratory Office to conduct a
metabolites
(marijuana)
and
drugs.
misconduct relative to the alleged use of prohibited drugs within 10 days from
notice. Notwithstanding the Courts
directive, De Guzman failed to file his Comment. Thus, on January 23, 2008, we
directed De Guzman to show
cause why he should not be held in contempt for failure to comply with the
September 17, 2007 Resolution. At the
same time, we resolved to require him to submit his comment within 10 days
from notice.
De Guzman complied with our directive only on March 12, 2008. In his letter, De
Guzman claimed that he failed to
comply with the Courts directive because he lost his copy of the September
17, 2007 Resolution.
Treating De Guzmans letter as his Comment, we referred the same to the OCA
for evaluation, report and
xxxx
Nueva Ecija Provincial Crime Laboratory Office which found him positive for
"marijuana" and "shabu". He did not
also promptly submit another test report or other document to controvert the
drug test report. His plain refutation of
the charge and his willingness to submit himself now to a drug test are token
attempts at candor and assertion of
innocence. These perfunctory attempts cannot prevail over the solitary yet
compelling evidence of misconduct for
misplaced (his) copy of said resolution, and for that (he) almost forgot about it"
is neither a valid reason nor an
excuse for the delay in complying with the order of the Court. His flippant
attitude towards the repeated orders of the
Court to explain his conduct does not merit consideration and justification for
delay.
the Court." After all, a resolution of the Supreme Court is not a mere request
and should be complied with promptly
It should be mentioned that this is not the first instance that respondent is
ordered to account for his failure to
comply with a court order. Earlier, he was required to explain to the Court his
failure to promptly submit a copy of the
affidavit of retired court stenographer Jorge Caoile and to show cause why he
should not be administratively dealt
promptly his compliance to the Courts show cause order, respondent may be
held guilty of two counts of gross
misconduct.
the service effective immediately with forfeiture of all benefits except accrued
leave credits, with prejudice to
the case for resolution on the basis of the pleadings/records already filed and
submitted. As before, De Guzman
manifestation.
Our Ruling
matter relative to the delay in the transmittal of the records of Criminal Case
of 10 days or until November 15, 2004 within which to submit the Affidavit of
George Caoile (Caoile), the retired
Caoiles affidavit. Subsequently, we furnished him with a copy of the April 18,
2005 Resolution wherein we
mentioned that we are awaiting his submission of the affidavit of Caoile which
shall be considered as part of his (De
Guzmans) comment.
Nine months from the time he undertook to submit the affidavit of Caoile, De
Guzman has yet to comply with his
imposed upon him a fine of P1,000.00. Finally, on January 24, 2007, or after the
lapse of one year and two months,
Similarly, we also required De Guzman to file his comment within 10 days from
notice as regards the allegation that
September 17, 2007. Thus, on January 23, 2008, we required him to show cause
why he should not be held in
As correctly observed by the OCA, De Guzman has shown his propensity to defy
the directives of this Court.5
Misamis Oriental:6
promptly and completely. Such failure to comply betrays, not only a recalcitrant
streak in character, but also
disrespect for the lawful order and directive of the Court. Furthermore, this
contumacious conduct of refusing to
abide by the lawful directives issued by the Court has likewise been considered
as an utter lack of interest to remain
employee of the Judiciary, who, more than an ordinary citizen, should be aware
of her duty to obey the orders and
Anent the use of illegal drugs, we have upheld in Social Justice Society (SJS) v.
Dangerous Drugs Board7 the
sector,
government
officials and
supervision and restrictions imposed by the Civil Service law and other laws on
public officers, all enacted to
promote a high standard of ethics in the public service. And if RA 9165 passes
the norm of reasonableness for
private employees, the more reason that it should pass the test for civil
servants, who, by constitutional demand,
are required to be accountable at all times to the people and to serve them
with utmost responsibility and
efficiency.8
Parenthetically, in A.M. No. 06-1-01-SC9 dated January 17, 2006, the Court has
adopted guidelines for a program to
deter the use of dangerous drugs and institute preventive measures against
drug abuse for the purpose of
eliminating the hazards of drug abuse in the Judiciary, particularly in the first
and second level courts. The objectives
1. To detect the use of dangerous drugs among lower court employees, impose
disciplinary sanctions, and
2. To discourage the use and abuse of dangerous drugs among first and second
level court employees and
3. To institute other measures that address the menace of drug abuse within
the personnel of the Judiciary.
Nueva Ecija Provincial Crime Laboratory Office. Likewise, the finding that De
Guzman was found positive for use of
The foregoing constitutes more than substantial evidence that De Guzman was
indeed found positive for use of
we
of
finding
held
guilt
that
in
an
This Court is a temple of justice. Its basic duty and responsibility is the
dispensation of justice. As dispensers of
justice, all members and employees of the Judiciary are expected to adhere
strictly to the laws of the land, one of
which is Republic Act No. 916512 which prohibits the use of dangerous
drugs.13
The Court has adhered to the policy of safeguarding the welfare, efficiency, and
well-being not only of all the court
personnel, but also that of the general public whom it serves. The Court will
not allow its front-line representatives,
like De Guzman, to put at risk the integrity of the whole judiciary. As we held in
Baron v. Anacan,14 "(t)he image of a
all else, be above suspicion so as to earn and keep the respect of the public for
the judiciary. The Court would never
countenance any conduct, act or omission on the part of all those in the
administration of justice, which will violate
the norm of public accountability and diminish or even just tend to diminish the
faith of the people in the judiciary."
SECTION 1. Public office is a public trust. Public officers and employees must at
all times be accountable to the
people and serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice,
De Guzmans use of prohibited drugs has greatly affected his efficiency in the
performance of his functions. De
Guzman did not refute the observation of his superior, Judge Sta. Romana, that
as a criminal docket court clerk, he
(De Guzman) was totally inept and incompetent. Hence, to get across his
displeasure and dissatisfaction with his
latters drawer. It would appear that several cases have not been proceeded
upon because De Guzman hid the
records of the same inside his drawer. The text of the said Memorandum reads:
An examination of the records found in your drawer reveal that the following
cases have not moved because you
have not brought the same to the attention of the Presiding Judge, to wit:
Prosecutor of Nueva Ecija dated August 6, 2003 to resolve the Motion for
Reconsideration.
Resolution of the Provincial Prosecutor dated September 23, 2003 denying the
Motion for Reconsideration
and transmitting the records to the RTC, Br. 31, Guimba, Nueva Ecija received
by this court on September
24, 2003;
2. Crim. Case No. 1993-G, PP vs. JOJO SUPNET Information dated October 14,
2002 received by this
3. Crim. Case No. 2013-G, PP vs. Brgy. Capt. BAYANI CAMIS Information dated
September 23, 2002
4. Crim. Case No. 2007-G, PP vs. Armando Marcos Information dated June 23,
2002; Records received
on January 2, 2003.
The Presiding Judge caused the issuance of finding of probable causes and the
corresponding Warrants of Arrest.
You are hereby ordered to assist the OIC/Clerk of Court in sending forthwith the
Warrants of Arrest to the proper
In the same vein, Reyes also put forth the absurd behavioral manifestations of
De Guzman. According to Reyes,
Judge Sta. Romana would always remind De Guzman to prepare and transmit
the complete records of the appealed
cases. However, De Guzman would only make empty assurances to perform his
task. Notwithstanding the
reminders of his superiors, De Guzman would still fail to transmit the records.
Instead, he would report the next day
and jubilantly declare that the problem has been solved at last.
In fine, we agree with the OCA that by his repeated and contumacious conduct
of disrespecting the Courts
irrational and irresponsible, because it has greatly affected his job performance
and efficiency. By using prohibited
which he serves. It is only by weeding out the likes of De Guzman from the
ranks that we would be able to preserve
Two justices disagree with the majority opinion. They opine that the Courts
action in this case contravenes an
express public policy, i.e., "imprisonment for drug dealers and pushers,
rehabilitation for their victims." They also
posit that De Guzmans failure to properly perform his duties and promptly
respond to Court orders precisely springs
from his drug addiction that requires rehabilitation. Finally, they state that the
Courts real strength is not in its
righteousness but in its willingness to understand that men are not perfect and
that there is a time to punish and a
impose disciplinary actions against erring justices, judges and court personnel.
Neither should such policy be used
to restrict the Courts power to preserve and maintain the Judiciarys honor,
dignity and integrity and public
confidence that can only be achieved by imposing strict and rigid standards of
decency and propriety governing the
stated at this point that it can be attributed solely to his being a drug user.
user. His outright dismissal from the service is likewise anchored on his
contumacious and repeated acts of not
heeding the directives of this Court. As we have already stated, such attitude
betrays not only a recalcitrant streak of
character, but also disrespect for the lawful orders and directives of the Court.
DISMISSED from the service with forfeiture of all retirement benefits, except
accrued leave credits, and
corporations.
SO ORDERED.
CASE 19
SUPREME COURT
Manila
EN BANC
S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS,
Petitioners,
vs.
Arroyo, and anyone acting in his stead and in behalf of the President of the
Philippines, Respondents.
x-------------------------x
BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO,
Rep. CRISPIN
BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep.
JOEL VIRADOR,
vs.
Arroyo, Respondent.
x-------------------------x
vs.
x-------------------------x
vs.
x-------------------------x
vs.
x-------------------------x
BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE
PHILIPPINES,
Petitioners,
vs.
DECISION
thought, however, it has been recognized that the head of government may
keep certain information confidential in
pursuit of the public interest. Explaining the reason for vesting executive
power in only one magistrate, a
History has been witness, however, to the fact that the power to withhold
information lends itself to abuse, hence,
The present consolidated petitions for certiorari and prohibition proffer that
the President has abused such power by
issuing Executive Order No. 464 (E.O. 464) last September 28, 2005. They thus
pray for its declaration as null and
In resolving the controversy, this Court shall proceed with the recognition that
the issuance under review has come
challenged order is found to be indeed violative of the Constitution, it is dutybound to declare it so. For the
Constitution, being the highest expression of the sovereign will of the Filipino
people, must prevail over any issuance
In the exercise of its legislative power, the Senate of the Philippines, through
its various Senate Committees,
Controlled Corporations, the Armed Forces of the Philippines (AFP), and the
Philippine National Police (PNP).
railway project of the North Luzon Railways Corporation with the China National
Machinery and Equipment Group
(hereinafter North Rail Project). The public hearing was sparked by a privilege
speech of Senator Juan Ponce Enrile
urging the Senate to investigate the alleged overpricing and other unlawful
provisions of the contract covering the
the following officials of the AFP: the Commanding General of the Philippine
Army, Lt. Gen. Hermogenes C.
Esperon; Inspector General of the AFP Vice Admiral Mateo M. Mayuga; Deputy
Chief of Staff for Intelligence of the
AFP Rear Admiral Tirso R. Danga; Chief of the Intelligence Service of the AFP
Brig. Gen. Marlu Q. Quevedo;
Commandant, Corps of Cadets of the PMA, Col. Alexander F. Balutan, for them
to attend as resource persons in a
public hearing scheduled on September 28, 2005 on the following: (1) Privilege
Speech of Senator Aquilino Q.
Pimentel Jr., delivered on June 6, 2005 entitled "Bunye has Provided Smoking
Gun or has Opened a Can of Worms
that Show Massive Electoral Fraud in the Presidential Election of May 2005"; (2)
Privilege Speech of Senator
Jinggoy E. Estrada delivered on July 26, 2005 entitled "The Philippines as the
Wire-Tapping Capital of the World";
(4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal
Resolution Directing the Committee
Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate
Resolution No. 295 filed by Senator
Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its
postponement "due to a pressing
officials ample time and opportunity to study and prepare for the various
issues so that they may better enlighten the
Senate President Drilon, however, wrote5 Executive Secretary Ermita that the
Senators "are unable to accede to [his
Senate President Drilon likewise received on September 28, 2005 a letter6 from
the President of the North Luzon
Railways Corporation Jose L. Cortes, Jr. requesting that the hearing on the
NorthRail project be postponed or
cancelled until a copy of the report of the UP Law Center on the contract
agreements relative to the project had
been secured.
On September 28, 2005, the President issued E.O. 464, "Ensuring Observance
of the Principle of Separation of
Powers, Adherence to the Rule on Executive Privilege and Respect for the
Rights of Public Officials Appearing in
Legislative Inquiries in Aid of Legislation Under the Constitution, and For Other
Section 6 thereof, took effect immediately. The salient provisions of the Order
are as follows:
When the security of the State or the public interest so requires and the
President so states in writing, the
(a) Nature and Scope. - The rule of confidentiality based on executive privilege
is fundamental to the operation of
23 May 1995). Further, Republic Act No. 6713 or the Code of Conduct and
Ethical Standards for Public Officials and
Employees provides that Public Officials and Employees shall not use or divulge
confidential or classified
information officially known to them by reason of their office and not made
available to the public to prejudice the
public interest.
(Almonte vs. Vasquez G.R. No. 95367, 23 May 1995; Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July
2002);
Military, diplomatic and other national security matters which in the interest of
national security should not be
divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May 1995; Chavez v.
Presidential Commission on Good
Matters affecting national security and public order (Chavez v. Public Estates
Authority, G.R. No. 133250, 9 July
2002).
(b) Who are covered. The following are covered by this executive order:
privilege;
Generals and flag officers of the Armed Forces of the Philippines and such other
officers who in the judgment of the
the judgment of the Chief of the PNP are covered by the executive privilege;
Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive
privilege; and
hereof shall secure prior consent of the President prior to appearing before
either House of Congress to ensure the
Also on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464,
and another letter8 informing him "that officials of the Executive Department
invited to appear at the meeting
[regarding the NorthRail project] will not be able to attend the same without
the consent of the President, pursuant to
[E.O. 464]" and that "said officials have not secured the required consent from
the President." On even date which
was also the scheduled date of the hearing on the alleged wiretapping, Gen.
Senga sent a letter9 to Senator Biazon,
granted by the President to any AFP officer to appear before the public hearing
of the Senate Committee on
by the Committee on National Defense and Security pushed through, with only
Col. Balutan and Brig. Gen. Gudani
For defying President Arroyos order barring military personnel from testifying
before legislative inquiries without her
approval, Brig. Gen. Gudani and Col. Balutan were relieved from their military
posts and were made to face court
martial proceedings.
and
Communication
(DOTC)
Conversion
Development
Authority
Bayan
Muna,
House
of
Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage,
an organization of government
justice, democracy and peace, all claiming to have standing to file the suit
because of the transcendental importance
of the issues they posed, pray, in their petition that E.O. 464 be declared null
and void for being unconstitutional;
them from fulfilling their respective obligations. Thus, Bayan Muna alleges that
E.O. 464 infringes on its right as a
the implementation of laws; Courage alleges that the tenure of its members in
public office is predicated on, and
threatened by, their submission to the requirements of E.O. 464 should they be
summoned by Congress; and
CODAL alleges that its members have a sworn duty to uphold the rule of law,
and their rights to information and to
Chavez,
claiming
that
his
law practitioner, are affected by the enforcement of E.O. 464, prays in his
petition that E.O. 464 be declared null and
In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging
that as a coalition of 17 legal resource
general public, it has legal standing to institute the petition to enforce its
constitutional right to information on matters
of public concern, a right which was denied to the public by E.O. 464,13 prays,
that said order be declared null and
void for being unconstitutional and that respondent Executive Secretary Ermita
be ordered to cease from
implementing it.
On October 11, 2005, Petitioner Senate of the Philippines, alleging that it has a
vital interest in the resolution of the
issue of the validity of E.O. 464 for it stands to suffer imminent and material
injury, as it has already sustained the
same with its continued enforcement since it directly interferes with and
impedes the valid exercise of the Senates
powers and functions and conceals information of great public interest and
concern, filed its petition for certiorari
and prohibition, docketed as G.R. No. 169777 and prays that E.O. 464 be
declared unconstitutional.
alleging that it is affected by the challenged E.O. 464 because it hampers its
legislative agenda to be implemented
government.
requested for a clearance from the President to allow [them] to appear before
the public hearing" and that "they will
Committee on the alleged mismanagement and use of the fertilizer fund under
the Ginintuang Masaganang Ani
October 5 and 26, November 24 and December 12, 2005 but most of them
failed to attend, DA Undersecretary
the
Department
of
Budget
and
In the budget hearings set by the Senate on February 8 and 13, 2006, Press
Secretary and Presidential
clearance from the President pursuant to E.O. 464. During the February 13,
2005 budget hearing, however,
On February 13, 2006, Jose Anselmo I. Cadiz and the incumbent members of the
Board of Governors of the
Integrated Bar of the Philippines, as taxpayers, and the Integrated Bar of the
Philippines as the official organization
petition for certiorari and prohibition, docketed as G.R. No. 171246, and pray
that E.O. 464 be declared null and
void.
All the petitions pray for the issuance of a Temporary Restraining Order
enjoining respondents from implementing,
In the oral arguments on the petitions conducted on February 21, 2006, the
following substantive issues were
following provisions of the Constitution: Art. II, Sec. 28, Art. III, Sec. 4, Art. III,
Sec. 7, Art. IV. Sec. 1, Art. VI, Sec. 21,
Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16. The procedural issue of
whether there is an actual case or
controversy that calls for judicial review was not taken up; instead, the parties
were instructed to discuss it in their
respective memoranda.
After the conclusion of the oral arguments, the parties were directed to submit
their respective memoranda, paying
particular attention to the following propositions: (1) that E.O. 464 is, on its
face, unconstitutional; and (2) assuming
NorthRail investigation (c) the Wiretapping activity of the ISAFP; and (d) the
investigation on the Venable contract.22
Petitioners in G.R. No. 16966023 and G.R. No. 16977724 filed their memoranda
on March 7, 2006, while those in G.R.
No. 16966725 and G.R. No. 16983426 filed theirs the next day or on March 8,
2006. Petitioners in G.R. No. 171246 did
Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for
extension to file memorandum27 was
the interest of having the issues resolved soonest, prompting this Court to
issue a Resolution reprimanding them.29
Petitioners
provisions:
submit
that
E.O.
464
violates
the
following
constitutional
Respondents Executive Secretary Ermita et al., on the other hand, pray in their
consolidated memorandum38 on
March 13, 2006 for the dismissal of the petitions for lack of merit.
2. Whether E.O. 464 violates the right of the people to information on matters
of public concern; and
for a valid exercise of the Courts power of judicial review are present is in
order.
Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1)
there must be an actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the
act must have standing to challenge the validity of the subject act or issuance;
otherwise stated, he must have a
personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its
disagreement between the parties lies, discussion of the rest of the requisites
shall be omitted.
Standing
Respondents, through the Solicitor General, assert that the allegations in G.R.
Nos. 169659, 169660 and 169667
functions. They maintain that Representatives Ocampo et al. have not shown
any specific prerogative, power, and
the other petitioner groups and individuals who profess to have standing as
advocates and defenders of the
"injured-in-fact."40
Respecting petitioner Chavez, respondents contend that Chavez may not claim
an interest as a taxpayer for the
implementation of E.O. 464 does not involve the exercise of taxing or spending
power.41
With regard to the petition filed by the Senate, respondents argue that in the
absence of a personal or direct injury
by reason of the issuance of E.O. 464, the Senate and its individual members
are not the proper parties to assail the
and substantial interest in the case, such that he has sustained or will sustain
direct injury due to the enforcement of
E.O. 464.44
That the Senate of the Philippines has a fundamental right essential not only
for intelligent public decision-making in
including its individual members, has a substantial and direct interest over the
outcome of the controversy and is the
proper party to assail the constitutionality of E.O. 464. Indeed, legislators have
standing to maintain inviolate the
validity of any official action which they claim infringes their prerogatives as
legislators.47
(Anakpawis),
Rafael
Mariano
allowed to sue to question the constitutionality of E.O. 464, the absence of any
claim that an investigation called by
the House of Representatives or any of its committees was aborted due to the
implementation of E.O. 464
notwithstanding, it being sufficient that a claim is made that E.O. 464 infringes
on their constitutional rights and
implementation of laws.
likewise
meets
the
standing
consonant with the declared policy underlying the party list system of affording
citizens belonging to marginalized
to the formulation and enactment of legislation that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al. have the standing to file
their petitions, passing on the standing
incumbent members of the IBP Board of Governors and the IBP in behalf of its
lawyer members,50 invoke their
exercise
of
other
the balance of power among the three branches of the government through the
principle of checks and balances.52
Representatives,53 this Court held that when the proceeding involves the
assertion of a public right, the mere fact
raised in its petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded
it is public) or other assets involved in the case, (2) the presence of a clear
case of disregard of a constitutional or
party with a more direct and specific interest in raising the questions being
raised.54 The first and last determinants
not being present as no public funds or assets are involved and petitioners in
G.R. Nos. 169777 and 169659 have
petition. Its allegation that E.O. 464 hampers its legislative agenda is vague
and uncertain, and at best is only a
"generalized interest" which it shares with the rest of the political parties.
Concrete injury, whether actual or
standing.
Petitioners assert that an actual case exists, they citing the absence of the
executive officials invited by the Senate
to its hearings after the issuance of E.O. 464, particularly those on the
NorthRail project and the wiretapping
controversy.
merely communicated to the Senate that they have not yet secured the
consent of the President, not that the
September 28, 2005, respondents claim that the instruction not to attend
without the Presidents consent was based
abuse its power of preventing the appearance of officials before Congress, and
that such apprehension is not
The Court finds respondents assertion that the President has not withheld her
consent or prohibited the appearance
464 is concerned. For E.O. 464 does not require either a deliberate withholding
of consent or an express prohibition
issuing from the President in order to bar officials from appearing before
Congress.
of petitioner Senate of the Philippines, it would make no sense to wait for any
further event before considering the
E.O. 464, to the extent that it bars the appearance of executive officials before
Congress, deprives Congress of the
committees.
1950 under that Constitution, the Court already recognized that the power of
inquiry is inherent in the power to
legislate.
was called to testify thereon by the Senate. On account of his refusal to answer
the questions of the senators on an
investigations and exact testimony to the end that it may exercise its
legislative functions advisedly and effectively,
to affect or change; and where the legislative body does not itself possess the
requisite information which is not
such information are often unavailing, and also that information which is
volunteered is not always accurate or
supplied)
That this power of inquiry is broad enough to cover officials of the executive
branch may be deduced from the same
case. The power of inquiry, the Court therein ruled, is co-extensive with the
power to legislate.60 The matters which
may be a proper subject of legislation and those which may be a proper subject
of investigation are one. It follows
Thus, the Court found that the Senate investigation of the government
transaction involved in Arnault was a proper
guardian, the transaction, the Court held, "also involved government agencies
created by Congress and officers
Since Congress has authority to inquire into the operations of the executive
branch, it would be incongruous to hold
that the power of inquiry does not extend to executive officials who are the
most familiar with and informed on
executive operations.
Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee,61 the inquiry
itself might not properly be in aid of
legislation, and thus beyond the constitutional power of Congress. Such inquiry
could not usurp judicial functions.
invitations to the public officials concerned, or to any person for that matter,
the possible needed statute which
prompted the need for the inquiry. Given such statement in its invitations,
along with the usual indication of the
on the part of the person invited on whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes crucial safeguards that proscribe the
legislative power of inquiry. The
provision requires that the inquiry be done in accordance with the Senate or
Houses duly published rules of
These abuses are, of course, remediable before the courts, upon the proper
suit filed by the persons affected, even
Even where the inquiry is in aid of legislation, there are still recognized
exemptions to the power of inquiry, which
exemptions fall under the rubric of "executive privilege." Since this term
figures prominently in the challenged order,
it being mentioned in its provisions, its preambular clauses,62 and in its very
title, a discussion of executive privilege
Executive privilege
The phrase "executive privilege" is not new in this jurisdiction. It has been used
even prior to the promulgation of the
courts, and the Congress."64 Similarly, Rozell defines it as "the right of the
President and high-level executive branch
officers to withhold information from Congress, the courts, and ultimately the
public."65
One variety of the privilege, Tribe explains, is the state secrets privilege
invoked by U.S. Presidents, beginning with
Washington, on the ground that the information is of such nature that its
disclosure would subvert crucial military or
law. Finally, a generic privilege for internal deliberations has been said to
attach to intragovernmental documents
Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of
executive branch of our government. Courts ruled early that the executive had
a right to withhold documents that
might reveal military or state secrets. The courts have also granted the
executive a right to withhold the identity of
doctrine.
involved
in
maintaining
domestic decisional and policy making functions, that is, those documents
reflecting the frank expression necessary
asked is not only whether the requested information falls within one of the
traditional privileges, but also whether
The leading case on executive privilege in the United States is U.S. v. Nixon, 72
decided in 1974. In issue in that case
correspondence. The U.S. Court held that while there is no explicit reference to
a privilege of confidentiality in the
clarify that it was not there addressing the issue of claims of privilege in a civil
litigation or against congressional
Cases in the U.S. which involve claims of executive privilege against Congress
are rare.73 Despite frequent assertion
However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case
decided earlier in the same year as
the balancing approach adopted by the U.S. Supreme Court in Nixon, the Court
of Appeals weighed the public
interest protected by the claim of privilege against the interest that would be
served by disclosure to the Committee.
Ruling that the balance favored the President, the Court declined to enforce
the subpoena. 76
used the term in reference to the same privilege subject of Nixon. It quoted the
following portion of the Nixon
confidentiality of judicial deliberations, for example, has all the values to which
we accord deference for the privacy
of all citizens and, added to those values, is the necessity for protection of the
public interest in candid, objective,
recognized that there are certain types of information which the government
may withhold from the public, thus
information.
In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the
common law holding that there is a
other national security matters."80 The same case held that closed-door
Cabinet meetings are also a recognized
Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right
to information does not extend to
under
the
separation
of
information.
From the above discussion on the meaning and scope of executive privilege,
both in the United States and in this
disclose information by the mere fact of being executive officials. Indeed, the
extraordinary character of the
Validity of Section 1
however, which constrain this Court to discuss the validity of these provisions
separately.
official whether they are covered by E.O. 464. The President herself has,
through the challenged order, made the
determination that they are. Further, unlike also Section 3, the coverage of
department heads under Section 1 is not
all. Rather, the required prior consent under Section 1 is grounded on Article
VI, Section 22 of the Constitution on
SECTION 22. The heads of departments may upon their own initiative, with the
consent of the President, or upon
the request of either House, as the rules of each House shall provide, appear
before and be heard by such House
the Speaker of the House of Representatives at least three days before their
scheduled appearance. Interpellations
shall not be limited to written questions, but may cover matters related
thereto. When the security of the State or the
session.
22 which provides for the question hour must be interpreted vis--vis Section
21 which provides for the power of
the Constitutional Commission shows, the framers were aware that these two
provisions involved distinct functions
of Congress.
before the Senate. I have a particular problem in this regard, Madam President,
because in our experience in the
one of the most competent inputs that we can put in our committee
deliberations, either in aid of legislation or in
does not mean that they need not come when they are invited or subpoenaed
by the committee of either House
that is allowed and their presence can be had under Section 21. Does the
gentleman confirm this, Madam
President?
MR. DAVIDE. We confirm that, Madam President, because Section 20 refers only
to what was originally the
underscoring supplied)
A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was
the original draft down to Section 31, far from the provision on inquiries in aid
of legislation. This gave rise to the
Officer, to the Article on Legislative and may I request the chairperson of the
Legislative Department, Commissioner
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the
Question Hour. I propose that
Question Hour is not actually a power in terms of its own lawmaking power
because in Legislative Inquiry, it is in aid
MR. DAVIDE. The Question Hour is closely related with the legislative power,
and it is precisely as a complement to
not only in the application of check and balance but also, in effect, in aid of
legislation.
MR. MAAMBONG. After conferring with the committee, we find merit in the
suggestion of Commissioner Davide. In
other words, we are accepting that and so this Section 31 would now become
Section 22. Would it be,
Commissioner Davide?
the same assumption that these provisions pertained to two different functions
of the legislature. Both
The foregoing opinion was not the two Commissioners alone. From the abovequoted exchange, Commissioner
Maambongs committee the Committee on Style shared the view that the
two provisions reflected distinct
confrontation initiated by Parliament to hold the Prime Minister and the other
ministers accountable for their acts and
specific provision for a question hour in the 1973 Constitution86 which made
the appearance of ministers mandatory.
and the Cabinet to the National Assembly. They shall be responsible to the
National Assembly for the program of
government and shall determine the guidelines of national policy. Unlike in the
presidential system where the tenure
of office of all elected officials cannot be terminated before their term expired,
the Prime Minister and the Cabinet
remain in office only as long as they enjoy the confidence of the National
Assembly. The moment this confidence is
The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in
Indeed, if the separation of powers has anything to tell us on the subject under
discussion, it is that the Congress
has the right to obtain information from any source even from officials of
departments and agencies in the
executive branch. In the United States there is, unlike the situation which
prevails in a parliamentary system such as
made reliance by the Congress upon its right to obtain information from the
executive essential, if it is intelligently to
perform its legislative tasks. Unless the Congress possesses the right to obtain
executive information, its power of
it depends for its effectiveness solely upon information parceled out ex gratia
by the executive.89 (Emphasis and
underscoring supplied)
Sections 21 and 22, therefore, while closely related and complementary to each
other, should not be considered as
pertaining to the same power of Congress. One specifically relates to the power
to conduct inquiries in aid of
legislation, the aim of which is to elicit information that may be used for
legislation, while the other pertains to the
function.
keeping with the separation of powers, states that Congress may only request
their appearance. Nonetheless, when
Constitutional Commission.
When Congress exercises its power of inquiry, the only way for department
heads to exempt themselves therefrom
is by a valid claim of privilege. They are not exempt by the mere fact that they
are department heads. Only one
executive official may be exempted from this power the President on whom
executive power is vested, hence,
official of the executive branch, and the due respect accorded to a co-equal
branch of government which is
By the same token, members of the Supreme Court are also exempt from this
power of inquiry. Unlike the
of separation of powers but also on the fiscal autonomy and the constitutional
independence of the judiciary. This
point is not in dispute, as even counsel for the Senate, Sen. Joker Arroyo,
admitted it during the oral argument upon
render it constitutional.
question hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department
Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b)
to secure the consent of the
of executive departments, all officers of the AFP and the PNP, and all senior
national security officials who, in the
Chief of the PNP, and the National Security Adviser), are "covered by the
executive privilege."
The enumeration also includes such other officers as may be determined by the
President. Given the title of Section
En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that
executive privilege actually covers
In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and
coverage of executive privilege,
that the person is in possession of information which is, in the judgment of the
head of office concerned, privileged
as defined in Section 2(a). The Court shall thus proceed on the assumption that
this is the intention of the
challenged order.
unless the same is permitted by the President. The proviso allowing the
President to give its consent means nothing
more than that the President may reverse a prohibition which already exists by
virtue of E.O. 464.
President under E.O. 464, or by the President herself, that such official is in
possession of information that is
covered by executive privilege. This determination then becomes the basis for
the officials not showing up in the
legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to justify his failure to be
present, such invocation must be
determined that the requested information is privileged, and that the President
has not reversed such determination.
The letter dated September 28, 2005 of respondent Executive Secretary Ermita
to Senate President Drilon
illustrates the implied nature of the claim of privilege authorized by E.O. 464. It
reads:
President, pursuant to Executive Order No. 464 (s. 2005), entitled "Ensuring
Observance Of The Principle Of
Said officials have not secured the required consent from the President.
(Underscoring supplied)
The letter does not explicitly invoke executive privilege or that the matter on
which these officials are being
does it expressly state that in view of the lack of consent from the President
under E.O. 464, they cannot attend the
hearing.
has been made, the same must be deemed implied. Respecting the statement
that the invited officials have not
secured the consent of the President, it only means that the President has not
reversed the standing prohibition
Inevitably, Executive Secretary Ermitas letter leads to the conclusion that the
executive branch, either through the
President or the heads of offices authorized under E.O. 464, has made a
determination that the information required
by the Senate is privileged, and that, at the time of writing, there has been no
contrary pronouncement from the
While there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked
validly be claimed as privileged even against Congress. Thus, the case holds:
not
cover
Presidential
free from the glare of publicity and pressure by interested parties, is essential
to protect the independence of
executive privilege. This Court must look further and assess the claim of
privilege authorized by the Order to
therefor and the particular circumstances surrounding it, there is, in an implied
claim of privilege, a defect that
renders it invalid per se. By its very nature, and as demonstrated by the letter
of respondent Executive Secretary
quoted above, the implied claim authorized by Section 3 of E.O. 464 is not
accompanied by any specific allegation
of the basis thereof (e.g., whether the information demanded involves military
or diplomatic secrets, closed-door
enumerates
the
types
of
executive order."
Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does
the President has not overturned that determination. Such declaration leaves
Congress in the dark on how the
impression, do not seem like a claim of privilege only makes it more pernicious.
It threatens to make Congress
doubly blind to the question of why the executive branch is not providing it
with the information that it has requested.
The privilege belongs to the government and must be asserted by it; it can
neither be claimed nor waived by a
matter,
after
actual
personal
must determine whether the circumstances are appropriate for the claim of
privilege, and yet do so without forcing a
thing
the
privilege
is
designed
to
protect.92
whether it falls under one of the traditional privileges, or whether, given the
circumstances in which it is made, it
preventing the Court from balancing such harm against plaintiffs needs to
determine whether to override any claims
On the present state of the record, this Court is not called upon to perform this
balancing operation. In stating its
not shown nor even alleged that those who evaluated claimants product
were involved in internal policymaking,
within its scope as well as precise and certain reasons for preserving their
confidentiality. Without this specificity, it is
impossible for a court to analyze the claim short of disclosure of the very thing
sought to be protected. As the
affidavit now stands, the Court has little more than its sua sponte speculation
with which to weigh the applicability of
was made by the proper executive as Reynolds requires, the Court can not
recognize the claim in the instant case
To recognize such a broad claim in which the Defendant has given no precise or
compelling reasons to shield these
make
farce
of
the
whole
supplied)
We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct.
724, is highly relevant to these
issued, would have required that (he) state (his) reasons for noncompliance
upon the return of the writ. Such a
deny
the
Committee
the
"a patent evasion of the duty of one summoned to produce papers before a
congressional committee[, and] cannot
Upon the other hand, Congress must not require the executive to state the
reasons for the claim with such
U.S.104 declares:
The witness is not exonerated from answering merely because he declares that
in so doing he would incriminate
himself his say-so does not of itself establish the hazard of incrimination. It is
for the court to say whether his
witness, upon interposing his claim, were required to prove the hazard in the
sense in which a claim is usually
The claim of privilege under Section 3 of E.O. 464 in relation to Section 2(b) is
thus invalid per se. It is not asserted.
It is merely implied. Instead of providing precise and certain reasons for the
claim, it merely invokes E.O. 464,
coupled with an announcement that the President has not given her consent. It
is woefully insufficient for Congress
the United States where, so it claims, only the President can assert executive
privilege to withhold information from
Congress.
Section 2(b) in relation to Section 3 virtually provides that, once the head of
office determines that a certain
prohibiting the official from appearing before Congress, subject only to the
express pronouncement of the President
that it is allowing the appearance of such official. These provisions thus allow
the President to authorize claims of
executive privilege is thus premised on the fact that certain informations must,
as a matter of necessity, be kept
In light of this highly exceptional nature of the privilege, the Court finds it
essential to limit to the President the power
to invoke the privilege. She may of course authorize the Executive Secretary to
invoke the privilege on her behalf, in
which case the Executive Secretary must state that the authority is "By order
of the President," which means that he
official in the executive hierarchy. In other words, the President may not
authorize her subordinates to exercise such
power. There is even less reason to uphold such authorization in the instant
case where the authorization is not
Executive Secretary of the possible need for invoking the privilege. This is
necessary in order to provide the
executive privilege. If, after the lapse of that reasonable time, neither the
President nor the Executive Secretary
invokes the privilege, Congress is no longer bound to respect the failure of the
official to appear before Congress
and may then opt to avail of the necessary legal means to compel his
appearance.
The Court notes that one of the expressed purposes for requiring officials to
secure the consent of the President
under Section 3 of E.O. 464 is to ensure "respect for the rights of public
officials appearing in inquiries in aid of
to ensure respect for such officials does not change the infirm nature of the
authorization itself.
Right to Information
E.O 464 is concerned only with the demands of Congress for the appearance of
executive officials in the hearings
conducted by it, and not with the demands of citizens for information pursuant
to their right to information on matters
of public concern. Petitioners are not amiss in claiming, however, that what is
involved in the present controversy is
not merely the legislative power of inquiry, but the right of the people to
information.
There are, it bears noting, clear distinctions between the right of Congress to
information which underlies the power
for the production of documents pursuant to his right to information does not
have the same obligatory force as a
qualified sense, that in every exercise of its power of inquiry, the people are
exercising their right to information.
of
information
in
such
citizens are thereby denied access to information which they can use in
formulating their own opinions on the matter
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. Yet, this open
dialogue can be effective only to the
extent that the citizenry is informed and thus able to formulate its will
intelligently. Only when the participants in the
discussion are aware of the issues and have access to information relating
While E.O. 464 applies only to officials of the executive branch, it does not
follow that the same is exempt from the
need for publication. On the need for publishing even those statutes that do
not directly apply to people in general,
The term "laws" should refer to all laws and not only to those of general
application, for strictly speaking all laws
relate to the people in general albeit there are some that do not apply to them
directly. An example is a law granting
surely cannot be said that such a law does not affect the public although it
unquestionably does not apply directly to
all the people. The subject of such law is a matter of public interest which any
member of the body politic may
supplied)
Although the above statement was made in reference to statutes, logic dictates
that the challenged order must be
politic may question before this Court. Due process thus requires that the
people should have been apprised of this
Conclusion
The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for
divine right of kings and nobles, and replace it with a presumption in favor of
publicity, based on the doctrine of
Resort to any means then by which officials of the executive branch could
refuse to divulge information cannot be
presumed valid. Otherwise, we shall not have merely nullified the power of our
legislature to inquire into the
Privilege and Respect for the Rights of Public Officials Appearing in Legislative
the Constitution, and For Other Purposes," are declared VOID. Sections 1 and
2(a) are, however, VALID.
SO ORDERED.
Associate Justice
CASE 20
SUPREME COURT
Manila
FIRST DIVISION
vs.
MAKASIAR, J.:
the 1971 local elections, by a plurality of 501 votes over his only rival, herein
petitioner, who seasonably filed on
November 24, 1971 a protest against the election of the former with the Court
of First Instance of Pangasinan, on
electoral precincts; (2) terrorism; (3) rampant vote buying; (4) open voting or
balloting; and (5) excessive campaign
Proclamation No. 1081, placing the entire country under Martial Law; and two
months thereafter, more or less, or
supplant the 1935 Constitution; and the same was thereafter overwhelmingly
ratified by the sovereign people of the
Republic of the Philippines on January 17, 1973; and on March 31, 1973, this
Court declared that "there is no further
judicial obstacle to the new Constitution being considered in force and effect"
(Javellana vs. Executive Secretary, 50
SCRA 30 [1973]).
fact had rested his case, respondent Yu moved to dismiss the election protest
of petitioner on the ground that the
trial court had lost jurisdiction over the same in view of the effectivity of the
1973 Constitution by reason of which
intervened in the case. Respondent Yu contended that "... the provisions in the
1935 Constitution relative to all local
that local elective officials (including mayors) have no more four-year term of
office. They are only in office at the
pleasure of the appointing power embodied in the New Constitution, and under
Section 9 of Article XVII.
(Transitory Provisions) of the New Constitution and G.O. No. 3, contended that
the New Constitution did not divest
the Court of First Instance of its jurisdiction to hear and decide election
protests pending before them at the time of
its ratification and effectivity; that the ratification of the New Constitution and
its effectivity did not automatically
abolish the office and position of municipal mayor nor has it automatically cut
render the issue as to who is the lawfully elected candidate to said office or
position moot and academic; that
election protests involve public interest such that the same must be heard until
terminated and may not be
dismissed on mere speculation that the office involved may have been
abolished, modified or reorganized; and that
reiterated his stand, expanding his arguments on the political question, thus:
It is an undeniable fact that this case has its source from the 1971 elections for
municipal mayoralty.
Unsatisfied with the counting of votes held by the Board of Canvassers, the
herein protestant filed
this present case. And before the termination of the same and pending trial,
the Filipino people in the
and
sovereign
capacity
approved
NEW
SEC. 2. The National Assembly shall enact a local government code which may
not
recall, allocating among the different local government units their powers,
removal, term, salaries, powers, functions, and duties of local officials, and all
other
matters relating to the organization and operation of the local units. However,
any
change in the existing form of local government shall not take effect until
ratified by a
"shows that the office of the Municipal Mayor has not been abolished ... ," is
not ACCURATE.
All officials and employees in the existing Government of the Republic shall
continue
Philippines, ...
government, otherwise, by the force of the New Constitution they are all out of
the government
offices. In fact, in the case above-cited (Javellana) we are all performing our
duties in accordance
in the new government are protected by the transitional provisions of the New
Fundamental Law of
XVII of the Constitution. And in case he will win in this present case he has no
right to hold the
position of mayor of the town of Rosales, Pangasinan, because he was not then
an official of the
government at the time the New Constitution was approved by the Filipino
People. His right if
There is no dispute that the Filipino people have accepted and submitted to a
new Constitution to
replace the 1935 Constitution, and that we are now living under its aegis and
protection. ...
Under Section 9, Article XVII, of the new Constitution, above-quoted, only those
officials and
are given protection and are authorized to continue in office at the pleasure of
the incumbent
clear. These present questions of policy, the necessity and expediency of which
are outside the
range of judicial review. With respect to the fate of incumbent oficials and
employees in the existing
term of office, salaries, and powers of all local officials under the parliamentary
form of government
the suspension of all elections. Thus, in the United States, questions relating to
what persons or
12, L. Ed 58), and those relating to the political status of a state (Highland
Farms Dairy vs. Agnew,
57 S. et 549, 300 U.S. 608, 81 L.ed 835), have been held to be political and for
the judiciary to
determine.
To the mind of the Court, therefore, the ratification and effectivity of the new
Constitution has tainted
this case with a political complexion above and beyond the power of judicial
review. As fittingly
that in the final analysis, what is assailed is not merely the validity of
Proclamation
No. 1102 of the President, which is merely declaratory of the fact of the
approval or
work and political character of this government which now functions under the
new
where a complete change in the fundamental law has been effected through
political
action, the Court whose existence is affected by such a change is, in the words
of
Mr. Meville Fuller Weston "precluded from passing upon the fact of change by a
of a prior point in the Court's "chain of title" to its authority and "does not
relate
Government functions under the new Constitution which has become effective
XVII (Transitory Provisions) decreeing that all existing laws not inconsistent
with the new
and that all courts existing at the time of the ratification of the said new
Constitution shall continue
Constitution, and all cases pending in said courts shall be heard, tried and
determined under the
laws then in force. Again, to the mind of the Court, these refer to matters
raised in the enforcement
We reverse.
of Article XVII thereof, protected only those incumbents, like him, at the time of
its ratification and effectivity and are
the only ones authorized to continue in office and their term of office as
extended now depends on the pleasure of,
as the same has been entrusted or committed to, the incumbent President of
the Philippines or the Legislative
necessity and expediency of which are outside the range of judicial review. In
short, for the respondent Judge to still
question or policy "in regard to which full discretionary authority has been
delegated to the Legislative or Executive
WE ruled:
1. That Section 9 of Article XVII of the 1973 Constitution did not render moot
and academic pending election protest
cases (Santos vs. Castaeda, 65 SCRA 114 [1975]; Euipilag vs. Araula, 60 SCRA
211 [1974]; Nunez vs. Averia, 57
SCRA 726 [1974]; Parades vs. Abad, L-36927, Sunga vs. Mosueda, L-37715,
Valley vs. Caro, L-38331, 56 SCRA
522, [1974]).
performing the duties of an elective office, albeit under protest or contest" and
that "subject to the constraints
intention of the framers of our new fundamental law to disregard and shunt
aside the statutory right of a condidate
for elective position who, within the time-frame prescribed in the Election Code
of 1971, commenced proceedings
contested office."' (Santos vs. Castaeda, supra); and We rationalized that "the
Constitutional Convention could not
have intended, as in fact it .did not intend, to shielf or protect those who had
been unduly elected. To hold that the
right of the herein private respondents to the respective offices which they are
now holding, may no longer be
Code to preserve inviolate the sanctity of the ballot." (Parades, Sunga and
Valley cases, supra).
Section 9 of Article XVII of the New Constitution but principally from their
having been proclaimed elected to their
enjoy their privileges and emoluments, then certainly, they should not be
allowed to enjoy the indefinite term of
continue as mayor rests on the legality of his election which has been
protested by herein petitioner. Should the
electoral
protest,
respondent
5. That "there is a difference between the 'term' of office and the 'right' to hold
an office. A 'term' of office is the
privileges and emoluments. A 'right' to hold a public office is the just and legal
claim to hold and enjoy the powers
and responsibilities of the office. In other words, the 'term' refers to the period,
duration of length of time during
which the occupant of an office is .entitled to stay therein whether such period
be definite or indefinite. Hence,
although Section 9, Article XVII of the New Constitution made the term of the
petitioners indefinite, it did not
continue holding their respective office. What has been directly affected by
said constitutional provision is the 'term'
'term' thereof," and that "it is erroneous to conclude that under Section 9,
Article XVII of the New Constitution, the
term of office of the private respondents expired, and that they are now
holding their respective offices under a new
term. We are of the opinion that they hold their respective offices still under
the term to which they have been
elected, although the same is now indefinite" (Parades, Sunga and Valley
cases, supra).
herein petitioners the right to file an election contest against those proclaimed
elected," and "according to Section 8,
Article XVII of the New Constitution 'all courts existing at the time of the
ratification of this Constitution shall continue
pending in said courts shall be heard, tried and determined under the laws
then in force.' Consequently, the Courts
and decide the election protests filed by herein petitioners" (Santos, Euipilag,
Nunez, Parades, Sunga and Valley
cases, supra).
While under the New Constitution the Commission on Elections is now the sole
judge of all contests relating to the
officials (par. 2 of Sec. 2, Article XII-C of the 1973 Constitution), such power
does not extend to electoral contests
7. That General Order No. 3, issued by the President of the Philippines merely
reiterated his powers under Section 9
of Article XVII of the New Constitution. The President did not intend thereby to
modify the aforesaid constitutional
General Order No. 3, as amended by General Order No. 3-A, does not expressly
include electoral contests of
after affirming the jurisdiction of the Judiciary to decide in accordance with the
existing laws on criminal and civil
cases, simply removes from the jurisdiction of the Civil Court certain crimes
specified therein as well as the validity,
8. That General Order No. 3 may not be invoked by the courts to avoid exercise
of their jurisdiction because to do co
always deemed General Order No. 3 including its amendment by General Order
No. 3-A as practically inoperative
even in the light of Proclamation No. 1081 of September 21, 1972 and
Proclamation No. 1104 of January 17, 1973,
placing the whole Philippines under martial law. While the members of the
Court are not agreed on whether or not
Judiciary would not interfere with, there is unanimity among Us in the view that
it is for the Court rather than the
the Executive Department purportedly under the authority of the martial law
proclamations" (Lina vs. Purisima, 3
II
respondent Judge decides the election protest. The term "political question"
connotes what it means in ordinary
legality, of a particular measure" (Taada vs. Cuenco, L-1052, Feb. 28, 1957). A
broader definition was advanced
by U.S. Supreme Court Justice Brennan in Baker vs. Carr (369 U.S. 186 [1962]):
"Prominent on the surface of any
independent
resolution
without
217). And Chief Justice Enrique M. Fernando, then an Associate Justice, of this
thus: "The term has been made applicable to controversies clearly non-judicial
and therefore beyond its jurisdiction
Lopez vs. Roxas, L-25716, July 28, 1966, 17 SCRA 756; Gonzales vs. Commission
on Elections, L-28196, Nov. 9,
against is the President or Congress, or any branch thereof (Cf. Planas vs. Gil,
67 Phil. 62 [1937]; Vera vs. Avelino,
2. The only issue in the electoral protest case dismissed by respondent Judge
on the ground of political question is
thereto and to discharge the functions, duties and obligations of the position.
If the protestee's election is upheld by
granted or sanctioned by law, for said breach of right (Tan vs. Republic, 107
Phil. 632-633 [1960]). Before and after
the ratification and effectivity of the New Constitution, the nature of the
aforesaid issue as well as the consequences
3. Any judgment to be made on that issue will not in any way collide or
interfere with the mandate of Section 9 of
Article XVII of the New Constitution, as it will merely resolve who as between
protestant and protestee is the duly
the New Constitution. As construed by this Court, the elective officials referred
to in Section 9 of Article XVII are
limited to those duly elected as the right to said extended term was not
personal to whosoever was incumbent at the
time of the ratification and effectivity of the New Constitution. Nor would such
judgment preempt, collide or interfere
Department, with respect to the extended term of the duly elected incumbents;
because whoever between
protestant and protestee is declared the duly elected mayor will be subject
always to whatever action the President
simply, that section allocated unto the National Assembly the power to enact a
local government code "which may
local government allocating among the different local government units their
powers, responsibilities, and resources,
and providing for their qualifications, election and removal, term, salaries,
powers, functions and duties of local
officials, and all other matters relating to the organization and operation of the
local units" but "... any change in the
existing form of local government shall not take effect until ratified by a
majority of the votes cast in a plebiscite
called for the purpose." It is apparent at once that such power committed by
the New Constitution to the National
electoral protest case. Whoever will prevail in that contest will enjoy the
indefinite term of the disputed office of
change or modification the National Assembly will introduce when it will enact
the local government code.
III
New Constitution.
CASE 21
SUPREME COURT
Manila
EN BANC
vs.
CRUZ, J.:
11,
1987,
the
House
of
including the Lakas ng Bansa, the PDP-Laban, the NP-Unido, the Liberal Party,
and the KBL, in accordance with
Article VI, Section 18, of the Constitution. Petitioner Raul A. Daza was among
those chosen and was listed as a
joined the LDP, thereby swelling its number to 159 and correspondingly
reducing their former party to only 17
members. 2
The petitioner came to this Court on January 13, 1989, to challenge his removal
from the Commission on
respondent
from
serving
in
the
Commission
on
the LDP is not a duly registered political party and has not yet attained political
stability.
For his part, the respondent argues that the question raised by the petitioner
is political in nature and so beyond the
to be entitled
Appointments.
to
proportional
representation
in
the
Commission
on
At the core of this controversy is Article VI, Section 18, of the Constitution
providing as follows:
Commission shall not vote, except in case of a tie. The Commission shall act on
all appointments
competence to act on the matter at bar. Our finding is that what is before us is
not a discretionary act of the House
legality, not the wisdom, of the act of that chamber in removing the petitioner
from the Commission on
... the term "political question" connotes, in legal parlance, what it means in
ordinary parlance,
namely, a question of policy. In other words, ... it refers "to those questions
which, under the
measure.
In the aforementioned case, the Court was asked by the petitioners therein to
annul the election of two members of
the Senate Electoral Tribunal of that chamber, on the ground that they had not
been validly nominated. The Senate
then consisted of 23 members from the Nacionalista Party and the petitioner as
the lone member of the Citizens
the majority elected Senators Mariano J. Cuenco. and Francisco Delgado, from
its own ranks, to complete the nine-
man composition of the Tribunal as provided for in the 1935 Constitution. The
petitioner came to this Court,
contending that under Article VI, Section 11, of that Charter, the six legislative
members of the Tribunal were to be
chosen by the Senate, "three upon nomination of the party having the largest
number of votes and three of the party
having the second largest number of votes therein." As the majority party in
the Senate, the Nacionalista Party could
nominate only three members and could not also fill the other two seats
pertaining to the minority.
an internal matter that only the Senate could resolve. The Court rejected this
argument, holding that what was
involved was not the wisdom of the Senate in choosing the respondents but the
legality of the choice in light of the
of the Senate in doing so. The Court held that this was a justiciable and not a
political question, thus:
Such is not the nature of the question for determination in the present case.
Here, we are called
upon to decide whether the election of Senators Cuenco and Delgado by the
Senate, as members of
party having the largest number of votes in the Senate-behalf of its Committee
on Rules,
chosen "upon nomination ... of the party having the second largest number of
votes" in the Senate
and hence, is null and void. The Senate is not clothed with "full discretionary
authority" in the choice
of members of the Senate Electoral Tribunal. The exercise of its power thereon
is subject to
legitimate province of the judicial department to pass upon the validity of the
proceeding in
connection therewith.
... whether an election of public officers has been in accordance with law is for
the judiciary.
situation, the judiciary may determine whether a particular election has been in
conformity with such
statute, and particularly, whether such statute has been applied in a way to
deny or transgress on
It is, therefore, our opinion that we have, not only jurisdiction but also the
duty, to consider and
Although not specifically discussed, the same disposition was made in Cunanan
v. Tan as it likewise involved the
In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that,
even if we were to assume that the issue presented before us was political in
nature, we would still not be precluded
from resolving it under the expanded jurisdiction conferred upon us that now
covers, in proper cases, even the
Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may
be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights
aside,
if
we
must,
Justice Fernando:
from performing any specific act, this suit cannot be characterized as other
than a mere request for
an advisory opinion. Such a view, from the remedial law standpoint, has much
to recommend it.
Nonetheless, a majority would affirm the original stand that under the
circumstances, it could still
The language of justice Laurel fits the case: "All await the decision of this Court
on the constitutional
question. Considering, therefore, the importance which the instant case has
assumed and to prevent
the paramount public interest, and the undeniable necessity for ruling, the
national elections being
barely six months away, reinforce our stand. It would appear undeniable,
therefore, that before us is
statute. We are left with no choice then; we must act on the matter.
Coming now to the more crucial question, the Court notes that both the
petitioner and the respondent are invoking
In the election for the House of Representatives held in 1961, 72 seats were
won by the Nacionalista Party, 29 by
common cause with the Liberal Party and formed what was called the Allied
Majority to install a new Speaker and
appointment was null and void because the Commission itself was invalidly
constituted.
The Court agreed. It noted that the Allied Majority was a merely temporary
combination as the Nacionalista
defectors had not disaffiliated from their party and permanently joined the new
political group. Officially, they were
temporary nature, like the one that has led to the formation of the so-called
"Allied Majority," does
from one side to another in the House. The framers of our Constitution could
not have intended to
of Congress.
The petitioner vigorously argues that the LDP is not the permanent political
party contemplated in the Constitution
because it has not been registered in accordance with Article IX-B, Section 2(5),
in relation to the other provisions of
the Constitution. He stresses that the so-called party has not yet achieved
stability and suggests it might be no
different from several other political groups that have died "a-bornin'," like the
LINA, or have subsequently
The respondent also cites Cunanan but from a different viewpoint. According to
him, that case expressly allows
changes are permanent. The creation of the LDP constituting the bulk of the
former PDP-Laban and to which no
Court held:
Upon the other hand, the constitutional provision to the effect that "there shall
be a Commission on
Representatives
proportional
elected
by
each
House,
respectively,
on
the
basis
of
consequence, it may take appropriate measures, not only upon the initial
organization of the
members of a House, or of their expulsion from the political party to which they
belonged and/or of
their affiliation with another political party, the ratio in the representation of
the political parties in the
the political party adversely affected by the change and then fill said vacancies
in conformity with the
Constitution.
In the course of the spirited debate on this matter between the petitioner and
the respondent (who was supported by
has
supervened
to
realignment
to
justify
the
questioned
(c) Assuming that the so-called new coalesced majority is actually the LDP
itself,
not being a duly registered political party, is not entitled to the "rights and
privileges
granted by law to political parties' (See. 160, BP No. 881), and therefore cannot
legally claim
proportional
the
right
to
be
considered
in
determining
the
required
... the clear constitutional intent behind Section 18, Article VI, of the 1987
Constitution, is to give the
petition of the LDP for registration as a political party. 11 This has taken the
wind out of the sails of the petitioner, so to
The petitioner's contention that, even if registered, the party must still pass
the test of time to prove its permanence
is not acceptable. Under this theory, a registered party obtaining the majority
of the seats in the House of
long as it was organized only recently and has not yet "aged." The Liberal Party
itself would fall in such a category.
That party was created in December 1945 by a faction of the Nacionalista Party
that seceded therefrom to support
Manuel A. Roxas's bid for the Presidency of the Philippines in the election held
on April 23, 1946. 12 The Liberal Party
won. At that time it was only four months old. Yet no question was raised as to
its right to be represented in the
of the Congress.
The LDP has been in existence for more than one year now. It now has 157
members in the House of
Representatives and 6 members in the Senate. Its titular head is no less than
the President of the Philippines and its
President is Senator Neptali A. Gonzales, who took over recently from Speaker
Ramon V. Mitra. It is true that there
have been, and there still are, some internal disagreements among its
members, but these are to be expected in
If the petitioner's argument were to be pursued, the 157 members of the LDP
in the House of Representatives would
Tribunal. By the same token, the KBL, which the petitioner says is now "history
only," should also be written off. The
Liberal Party only with all of its seventeen members to claim all the twelve
seats of the House of Representatives in
the Commission on Appointments and the six legislative seats in the House
Electoral Tribunal.
It is noteworthy that when with 41 members the Liberal Party was alloted two
of the seats in the Commission on
13 Inconsistently, the
of one seat although its original number has been cut by more than half.
As for the other condition suggested by the petitioner, to wit, that the party
must survive in a general congressional
election, the LDP has doubtless also passed that test, if only vicariously. It may
even be said that as it now
commands the biggest following in the House of Representatives, the party has
not only survived but in fact
prevailed. At any rate, that test was never laid down in Cunanan.
rather political, involving as it does the legality and not the wisdom of the act
complained of, or the manner of filling
would still come within our powers of review under the expanded jurisdiction
conferred upon us by Article VIII,
As for the alleged technical flaw in the designation of the party respondent,
assuming the existence of such a defect,
the same may be brushed aside, conformably to existing doctrine, so that the
important constitutional issue raised
may be addressed. Lastly, we resolve that issue in favor of the authority of the
House of Representatives to change
The Court would have preferred not to intervene in this matter, leaving it to be
settled by the House of
alternative for us except to act, and to act decisively. In doing so, of course, we
are not imposing our will upon the
said agencies, or substituting our discretion for theirs, but merely discharging
our sworn responsibility to interpret
and apply the Constitution. That is a duty we do not evade, lest we ourselves
betray our oath.
Court holds that the respondent has been validly elected as a member of the
Commission on Appointments and is
entitled to assume his seat in that body pursuant to Article VI, Section 18, of
the Constitution. No pronouncement as
to costs.
SO ORDERED.
CASE 22
SUPREME COURT
Manila
EN BANC
vs.
HONORABLE COMMISSION
TREASURER, respondents.
ON
vs.
ELECTIONS
and
HONORABLE
NATIONAL
vs.
HONORABLE COMMISSION
TREASURER, respondents.
ON
SELECTIONS
and
HONORABLE
NATIONAL
MARTIN, J,:
amendments
to
the
present
issues of martial law, the I . assembly, its replacement, the powers of such
replacement, the period of its existence,
the length of the period for tile exercise by the President of his present
powers.1
Twenty days after or on September 22, 1976, the President issued another
related decree, Presidential Decree No.
1031, amending the previous Presidential Decree No. 991, by declaring the
provisions of presidential Decree No.
229 providing for the manner of voting and canvass of votes in "barangays"
(Citizens Assemblies) applicable to the
16,
1976.
Quite
relevantly,
4, of Presidential Decree No. 991, the full text of which (Section 4) is quoted in
the footnote below. 2
On the same date of September 22, 1976, the President issued Presidential
Decree No. 1033, stating the questions
clauses that the people's continued opposition to the convening of the National
Assembly evinces their desire to
(2) Whether or not you want martial law to be continued, do you approve the
following amendments to the
Constitution? For the purpose of the second question, the referendum shall
have the effect of a plebiscite within the
PROPOSED AMENDMENTS:
1. There shall be, in lieu of the interim National Assembly, an interim Batasang
Pambansa. Members of the interim
Batasang Pambansa which shall not be more than 120, unless otherwise
provided by law, shall include the
shall not be less than eighteen years of age elected by their respective sectors,
and those chosen by the incumbent
accordance with the number of their respective inhabitants and on the basis of
a uniform and progressive ratio while
2. The interim Batasang Pambansa shall have the same powers and its
Assembly and the members thereof. However, it shall not exercise the power
provided in Article VIII, Section 14(l) of
the Constitution.
3. The incumbent President of the Philippines shall, within 30 days from the
election and selection of the members,
convene the interim Batasang Pambansa and preside over its sessions until the
Speaker shall have been elected.
The incumbent President of the Philippines shall be the Prime Minister and he
shall continue to exercise all his
powers even after the interim Batasang Pambansa is organized and ready to
discharge its functions and likewise he
shall continue to exercise his powers and prerogatives under the nineteen
hundred and thirty five. Constitution and
the powers vested in the President and the Prime Minister under this
Constitution.
4. The President (Prime Minister) and his Cabinet shall exercise all the powers
and functions, and discharge the
responsibilities of the regular President (Prime Minister) and his Cabinet, and
shall be subject only to such
to act adequately on any matter for any reason that in his judgment requires
immediate action, he may, in order to
orders
or
letters
of
the land.
Referenda conducted thru the barangays and under the Supervision of the
Commission on Elections may be called
at any time the government deems it necessary to ascertain the will of the
people regarding any important matter
effect.
9. These amendments shall take effect after the incumbent President shall
have proclaimed that they have been
The Commission on Elections was vested with the exclusive supervision and
control of the October 1976 National
Referendum-Plebiscite.
the Referendum Plebiscite on October 16; to declare without force and effect
Presidential Decree Nos. 991 and
Petitioners contend that under the 1935 and 1973 Constitutions there is no
grant to the incumbent President to
propose
amendments
to
the
new
On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections, The Solicitor
judicial cognizance of this Court; at this state of the transition period, only the
incumbent President has the authority
interim National Assembly under Section 16, Article XVII of the Constitution.3
Still another petition for Prohibition with Preliminary Injunction was filed on
October 5, 1976 by RAUL M.
GONZALES, his son RAUL, JR., and ALFREDO SALAPANTAN, docketed as L44714, to restrain the
relative
to
the
forthcoming
These last petitioners argue that even granting him legislative powers under
Martial Law, the incumbent President
untenable under the Constitutions of 1935 and 1973; the submission of the
proposed amendments in such a short
period of time for deliberation renders the plebiscite a nullity; to lift Martial
Law, the President need not consult the
people via referendum; and allowing 15-.year olds to vote would amount to an
amendment of the Constitution, which
now an ancient rule that the valid source of a stature Presidential Decrees are
of such nature-may be contested by
one who will sustain a direct injuries as a in result of its enforcement. At the
instance of taxpayers, laws providing for
the disbursement of public funds may be enjoined, upon the theory that the
expenditure of public funds by an officer
breadth of Presidential Decree No. 991 carries all appropriation of Five Million
Pesos for the effective
the same or not. 7 For the present case, We deem it sound to exercise that
discretion affirmatively so that the
authority upon which the disputed Decrees are predicated may be inquired
into.
2. The Solicitor General would consider the question at bar as a pure political
one, lying outside the domain of
This is especially true in cases where the power of the Presidency to initiate
the of normally exercised by the legislature, is seriously doubted. Under the
terms of
provisions). After that period, and the regular National Assembly in its active
session, the power to propose amendments becomes ipso facto the prerogative
of the
regular National Assembly (Sec. 1, pars. 1 and 2 of Art. XVI, 1973 constitution).
The normal course has not been followed. Rather than calling the National
amendments thru Presidential Decree 1033 to the people in a ReferendumPlebiscite on October 16. Unavoidably, the regularity regularity of the
procedure for
1031, and 1033, which commonly purport to have the force and effect of
legislation are assailed as invalid, thus the issue of the validity of said Decrees
is plainly a
justiciable one, within the competence of this Court to pass upon. Section 2 (2),
Article X of the new Constitution provides: "All cases involving the
constitutionality
of a treaty, executive agreement, or law may shall be heard and decided by the
Supreme Court en banc and no treaty, executive agreement, or law may be
statutes, but also of the Constitution itself The amending, like all other powers
organized in the Constitution, is in form a delegated and hence a limited power,
so
that the Supreme Court is vested with that authorities to determine whether
that power has been discharged within its limits.
Political questions are neatly associated with the wisdom, of the legality of a
particular act. Where the vortex of the
controversy refers to the legality or validity of the contested act, that matter is
definitely justiciable or non-political.
What is in the heels of the Court is not the wisdom of the act of the incumbent
President in proposing amendments
assembly. Whether the amending process confers on the President that power
to propose amendments is therefore
We cannot accept the view of the Solicitor General, in pursuing his theory of
non-justiciability, that the question of
proposal to the people ultimately lie in the judgment of the A clear Descartes
fallacy of vicious circle. Is it not that the
people themselves, by their sovereign act, provided for the authority and
procedure for the amending process when
not is the proper subject of inquiry, not by the people themselves of course
who exercise no power of judicial but by
the Supreme Court in whom the people themselves vested that power, a power
which includes the competence to
done a prior not a posterior i.e., before the submission to and ratification by
the people.
Indeed, the precedents evolved by the Court or, prior constitutional cases
underline the preference of the Court's
majority to treat such issue of Presidential role in the amending process as one
of non-political impression. In the
Plebiscite Cases, 11 the contention of the Solicitor General that the issue on
the legality of Presidential Decree No. 73
"submitting to the Pilipino people (on January 15, 1973) for ratification or
rejection the Constitution of the Republic of the
question, the affirmative stand of' the Solicitor General was dismissed, the
Court ruled that the question raised is
justiciable. Chief Justice Concepcion, expressing the majority view, said, Thus,
in the aforementioned plebiscite cases,
We rejected the theory of the respondents therein that the question whether
Presidential Decree No. 73 calling a
plebiscite to be held on January 15, 1973, for the ratification or rejection of the
proposed new Constitution, was valid or
not, was not a proper subject of judicial inquiry because, they claimed, it
declared that the issue was a justiciable one. With Identical unanimity. We
overruled the respondent's contention in the
view taken by this Court in Barcelon vs. Baker and Montenegro vs. Castaneda,
insofar as it adhered to the former case,
which view We, accordingly, abandoned and refused to apply. For the same
reason, We did not apply and expressly
The return to Barcelon vs. Baker and Mabanag vs. Lopez Vito, urged by the
Solicitor General, was decisively refused by
the Court. Chief Justice Concepcion continued: "The reasons adduced in support
thereof are, however, substantially the
II
SECTION 1. (1) Any amendment to, or revision of, this Constitution may be
proposed by the
convention. (2) The National Assembly may, by a vote of two-thirds of all its
Members, call a
constitutional convention or, by a majority vote of all its Members, submit the
question of
SECTION 2. Any amendment to, or revision of, this Constitution shall be valid
when ratified
by a majority of the votes cast in a plebiscite which shall be held not later than
three months
SECTION 15. The interim National Assembly, upon special call by the interim
Prime Minister,
amendments shall take effect when ratified in accordance with Article Sixteen
hereof.
There are, therefore, two periods contemplated in the constitutional life of the
nation, i.e., period of normalcy and
vote of two-thirds of all the Members of the National Assembly. However the
calling of a Constitutional Convention
2. This Court in Aquino v. COMELEC," had already settled that the incumbent
President is vested with that
President the determination of the time when he shall initially convene the
interim National Assembly, consistent
with the prevailing conditions of peace and order in the country." Concurring,
Justice Fernandez, himself a member
Transitory Provisions, they were aware of the fact that under the same, the
incumbent President was given the
(V) was rejected. The President's decision to defer the convening of the interim
National Assembly soon found
support from the people themselves. In the plebiscite of January 10-15, 1973,
at which the ratification of the 1973
Constitution was submitted, the people voted against the convening of the
interim National Assembly. In the
interim National Assembly, were against its inclusion since in that referendum
of January, 1973, the people had
3. In sensu strictiore, when the legislative arm of the state undertakes the
proposals of amendment to a Constitution,
that body is not in the usual function of lawmaking. lt is not legislating when
engaged in the amending process.16
power is provided for in Article XVI of the 1973 Constitution (for the regular
National Assembly) or in Section 15 of
the Transitory Provisions (for the National Assembly). While ordinarily it is the
business of the legislating body to
only to the ordinary cases of legislation. The President has nothing to do with
proposition or adoption of amendments to
the Constitution. 19
III
Concentration of Powers
crisis government.
to
Rossiter,
"(t)he
most free states it has generally been regarded as imperative that the total
constitutionalism if any one branch should exercise any two or more types of
power, and certainly a total disregard of the
separation of powers is, as Madison wrote in the Federalist, No. 47, 'the very
definition of tyranny.' In normal times the
There are moments in the life of any government when all powers must work
together in unanimity of purpose and action,
even if this means the temporary union of executive, legislative, and judicial
power in the hands of one man. The more
than presidential dictatorship. The power of the state in crisis must not only be
concentrated and expanded; it must also
be freed from the normal system of constitutional and legal limitations. 21 John
Locke, on the other hand, claims for the
executive in its own right a broad discretion capable even of setting aside the
ordinary laws in the meeting of special
exigencies for which the legislative power had not provided. 22 The rationale
behind such broad emergency powers of the
The incumbent President of the Philippines shall initially convene the interim
National
Assembly and shall preside over its sessions until the interim Speaker shall
have been
elected. He shall continue to exercise his powers and prerogatives under the
nineteen
hundred and thirty-five Constitution and the powers vested in the President
and the Prime
Minister under this Constitution until the calls upon the interim National
Assembly to elect the
interim President and the interim Prime Minister, who shall then exercise their
respective
the incumbent President shall be part of the law of the land, and shall remain
valid, binding,
and effective even after lifting of martial law or the ratification of this
Constitution, unless
Convention, while giving to the President the discretion when to call the
interim National Assembly to session, and
knowing that it may not be convened soon, would create a vacuum in the
exercise of legislative powers. Otherwise,
factor
ordained
in
in
any
the
crisis government. The steady increase in executive power is not too much a
cause for as the steady increase in the
magnitude and complexity of the problems the President has been called upon
by the Filipino people to solve in their
of the operation of the national forces, yet the facts of our political, social, and
economic disturbances had convincingly
shown that in meeting the same, indefinite power should be attributed to tile
President to take emergency measures 25
IV
President t to propose
the incumbent President. And, in the exercise of that judgment, the President
opted to defer convening of that body
the Transitory Provisions). Again, harking to the dictates of the sovereign will,
the President decided not to call the
Assembly
vis-a-vis
his
The answer is yes. If the President has been legitimately discharging the
legislative functions of the interim
course, is not to say that the President has converted his office into a
constituted by the legislature. Rather, with the interim National Assembly not
convened and only the Presidency and
For the President to shy away from that actuality and decline to undertake the
amending process would leave the
impeding the objective of a crisis government "to end the crisis and restore
normal times." In these parlous times,
that Presidential initiative to reduce into concrete forms the constant voices of
the people reigns supreme. After all,
the people had already rejected the calling of the interim National Assembly.
The Lupong Tagapagpaganap of the
the prevailing sentiment of the people is for the abolition of the interim
National Assembly. Other issues concerned
the lifting of martial law and amendments to the Constitution .27 The national
organizations of Sangguniang Bayan presently proposed to
settle the issues of martial law, the interim Assembly, its replacement, the
period of its existence, the length of the period for the exercise by the
President of its
issue of martial law .29 Similarly, the "barangays" and the "sanggunians"
endorsed to the President the submission of the proposed amendments to the
people on October 16. All the foregoing led the President to initiate the
Decree No, 1033 on September 22, 1976 submitting the questions (proposed
amendments) to the people in the National Referendum-Plebiscite on October
16.
republican and unitary state, sovereignty "resides in the people and all
government authority emanates from them
.30 In its fourth meaning, Savigny would treat people as "that particular
organized assembly of individuals in which, according to the Constitution, the
highest
power exists." 31 This is the concept of popular sovereignty. It means that the
constitutional legislator, namely the people, is
sovereign 32 In consequence, the people may thus write into the Constitution
their convictions on any subject they choose
man. Rather, they are the collated thoughts of the sovereign will reduced only
into enabling forms by the authority
who can presently exercise the powers of the government. In equal vein, the
submission of those proposed
process is a sovereign act, although the authority to initiate the same and the
procedure to be followed reside
VI
Referendum-Plebiscite not
- is a referendum question, wherein the 15-year olds may participate. This was
prompted by the desire of the
Government to reach the larger mas of the people so that their true pulse may
be felt to guide the President in
pursuing his program for a New Order. For the succeeding question on the
proposed amendments, only those of
the
voting
populace
are
question and the plebiscite question does not infirm the referendum-plebiscite.
There is nothing objectionable in
consulting the people on a given issue, which is of current one and submitting
to them for ratification of proposed
the provision of two ballot boxes for every barangay center, one containing the
ballots of voters fifteen years of age and
under eighteen, and another containing the ballots of voters eighteen years of
box for voters fifteen years of age and under eighteen shall be counted ahead
of the ballots of voters eighteen years and
above contained in another ballot box. And, the results of the referendumplebiscite shall be separately prepared for the
consideration, the calling of which is derived from or within the totality of the
executive power of the President. 39 It is
disqualified by law, who are eighteen years of age or over, and who shall have
resided in the Philippines for at least one
year and in the place wherein they propose to vote for at least six months
preceding the election Literacy, property or any
VII
1. There appeals to be no valid basis for the claim that the regime of martial
law stultifies in main the freedom to
dissent. That speaks of a bygone fear. The martial law regime which, in the
observation of Justice Fernando, 41 is
"yes" or "no" vote, but on the genuine sentiment of the people on the issues at
hand. 42 Thus, the dissenters soon found
their way to the public forums, voicing out loud and clear their adverse views
on the proposed amendments and even (in
the valid ratification of the 1973 Constitution, which is already a settled matter.
43 Even government employees have been
held by the Civil Service Commission free to participate in public discussion and
even campaign for their stand on the
referendum-plebiscite issues. 44
VIII
is not short.
people have been living with them since the proclamation of martial law four
years ago. The referendums of 1973
and 1975 carried the same issue of martial law. That notwithstanding, the
contested brief period for discussion is not
Case, recalls: "Under the old Society, 15 days were allotted for the publication
in three consecutive issues of the
1937 (Com. Act No. 34). The constitutional amendment to append as ordinance
the complicated Tydings-
scheduled plebiscite (Com. Act 492). For the 1940 Constitutional amendments
providing for the bicameral
Congress, the reelection of the President and Vice President, and the creation
of the Commission on Elections, 20
days of publication in three consecutive issues of the Official Gazette was fixed
(Com Act No. 517). And the Parity
Republic was publicized in three consecutive issues of the Official Gazette for
20 days prior to the plebiscite (Rep.
plebiscite shall be held, but simply states that it "shall be held not later than
three months after the approval of such
political and not justiciable." The constituent body or in the instant cases, the
President, may fix the time within which the
people may act. This is because proposal and ratification are not treated as
unrelated acts, but as succeeding steps in a
single endeavor, the natural inference being that they are not to be widely
separated in time; second, it is only when there
Constitution proposed today has relation to the sentiment and the felt needs of
today, and that, if not ratified early while
IN RESUME
and
under,
the
machinery and prescribe the procedure for the ratification of his proposals by
the people?
3. Is the submission to the people of the proposed amendments within the time
frame allowed therefor a sufficient
Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices
Enrique M. Fernando, Claudio
the view that the question posed is justiciable, while Associate Justices Felix V.
Makasiar, Felix Q. Antonio and
Upon the second issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted in the affirmative, while Associate Justices
Teehankee and Munoz Palma voted in
(59 SCRA 183), specifically dissents from the proposition that there is
concentration of powers in the Executive
during periods of crisis, thus raising serious doubts as to the power of the
President to propose amendments.
Upon the third issue, Chief Justice Castro and Associate Justices Barredo,
Makasiar, Aquino, Concepcion Jr. and
Martin are of the view that there is a sufficient and proper submission of the
proposed amendments for ratification by
the people. Associate Justices Barredo and Makasiar expressed the hope,
however that the period of time may be
extended. Associate Justices Fernando, Makasiar and Antonio are of the view
that the question is political and
that
prescinding
from
the
controlling cases of Gonzales, supra, and Tolentino vs. COMELEC (41 SCRA 702).
Chief Justice Castro and Associate Justices Barredo, Makasiar, Antonio, Aquino,
Concepcion Jr. and Martin voted
to dismiss the three petitions at bar. For reasons as expressed in his separate
opinion, Associate Justice Fernando
concurs in the result. Associate Justices Teehankee and Munoz Palma voted to
grant the petitions.
ACCORDINGLY, the vote being 8 to 2 to dismiss, the said petitions are hereby
dismissed. This decision is
immediately executory.
SO ORDERED.
Separate Opinions
From the challenge as formulated in the three petitions at bar and the grounds
advanced be the Solicitor General in
and 8, 1976, three vital issues readily project themselves as the centers of
controversy, namely:
(2) During the present stage of the transition period, and under the
environmental circumstances now obtaining,
machineries and prescribe the procedure for the ratification of his proposals by
the people?
(3) Is the submission to the people of the proposed amendments within the
time frame allowed therefor a sufficient
First Issue
The threshold question is not at all one of first impression Specifically on the
matter of proposals to amend the
Constitution, this Court, in Mabanag vs. Lopez Vito (78 Phil. 1), inceptively
announced the dictum that-
The exercise of this power is even independent of any intervention by the Chief
Executive. If
interest, there is less reason for judicial inquiry into the validity of a proposal
than into that of
a ratification.
In time, however, the validity of the said pronouncement was eroded. In the
assessment of the Court itself-
The force of this precedent has been weakened, however, by Suanes vs. Chief
Accountant of the Senate (81 Phil.
818), Avelino vs. Cuenco (L-2581, March 4 and 14, 1949), Tanada vs. Cuenco (L10520, February 28, 1957), and
may be inconsistent with the stand taken in Mabanag vs. Lopez Vito the latter
should be deemed modified
accordingly. The Members of the Court are unanimous on this point." (Gonzales
vs. Commission on Elections, et al,
The abandonment of the Mabanag vs. Lopez Vito doctrine appears to have been
completed when, in Javellana vs.
Secretary, et al. (L-36142, March 3l, 1973, 50 SCRA 30), six members of the
Court concurred in the view that the
question of whether the 1973 Constitution was ratified in accordance with the
provisions of Article XV (Amendments)
As elucidated therein, with extensive quotations from Tanada vs. Cuenco (103
Phil. 1051)-
... the term 'political question' connotes, in legal parlance, what it means in
ordinarily
body politic. In other words, in the language of Corpus Juris Secundum (supra),
it refers to
'those questions which, under the Constitution, are to be decided by the people
in their
the crux of the problem being one of legality or validity of the contested act,
not its wisdom. Otherwise, said
proposing amendments to the Constitution and of calling a referendumplebiscite for the ratification of the proposals
made. Evidently, the question does not concern itself with the wisdom of the
exercise of the authority claimed or of
the specific amendments proposed. Instead the inquiry vel non is focused
solely on the existence of the said power
of constitutional powers.
For the Court to shun cognizance of the challenge herein presented, especially
in these parlous years, would be to
I have thus no hesitancy in concluding that the question here presented is well
within the periphery of judicial
inquiry.
II
Second Issue
there be any such prescription for the amendatory process as invariable there
is because one of the essential parts
modes in accordance with which formal changes in the fundamental law may be
extant in the Constitution regarding the agency or agent by whom and the
procedure by which amendments thereto
may be proposed and ratified fact overlooked by those who challenge the
validity of the presidential acts in the
premises. This is so because there are at least two distinctly in the transition
from the old system of government
under the 1935 Constitution to the new one established by the 1973
Constitution.
The first stage comprises the period from the effectivity of the Constitution on
January 17, 1973 to the time the
are chosen Article XVII, Sections 1 and 3[1]. The existence of this stage as an
obvious fact of the nation's political
life was recognized by the Court in Aquino vs. Commission on Elections, et al.
(L-40004, January 31, 1975, 62
SCRA 275), when it rejected the claim that, under the 1973 Constitution, the
President was in duty bound to
convene the interim National Assembly soon after the Constitution took effect.
The second stage embraces the period from the date the interim National
Assembly is convened to the date the
of the regular National Assembly (Article XVII, Section 1) and the election of
the regular President and Prime
determine when he shall initially convene the interim National Assembly, and
his decision to defer the convocation
Against this factual backdrop, it is readily discernible that neither of the two
sets of provisions embodied in the
Constitution on the amendatory process applied during the said first stage.
Thus, Section 15, Article XVII (Transitory
Provisions) provides-
"Sec. 15. The interim National Assembly, upon special call by the interim Prime
Minister, may, by a majority vote of
Patently, the reference to the "interim National Assembly" and the "interim
Prime Minister" limits the application
thereof to the second stage of the transition period, i.e.,., after the interim?
National Assembly shall have been
convened and the interim Prime Minister shall have been chosen.
Upon the other hand, the provisions of Article XVI (Amendments), to wit-
SECTION 1. (1) Any amendment to, or revision of, this Constitution may be
proposed by the
convention.
(2) The National Assembly may, by a vote of two-thirds of all its Members, call a
constitutional convention or, by a majority vote of all its Members, submit the
question of
SEC. 2. Any amendment to, or revision of, this Constitution shall be valid when
ratified by a
majority of the votes cast in a plebiscite which shall be held not later than
three months after
as they do to the National Assembly which will come into being only at that
time.
In the face of this constitutional hiatus, we are confronted with the dilemma
whether amendments to the Constitution
may be effected during the aforesaid first stage and, if in the affirmative, by
whom and in what manner such
organism they seek to fashion and govern. If it is conceded that "the political
or philosophical aphorism of one
generation is doubted by the next and entirely discarded by the third," then a
Constitution must be able to adjust to
the changing needs and demands of society so that the latter may survive,
progress and endure. On these verities,
During the first stage of the transition period in which the Government is at
present - which is understandably the
most critical - the need for change may be most pressing and imperative, and
to disavow the existence of the right
to amend the Constitution would be sheer political heresy. Such view would
deny the people a mechanism for
effecting peaceful change, and belie the organic conception of the Constitution
by depriving it of its means of
growth. Such a result obviously could not have been intended by the framers of
the fundamental law.
It seems, however, that the happenstance that the first period would come to
pass before the convocation of the
cannot, negate the sovereign power of the people to amend the fundamental
charter that governs their lives and
their future and perhaps even the very survival of the nation.
Upon the other hand, it is clear from the afore-quoted provisions on the
amendatory process that the intent was,
For, while under Article XVI thereof, proposals for amendment may be made
directly by the regular National
of all the members of the National Assembly would suffice for the purpose. The
relaxation and the disparity in the
vote requirement are revealing. The can only signify a recognition of the need
to facilitate the adoption of
amendments during the second stage of the transition period so that the
interim National Assembly will be able, in a
manner of speaking, to iron out the kinks in the new Constitution, remove
imperfections therein, and provide for
needful change at an even more critical period - the first stage. With greater
reason, therefore, must the right and
power to amend the Constitution during the first stage of te transition period
be upheld, albeit within its express and
implied constraints.
Neither can it be successfully argued, in the same context and in the present
posture, that the Constitution may be
amended during the said first stage only by convening the interim National
Assembly. That is to say and require that
he said stage must first be brought to an end before any amendment may be
proposed and ratified. Settled
supra, the framers of the Constitution set no deadline for the convening of the
interim National Assembly because
they could not have foreseen how long the crises which impelled the
proclamation and justify the continued state of
martial law would last. Indeed, the framers committed to the sound judgment
is not subject to judicial review, save
the keeping of the President. To thus content that only by convening the
interim National Assembly may the
would not only negate the mandate so resoundingly expressed by the people in
two national referenda against the
immediate convening of the interim National Assembly, but as well deride their
overwhelming approval of the
manner in which the President has exercised the legislative power to issue
proclamations, orders, decrees and
compels itself for resolution is: By whom, then, may proposals for the
amendment of the Constitution be made and
grant thereof, the legislature - traditionally the delegated repository thereof may not claim it under a general grant
constitutional tradition and express allocation the constituent power under the
Constitution is locate in the law-
making agency and at this stage of the transition period the law-making
authority is firmly recognized as being
lodged in the President, the said constituent power should now logically be in
the hands of te President who may
republican state, such as ours - t o make, and, hence, to amend their own
Fundamental Law.
chosen delegate, can wield. Since it has been shown that the people,
inadvertently or otherwise, have not delegated
that power to inadvertently or otherwise, have not delegated that power to any
instrumentality during the current
stage of our hegira from crisis to normalcy, it follows of necessity that the
same remains with them for them to
exercise in the manner they see fit and through the agency they choose. And,
even if it were conceded that - as it is
from the people of the power delegated which they may not thereafter
unilaterally reclaim from the delegate, there
during the first stage of the transition period belongs to and remains with the
people, and accordingly may be
Assembly by the mere fiat of voting for the transitory provisions of the
Constitution. and the stark reality that the
were, on the convocation thereof. But this patently salutary decision of the
people proved to be double-edged. It
likewise bound the political machinery of the Government in a virtual straightjacket and consigned the political
evolution of the nation into a state of suspended animation. Faced with the
ensuing dilemma, the people
the country today, the underpinnings for the hastening of the return to
constitutional normalcy quickly evolved into
with what the people believe will be an appropriate agency to eventually take
over the law-making power and thus
pave the way for the early lifting of martial rule. In pursuit of this sentiment,
and to translate its constraints into
Bayan, to a man and as one voice, have come forward with definitive proposals
for the amendment of the
Constitution, and, choosing the President the only political arm of the State at
this time through which that decision
In the light of this milieu and its imperatives, one thing is inescapable: the
proposals now submitted to the people for
and it having been demonstrated that their constituent power to amend the
Constitution has not been delegated by
them to any instrumentality of the Government during the present stage of the
transition period of our political
only because the President, in exercising said authority has acted as a mere
alter ego of the people who made the
III
Third Issue
ratification from the standpoint of time. The thesis cannot be disputed that a
fair submission presupposes an
the is met. Even if the proposal appear to have been formalized only upon the
promulgation of Presidential Decree
No. 1033 on September 22, 1976, they are actually the crystallization of
sentiments that for so long have
hierarchy. Hence, unlike proposals emanating from a legislative body, the same
cannot but be said to have been
Besides. it is a fact of which judicial notice may well be taken that in the not so
distant past when the 1973
sought
to
be
inaugurated
the people in general have since acquired, in the least, a working knowledge of
the entirety of the Constitution. The
changes now proposed the most substantial of which being merely the
replacement of the interim National assembly
with another legislative arm for the Government during the transition period
until the regular National Assembly shall
the full understanding of the people. And, in fact, the massive and wideranging informational and educational
campaign to this end has been and still is in full swing, with all the media the
barangay, the civic and sectoral
groups, and even the religious all over the land in acting and often enthusiastic
if not frenetic involvement.
Indeed, when the people cast their votes on October 16, a negative vote could
very well mean an understanding of
the proposals which they reject; while an affirmative vote could equally be
indicative Of such understanding and/or
an abiding credence in the fidelity with which the President has kept the trust
they have confided to him as President
IV
Conclusion
It is thus my considered view that no question viable for this court to pass
These three petitions, the latest in a series of cases starting from Planas v.
Commission on Elections continuing with
degree the delicate and awesome character of the function of judicial review.
While previous rulings supply guidance and
that flow from whatever decision is reached. Jural norms must be read in the
context of social facts, There is need
therefore of adjusting inherited principles to new needs. For law, much more so
constitutional law, is simultaneously a
reflection of and a force in the society that it controls. No quality then can be
more desirable in constitutional adjudication
than that intellectual and imaginative insight which goes into the heart of the
they are in the light of what they must become It must inquire into the specific
problem posed not only in terms of the
teaching of the past but also of the emerging political and legal theory,
especially so under a leadership notable for its
in mind through that this Court must be conscious of the risk inherent in its
being considered as a mere subservient
mind that was the norm followed, the conclusion reached being that the three
petitions be dismissed. I am in agreement. It
cannot see my way clear to accepting the view that the authority to propose
amendments is not open to question. At the
1. With due respect then, I have to dissociate myself from my brethren who
would rule that governmental powers in
It must be stated at the outset that with the sufficiency of doctrines supplied
by our past decisions to point the way to
what I did consider the appropriate response to the basic issue raised in the
Aquino and the other habeas corpus
petitions resolved jointly, it was only in the latter portion of my opinion that
reference was made to United States
only after the landmark Ex parte Milligan case, that commentators like Cooley
in 1868 and Watson in 1910 paid attention, minimal by that, to the subject." It
was
next set forth that in the works on American constitutional law published in
this century specially after the leading cases of cases Sterling v. Constant in
and
opinion did take note that another commentator, Burdick, came out earlier with
a similar appraisal. 10 Thus: "So called martial law, except in
not suspend the civil law, though it may interfere with the exercise of one's
ordinary rights. The right to call out the military
forces to maintain order and enforce the law is simply part of the Police power,
It is only justified when it reasonably
acts
as
reasonably
appear
arrest, or in extreme cases the. killing of those who create the disorder or
oppose the authorities. When the exigency is
over the members of the military forces are criminally and civilly habit for acts
done beyond the scope of reasonable
with
situation
of
cannot be made liable for his acts, and persons reasonably arrested under such
circumstances will not, during the
was laid on his being "Partial to the claims of liberty."12 This is evident in the
explicit statement from his work quoted by me: "There is, then,
are, indeed, often made but their legal effect goes no further than to warn
citizens that the military powers have been called upon by the executive to
assist him in
the maintenance of law and order, and that, while the emergency lasts, they
must, upon pain of arrest and punishment not commit any acts which will in
any way
render more difficult the restoration of order and the enforcement of law. Some
of the authorities stating substantially this doctrine are quoted in the footnote
below
Nor did I stop there. The words of Willis were likewise cited: "Martial law
proper, that is, military law in case of insurrection, riots, and invasions, is not a
substitute
for the civil law, but is rather an aid to the execution of civil law. Declarations
of martial law go no further than to warn citizens that the executive has called
upon
the military power to assist him in the maintenance of law and order. While
martial law is in force, no new powers are given to the executive and no civil
rights of
the individual, other than the writ of habeas corpus, are suspended. The
relations between the citizen and his stature unchanged." 14
thus: 4'1 It is readily evident that even when Milligan supplied the only
authoritative doctrine, Burdick and Willoughby
did not ignore the primacy of civil liberties. Willis wrote after Sterling. It would
indeed be surprising if his opinion were
Duncan cases show plainly that martial law is the public law of necessity.
Necessities alone calls it forth, necessity
justifies its exercise; and necessities measures the extended degree to which it
may be It is, the high Court has
affirmed, an unbending rule of law that the exercise of military power, where
the rights of the citizen are concerned,
may, never be pushed beyond what the exigency requires. If martial law rule
survive the necessities on which alone
basic importance. Before it, a number of decisions, including one the highest
Court, went or on the theory that the
executive had a free hand in taking martial law measures. Under them, it has
been widely supposed that in
proclamation was so far conclusive that any action taken under it was immune
from judicial scrutiny. Sterling v.
There was likewise an effort on my part to show what for me is the legal effect
of martial law being expressly
provided for in the Constitution rather than being solely predicated on the
common law power based on the urgent
sight of that the basis for the declaration of martial law in the Philippines is not
mere necessity but an explicit
According to the noted English author, Dicey: 'Martial law,' in the proper sense
of that term, , in which - it means the
under which the authority ordinarily vested in the civil power for the
maintenance of order and police passes entirely
the Crown and its servants to repel force by force in the case of invasion,
insurrection, riot, or generally of any
violent resistance to the law. This right, or power, is essential to the very
existence of orderly government, and is
most assuredly recognized in the most ample manner by the law of England. It
is a power which has in itself no
special connection with the existence of an armed force. The Crown has the
right to put down breaches of the
matter of legal duty, bound to assist in putting down breaches of the peace. No
doubt policemen or soldiers are the
a riot, but it is clear that all loyal subjects are bound to take their part in the
suppression of riots." 16
provided both in the 1935 and the present Constitution, affords sufficient
justification for the concentration of powers
in the Executive during periods of crisis. The better view, considering the
juristic theory on which our fundamental
a cardinal concept at the present, it is due to the fact that before the former
Congress could meet in regular session anew,
2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was
made to the first chapter on his
population, the substitution of the will of a military commander for the will of
the people's elected government." 19
duly mindful of the jural effects of its inclusion in the Constitution itself as a
legitimate device for coping with emergency
lends itself to the interpretation that the Burdick, Willoughby, Willis, Schwartz
formulations paying due regard to the
primacy of liberty possess relevance. lt cannot be said that the martial rule
concept of Rossiter, latitudinarian in scope,
has been adopted, even on the assumption that it can be reconciled with our
Constitution. What is undeniable is that
President Marcos has repeatedly maintained that Proclamation No. 1081 was
precisely based on the Constitution and that
the validity of acts taken there under could be passed upon by the Supreme
court. For me that is quite reassuring,
premium on freedom." 20
3. Candor and accuracy compel the admission that such a conclusion his to be
qualified. For in the opinion of the
President of the Philippines can reclamations, orders and decrees during the
period Martial Law essential to the
security and preservation of the Republic, to the defense of the political and
social liberties of the people and to the
significant in this jurisdiction. What, for me at least, gives caused for concern is
that with the opinion of the Court this
would be allowed further incursion into the corpus of the law, with the
invocation of the view expressed in the last chapter
scholar that in the very same last chapter, just three pages later, he touched
explicitly on the undesirable aspect of a
state control of popular liberties, military courts, and arbitrary executive action
were governmental features attacked by the
men who fought for freedom not because they were inefficient or unsuccessful,
but because they were dangerous and
of crisis. This is not to lose sight of the undeniable fact that in this country
through the zeal, vigor, and energy
A fair summary may be found in a recent address of the First Lady before the
delegates to the 1976 international
Monetary Fund-World Bank Joint Annual Meeting: "The wonder is that so much
has been done in so brief a time.
Marcos
established
the
crisis
restored in a country once avoided as one of the most unsafe in the world. We
have liberated millions of Filipino
farmers from the bondage of tenancy, in the most vigorous and extensive
implementation of agrarian reform." 24
Further, she said: "A dynamic economy has replaced a stagnant order, and its
rewards are distributed among the many,
not hoarded by a few. Our foreign policy, once confined by fear and suspicion to
a narrow alley of self-imposed isolation,
confidence and self-reliance. And finally, forced to work out our own salvation,
springs of his strength and resilience As Filipinos, we have found our true
Identity. And having broken our crisis of Identity,
we are no longer apologetic and afraid. "25 The very Idea of a crisis, however,
signifies a transitory, certainly not a permanent, state of things.
President Marcos accordingly has not been hesitant in giving utterance to his
conviction that full implementation of the modified parliamentary system under
the
constitutional order. It should not go unnoticed either that the President has
referred to the present regime as one of "constitutional authoritarianism." That
has a
less objectionable ring, authority being more Identified with the Idea of law, as
based on right, the very antithesis of naked force, which to the popular mind is
For me likewise, that equally eminent scholar Corwin, also invoked in the
opinion of the Court, while no doubt a
interpret this excerpt from the fourth edition of his classic treatise on the
Presidency: "A regime of martial law may
ordinary courts, is superseded for the time being by the will of a military
commander. It follows that, when martial law
actual practice fails often to support the niceties of theory. Thus, the
employment of the military arm in the
enforcement of the civil law does not invariably, or even usually, involve
martial law in the strict sense, for, as was
noted in the preceding section, soldiers are often placed simply at the disposal
and direction of the civil authorities
shades off into military government and the other into the situation just
described, in which the civil authority remains
North during the Civil War, when the privilege of the writ of habeas corpus was
suspended as to certain classes of
It is by virtue of the above considerations that, with due respect to the opinion
of my brethren, I cannot yield assent
5 There is necessity then, for me at least, that the specific question raised in
all three petitions be squarely faced. It
is to the credit of the opinion of the Court that it did so. The basic issue posed
concerns the boundaries of the power
of the President during this period of martial law, more precisely whether it
covers proposing amendments to the
National Assembly has not been convened and is not likely to be called into
session in deference to the wishes of
the
area
of
presidential
readily in that conviction. It does seem to me that the metes and bounds of the
executive domain, while still
For me, the stage of certitude has not been reached. I cannot simply ignore the
vigorous plea of petitioners that
this period of transition with the interim lawmaking body not called into
session be thus expanded. The majority of my
brethren took that step. I am not prepared to go that far. I will explain why.
The way for me, is beset with obstacles. In the first place, such an approach
would lose sight of the distinction
Malcolm and Laurel In their casebook published the same year, one of the four
decisions on the subject of
v.
Dye
31
which
categorically
authority to assume that power. Congress may not claim it under the general
grant of legislative power for such
grant does not carry with it the right 'to erect the state, institute the form of
its government,' which is considered a
the matter. Nor is this all. In the main opinion of Justice Makasiar as well as
that of the then Justice, now Chief
Justice, Castro, support for the ruling that the President cannot be deemed as
explicit
constitutional
and static period a need for al. amendments. I do not feel confident therefore
that a negative vote on my part would be
warranted. What would justify the step taken by the President, even if no
complete acceptance be accorded to the view
that he was a mere conduit of the barangays on this matter, is that as noted in
both qualified concurrences by Justices
is concerned.
dismissed. That is to accord respect to the principle that judicial review goes
no further than to checking clear
infractions of the fundamental law, except in the field of human rights where a
much greater vigilance is required,
refrain as much as possible from denying the people the opportunity to make
known their wishes on matters of the
utmost import for the life of the nation, Constitutional amendments fall in that
category. I am fortified in that
American
decisions
There
is
applicable to the present situation. These are his words: "It is well settled that
the granting of writs of prohibition and
said writs should be issued when the right to the relief is clear * * by As he
noted in his ponencia in the later case of
issued. This was evident in the dispositive portion where judgment was
rendered "declaring that respondent
in granting said authority; that said importation is not sanctioned by law and is
contrary to its provisions; and that, for
lack of the requisite majority, the injunction prayed for must be and is,
accordingly, denied." 40 With the illumination
thus supplied, it does not necessarily follow that even a dissent on my part
would necessarily compel that I vote for the
relief prayed for. Certainly this is not to belittle in any way the action taken by
petitioners in filing these suits. That, for me,
equitable remedy. There are, for me, potent considerations that argue against
the interim National Assembly being convened being dim, if not non- existent,
if only because of the results in three
which, as noted. may urgently press for adoption. Of even greater weight, to
my mind, is the pronouncement by the
body but also to provide. the machinery be which the termination of martial
law could be hastened. That is a
would pose may be fraught with pernicious consequences. It may not be amiss
to refer anew to what I deem the cardinal
character of the jural postulate explicitly affirmed in both the 1935 and the
present Constitutions that sovereignty resides
given expression in a manner sanctioned by law and with due care that there
be no mistake in its appraisal, that should be
controlling. There is all the more reason then to encourage their participation
in the power process. That is to make the
7. There is reassurance in the thought that this Court has affirmed its
commitment to the principle that the amending
process gives rise to a justiciable rather than a political question. So, it has
been since the leading case of Gonzales
deny that the federal rule in the United States as set forth in the leading case
of Coleman v. Miller , 53 a 1939 decision, and
ammunition
to
such
is one of the paradoxes a democracy that the people of times place more
confidence in instrumentalities of the State other
than those directly chosen by them for the exercise of their sovereignty It can
be said with truth, therefore, that there has
goes to the heart of constitutionalism. It may be said that this Court has
shunned the role of a mere interpreter; it did
the large and undefined field of constitutional law, adjudication partakes of the
quality of statecraft. The assumption has
been that just because it cannot by itself guarantee the formation, much less
the perpetuation of democratic values or,
realistically, it cannot prevail against the pressure of political forces if they are
bent in other directions. it does not follow
that it should not contribute its thinking to the extent that it can. It has been
asked, it will continue to be asked, to decide
There must be, however, this caveat. Judicial activism gives rise to difficulties
in an era of transformation and
change. A society in flux calls for dynamism in "he law, which must be
responsive to the social forces at work. It
cannot remain static. It must be sensitive to life. This Court then must avoid
the rigidity of legal Ideas. It must resist
a feel for the complexities of the times. This is not to discount the risk that it
may be swept too far and too fast in the
surge of novel concepts. The past too is entitled to a hearing; it cannot just be
summarily ignored. History still has its
uses. It is not for this Court to renounce the virtue of systematic jural
consistency. It cannot simply yield to the
splintered society. It should strive to be a factor for unity under a rule of law.
There must be, on its part, awareness
of the truth that a new juridical age born before its appointed time may be the
cause of unprecedented travail that
may not end at birth. It is by virtue of such considerations that I did strive for a
confluence of principle and
practicality. I must confess that I did approach the matter with some misgivings
and certainly without any illusion of
my studies on the subject of constitutional law and, much more so, by previous
judicial opinions to concur in the
beliefs. Certainly, I am the first to recognize the worth of' the social and
economic reforms so needed by the troubled
present that have been introduced and implemented. There is no thought then
of minimizing, much less of refusing
to concede, the considerable progress that has been made and the benefits
that have been achieved under this
between two aspects of the coming poll, the referendum and the plebiscite. It
is only the latter that is impressed with
Aquino v. Commission on Elections,56 full respect for free speech and press,
free assembly and free association.
There should be no thought of branding the opposition as the enemy and the
Dissent, it is fortunate to note, has been encouraged. It has not been Identified
with disloyalty. That ought to be the
the right to be heard but because there may be something worth hearing. That
is to ensure a true ferment of Ideas,
name of protest, much less preach rebellion under the cloak of dissent.. What I
mean to stress is that except on a
showing of clear and present danger, there must be respect for the traditional
liberties that make a society truly free.
1. On the merits: I dissent from the majority's dismissal of the petitions for lack
of merit and vote to grant the
convention for the purpose The 1973 Constitution expressly vests the
constituent power in the regular National Assembly
vote of all its members) or "submit the question of calling such convention to
the electorate in an election" (by a majority
transition in the interim National Assembly "upon special call be the Prime
Minister (the incumbent President 3)... by
organization
of
the
essential
delimits the powers of each and prescribes the manner of the exercise of such
powers, and the constituent power
has not been granted to but has been withheld from the President or Prime
Minister, it follows that the President's
2. The doctrine in the leading case of Tolentino vs. Comelec is controlling in the
case at bar In therein declaring null
and void the acts of the 1971 Constitutional Convention and of the Comelec in
calling a plebiscite with the general
elections scheduled for November 8, 1971 for the purpose of submitting for the
people's ratification an advance
amendment reducing the voting age from 21 years to 18 years, and issuing
writs of prohibition and injunction
against the holding of the plebiscite, this Court speaking through Mr. Justice
Barredo ruled that --The Constitutional
upon the Convention and the other departments of the government, (land) are
no less binding upon the people
Charter, any proposal for such amendment which is not in conformity with the
letter, spirit
and intent of the Charter for effecting amendments, cannot receive the
sanction of this Court
;8
The real issue here cannot be whether or not the amending process delineated
by the present Constitution may be
because it is evident that the very Idea of departing from the fundamental law
is anachronistic in the realm of
amendments and the manner of its submission to the people for ratification or
rejection" did not "conform with the
3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis,
it is clear that where the proposed
Prime Minister, bu a majority vote of all its members that may propose the
amendments, the Court must declare the
law,
which they establish, (the people) not only tie up the hands of their official
agencies but their own hands as well; and
neither the officers of the State, nor the whole people as an aggregate body,
are at liberty to take action in
is in accordance with universal practice. "From the very necessity of the case"
Cooley points out "amendments to an
chosen for the purpose. It is obviously impossible for the whole people to meet,
prepare, and discuss the proposed
power "submits the result of their deliberations" and "puts in proper form the
questions of amendment upon which
5. The Court in Tolentino thus rejected the argument "that the end sought to be
achieved is to be desired" and in
objective bear in mind that someday somehow others with purportedly more
laudable objectives may take
This same apprehension was echoed by now retired Justice Calixto O. Zaldivar
in his dissenting opinion in the
Ratification cases 14 that "we will be opening the gates for a similar disregard
to the Constitution in the future. What I
mean is that if this Court now declares that a new Constitution is now in force
because the members of the citizens
assemblies had approved said new Constitution, although that approval was
not in accordance with the procedure and the
amendments is submitted to the people in any manner and what will matter is
that a basis is claimed that there was
approval by the people. There will not be stability in our constitutional system,
and necessarily no stability in our
government."
6. It is not legally tenable for the majority, without overruling the controlling
precedent of Tolentino (and without
their being "not in conformity with the letter, spirit and intent of the provision
of the Charter for effecting
amendments" on the reasoning that "If the President has been legitimately
discharging the legislative functions of
In the earlier leading case of Gonzales vs. Comelec 16, this Court speaking
through now retired Chief Justice Roberto
The majority's ruling in the Referendum cases 19 that the Transitory Provision
in section 3(2) recognized the existence of
the authority to legislate in favor of the incumbent President during the period
of martial law manifestly cannot be
the contituent power has been lodged by the sovereign power of the people
with the interim National Assembly during the
transition period and there it must remain as the sole constitutional agency
until the Constitution itself is changed.
As was aptly stated by Justice Jose P. Laurel in the 1936 landmak case of
Angara vs. Electoral Commissioner 21,
of the interim National Assembly and to have no elections for "at least seven
(7) years" Concededly could not ament
to defer the initial convocation of the interim National Assembly was supported
by the results of the referendum in
January, 1973 when the people voted against the convening of the interim
National Assembly for at least seven years,
such sentiment cannot be given any legal force and effect in the light of the
State's admission at the hearing that such
from the presidential to the parliamentary system' and the other urgent
measures enumerated in section 5 thereof".
While the people reportedly expressed their mandate against the convening of
the interim National Assembly to
dischange its legislative tasks during the period of transition under martial law,
they certainly had no opportunity and
did not express themselves against convening the interim National Assembly to
discharge the constituent power to
In point of fact, when the holding of the October 16, 1976 referendum was first
announced, the newspapers reported
that among the seven questions proposed by the sanggunian and barangay
national executive committies for the
It was further reported that the proposals which were termed tentative "will be
discussed and studied by (the
President), the members of the cabinet, and the security council" and that the
barangays felt, notwithstanding the
previous referenda on the convening of the interim National Assembly that "it
is time to again ask the people's
must validly come from the constitutional agency vested with the constituent
power to do so, namely, the interim
National Assembly, and not from the executive power as vested in the Prime
Minister (the incumbent President) with
the assistance of the Cabinet 25 from whom such power has been withheld.
It will not do to contend that these proposals represent the voice of the people
for as was aptly stated by Cooley "Me
voice of the people, acting in their sovereign capacity, can be of legal force
only when expressed at the times and
under the conditions which they themselves have prescribed and pointed out
by the Constitution. ... ."26
The same argument was put forward and rejected by this Court in Tolentino
which rejected the contention that the
"Convention being a legislative body of the highest order (and directly elected
by the people to speak their voice) is
sovereign, in as such, its acts impugned by petitioner are beyond the control of
Congress and the Courts" and ruled
that the constitutional article on the amending process" is nothing more than a
part of the Constitution thus ordained
amended, but it is our will that the amendment must be proposed and
submitted to Us for ratification only in the
This Court therein stressed that "This must be so, because it is plain to Us that
the framers of the Constitution took
care that the process of amending the same should not be undertaken with the
same ease and facility in changing
constitutional democracy such as the one our founding fathers have chosen for
this nation, and which we of the
other conceivable aspect of the lives of all the people within the country and
those subject to its sovereignity, ever
constitution worthy of the people for which it is intended must not be prepared
in haste without adequate deliberation
any
amendment
of the
whole Constitution itself, and perforce must be conceived and prepared with as
much care and deliberation;" and
long as they can be adopted to the needs and exigencies of the people, hence,
they must be insulated against
precipitate and hasty actions motivated by more or less passing political moods
or fancies. Thus, as a rule, the
original constitutions carry with them limitations and conditions, more or less
stringent, made so by the people
As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in
the setting as in of a Comelec resolution
act whether proceeding from the highest official or the lowest functionary, is a
postulate of our system of government.
That is to amnifst fealty to the rule of law, with priority accorded to that which
occupies the topmost rung in the legal
statutes must ever be on guart lest the restrictions on its authority, whether
substantive or formal, be transcended. The
facts as found in deciding cases, the judiciary is called upon the maintain
inviolate what is decreed by the fundamental
law."
This is but to give meaning to the plan and clear mandate of section 15 of the
Transitory Provisions (which allows of
no other interpretation) that during the stage of transition the interim National
Assembly alone exercises the
will of the Convention (and presumably of the people upon ratification) that if
ever the need to propose amendments
arose during the limited period of transition, the interim National Assembly
alone would discharge the task and no
its own abolition, (P24 million annually in salaries alone for its 400 members at
P600,000.00 per annum per
member, assuming that its deliberations could last for one year), suffice it to
recall this Court's pronouncement in
for elective officials) that "it is a matter of public knowledge that bigger
amounts have been spent or thrown to waste
for many lesser objectives. ... Surely, the amount of seventeen million pesos or
even more is not too much a price to
pay for fealty and loyalty to the Constitution ... " 30 and that "while the
financial costs of a separate plebiscite may be
laudable the objective" and "no consideration of financial costs shall deter Us
from adherence to the requirements of the
Constitution".11
10. The imposition of martial law (and "the problems of rebellion, subversion,
secession, recession, inflation and
economic crisis a crisis greater than war") 32 cited by the majority opinion as
justifying the concentration of powers in the
President, and the recognition now of his exercising the constituent power to
propose amendments to the Fundamental
Law "as agent for and in behalf of the people" 33 has no constitutional basis.
In the post-war Emergency Powers 33*, former Chief Justice Ricardo Paras
reaffirmed for the Court the principle that
emergency in itself cannot and should not create power. In our democracy the
hope and survival of the nation lie in the
wisdom and unselfish patriotism of all officials and in their faithful 'Adherence
to the Constitution".
The martial law clause of the 1973 Constitution found in Article IX, section 12 ,
as stressed by the writer in his separate
provides for the imposition of martial law only 'in case of invasion, resurrection
or rebellion, or imminent danger thereof,
when the public safety requires it and hence the use of the legislative power or
more accurately 'military power' under
invasion)". 35
11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by
the majority in the Referendum Cases
is but a transitory provision. Together with the martial law clause, they
constitute but two provisions which are not to
clause. If different portions seem to conflict, the courts must harmonize them,
if practicable, and must lean in favor
of a construction which will render every word operative, rather than one which
may make some words Idle and
nugatory.
This rule is applicable with special force to written constitutions, in which the
people will be
It is scarcelly conceivable that a case can arise where a court would bye
justified in declaring
would require if it stood by itself; but one part is not to be allowed to defeat
another, if by any
machinery and prescribe the procedure for the ratification of his proposals has
been withheld from the President
vested in him by the Constitution but just as importantly, because by the very
nature of the constituent power, such
such as the interim National Assembly and hence may not be antithetically
entrusted to one man.
Former Chief Justice Roberto Concepcion had observed before the elevation of
the l971 Constitutional Convention
that the records of past plebiscites show that the constitutional agency vested
with the exercise of the constituent
proposals were invariably ratified by the people 37 thus: "although the people
have the reserved power to ratify or reject
the action taken by the Convention, such power is not, in view of the
circumstances attending its exercise, as effective as
one might otherwise think: that, despite the requisite ratification by the
people, the actual contents of our fundamental law
12. Martial law concededly does not abrogate the Constitution nor obliterate its
constitutional boundaries and
allocation of powers
Departments. 39
among
the
Executive,
Legislative
and
Judicial
It has thus been aptly observed that "Martial law is an emergency regime,
authorized by and subject to the
premise imposes constraints and limitations. For the martial law regime fulfills
the constitutional purpose only if, by
transformed that it is changed in its nature and becomes a State other than
republican, then martial law is a failure;
worse, martial law would have become the enemy of the Republic rather than
its defender and preserver." 40
II. On the question of the Court's jurisdiction to pass upon the constitutionality
of the questioned presidential
decrees: let it be underscored that the Court has long set at rest the question.
The trail was blazed for the Court since the benchmark case of Angara vs.
Electoral Commission when Justice Jose
P. Laurel echoed U.S. Chief Justice Marshall's "climactic phrase" that "we must
never forget that it is a Constitution
"solemn
and
sacred"
laid down the doctrine that the Philippine Constitution as "a definition of the
powers of government" placed upon the
judiciary the great burden of "determining the nature, scope and extent of such
powers" and stressed that "when the
. . . but only asserts the solemn and sacred obliteration entrusted to it by the
Constitution to determine conflicting
claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which
At the same time, the Court likewise adhered to the constitutional tenet that
political questions, i.e. questions which
government (namely, the Executive and the Legislative) are outside the Court's
jurisdiction. 41
have the final say on whether or not their acts are within or beyond
constitutional limits. Otherwise, they could brush aside
and set the same at naught, contrary to the basic tenet that outs is it
government of lawsom not of men, and to the rigid
nature of our Constitution. Such rigidity is stressed by the fact that, the
Constitution expressly confers upon the Supreme
conditions have been met, or the limitations by expected, is justiciable or nonpolitical, the crux of the problem being one
of legality or validity of the contested act, not its wisdom Otherwise, said
qualifications, conditions and limitations-
naught".
The fact that the proposed amendments are to be submitted to the people for
ratification by no means makes the
question political and non- justiciable since as stressed even in Javellana the
issue of validity of the President's
Convention called fol- the purpose, in proposing amendments to the people for
ratification followed the constitutional
The substantive question presented in the case at bar of whether the President
may legally exercise the constituent
power vested in the interim National Assembly (which has not been granted to
his office) and propose constitutional
Justice Laurel in Angara had duly enjoined that "in times of social disquietude
or political excitement, the great
judicial department is the only constitutional organ which can be called upon to
determine the proper allocation of
departments
and
among
the
integral
or
To follow the easy way out by disclaiming jurisdiction over the issue as a
political question would be judicial
abdication.
III. On the question of whether there is a sufficient and proper submittal of the
proposed amendments to the people:
Prescinding from the writer's view of the nullity of the questioned decree of
lack of authority on the President's part
to excercise the constituent power, I hold that the doctrine of fair and proper
submission first enunciated by a simple
in the end. All in all, as already pointed out in our discussion of movants' first
ground, if this kind of amendment is
allowed, the Philippines will appear before the world to be in the absurd
position of being the only country with a
no proper submission.
that "in order that a plebiscite for the ratification of an amendment to the
Constitution may be validly held, it must
provide the voter not only sufficient time but ample basis for an intelligent
appraisal of the nature of the amendment
per se as well as its relation to the other parts of the Constitution with which it
has to form a harmonious whole," and
that there was no proper Submission wherein the people are in the dark as to
frame of reference they can base their
judgment on
2. The now Chief Justice and Mr. Justice Makasiar with two other members 46
graphically pointed out in their joint
verities that things which appear to be simple may turn out not to be so simple
after all". 47
"on the minimum requirements that must be met in order that there can be a
proper submission to the people of a
... we take the view that the words 'submitted to the people for their
ratification', if construed
from the people, an expression of their sovereign will - is that it can only be
amended by the
Therefore, amendments must be fairly laid before the people for their blessing
or spurning.
The people are not to be mere rubber stamps. They are not to vote blindly.
They must be
afforded ample opportunity to mull over the original provisions, compare them
with the
word submitted' can only mean that the government, within its maximum
capabilities, should
strain every effort to inform every citizen of the provisions to be amended, and
the proposed
amendments and the meaning, nature and effects thereof. By this, we are not
to be
then there is no submission within the meaning of the word as intended by the
framers of the
framework to enlighten the people, educate them with respect to their act of
ratification or
rejection. For, as we have earlier stated, one thing is submission and another is
ratification.
There must be fair submission, intelligent. consent or rejection. If with all these
safeguards
the people still approve the amendment no matter how prejudicial it is to them,
then so be it.
Justice Sanchez therein ended the passage with an apt citation that " ... " The
great men who builded the structure
of our state in this respect had the mental vision of a good Constitution voiced
by Judge Cooley, who has said 'A
for stability and steadiness; it must yield to the thought of the people; not to
the whim of the people, or the thought
evolved in excitement or hot blood, but the sober second thought, which alone,
if the government is to be safe, can
Montaign says: All great mutations shake and disorder state. Good does not
necessarily succeed evil ;another evil
Justice Sanchez thus stated the rule that has been adopted by the Court in
Tolentino that there is no proper
submission "if the people are not sufficiently affirmed of the amendments to be
voted upon, to conscientiously
3. From the complex and complicated proposed amendments set forth in the
challenged decree and the plethora of
and made known as per Presidential Decree No. 1033 dated, September 22,
1976 for submittal at the "referendum-
plebiscite" called for this coming Saturday, October 16, 1976 wherein the 15year and under 18-year- olds are
in
approving
the
proposed
that the question regarding charter changes be modified instead of asking the
people to vote on hurriedly prepared
from
lacking
the
As of this writing, October 11, 1976, the paper today reported his seven-page
analysis questioning among others
the proposed granting of dual legislative powers to both the President and the
Batasang Pambansa and remarking
that "This dual legislative authority can give rise to confusion and serious
constitutional questions". 53
Aside from the inadequacy of the limited time given for the people's
consideration of the proposed amendments,
there can be no proper submission because the proposed amendments are not
in proper form and violate the
the
specific
amended as well as how the specific provisions as amended would read, should
be clearly stated in careful and
for,
conscientious
4. While the press and the Solicitor General at the hearing have stated that the
lead to the conclusion that the whole context of the 1973 Constitution proper
would be affected and grave
years;
Pambansa;
election and selection of the members (for which there is no fixed date) the
incumbent President apparently
prohibition against the holding of more than one office in the government
including government-owned or -controlled
departments;
rather than by the rigid and strict amending process provided presently in
Article XVI of the Constitution;
"not inconsistent with any of these amendments" shall continue in full force
and effect; and Under Amendment No.
It has likewise been stressed by the officials concerned that the proposed
amendments come in a package and may
5. Whether the people can normally express their will in a genuine manner and
with due circumspection on the
and discussion has to be declared of itself shows the limitations on free debate
and discussion. The facilities for free
debate and discussion over the mass media, print and otherwise are wanting.
The President himself is reported to
have observed the timidity of the media under martial law and to have directed
the press to air the views of the
opposition. 54
Indeed, the voice of the studentry as reflected in the editorial of the Philippine
Collegian issue of September 23,
"which will affect generations yet to come" and urge the people to mull over
the pros and cons very carefully", as
follows:
On October 16, the people may be asked to decide on two important national
issues - the
On the first issue, it is almost sure that the interim National Assembly will not
be convened,
image of a den of thieves who are out to fool the people most of the time.
Among the three
law, some people were heard to mutter that a 'regime that has finally put an
end to such
amendments. But care should be taken that this new legislative body would not
become a
powers, otherwise we will just have another nebulous creation having the form
but lacking
the substance. Already the President has expressed the desire that among the
powers he
would like to have with regard to the proposed legislative body is that of
abolishing it in case
'there is a need to do so'. As to what would occasion such a need, only the
President himself
can determine. This would afford the Chief Executive almost total power over
the legislature,
for he could always offer the members thereof a carrot and a stick.
On the matter of lifting martial law the people have expressed ambivalent
attitudes. Some of
them, remembering the turmoil that prevailed before the declaration of martial
law, have
expressed the fear that its lifting might precipitate the revival of the abuses of
the past, and
provide an occasion for evil elements to resurface with their usual tricks.
Others say that it is
about time martial law was lifted since the peace and order situation has
already stabilized
The regime of martial law has been with us for four years now. No doubt,
martial law has
initially secured some reforms for the country The people were quite willing to
participate in
the new experiment, thrilled by the novelty of it all. After the euphoria,
however, the people
seem to have gone back to the old ways, with the exception that some of our
freedoms were
We must bear in mind that martial law was envisioned only to cope with an
existing national
crisis, It was not meant to be availed of for a long period of time, otherwise it
would
or imminent danger thereof, when the public safety requires it'. Since we no
longer suffer
the Constitution might be questioned. Even without martial law,. the incumbent
Chief
Executive still holds vast powers under the constitution. After all, the gains of
the New
Society can be secured without sacrificing the freedom of our people. If the
converse is true,
then we might have to conclude that the Filipinos deserve a dictatorial form of
government.
The referendum results will show whether the people themselves have adopted
this sad
conclusion.
The response of the people to the foregoing issues will affect generations yet
to come, so
they should mull over the pros and cons very carefully."
of the 1973 Constitution that we "let the Constitution remain firm and stable"
so that it may "guide the people", and
perceptively into the Constitution and try to discover for ourselves what our
role is in the
one thing and that is: Let all of us age, let all of us then pass away as a pace in
the
development of our country. but let the Constitution remain firm and stable
and let institutions
Constitution stands, whoever may the man in power be, whatever may his
purpose be, that
Constitution will guide the people and no man, however, powerful he may be,
will dare to
These are the reasons why I personally, having proclaimed martial law, having
been often
have remained steadfast or the rule of law and the Constitution. 54*
IV. A final word on the Court's resolution of October 5, 1976 which in reply to
the Comelec query allowed by a vote
of 7 to 3, judges of all courts, after office hours, "to accept invitations to act as
resource speakers under Section 5 of
The writer with Mr. Justice Makasiar and Madame Justice Munoz Palma had
dissented from the majority resolution,
with all due respect, on the ground that the non-participation of judges in such
public discussions and debates on
the referendum-plebiscite questions would preserve the traditional noninvolvement of the judiciary in public
The lifting of the traditional inhibition of judges from public discussion and
debate might blemish the image and
independence of the judiciary. Aside from the fact that the fixing of a time limit
for the acceptance of their courtesy
and friends as well as a good sector of the public would be hesitant to air views
contrary to that of the.
Judge. Justices Makasiar and Munoz Palma who share these views have agreed
that we make them of record here,
and conscience of each judge, and these views may he of some guidance to
them.
While I am in full agreement with the majority of my brethren that the herein
petitions should be dismissed, as in fact
I vote for their dismissal, I deem it imperative that I should state separately
the considerations that have impelled me
to do so.
Perhaps, it is best that I should start by trying to disabuse the minds of those
who have doubts as to whether or not I
should have taken part in the consideration and resolution of these cases.
Indeed, it would not be befitting my
position in this Highest Tribunal of the land for me to leave unmentioned the
circumstances which have given cause,
of faith in the impartiality that the Court's judgment herein should ordinarily
command. In a way, it can be said, of
course, that I am the one most responsible for such a rather problematical
situation, and it is precisely for this
reason that I have decided to begin this opinion with a discussion of why I have
not inhibited myself, trusting most
confidently that what I have to say will be taken in the same spirit of good
faith, sincerity and purity of purpose in
Plain honesty dictates that I should make of record here the pertinent contents
of the official report of the Executive
THE ISSUE WITH REGARDS To THE CONVENING OF A LEGISLATIVE body came out
when the President express his desire to share his powers with other people.
Supreme Court Justice Antonio Barredo proposed on July 28, the establishment
of 'Sangguniang Pambansa' or
'Batasang Pambansa' which would help the President in the performance of his
legislative functions. The proposed
new body will take the place of the interim National Assembly which is
considered not practical to convene at this
Upon learning the proposal of Justice Barredo, the country's 42,000 barangay
assemblies on August 1 suggested
for by the Constitution. The suggestion of the barangay units was made
through their national association,
at least six instances including in the two past referenda that they are against
the convening of the interim National
Assembly. She also said that since the people had ruled out the calling of such
assembly and that they have once
The federation of Kabataang Barangay, also numbering 42,000 units like their
elder counterparts in the Katipunan
ng mga Barangay also asserted their own right to be heard on whatever plans
are afoot to convene a new legislative
body.
PKB with regards to the convening of a new legislative body. The stand of the
PKB is to create a legislative advisory
council in place of the old assembly. Two days after, August 8, the Kabataang
Barangay held a symposium and
made a stand which is the creation of a body with full legislative powers.
to create a new legislative body was made by various urban and rural
Sangguniang Bayans.
Katipunan
ng
mga
more substantial and meaningful than the above report imparts. Most
importantly, aside from being probably the first
person to publicly articulate the need for the creation of an interim legislative
body to take the place of. the interim
might say that I was the one most vehement and persistent in publicly
advocating and urging the authorities
in
of
such
plebiscite
whatever
substitute
interim
the initial step towards the early lifting of martial law and on the fundamental
considerations why in our present
the evening of August 17, 1976, I denounced in no uncertain terms the plan to
call a constitutional convention. I
reiterated the same views on September 7, 1976 at the initial conference called
by the Comelec in the course of the
signed the now impugned Presidential Decree No. 1033, it is but human for me
to want to believe that to a certain
extent my strong criticisms and resolute stand against any other alternative
procedure of amending the Constitution
I must hasten to add at this point, however, that in a larger sense, the initiative
for all I have done, was not
altogether mine alone. The truth of the matter is that throughout the four
years of this martial law government, it has
the appropriate time does come, the President would somehow make it known
that in his judgment, the situation has
government from its present state to a parliamentary one. Naturally, this would
inevitably involve the establishment
other words, in the final analysis, it was the President's own attitude on the
matter that made it opportune for me to
articulate my own feelings and Ideas as to how the nation can move
meaningfully towards normalization and to
publicly raise the issues that have been ventilated by the parties in the instant
cases.
I would not be human, if I did not consider myself privileged in having been
afforded by Divine Providence the
martial law in our country. Indeed, I am certain every true Filipino is anxiously
looking forward to that eventuality.
And if for having voiced the sentiments of our people, where others would have
preferred to be comfortably silent,
and if for having made public what every Filipino must have been feeling in his
heart all these years, I should be
to preclude me from taking part in their disposition, I can only say that I do not
believe there is any other Filipino in
The matters that concern the Court in the instant petitions do not involve
merely the individual interests of any single
person or group of persons. Besides, the stakes in these cases affect everyone
commonly, not individually. The
current of history that has passed through the whole country in the wake of
martial law has swept all of us, sparing
the minds of all of us. That I have preferred to discuss publicly my own
thoughts on the matter cannot mean that my
colleagues in the Court have been indifferent and apathetic about it, for they
too are Filipinos. Articulated or not, all
of us must have our own preconceived Ideas and notions in respect to the
situation that confronts the country. To be
sure, our votes and opinions in the- major political cases in the recent past
should more or less indicate our
respective basic positions relevant to the issues now before Us. Certainly,
contending counsels cannot be entirely in
the dark in this regard. I feel that it must have been precisely because of such
awareness that despite my known
or disqualification.
Actually, although it may be difficult for others to believe it, I have never
allowed my preconceptions and personal
always been able to appreciate, fully consider and duly weigh arguments and
points raised by all counsels, even
when they conflict with my previous views. I am never beyond being convinced
by good and substantial
position in the Court had I felt I would not be able to be above my personal
prejudices. To my mind, it is not that a
judge has preconceptions that counts, it is his capacity and readiness to absorb
contrary views that are
always maintained that whatever improper factors might influence a judge will
unavoidably always appear on the
face of the decision. In any event, is there better guarantee of justice when the
preconceptions of a judge are
concealed?
Withal, in point of law, I belong to the school of thought that regards members
of the Supreme Court as not covered
actually refrained from participating in some cases, it has not been because of
any legal ground founded on said
rules, but for purely personal reasons, specially because, anyway, my vote
would not have altered the results
therein.
therein set forth and to be appointed in the manner therein provided. Nowhere
in the Constitution is there any
indication that the legislature may designate by law instances wherein any of
the justices should not or may not take
part in the resolution of any case, much less who should take his place.
Members of the Supreme Court are definite
reason. To put it the other way, nobody who has not been duly appointed as a
member of the Supreme Court can sit
in it at any time or for any reason. The Judicial power is vested in the Supreme
Court composed as the Constitution
where, if any of the member of Court is to abstain from taking part, there
would be no quorum - and no court to
render the decision - it is the includible duty of all the incumbent justices to
participate in the proceedings and to cast
their votes, considering that for the reasons stated above, the provisions of
Section 9 of the Judiciary Act do not
appear to conform with the concept of the office of Justice of the Supreme
Court contemplated in the Constitution.
The very nature of the office of Justice of the Supreme Court as the tribunal of
last resort and bulwark of the rights
and liberties of all the people demands that only one of dependable and
trustworthy probity should occupy the
the parties involved, may it be feared that anyone's life, liberty or property,
much less the national interests, would
emotions and prejudices, such that with the legal training and experience he
must of necessity be adequately
appointing power, to whom the Justices owe their positions, should never hope
to be unduly favored by any action
of the Supreme Court. All appointments to the Court are based on these
considerations, hence the ordinary rules on
-I-
In regard to the first issue as to whether the questions posed in the petitions
herein are political or justiciable, suffice
it for me to reiterate the fundamental position I took in the Martial Law cases,
1 thus
As We enter the extremely delicate task of resolving the grave issues thus
thrust upon Us.
references to the Constitution in this discussion are to both the 1935 and 1973
charters,
since, after all, the pertinent provisions are practically Identical in both is the
supreme law of
the land. This means among other things that all the powers of the government
and of all its
officials from the President down to the lowest emanate from it. None of them
may exercise
any power unless it can be traced thereto either textually or by natural and
logical
implication. "The second is that it is settled that the Judiciary provisions of the
Constitution
point to the Supreme Court as the ultimate arbiter of all conflicts as to what
the Constitution
or any part thereof means. While the other Departments may adopt their own
construction
The fifth is that in the same manner that the Executive power conferred upon
the Executive
by the Constitution is complete, total and unlimited, so also, the judicial power
vested in the
Supreme Court and the inferior courts, is the very whole of that power, without
any limitation
or qualification.
From these incontrovertible postulates, it results, first of all, that the main
question before Us
power of the courts being unlimited and unqualified, it extends over all
situations that call for
the as certainment and protection of the rights of any party allegedly violated,
even when the
alleged violator is the highest official of the land or the government itself. It is,
therefore,
evidence that the Court's jurisdiction to take cognizance of and to decide the
instant petitions
envisaged by the framers of the Constitution and adopted by our people, the
Court's
indisputable and plenary authority to decide does not necessarily impose upon
it the duty to
interpose its fiat as the only means of settling the conflicting claims of the
parties before it. It
vesting of the judicial power upon the Court, the Constitution has coevally
conferred upon it
are left in the residual power of the people themselves to resolve, either
directly at the polls
these reserved matters are easily distinguishable by their very nature, when
one studiously
and
preservation
of
the
state
against
internal
or
external
aggression
existence is far from being within the ambit of judicial responsibility. The
distinct role then of
way to the ultimate prerogative of the people articulated thru suffrage or thru
the acts of their
Indeed, these fundamental considerations are the ones that lie at the base of
what is known in American
and parcel of the rule of law, exactly like its apparently more attractive or
popular opposite, judicial activism, which is
the fullest exertion of judicial power, upon the theory that unless the courts
intervene injustice might prevail. It has
been invoked and applied by this Court in varied forms and mode of projection
in several momentous instances in
the past, (Barcelona vs. Baker, 5 Phil. 87; Severino vs. Governor-General, 16
Phil. 366; Abueva vs. Wood, 45 Phil.
612; Alejandrino vs. Quezon, 46 Phil. 85; Vera vs. Avelino, 77 Phil. 192;
Mabanag vs. Lopez Vito, 78 Phil. 1; Cabin
vs. Francisco, 88 Phil. 654; Montenegro vs. Castaneda, 91 Phil. 882, Santos vs.
Yatco, 55 O.G. 8641 [Minute
Resolution of Nov. 6, 19591 Osmena vs. Pendatun, Oct. 28, 1960.) and it is the
main support of the stand of the
We are not losing sight of the traditional approach based on the doctrine of
separation of powers. In truth, We
perceive that even under such mode of rationalization, the existence of power
is secondary, respect for the acts of a
but
alleged
abuse
of
Applying the foregoing considerations to the cases at bar, I hold that the Court
has jurisdiction to pass on the merits
of the various claims of petitioners. At the same time, however, I maintain that
the basic nature of the issues herein
raised requires that the Court should exercise its constitutionally endowed
prerogative to refrain from exerting its
definite express provision in the Charter applicable to the factual milieu herein
involved. The primary issue is, to
say, in the light of Section 15 of Article XVII of the Charter, that that faculty lies
in the interim National Assembly is to
beg the main question. Indeed, there could be no occasion for doubt or debate,
if it could ' only be assumed that the
the fundamental issue We are called upon to decide is whether or not it is still
constitutionally possible to convene
that body. And relative to that question, the inquiry centers on whether or not
the political developments since the
ratification of the Constitution indicate that the people have in effect enjoined
the convening of the interim National
July 27-28, 1973 and February 27, 1975 clearly show that the great majority of
our people, for reasons plainly
obvious to anyone who would consider the composition of that Assembly, what
with its more than 400 members
convoked at all.
cannot be disputed, however, is that the government and the nation have
acquiesced to, it and have actually
operated on the basis thereof. Proclamation 1103 which, on the predicate that
the overwhelming majority of the
people desire that the interim Assembly be not convened, has ordained the
suspension of its convocation, has not
been assailed either judicially or otherwise since the date of its promulgation
on January 17, 1973.
my considered opinion that in resolving that question, the Court must have to
grapple with the problem of what to do
with the will of the people, which although manifested in a manner not
explicitly provided for in the Constitution, was
nevertheless official, and reliable, and what is more important clear and
unmistakable, despite the known existence
to interpose its judicial authority against the evident decision of the people
and should leave it to the political
department of the government to devise the ways and means of resolving the
resulting problem of how to amend
-2-
Assuming We have to inquire into the merits of the issue relative to the
constitutional authority behind the projected
which the government is today, it is not incompatible with the Constitution for
the President to propose the subject
Decree in question is entirely consistent with the spirit and the principles
underlying the Constitution. The
correctness of this conclusion should become even more patent, when one
considers the political developments that
the people have brought about since the ratification of the Constitution on
January 17,1973.
celebration of Law Day on September 18, 1975 before the members of the
Philippine Constitution Association and
their guests:
mind that, as I have mentioned earlier, the martial law proclaimed under the
1935
1971. It was inevitable, therefore, that the delegates had to take into account
not only the
developments under it but, most of all, its declared objectives and what the
President, as its
attempt to adjourn the convention was roundly voted down to signify the
determination of the
constituent labors gained rapid tempo, but in the process, the delegates were
to realize that
the reforms they were formulating could be best implemented if the martial
law powers of the
out of a crisis
is supposed to provide all the needed cures and can, therefore, be immediately
in full force
and effect after ratification. Not so, with our 1973 Constitution, Yes, according
to the
in force and effect', but in truth, it is not yet so in full. Let me explain.
extraordinary in the sense that obviously they have been designed to provide
not only for the transition of our
under
the
past
charter
to
his martial law powers. Stated differently, the transitory provisions, as it has
turned out, has in effect established a
Constitution but enjoys as well those of the President and the Prime Minister
under the new Constitution. Most
importantly, he can and does legislate alone. But to be more accurate, I should
say that he legislates alone in spite
to the sovereign will of the Filipino people' expressed in the January 10-15,
1973 referendum.
Thus, we have here the unique case of a qualified ratification. The whole
Constitution was submitted for approval or
disapproval of the people, and after the votes were counted and the affirmative
majority known, we were told that
the resulting ratification was subject to the condition that the interim National
Assembly evidently established in the
nevertheless be not convened and that no elections should be held for about
seven years, with the consequence
officials. And as you can see, this phenomenon came into being not by virtue of
the Constitution but of the direct
created by Presidential Decree No. 86, which later on have been transformed
into barangays, a system of
'a
real
achievement
in
that the fundamental source of authority of our existing government may not
be necessarily found within the four
Elections in a manner well known to all of us This, as I see it, is perhaps what
the President means by saying that
by the people which may not even be read in the language of the Constitution.
in brief, when we talk of the rule of
law
nowadays,
our
frame
of
reference
should
not
necessarily
be
the
called from time to time by the President. The sooner we imbibe this vital
concept the more intelligent will our
except for the fact that all the powers of government are being exercised by
the President, we - do not in reality
note, relative to the main issue now before Us, that it was originally planned to
ask the people in that referendum
whether or not they would like the interim National Assembly to convene, but
the Comelec to whom the task of
preparing the questions was assigned was prevailed upon not to include any
-such question anymore, precisely
because it was the prevalent view even among the delegates to the Convention
as well as the members of the old
Congress concerned that that matter had already been finally resolved in the
previous referenda of January and July
1973 in the sense that. the Assembly should not be convened comparable to
res adjudicata.
doubt in my mind that for the President to convoke the interim National
Assembly as such would be to disregard the
logical that the reasons that motivated the people to enjoin the convening of
the Assembly - the unusually large and
the incumbent elective national executive and legislative officials under the Old
Constitution who would agree to join
it and the delegates themselves to the Convention who had voted in favor of
the Transitory Provisions - apply not
only to the Assembly as an ordinary legislature but perhaps more to its being a
constituent body. And to be more
realistic, it is but natural to conclude that since the people are against
politicians in the old order having anything to
do with the formulation of national policies, there must be more reasons for
them to frown on said politicians taking
abolition of the interim National Assembly to which they belong and its
substitution by the Batasang Pambansa.
inconsistent with the plenary power of the people to give or withhold their
assent to a proposed Constitution to
maintain that they can do so only wholly. I cannot imagine any sound principle
that can be invoked to support the
theory that the proposing authority can limit the power of ratification of the
people. As long as there are reliable
bad in it, but when there are feasible ways by which it can be determined
which portions of it, the people disapprove.
WHEREAS, fourteen million nine hundred seventy six thousand five hundred
sixty-one
(14,976.561) members of all the Barangays voted for the adoption of the
proposed
(743,869) who voted for its rejection; but a majority of those who approved the
new
Constitution conditioned their votes on the demand that the interim National
Assembly
and in consequence, the President has acted accordingly by not convening the
Assembly. The above factual
1103, taken together with Proclamation 1102 which proclaimed the ratification
of the Constitution, must be accorded
the same legal significance as the latter proclamation, as indeed it is part and
parcel if the Act of ratification of the
Constitution, hence not only persuasive but mandatory. In the face of the
incontrovertible fact that the sovereign
people have voted against the convening of the interim National Assembly, and
faced with the problem of amending
dimension that confronts Us, is how can any such amendment be proposed for
ratification by the people?
To start with, it may not be supposed that just because the office or body
designed by the constitutional convention
desirable or necessary this might be. In this connection, I submit that by the
very nature of the office of the
with
basic
principles
of
convening of the interim Assembly, the legislative authority has perforce fallen
into the hands of the President, if
provisions of Section 3 (2) of Article XVII invest the President with legislative
power for the duration of the transition
period. From these premises, it is safe to conclude that in effect the President
has been substituted by the people
themselves in place of the interim Assembly. Such being the case, the
President should be deemed as having been
necessity and the cognate nature of the act justify that the department
exercising the legislative faculty be the one to
likewise perform the constituent function that was attached to the body
rendered impotent by the people's mandate.
Incidentally, I reject most vehemently the proposition that the President may
propose amendments to the
Constitution in the exercise of his martial law powers. Under any standards,
such a suggestion cannot be reconciled
with the Ideal that a Constitution is the free act of the people.
It was suggested during the oral, argument that instead of extending his
legislative powers by proposing the
apportionment of the seats in the Regular National Assembly and call for an
election of the members thereof and
parliament under the present leadership, which will take the corresponding
measures to effectuate the efficient and
smooth transition from the present system to the new one. I do not believe this
pattern set by the convention should
be abandoned.
considered that whereas, under Section 1 (1) and (2) of Article XVI, the regular
National Assembly may call a
interim National Assembly, does not grant said body the prerogative of calling
a convention, one can readily
appreciate that the spirit of the Constitution does not countenance or favor the
calling of a convention during the
further noted that the requirement as to the number of votes needed for a
proposal is only a majority, whereas it is
effect that all ratification plebiscites must be held "not later than three months
after the approval" of the proposed
provided for in the assailed Presidential Decree 1033 suggests itself as the one
most in accord with the intent of the
fundamental law.
There is nothing strange in adopting steps not directly based on the letter of
the Constitution for the purpose of
the manner ordained by the original charter of that country, the Articles of
Confederation and Perpetual Union.
In brief. if the convening and operation of the interim National Assembly has
been effectuated through a
July, 1973 and February, 1975, why may not a duly held plebiscite suffice for
the purpose of creating a substitute for
that Assembly? It should be borne in mind that after all, as indicated in the
whereas of the impugned Presidential
sovereign people have arrogated unto themselves the functions relative to the
would regard myself as totally devoid of legal standing to question it, having in
mind that the most fundamental tenet
on which our whole political structure rests is that "sovereignty resides in the
people and all government authority
In the light of the foregoing considerations, I hold that Presidential Decree No.
1033 does not infringe the
when
the
people
ratified
the
the underlying tenet of our government - the sovereignty and plenary power of
the people.
On the issue of whether or not October 16, 1976 is too proximate to enable the
people to sufficiently comprehend
the issues and intelligently vote in the referendum and plebiscite set by
Presidential Decree 1033, all I can say is
that while perhaps my other colleagues are right in holding that the period
given to the people is adequate, I would
comments later I wish the President orders a postponement. But whether such
postponement is ordered or not, date
of the referendum- plebiscite anywhere from October 16, 1976 to any other
later date, would be of no vital import.
1051), which is a bar to any judicial inquiry, for the reasons stated in Our
opinion in Javellana, et al. vs. Executive
Secretary, et al. (L-36142); Tan, et al. vs. Executive Secretary, et al. (L,36164);
Roxas, et al. vs Executive
Executive Secretary, et al. (L-W283, March 31, 1973, 50 SCRA 30, 204-283). The
procedure for amendment is not
of making the proposal and the period for submission become relevant.
The contrary view negates the very essence of a republican democracy - that
the people are sovereign - and
may guide them; but they cannot supplant their judgment, Such an opposite
view likewise distrusts the wisdom of
There are thousands upon thousands among the citizenry, who are not in the
public service, who are more learned
Moreover, WE already ruled in Aquino, et al. vs- Comelec, et al. (L 40004, Jan.
31, 1975, 62 SCRA 275, 298-302)
he has the discretion as to when the convene the interim National Assembly
depending on prevailing conditions of
peace and order. In view of the fact that the interim National Assembly has not
been convoked in obedience to the
desire of the people clearly expressed in the 1973 referenda, the President
therefore remains the lone law-making
authority while martial law subsists. Consequently, he can also exercise the
power of the interim National Assembly
President, during the period of martial law, can call a constitutional convention
for the purpose, admittedly a
constituent power, it stands to reason that the President can likewise legally
propose amendments to the
fundamental law.
event only with the effective support of the political branches." 1 According to
Weston, judges, whether "personal
be decided in the courts. Political questions, similarly, are those which the
sovereign has entrusted to the so-called
In determining whether an issue falls within the political question category, the
absence of satisfactory creterion for a
Prominent on the surface of any case held to involve political question is found
a textually
of
deciding
without
an
initial
policy
In Coleman v. Miller, 6 the United States Supreme Court held that the efficacy
of the ratification by state legislatures of a
relative an amendment, after the same had been previously rejected by it, it
was held that the ultimate authority over the
question was in Congress in the exercise of its control over the promulgation of
the adoption of the amendment. And in
connection with the second question of whether the amendment has lost its,
vitality through the lapse of time, the Court
held that the question was likewise political, involving "as it does ... an
appraisal of a great variety of relevant conditions,
political, social and economic, which can hardly be said to be within the
appropriate range of evidence receivable in a
has taken place 'is conclusive upon the courts.' In the exercise of that power,
Congress, of
Congress that an amendment has been ratified will carry with it a solemn
assurance by the
Congress that ratification has taken place as the Constitution commands. Upon
this
to the judiciary its traditional authority of interpretation. To the extent that the
Court's opinion
through Mr. Justice Pedro Tuason, ruled that the process of constitutional
amendment, involving proposal and ratification,
fourths vote of all the members of each house as required be Article XV of the
1935 Constitution. It was claimed that three
(3) Senators and eight (8) members of the House of Representatives had been
suspended and that their membership was
withholding that character from the other. Proposal to amend the Constitution
is a highly political function performed
It is true that in Gonzales v. Comelec, 8 this Court held that "the issue whether
or not a Resolution of Congress, acting
review." What was involved in Gonzales, however, was not a proposed What
was involved in Gonzales, however, was not
voting age but rather that of the resolution of the Constitutional Convention
submitting the proposal for ratification. The
II
Here, the point has been stressed that the President is acting as agent for and
in behalf of the people in proposing
referendums the people had clearly and categorically rejected the calling of the
interim National Assembly. As stated
various sectoral groups had proposed the replacement of the interim National
Assembly. These barangays and the
officials with cabinet rank, and ninety-one (91) members of the Lupang
Tagapagpaganap (Executive Committee) of
afore-mentioned
constitutional
desire not only to abolish the interim National Assembly, but to replace it with
a more representative body
of the government towards the parliamentary system, while at the same time
ensuring that the gains of the New
Society, which are vital to the welfare of the people, shall be safeguarded. The
proposed constitutional
It would be futile to insist that the intemi National Assembly should have been
convened to propose those
who approved the new Constitution conditioned their votes on the demand that
the interim National Assembly provided in
the Transitory Provisions should not be and the President "in deference to the
sovereign will of the Filipino people"
declared that the convening of said body shall be suspended. 12 As this Court
observed in the Aquino case:
His decision to defer the initial convocation of the byiitttit National Assembly
was supported
by the sovereign people at the by referendum in January, 1973 when the people
voted to
postpone the convening of the interim National Assembly until after at least
seven (7) years
from the approval of the new Constitution. And the reason why the same
question was
that even some members of the Congress and delegates of the Constitutional
Convention,
who are already byjso ofitto members of the intetini National Assembly are
against such
inclusion; because the issue was already bycciled in the January, 1973
referendum by the
through endless debates without relieving the suffering of the general mass of
citizenry (p.
302.) The action of the President in suspending the convening of the interim
National
Since it was the action by the people that gave binding force and effect to the
new Constitution, then it must be
all political reality, is not merely the enfranchised citizens but the political
unity of the people. 14 It connotes,
therefore, a people which exists not only in the urgent present but in the
continuum of history. The assumption that
the opinion of The People as voters can be treated as the expression of the
interests of the People as a historic
American
journalist
and
public
Because of the discrepancy between The People as Voters and the People as
the corporate
nation, the voters have no title to consider themselves the proprietors of the
commonwealth
and to claim that their interests are Identical to the public interest. A
prevailing plurality of the
voters are not The People. The claim that they are is a bogus title invoked to
justify the
by which a faction of The People as voters are invested with the authority of
The People.
In Gonzales v. Comelec, supra, the Court clearly emphasized that the power to
propose amendments or to amend
the Constitution is part of the inherent power of the people as the repository of
sovereignty in a republican state.
people through the Constitution. Both the power to propose and the authority
to approve, therefore, inhere in the
Absent an interim National Assembly upon whom the people, through the
Constitution, have delegated the authority
to exercise constituent powers, it follows from necessity that either the people
should exercise that power
themselves or through any other instrumentality they may choose. For Law,
like Nature, abhors a vacuum (natural
vacuum abhorret).
The question then is whether the President has authority to act for the people
in submitting such proposals for
considering that ultimately it is the people who will decide whether the
President has such authority. It certainly
not judicial.
SUPREME COURT
Manila
EN BANC
vs.
respondents.
Office of the Solicitor General Ambrosio Padilla and Solicitor Troadio T. Quiazon,
Jr. for respondents.
CONCEPCION, J.:
member
of
the
House
of
the official candidates of the Liberal Party for the Senate, at the General
elections held in November, 1955, in which
Domocao
Alonto
and
Decoroso
Rosales,
Subsequently, the elections of this Senators-
were
proclaimed
elected.
with Camilo Osias, Geronima Pecson, Macario Peralta, Enrique Magalona, Pio
Pedrosa and William Chiongbian-
who had, also, run for the Senate, in said election-in Senate Electoral Case No.
4, now pending before the Senate
Electoral Tribunal. .
The Senate, in its session of February 22, 1956, upon nomination of Senator
Cipriano Primicias, on behalf of the
Nacionalista Party, chose Senators Jose P. Laurel, Fernando Lopez and Cipriano
Primicias, as members of the
petitioner was next chosen by the Senate as member of said Tribunal. Then,
upon nomination of Senator Primicias
on behalf of the Committee on Rules of the Senate, and over the objections of
Senators Taada and Sumulong, the
against Senators Cuenco and Delgado, and said Alfredo Cruz, Catalina
Cayetano, Manuel Serapio and Placido
who belong to the Nacionalista Party, and one (1) Senator-namely, petitioner,
Lorenzo M. Taada-belonging to the
Citizens Party; that the Committee on Rules for the Senate, in nominating
Senators Cuenco and Delgado, and the
Delgado-who
caused
said
Senate Electoral Tribunal, are unlawful and void; and that Senators Cuenco and
Delgado "are threatening and are
Electoral Tribunal composed of not more than three (3) senators chosen by the
Senate upon nomination of the party
having the largest number of votes in the Senate and not more than the (3)
Senators upon nomination of the Party
having the second largest number of votes therein, together, three (3) Justice
of the Supreme Court to be
Nacionalista Party, which is the rival party of the Liberal Party, to which the
Petitioner Diosdado Macapagal and his
co-protestants in Electoral Case No. 4 belong, the said five (5) Nacionalista
Senators having been nominated and
Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, restraining
intrude into and/ or hold or exercise the said public offices respectively being
occupied by them in the Senate
Alfredo Cruz, Catalina Cayetano, Manuel Serapio and Placido Reyes, pending
this action.
Catalina Cayetano, Manuel Serapio and Placido Reyes from the aforementioned
public offices in the Senate
Electoral Tribunal and that they be altogether excluded therefrom and making
the Preliminary injunction permanent,
Respondents have admitted the main allegations of fact in the petition, except
insofar as it questions the legality,
by way of special and affirmative defenses, that: (a) this Court is without
power, authority of jurisdiction to direct or
control the action of the Senate in choosing the members of the Electoral
Tribunal; and (b) that the petition states no
I. Respondents assail our jurisdiction to entertain the petition, upon the ground
that the power to choose six (6)
Senate, despite the fact that the draft submitted to the constitutional
convention gave to the respective political
We cannot agree with the conclusion drawn by respondents from the foregoing
facts. To begin with, unlike the
cases of Alejandrino vs. Quezon (46 Phil., 83) and Vera vs. Avelino (77 Phil.,
192)-relied upon by the respondents
this is not an action against the Senate, and it does not seek to compel the
latter, either directly or indirectly, to allow
the petitioners to perform their duties as members of said House. Although the
Constitution provides that the Senate
shall choose six (6) Senators to be members of the Senate Electoral Tribunal,
the latter is part neither of Congress
nor of the Senate. (Angara vs. Electoral Commission, 63 Phil., 139, Suanes vs.
Chief Accountant, 81 Phil., 818; 46
Secondly, although the Senate has, under the Constitution, the exclusive power
to choose the Senators who shall
form part of the Senate Electoral Tribunal, the fundamental law has prescribed
the manner in which the authority
shall be exercised. As the author of a very enlightening study on judicial selflimitation has aptly put it:.
"The courts are called upon to say, on the one hand, by whom certain powers
shall be exercised, and on the other
hand, to determine whether the powers possessed have been validly exercised.
In performing the latter function,
validity of an act is not the same, thing as the performance of the act. In the
one case we are seeking to ascertain
upon whom devolves the duty of the particular service. In the other case we
are merely seeking to determine
supplied,).
The case of Suanes vs. Chief Accountant (supra) cited by respondent refutes
their own pretense. This Court
exercised its jurisdiction over said case and decided the same on the merits
thereof, despite the fact that it involved
an inquiry into the powers of the Senate and its President over the Senate
Electoral Tribunal and the personnel
thereof. .
this does not detract from the power of the courts to pass upon the
constitutionality of acts of Congress 1 And, since
judicial power includes the authority to inquire into the legality of statutes
enacted by the two Houses of Congress,
and approved by the Executive, there can be no reason why the validity of an
act of one of said Houses, like that of
any other branch of the Government, may not be determined in the proper
actions. Thus, in the exercise of the so-
called "judicial supremacy", this Court declared that a resolution of the defunct
National Assembly could not bar the
exercise of the powers of the former Electoral Commission under the original
Constitution. 2 (Angara vs. Electoral
acts
of
the
Executive
as
the validity of an act of Congress or of either House thereof, the courts have,
not only jurisdiction to pass upon said
issue, but, also, the duty to do so, which cannot be evaded without violating
the fundamental law and paving the
Neither are the cases of Mabanag vs. Lopez Vito (78 Phil., 1) and Cabili vs.
Francisco (88 Phil., 654), likewise,
invoked by respondents, in point. In the Mabanag case, it was held that the
courts could not review the finding of the
Senate to the effect that the members thereof who had been suspended by
said House should not be considered in
sufficed to satisfy the requirements of the latter, such question being a political
one. The weight of this decision, as a
not hinge on the number of votes needed for a particular act of said body. The
issue before us is whether the
Senate-after acknowledging that the Citizens Party is the party, having the
second largest number of votes in the
Senate, to which party the Constitution gives the right to nominate three (3)
Senators for the Senate electoral
Senate.
The issue in the Cabili case was whether we could review a resolution of the
Senate reorganizing its representation
(supra) and Vera vs. Avelino (supra), the main purpose of the petition being "to
force upon the Senate the
reinstatement of Senator Magalona in the Commission on Appointments," onehalf (1/2) of the members of which is
We are not called upon, in the case at bar, to pass upon an identical or similar
question, it being conceded,
impliedly, but clearly, that the Citizens Party is the party with the second
largest number of votes in the Senate. The
by the Nacionalista Party, or by the Committee on Rules for the Senate, over
the objection of said Citizens Party.
xxx
xxx
xxx
The only ground upon which respondents' objection to the jurisdiction of this
Court and their theory to the effect that
the proper remedy for petitioners herein is, not the present action, but an
appeal to public opinion, could possibly be
entertained is, therefore, whether the case at bar raises merely a political
question, not one justiciable in nature.
to use petitioner, Taada's own words, to bring the matter to the bar of public
opinion' (p. 81, Discussion on the
Creation of the Senate Electoral Tribunal, February 21, 1956)." This allegation
may give the impression that said
petitioner had declared, on the floor of the Senate, that his only relief against
the acts complained of in the petition is
to take up the issue before the people- which is not a fact. During the
discussions in the Senate, in the course of the
would suggest if he nominated two (2) Nacionialista Senators and the latter
declined the, nomination. Senator
Taada replied:.
"There are two remedies that occur to my mind right now, Mr. Senator; one is
the remedy open to all of us that if we
feel aggrieved and there is no recourse in the court of justice, we can appeal to
public opinion. Another remedy is an
this matter to the Supreme Court, you will lose, because until now the Supreme
Court has always ruled against any
separation of powers will be upheld by the Supreme Court." But that learned
opinion of Senator Rodriguez, our
Mr. President, but who has not lost in the Supreme Court? I may lose because
of the theory of the separation of
powers, but that does not mean, Mr. President, that what has been done here
is pursuant to the provision of the
This statement did not refer to the nomination, by Senator Primicias, and the
election, by the Senate, of Senators
Cuenco and Delgado as members of said Tribunal. Indeed, said nomination and
election took place the day after
the aforementioned statement of Senator Taada was made. At any rate, the
latter announced that he might "take
As already adverted to, the objection to our jurisdiction hinges on the question
whether the issue before us is
is not subject to judicial review. The courts, therefore, concern themselves only
with the question as to the existence
"As distinguished from the judicial, the legislative and executive departments
are spoken of as the political
statute, but, within these limits, they do permit the departments, separately or
together, to recognize that a certain
set of facts exists or that a given status exists, and these determinations,
together with the consequences that flow
(Willoughby
on
the
emphasis supplied.).
To the same effect is the language used in Corpus Juris Secundum, from which
we quote:.
"It is well-settled doctrine that political questions are not within the province
of the judiciary, except to the extent that
power to deal with such questions has been conferred upon the courts by
express constitutional or statutory
provisions.
"It is not easy, however, to define the phrase `political question', nor to
determine what matters, fall within its scope.
It is frequently used to designate all questions that lie outside the scope of the
judicial questions, which under the
Geauga Lake Improvement Ass'n. vs. Lozier, 182 N. E. 491, 125 Ohio St. 565;
Sevilla vs, Elizalde, 112 F. 2d 29, 72
Thus,
it
has
been
repeatedly
held
that
the
question
whether
certain
In the case of In re McConaughy (119 N.W. 408), the nature of political question
was considered carefully. The
Court said:.
"At the threshold of the case we are met with the assertion that the questions
involved are political, and not judicial.
If this is correct, the court has no jurisdiction as the certificate of the state
canvassing board would then be final,
regardless of the actual vote upon the amendment. The question thus raised is
a fundamental one; but it has been
so often decided contrary to the view contended for by the Attorney General
that it would seem to be finally settled.
xxx
xxx
x x x.
" .. What is generally meant, when it is, said that a question is political, and not
judicial, is that it is a matter which, is
852, 16, C. C. A. 516, 30 L. R. A. 90; Fletcher vs. Tuttle, 151 Ill. 41, 37 N. E. 683,
25 L. R. A. 143, 42 Am. St. Rep.
220. Thus the Legislature may in its discretion determine whether it will pass a
law or submit a proposed
they involve political question, but because they are matters which the people
have by the Constitution delegated to
the Legislature. The Governor may exercise the powers delegated to him, free
from judicial control, so long as he
observes the laws and acts within the limits of the power conferred. His
discretionary acts cannot be controllable,
not primarily because they are of a political nature, but because the
Constitution and laws have placed the particular
matter under his control. But every officer under a constitutional government
must act according to law and subject
him to the restraining and controlling power of the people, acting through the
courts, as well as through the
action. The recognition of this principle, unknown except in Great Britain and
America, is necessary, to the end that
the government may be one of laws and not men'-words which Webster said
were the greatest contained in any
concerned with issues dependent upon the wisdom, not legality, of a particular
measure.
Such is not the nature of the question for determination in the present case.
Here, we are called upon to decide
votes" in the Senate, and hence, is null and void. This is not a political
question. The Senate is not clothed with "full
prove of the judicial department to pass upon the validity the proceedings in
connection therewith.
".. whether an election of public officers has been in accordance with law is for
the judiciary. Moreover, where the
whether a particular election has been in conformity with such statute, and,
particularly, whether such statute has
supplied.).
It is, therefore, our opinion that we have, not only jurisdiction, but, also, the
duty, to consider and determine the
II. Is the election of Senators Cuenco and Delgado, by the Senate, as members
of the Electoral Tribunal, valid and
lawful?.
"The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge
designated by the Chief Justice, and the remaining six shall be Members of the
Senate or of the House of
Representatives, as the case may be, who shall be chosen by each House, three
upon nomination of the party
having the largest number of votes and three of the party having the second
largest number of votes therein. The
It appears that on February 22, 1956, as well as at present, the Senate of the
Philippines consists of twenty three
(23) members of the Nacionalista Party and one (1) member of the Citizens
Party, namely, Senator Taada, who is,
also, the president of said party. In the session of the Senate held on February
21, 1956, Senator Sabido moved
that Senator Taada, "the President of the Citizens Party, be given the privilege
to nominate .. three (3) members"
of the Senate Electoral Tribunal (Congressional Record for the Senate, Vol. III,
pp. 328-329), referring to those who,
votes" in the Senate. Senator Taada objected formally to this motion upon
the-ground: (a) that the right to
nominate said members of the Senate Electoral Tribunal belongs, not to the
Nacionalista Party of which Senator
Sabido and the other Senators are members-but to the Citizens Party, as the
one having the second largest number
the Nacionalista Party cannot give it to the Citizens Party, which, already, has
such authority, pursuant to the
Constitution; and (b) that Senator Sabido's motion would compel Senator
Taada to nominate three (3) Senators to
determine how many he would nominate, after hearing the reasons of Senator
Sabido in support of his motion. After
adjourned until the next morning, February 22, 1956 (Do., do, pp. 329, 330,
332-333, 336, 338, 339, 343).
extensively,
with
Senator
namely, himself, he being the only Senator who belongs to the minority party in
said House (Do., do., pp. 360-364,
369). Thus, a new issue was raised - whether or not one who does not belong to
said party may be nominated by its
Senators already mentioned, expressed their views (Do., do., pp. 345, 349, 350,
354, 358, 364, 375). Although the
of the question before the Senate appeared to be remote. So, at 7:40 p.m., the
meeting was suspended, on motion
of Senator Laurel, with a view to seeking a compromise formula (Do., do., pp.
8:10 p.m., Senator Sabido withdrew his motion above referred to. Thereupon,
Senator Primicias, on behalf of the
Nacionalista Party, nominated, and the Senate elected, Senators Laurel, Lopez
and Primicias, as members of the
"On behalf of the Citizens Party, the minority party in this Body, I nominate the
only Citizens Party member in this
"Now, Mr. President, in order to comply with the provision in the Constitution,
the Committee on Rules of the
What took place thereafter appears in the following quotations from the
Congressional Record for the Senate.
Senators Delgado and Cuenco, not because I don't believe that they do not
deserve to be appointed to the tribunal
conviction
that
these
additional
Constitution. The Constitution only permits the Nacionalista Party or the party
having the largest number of votes to
nominate three.
"SENATOR SUMULONG. For the reasons that I have stated a few moments ago
when I took the floor, I also wish to
el
Senado
votar?
(Varios
para ser miembros del Tribunal Electoral, digan, si. (Varios Senadores: Si.) Los
que no lo esten digan, no (Silencio.)
Queda aprobada." (Congressional Record for the Senate, Vol. III, p. 377;
emphasis supplied.).
Petitioners maintain that said nomination and election of Senators Cuenco and
Delgado-who belong to the
Nacionalista Party-as members of the Senate Electoral Tribunal, are null and
void and have been made without
power or color of authority, for, after the nomination by said party, and the
election by the Senate, of Senators
Laurel, Lopez and Primicias, as members of said Tribunal, the other Senators,
who shall be members thereof, must
admittedly, the Citizens Party, to which Senator Taada belongs and which he
represents.
Respondents allege, however, that the constitutional mandate to the effect that
"each Electoral Tribunal shall be
compose of nine (9) members," six (6) of whom "shall be members of the
Senate or of the House of
majority party, and their election by the Senate, as members of the Senate
Electoral Tribunal-Senator Taada
nominated himself only, on behalf of the minority party, he thereby "waived his
right to no two more Senators;" that,
when Senator Primicias nominated Senators Cuenco and Delgado, and these
respondents were chosen by the
Tribunal; and, that, accordingly, Senators Cuenco and Delgado are de jure
members of said body, and the
and lawful.
At the outset, it will be recalled that the proceedings the organization of the
Senate Electoral Tribunal began with a
motion of Senator Sabido to the effect that "the distinguished gentleman from
Quezon, the President of the Citizens
Party, be given the privilege to nominate the three Members" of said Tribunal.
Senator Primicias inquired why the
movant had used the word "privilege". Senator Sabido explained that the
present composition of the Senate had
Taada formed part of the Nacionalista Party before the end of 1955, he
subsequently parted ways with" said party;
and that Senator Taada "is the distinguished president of the Citizens Party,"
which "approximates the situation
"At present Senator Taada is considered as forming the only minority or the
one that has the second largest
number of votes in the existing Senate, is not that right? And if this is so, he
should be given this as a matter of right,
".. the question is whether we have a party here having the second largest
number of votes, and it is clear in my
mind that there is such a party, and that is the Citizens Party to which the
gentleman from Quezon belongs. .. We
have to bear in mind, .. that when Senator Taada was included in the
Nacionalista Party ticket in 1953, it was by
that when Senator Taada as head of the Citizens Party entered into a coalition
with the Nacionalista Party, he did
not thereby become a Nacionalista because that was a mere coalition, not a
fusion. When the Citizens Party
entered into a mere coalition, that party did not lose its personality as a party
separate and distinct from the,
1953 election was one to the effect that he belonged to the Citizens Party .."
(Id., id., p. 360; emphasis supplied.).
The debate was closed by Senator Laurel, who remarked, referring to Senator
Taada:.
"..there is no doubt that he does not belong to the majority in the first place,
and that, therefore, he belongs to the
minority. And whether we like it or not, that is the reality of the actual
situation-that he is not a Nacionalista now, that
he is the head and the representative of the Citizens Party. I think that on
equitable ground and from the point of
from the point of view of the spirit of the Constitution it would be a good thing
if we grant the opportunity to Senator
Taada to help us in the organization of this Electoral Tribunal (Id., id., p. 376;
emphasis supplied.).
The foregoing statements and the fact that, thereafter, Senator Sabido
withdrew his motion to grant Senator Taada
the "privilege" to nominate, and said petitioner actually nominated himself "on
behalf of the Citizens Party, the
minority party in this Body"-not only without any, objection whatsoever, but,
also, with the approval of the Senate-
leave no room for doubt that the Senate-leave no room for doubt that the
Senate has regarded the Citizens Party,
represented by Senator Taada, as the party having the second largest number
of votes in said House.
"shall", therein used, is imperative in nature and that this is borne out by an
opinion of the Secretary of Justice dated
Regardless of the respect due its author, as a distinguished citizen and public
official, said opinion has little, if any,
weight in the solution of the question before this Court, for the practical
construction of a Constitution is of little, if
any, unless it has been uniform .." 6a Again, "as a general rule, it is only in
cases of substantial doubt and ambiguity
entitled to no weight, and will not be allowed to distort or in any way change
its natural meaning." The reason is that
necessarily binding upon the courts, even in a doubtful case." Hence, "if in the
judgment of the court, such
public policy, it may he rejected." (16 C. J. S., 71-72; emphasis supplied.) 6b.
clear. What is more, there is not the slightest doubt in our mind that the
purpose and spirit of said provisions do not
warrant said change and that the rejection of the latter is demanded by
paramount considerations of public policy. .
The flaw in the position taken in said opinion and by respondent herein is that,
while, it relies upon the compulsory
nature of the word "shall", as regards the number of members of the Electoral
Tribunals, it ignores the fact that the
same term is used with respect to the method prescribed for their election, and
that both form part of a single
have not even tried to show and we cannot conceive-why "shall" must be
deemed mandatory insofar as the number
Convention, refute
petitioners herein.
respondents'
pretense,
and
back
up
the
theory
of
qualifications of the members of the National Assembly, they must have done
so not only in the light of their own
experience but also having in view the experience of other enlightened peoples
of the world. The creation of the
hereinabove stated, was approved by that body by a vote of 98 against 58. All
that can be said now is that, upon the
independent and impartial tribunal. It was not so much the knowledge and
appreciation of contemporary
known as the Electoral Commission. With this end in view, a composite body in
which both the majority and minority
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir informacion del
Subcomite de Siete.
"El Sr. PRESIDENTE. Que dice el Comite?" El Sr. ROXAS. Con mucho gusto. "El Sr.
CONEJERO. Tal como esta el
que este equivale pricticamente a dejar el asunto a los miembros del Tribunal
Supremo?.
"El Sr. ROXAS. Si y no. Creemos que si el tribunal a la Comision esta cotistuido
en esa forma, tanto los miembros
"El Sr. CONEJERO. Cree Su Senoria que en un caso como ese, podriamos hacer
que tanto los de la mayoria como
"El Sr. ROXAS. Creo que si, porque el partidismo no les daria el triunfo."
(Angara vs. Electoral Commission, supra,
It is clear from the foregoing that the main objective of the framers of our
Constitution in providing for the
lawmaking body. To achieve this purpose, two devices were resorted to,
namely: (a) the party having the largest
number of votes, and the party having the second largest number of votes, in
the National Assembly or in each
that they may realize that partisan considerations could not control the
adjudication of said cases, and thus be
induced to act with greater impartiality; and (b) the Supreme Court was given
in said body the same number of
This is obvious from the very language of the constitutional provision under
consideration. In fact, Senator Sabido-
who had moved to grant to Senator Taada the privilege" to make the
nominations on behalf of party having the
"..I suppose Your Honor will agree with me that the framers of the Constitution
precisely thought of creating this
the
majority
from
ever
having
(Congressional Record for the Senate, Vol. III, p. 330; emphasis supplied.).
".. the purpose of the creation of the Electoral Tribunal and of its composition is
to maintain a balance between the
two parties and make the members of the Supreme Court the controlling power
so to speak of the Electoral Tribunal
emphasis supplied.).
Senator Sumulong opined along the same line. His words were: .
"..The intention is that when the three from the majority and the three from
the minority become members of the
Tribunal it is hoped that they will become aware of their judicial functions, not
to protect the protestants or the
protegees. It is hoped that they will act as judges because to decide election
cases is a judicial function. But the
framers of, the Constitution besides being learned were men of experience.
They knew that even Senators like us
are not angels, that we are human beings, that if we should be chosen to go to
the Electoral Tribunal no one can
say that we will entirely be free from partisan influence to favor our party, so
that in, case that hope that the three
from the majority and the three from the minority who will act as Judges should
result in disappointment, in case
they do not act as judges but they go there and vote along party liner, still
there is the guarantee that they will offset
each other and the result will be that the deciding vote will reside in the hands
of the three Justices who have no
majority from controlling and dictating the decisions of the Tribunal and to
make sure that the decisive vote will be
wielded by the Congressmen or Senators who are members the Tribunal but
will be wielded by the Justices who, by
virtue of their judicial offices, will have no partisan motives to serve, either
protestants, or protestees. That is my
xxx
xxx
x x x.
"My idea is that the intention of the framers of the constitution in creating the
Electoral Tribunal is to insure
control the Tribunal, and secondly by seeing to it that the decisive vote in the
Tribunal will be left in the hands of
members of the Senate questioned the right of the party having the second
largest number of votes in the Senate
any Senator not belonging to said party. Senators Lim, Sabido, Cea and
Paredes maintained that the spirit of the
It is not necessary, for the purpose of this decision, to determine whether the
parties having the largest, and the
second largest, number of votes in each House may nominate, to the Electoral
Tribunals, those members of
Electoral Tribunals is the equal representation of said parties therein, and the
resulting equilibrium to be maintained
Senate, said feature reflects the "intent" "purpose", and "spirit of the
Constitution", pursuant to which the Senate
Now then, it is well settled that "the purpose of all rules or maxims as to the
construction or interpretation of statutes
is to discover the true intention of the law" (82 C. J. S., 526) and that.
whatever is within the spirit of statute is within the statute although it is not
within the letter, while that which is within
the letter, but not within the spirit of a statute, is not within the statute; but,
where the law is free and clear from
obtained front all the surrounding circumstances, and the determination does
not depend on the form of the statute.
Consideration must be given to the entire statute, its nature, its object, and
the consequences which would result
from construing it one way or the other, and the statute must be construed in
connection with other related statutes.
when the terms of a statute are such that they cannot be made effective to the
extent of giving each and all of them
the other hand, the language of a statute, however mandatory in form, may be
deemed directory whenever
legislative purpose can best be carried out by such construction, and the
legislative intent does not require a
never where it would in fact make a new law instead of that passed by the
legislature. .. Whether a statute is
on it, no injury can result from ignoring it, and the purpose of the legislative
can be accomplished in a manner other
than that prescribed, with substantially the same result. On the other hand, a
provision relating to the essence of the
exercise, the statute must be regarded as mandatory. (Id., pp. 869-874.) (See
also, Words and Phrases, Vol. 26, pp.
What has been said above, relative to the conditions antecedent to, and
concomitant with, the adoption of section
controlling the Electoral Tribunals, and that the structure thereof is founded
upon the equilibrium between the
majority and the minority parties therein, with the Justices of the Supreme
Court, who are members of said
members of the Electoral Tribunals is vital to the role they are called upon to
play. it constitutes the essence of said
void. 11.
It is true that the application of the foregoing criterion would limit the
membership of the Senate Electoral Tribunal, in
the case at bar, to seven (7), instead of nine (9), members; but, it is conceded
that the present composition of the
342, 349, 354, 359, 375). Furthermore, the spirit of the law prevails over its
letter, and the solution herein adopted
maintains the spirit of the Constitution, for partisan considerations can not be
decisive in a tribunal consisting of
three (3) Justices of the Supreme Court, three (3) members nominated by the
majority party and either one (1) or
two (2) members nominated by the party having the second largest number of
votes in the House concerned.
Upon the other hand, what would be the result of respondents' contention if
upheld? Owing to the fact that the
Citizens Party 12 has only one member in the Upper House, Senator Taada felt
he should nominate, for the
Senate Electoral Tribunal, only said member of the Citizens Party. The same is,
thus, numerically handicapped, vis-
a-vis the majority party, in said Tribunal. Obviously, Senator Taada did not
nominate other two Senators, because,
Nacionalista Party would have five (5) members in the Senate Electoral
Tribunal, as against one (1) member of the
Citizens Party and three members of the Supreme Court. With the absolute
majority thereby attained by the majority
party in said Tribunal, the philosophy underlying the same would be entirely
upset. The equilibrium between the
Supreme Court would be wiped out, and, in lieu thereof, the door would be
thrown wide open for the predominance
This does not imply that the honesty, integrity or impartiality of Senators
Cuenco and Delgado are being questioned.
opposition was based, not upon their character, but upon the principle
involved. When the election of members of
the Constitution thereby indicates its reliance upon the method of selection
thus established, regardless of the
not, and did not, ignore the fact that the Constitution must limit itself to giving
general patterns or norms of action. In
meaning individuals often find it difficult to shake off the bias and prejudice
created by political antagonisms and to
predominance of the party from which it comes. As above stated, this was
confirmed by distinguished members of
In connection with the argument of the former Secretary of Justice to the effect
that when "there is no minority party
represented in the Assembly, the necessity for such a check by the minority
disappears", the following observations
" Under the interpretation espoused by the respondents, the very frauds or
terrorism committed by a party would
establish the legal basis for the final destruction of minority parties in the
Congress at least. Let us suppose, for
example, that in the Senate, the 15 or 16 senators with unexpired terms belong
to the party A. In the senatorial
elections to fill the remaining 8 seats, all the 8 candidates of party A are
proclaimed elected through alleged fraud
and/or terrorism. (The ouster of not less than 3 senators-elect in the elections
held since liberation attests to the
reality of election frauds and terrorism in our country.) There being no senator
or only one senator belonging to the
minority, who would sit in judgment on the election candidates of the minority
parties? According to the contention of
of
fraud
and
terrorism.
Most
ruthless party could entrench itself in power the legislature and thus destroy
democracy in the Philippines.
xxx
xxx
x x x.
".. When there are no electoral protests filed by the Minority party, or when the
only electoral protests filed are by
check on the majority party is greatest, and contrary to the observation made
in the above-quoted opinion, such a
and simple reason that they could easily be outvoted by the 6 members of the
majority party in the Tribunal.
xxx
xxx
x x x.
"In the case of the cited opinion of Secretary Abad Santos rendered in 1939, it,
did not appear that there were
minority party candidates who were adversely affected by the ruling of the
Secretary of Justice and who could have
The defenses of waiver and estoppel set up against petitioner Taada are
untenable. Although "an individual may
and, sometimes, even those tending "to secure his personal liberty", the power
to waive does not exist when "public
policy or public morals" are involved. (11 Am. Jur. 765; I Cooley's Constitutional
Limitations, pp. 368-371). The
demands of the common weal, and it has been held that where a statute is
founded on public policy, those to whom
it applies should not be permitted to waive its provisions" (82 C. J. S., 874).
Besides, there can be no waiver without
an intent to such effect, which Senator Taada did not have. Again, the alleged
waiver or exhaustion of his rights
does not justify the exercise thereof by a person or party, other than that to
which it is vested exclusively by the
Constitution.
The rule estoppel is that "whenever a party has, by his declaration, act or
omissions, intentionally and deliberately
led another to believe a particular thing true, and to act upon such belief, he
cannot, in a litigation arising out of such
declaration, act or omission, be permitted to falsify it" (Rule 69, sec. 68 [a],
Rules of Court). In the case at bar,
petitioner Senator Taada did not lead the Senate to believe that Senator
Primicias could nominate Senators
Cuenco and Delgado. On the contrary, said petitioner repeatedly asserted that
his was the exclusive right to make
contested
said
nomination
of
rule on estoppel applies to questions of fact, not of law, about the truth of
which the other party is ignorant (see
Moran's Comments on the Rules of Court, Vol. 3, pp. 490, 495). Such is not the
nature of the situation that
confronted Senator Taada and the other members of the Senate. Lastly, the
case of Zandueta vs. De la Costa (66
legality of which he later on assailed. In the case at bar, the nomination and
election of Senator Taada as member
of the Senate Electoral Tribunal was separate, distinct and independent from
the nomination and election of
In view of the foregoing, we hold that the Senate may not elect, as members of
the Senate Electoral Tribunal, those
Senators who have not been nominated by the political parties specified in the
Constitution; that the party having the
largest number of votes in the Senate may nominate not more than three (3)
members thereof to said Electoral
Tribunal; that the party having the second largest number of votes in the
Senate has the exclusive right to nominate
the other three (3) Senators who shall sit as members in the Electoral Tribunal;
that neither these three (3)
Senators, nor any of them, may be nominated by a person or party other than
the one having the second largest
standing to validly make such nomination and that the nomination of Senators
Cuenco and Delgado by Senator
initio.
to hold, however, that their appointments were null and void. Although
recommended by Senators Cuenco and
Delgado, who are not lawful members of the Senate Electoral Tribunal, they
were appointed by its Chairman,
presumably, with the consent of the majority of the de jure members of said
body 14 or, pursuant to the Rules
thereof. At any rate, as held in Suanes vs. Chief Accountant (supra), the
election of its personnel is an internal
matter falling within the jurisdiction and control of said body, and there is
every reason to believe that it will,
spirit of the Constitution and of, the decision in the case at bar.
Francisco A. Delgado have not been duly elected as Members of the Senate
Electoral Tribunal, that they are not
entitled to act as such and that they should be, as they are hereby, enjoined
from exercising the powers and duties
ordered.
CASE 24
SECOND DIVISION
ADONAIS Y. REJUSO,
Petitioners,
- versus -
and
Placido
Reyes.
Without
special
BOARD OF AIRLINES
REPRESENTATIVES
(MEMBER AIRLINES:
AIRLINES, CHINA
SOUTHERN AIRLINES,
CONTINENTAL MICRONESIA
AIRLINES, EMIRATES,
AIRWAYS, FEDERAL
EXPRESS CORPORATION,
CORPORATION, LUFTHANSA
GERMAN AIRLINES,
MALAYSIA AIRLINES,
NORTHWEST AIRLINES,
BRUNEI AIRLINES,
SINGAPORE AIRLINES,
SWISS INTERNATIONAL
THAI INTERNATIONAL
AIRWAYS),
Respondents.
x--------------------------------------x
DEPARTMENT OF FINANCE,
COMMISSIONER OF CUSTOMS,
Petitioners,
- versus -
BOARD OF AIRLINES
REPRESENTATIVES
(MEMBER AIRLINES:
AIRLINES, CHINA
SOUTHERN AIRLINES,
CONTINENTAL MICRONESIA
AIRLINES, EMIRATES,
AIRWAYS, FEDERAL
EXPRESS CORPORATION,
CORPORATION, LUFTHANSA
GERMAN AIRLINES,
MALAYSIA AIRLINES,
NORTHWEST AIRLINES,
BRUNEI AIRLINES,
SINGAPORE AIRLINES,
SWISS INTERNATIONAL
AIRWAYS),
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
CARPIO, J.:
The Cases
Before the Court are two petitions for review1 assailing the Decision2
promulgated on 9
In G.R. No. 193247, petitioners Sergio I. Carbonilla, Emilio Y. Legaspi IV, and
Adonais Y.
The facts, as gathered from the assailed Decision of the Court of Appeals, are
as follows:
The Bureau of Customs5 issued Customs Administrative Order No. 1-2005 (CAO
1-2005)
2006. CAO 7-92 and CAO 1-2005 were promulgated pursuant to Section 35068
in relation
to Section 6089 of the Tariff and Customs Code of the Philippines (TCCP).
Petitioners Office of the President, et al. alleged that prior to the amendment
of CAO 7-92,
the BOC created on 23 April 2002 a committee to review the overtime pay of
Customs
the exchange rate of P25 to US$1 to the then exchange rate of P55 to US$1.
The Office
of the President, et al. alleged that for a period of more than two years from
the creation of
the committee, several meetings were conducted with the agencies concerned,
including
On the other hand, BAR alleged that it learned of the proposed increase in the
overtime
increase in the overtime rates. BAR further requested for a meeting to discuss
the matter.
BAR wrote the Secretary of Finance on 31 January 2005 and 21 February 2005
reiterating
its concerns against the issuance of CAO 1-2005. In a letter dated 3 March
2005, the
Acting District Collector of BOC informed BAR that the Secretary of Finance
already
became effective on 16 March 2005. BAR still requested for an audience with
the
The BOC then sent a letter to BARs member airlines demanding payment of
overtime
services to BOC personnel in compliance with CAO 1-2005. The BARs member
airlines
refused and manifested their intention to file a petition with the Commissioner
of Customs
through its Chairman Felix J. Cruz (Cruz), that they find no valid ground to
disturb the
In separate letters both dated 4 December 2006,11 Cruz requested the Office of
the
President and the Office of the Executive Secretary to review the decision of
Usec.
B. Gaite (Deputy Exec. Sec. Gaite) issued an Order12 requiring BAR to pay its
appeal fee
and submit an appeal memorandum within 15 days from notice. BAR paid the
appeal fee
In a Decision13 dated 12 March 2007, the Office of the President denied the
appeal of BAR
The Office of the President ruled that the BOC was merely exercising its rulemaking or
quasi-legislative power when it issued CAO 1-2005. The Office of the President
ruled that
since CAO 1-2005 was issued in the exercise of BOCs rule-making or quasilegislative
power, its validity and constitutionality may only be assailed through a direct
action before
the regular courts. The Office of the President further ruled that, assuming that
BARs
recourse before the Office of the President was proper and in order, the appeal
was filed
September 2006 but it filed its appeal only on 4 December 2006, beyond the
30-day
The Office of the President also ruled that the grounds raised by BAR, namely,
(1) the
failure to comply with the publication requirement; (2) that the foreign
exchange cannot be
a basis for rate increase; and (3) that increase in rate was ill-timed, were
already
deliberated during the meetings held between the BOC and the stakeholders
and were
also considered by the Secretary of Finance. The Office of the President further
adopted
the position of the BOC that several public hearings and consultations were
conducted by
Chapter I, Book VII of the Administrative Code of 1987. BAR did not oppose the
exchange
rate used in CAO 7-92 which was the exchange rate at that time and thus, the
BOC-NAIA
Collection District found it strange that BAR was questioning the fixing of the
adjusted pay
rates which were lower than the rate provided under Section 3506 of the TCCP.
The
Office of the President ruled that there is a legal presumption that the rates
fixed by an
administrative agency are reasonable, and that the fixing of the rates by the
Government,
BAR filed a petition for review under Rule 45 before the Court of Appeals.
outcome of the case. Petitioners Carbonilla, et al. also adopted the Comment
filed by the
In its 26 February 2009 Resolution,15 the Court of Appeals denied the motion
for
intervention filed by Carbonilla, et al. The Court of Appeals ruled that the
petition before it
involved the resolution of whether the decision of the Office of the President
was correctly
rendered. The Court of Appeals held that the intervenors case was for
collection of their
resolution of the case. The Court of Appeals ruled that Carbonilla, et al. should
pursue
promulgated the assailed 9 July 2009 Decision which set aside the 12 March
2007
Decision and 14 March 2008 Resolution of the Office of the President and
declared
Section 3506 of the TCCP, CAO 7-92 and CAO 1-2005 unenforceable against
BAR.
Ruling that it could take cognizance of BARs appeal, the Court of Appeals held
that BAR
could not be faulted for not filing a case before the Court of Tax Appeals (CTA)
because
the Office of the President admitted that it preempted any action before the
CTA. Deputy
Exec. Sec. Gaite treated the letters of BAR as an appeal and required it to pay
appeal fee
and to submit an appeal memorandum. The Court of Appeals further ruled that
what the
advisory letter dated 31 August 2006 and to treat it as a decision from which
an appeal
could be taken and then rule that it was not perfected on time would deprive
BAR of its
The Court of Appeals further ruled that it has the power to resolve the
constitutional issue
raised against CAO 7-92 and CAO 1-2005. The Court of Appeals ruled that
Section 8,
law. The Court of Appeals ruled that Section 3506 of the TCCP only authorized
payment
allowances under CAO 7-92 and CAO 1-2005 are unconstitutional and could not
be
The Court of Appeals ruled that Section 3506 of the TCCP failed the
completeness and
sufficient standard tests to the extent that it attempted to cover BAR members
through
CAO 7-92 and CAO 1-2005. The Court of Appeals ruled that the phrase other
persons
served did not provide for descriptive terms and conditions that might be
completely
understood by the BOC. The Court of Appeals ruled that devoid of common
together with importers and shippers. The Court of Appeals also ruled that
Section 3506 of
the TCCP failed the sufficient standard test because it does not contain
adequate
and Resolution dated March 14, 2008 are hereby SET ASIDE.
SO ORDERED.16
Petitioners Carbonilla, et al. filed their motion for reconsideration of the 9 July
2009
Decision. In its 5 August 2010 Resolution, the Court of Appeals, among others,
denied
Carbonilla, et al. came to this Court via a petition for review, docketed as G.R.
No.
I. The Honorable Court of Appeals seriously erred in law in ruling that the Court
of Tax Appeals did not have
II. The Honorable Court of Appeals seriously erred in law in ruling that Section
3506 of the TCCP failed the
III. The Honorable Court of Appeals seriously erred in law in ruling that CAO 792 as amended by CAO 1-2005
as well as Section 3506 of the TCCP are not enforceable against BARs
members.
IV. The Honorable Court of Appeals seriously erred in law in not ruling that
estoppel and/or laches should have
V. The Honorable Court of Appeals seriously erred in law in issuing the decision
dated July 9, 2009 in denying
The Office of the President, et al. also filed a motion for reconsideration dated
28 July
BAR to continue complying with the 12 March 2007 Decision of the Office of the
President. The Court of Appeals ruled that BAR unlawfully withheld the rightful
overtime
payment of BOC employees when it stopped paying its obligations under CAO
7-92, as
amended by CAO 1-2005, since the Court of Appeals 9 July 2009 Decision had
not
attained finality pending the resolution of the motion for reconsideration filed
by the Office
of the President, et al. BAR filed a motion for reconsideration dated 26 May
May 2010 motion for reconsideration and denied the 28 July 2009 motion for
The Office of the President, et al. filed a petition for review before this Court,
docketed as
I. The Court of Appeals erred in giving due course to respondents BAR and its
member airlines petition for
1. CAO No. 1-2005 is invalid as the increased overtime pay rates and meal and
transportation
2. The act of the Bureau of Customs charging and/or collecting from BARs
member airlines the
cost of the overtime pay and meal and transportation allowances of Bureau of
Customs
These issues involve the validity and collection of money charges authorized by
the Customs Law and thus
I. Granting arguendo that the Court of Appeals has jurisdiction over the said
issues raised by the BAR and its
member airlines, the Court of Appeals should have dismissed their petition for
review filed under Rule 45 of
1. A petition for review under Ruled 43 of the Rules of Court cannot be filed to
question the quasi-legislative or
2. BARs appeal to the Office of the President questioning the 31 August 2006
Decision of the Department of
Finance (DOF), finding that CAO No. 1-2005 is valid, was filed out of time;
of non-forum shopping of their petition for review did not have the necessary
authorization of the said
II. Respondents BAR and its member airlines are guilty of laches and estoppel
and thus are effectively barred
relation to Section 3506 of the Tariff and Customs Code (TCCP), as amended,
not only CAO No. 1-2005,
III. The Court of Appeals erred in going beyond the issues raised by
respondents BAR and its member airlines
not only in the pleadings filed by them in the proceedings below but also in
their petition for review.
IV. Section 3506 of the TCCP, CAO No. 1-2005 and CAO No. 7-92 are valid. Said
law and its implementing
personnel.19
The Issues
3. Whether BARs appeal before the Office of the President was filed on
time;
Section 3506 of the TCCP, CAO 7-92, and CAO 1-2005 unenforceable
against BAR.
The petition in G.R. No. 193247 has no merit while the petition in G.R. No.
194276 is
meritorious.
Section 1. Who may intervene. - A person who has a legal interest in the matter
in litigation, or in the
of court, be allowed to intervene in the action. The court shall consider whether
or not the intervention will
unduly delay or prejudice the adjudication of the rights of the original parties,
and whether or not the
Intervention is not a matter of right but it may be permitted by the courts when
the
applicant
shows
facts
intervention.20 In G.R. No.
which
satisfy
the
requirements
authorizing
193247, the Court of Appeals denied Carbonilla, et al.s motion for intervention
in its 26
February 2009 Resolution on the ground that the case was for collection of
unpaid
ground invoked by the Court of Appeals in denying the motion. The Omnibus
Motion
states:
3. The said movants-intervenors all held offices or were stationed at the Ninoy
Aquino
International Airport [NAIA] and who have all been rendering overtime services
thereat for so
many years.
without his being paid the additional rates set by CAO No. 1-2005 which
became effective on
March 16, 2007. The effectivity and implementation of the said CAO No. 1-2005
is the main
services since March 16, 2005 or for all the time material to the issue in this
case.
6. Movants-Intervenors
payments representing
urgently
need
their
respective
[differential]/back
overtime services rendered from 16 March 2005 to the present pursuant to the
8. The full implementation of CAO No. 1-2005 would not only benefit the cause
and financial
Clearly, Carbonilla, et al. were really after the payment of their differential or
back
payments for services rendered. Hence, the Court of Appeals correctly denied
the motion
for intervention.
addressed to the sound discretion of the courts.23 The permissive tenor of the
Rules of
Court shows the intention to give the courts the full measure of discretion in
allowing or
disallowing the intervention.24 Once the courts have exercised this discretion,
it could not
manner.
In addition, Carbonilla, et al. admitted in their petition that their motion for
reconsideration
of the 26 February 2009 Resolution of the Court of Appeals had been denied in
open court
Carbonilla, et al. did not act on the denial of this motion but only pursued their
motion for
reconsideration of the 9 July 2009 Decision of the Court of Appeals. Hence, the
denial of
on the other issues they raise unless raised in G.R. No. 194276.
The Office of the President, et al. argue that the Court of Appeals should have
denied
BARs petition because it had no jurisdiction over the issues raised, involving
the validity
and collection of money charges authorized by Customs Law, which are under
the
We do not agree.
The jurisdiction of the Court of Appeals over BARs petition stems from Section
1 in
relation to Section 3, Rule 43 of the 1997 Rules of Civil Procedure which states
that
judicial agency in the exercise of its quasi judicial functions[,] which includes
the Office of
the President, may be taken to the Court of Appeals. BARs petition for review
to the Court
of Appeals from the 12 March 2007 Decision and 14 March 2008 Resolution of
the Office
As noted by the Court of Appeals, the Office of the President took cognizance of
Cruzs
letter dated 4 December 2006 requesting for a review of the 31 August 2006
letter of
Usec. Mendoza. Deputy Exec. Sec. Gaite required BAR to pay the appeal fee and
submit
its appeal memorandum. Thereafter, the Office of the President issued its 12
March 2007
Decision affirming the decision of the Department of Finance and then denied
BARs
motion for reconsideration in its 14 March 2008 Resolution. BARs only recourse
is to file a
petition for review before the Court of Appeals under Rule 43 of the 1997 Rules
on Civil
decision of the Office of the President is entirely distinct from the issue of
whether BAR
committed a procedural error in elevating the case before the Office of the
President
The Court of Appeals ruled that the question of whether BARs appeal before
the Office of
the President was filed on time was rendered academic when BAR paid the
appeal fee
and submitted its appeal memorandum on time. The Court of Appeals held that
Deputy
Exec. Sec. Gaite could not validly require BAR to perfect its appeal in his 13
December
2006 Order and then rule, after its perfection, that the appeal was not filed on
time. The
Court of Appeals ruled that the 13 December 2006 Order of Deputy Exec. Sec.
Gaite
stopped BAR from pursuing any recourse with the CTA. The Court of Appeals
further
ruled that the Office of the President did not explain how the 31 August 2006
letter of
Usec. Mendoza became a decision of the Secretary of Finance when it was only
an
advisory letter.
The Office of the President is not precluded from issuing the assailed decision
in the same
way that this Court is not proscribed from accepting a petition before it,
requiring the
studying the case, from ruling that the petition was filed out of time or that it
lacks merit.
then Exec. Sec. Eduardo Ermita are not in the nature of an appeal provided for
under
appeal to the Office of the President shall be taken within 30 days from receipt
by the
administrative rules and regulations, as what BAR asked the Office of the
President to do
in this case. BAR, in writing the Office of the President, was exhausting its
administrative
remedies. BAR could still go to the regular courts after the Office of the
President acted on
its request for a review of Usec. Mendozas 31 August 2006 letter. The decision
of the
Office of the President did not foreclose BARs remedy to bring the matter to
the regular
courts.
BAR is assailing the issuance and implementation of CAO 1-2005. CAO 1-2005 is
an
amendment to CAO 7-92. CAO 7-92 was issued [b]y authority of Section 608, in
relation
to Section 3506, of the Tariff and Customs Code of the Philippines x x x. On this
score, we
do not agree with the Office of the President that BAR, instead of filing an
appeal before
its office, should have filed an appeal before the CTA in accordance with
Section 7 of
xxxx
relation thereto, or other matters arising under the Customs Law or other laws
administered by the Bureau of
Customs.
However, Section 2313, Book II of Republic Act No. 1937 (RA 1937)29 provides:
any matter presented upon protest or by his action in any case of seizure may,
within fifteen (15) days after
Commissioner. Thereupon the Collector shall forthwith transmit all the records
of the proceedings to the
steps and make such orders as may be necessary to give effect to his decision.
Provided, That when an
appeal is filed beyond the period herein prescribed, the same shall be deemed
dismissed.
five (5) days from the promulgation of the decision of the Collector. The
Commissioner shall render a
decision on the automatic appeal within thirty (30) days from receipts of the
records of the case. If the
whose published value is five million pesos (P5,000,000) or more, such decision
shall be deemed
within five (5) days from the promulgation of the decision of the Commissioner
or of the Collector under
appeal, as the case may be. Provided, further, That if the decision of the
under appeal, as the case may be, is affirmed by the Secretary of Finance, or if
within thirty (30) days from
xxxx
matter brought before him upon protest or by his action or ruling in any case of
seizure may appeal to the
Court of Tax Appeals, in the manner and within the period prescribed by law
and regulations.
Clearly, what is appealable to the CTA are cases involving protest or seizure,
which is
not the subject of BARs appeal in these cases. BARs actions, including seeking
an
the Office of the President, are part of the administrative process to question
the validity of
the NAIA).
CAO 1-2005 was issued pursuant to Section 608 of the TCCP which provides:
The jurisdiction over the validity and constitutionality of rules and regulations
issued by the
Commissioner under Section 608 of the TCCP lies before the regular courts. It is
not
within the jurisdiction of the Office of the President or the CTA. Hence, the
Office of the
President erred in holding that BARs appeal was filed late because BAR can still
raise the
of Non-Forum Shopping
The Office of the President, et al. allege that the Court of Appeals should have
dismissed
the petition because of BARs failure to comply fully with the requirements of
verification
We agree with the Court of Appeals in its liberal interpretation of the Rules.
Verification of
condition affecting the form of the pleading and non-compliance with the
requirement does
As regards the certification of non-forum shopping, this Court may relax the
rigid
application of the rules to afford the parties the opportunity to fully ventilate
their cases on
the merits.33 This is in line with the principle that cases should be decided only
after giving
all parties the chance to argue their causes and defenses.34 Technicality and
procedural
imperfections should not serve as basis of decisions and should not be used to
defeat the
The Office of the President, et al. allege that BAR is guilty of estoppel and
laches because
it did not question CAO 7-92 which had been in effect since 1992. The Office of
the
President, et al. argue that a direct attack of CAO 1-2005 is a collateral attack
of CAO 7-
BAR is not questioning the validity of CAO 7-92 or Section 3506 of the TCCP.
BAR is
questioning the validity of CAO 1-2005 on the following grounds: (1) that it was
approved
in violation of BARs right to due process because its approval did not comply
with the
required publication notice under Section 9(2), Chapter I, Book VII, of the
Administrative
Code of the Philippines; (2) that CAO 1-2005 inappropriately based its
justification on the
declining value of the Philippine peso versus the U.S. dollar when services of
the BOC are
rendered without spending any foreign currency; and (3) that the increase in
BOC rates
aggravates the already high operating cost paid by the airlines which are still
reeling from
the impact of consecutive negative events such as SARS, Iraqi war, avian flu
and the
unprecedented increase in fuel prices. BARs objection to CAO 1-2005 could not
be
considered a direct attack on CAO 7-92 because BAR was merely objecting to
the
amendments to CAO 7-92. BAR did not question the validity of CAO 7-92 itself.
Even
during the pendency of these cases before the Court of Appeals, BAR members
continued
to pay the rates prescribed under CAO 7-92. It was only upon the promulgation
of the
Court of Appeals Decision declaring CAO 7-92 and CAO 1-2005 unconstitutional
that BAR
recommended to its members to stop paying the charges imposed by the BOC.
Hence, BAR is not estopped from questioning CAO 1-2005 on the ground alone
that it did
The Office of the President, et al. allege that the Court of Appeals acted beyond
its
jurisdiction when it passed upon the validity of CAO 7-92 and Section 3506 of
the TCCP.
Section 8. Questions that may be decided. - No error which does not affect the
jurisdiction over the subject
argued in the brief, save as the court may pass upon plain errors and clerical
errors.
The Court of Appeals deemed it necessary to rule on the issue for the proper
determination of these cases. The Court has ruled that the Court of Appeals is
imbued
opportunity, this
cognizance of the
Court,
in
the
exercise
of
sound
discretion,
can
take
exercise its power of judicial review, the party assailing the regulation must
show that the question of
complained of. That the question of constitutionality has not been raised
before is not a valid reason for
refusing to allow it to be raised later. A contrary rule would mean that a law,
otherwise unconstitutional,
would lapse into constitutionality by the mere failure of the proper party to
promptly file a case to challenge
the same.38
and operators from the coverage of Section 3506 of the TCCP. The term other
persons
served refers to all other persons served by the BOC employees. Airline
companies,
aircraft owners, and operators are among other persons served by the BOC
employees.
of passengers, as well as their baggages and cargoes, forms part of the BOC
functions.
BOC employees who serve beyond the regular office hours are entitled to
overtime pay for
The Court of Appeals ruled that, applying the principle of ejusdem generis,
airline
companies, aircraft owners, and operators are not in the same category as
importers and
custom duties while a shipper is one who ships goods to another; one who
engages the
However, airline passengers pass through the BOC to declare whether they are
bringing
goods that need to be taxed. The passengers cannot leave the airport of entry
without
going through the BOC. Clearly, airline companies, aircraft owners, and
operators are
among the persons served by the BOC under Section 3506 of the TCCP.
The overtime pay of BOC employees may be paid by any of the following: (1) all
the
taxpayers in the country; (2) the airline passengers; and (3) the airline
companies which
are expected to pass on the overtime pay to passengers. If the overtime pay is
taken from
all taxpayers, even those who do not travel abroad will shoulder the payment
of the
overtime pay. If the overtime pay is taken directly from the passengers or from
the airline
companies, only those who benefit from the overtime services will pay for the
services
be shouldered by the other persons served by the BOC, that is, the airline
companies.
This is a policy decision on the part of Congress that is within its discretion to
determine.
We do not agree with the Court of Appeals that Section 3506 of the TCCP failed
the
completeness and sufficient standard tests. Under the first test, the law must
be complete
in all its terms and conditions when it leaves the legislature such that when it
reaches the
delegate, the only thing he will have to do is to enforce it.39 The second test
requires
authority and prevent the delegation from running riot.40 Contrary to the
ruling of the Court
of Appeals, Section 3506 of the TCCP complied with these requirements. The
law is
complete in itself that it leaves nothing more for the BOC to do: it gives
authority to the
Customs fixes the rates; and it provides that the payments shall be made by
the importers,
shippers or other persons served. Section 3506 also fixed the standard to be
followed by
the Commissioner of Customs when it provides that the rates shall not be less
than that
services are not receiving double compensation for the overtime pay, travel
and meal
allowances provided for under CAO 7-92 and CAO 1-2005. Section 3506
provides that the
rates shall not be less than that prescribed by law to be paid to employees of
private
enterprise. The overtime pay, travel and meal allowances are payment for
additional work
rendered after regular office hours and do not constitute double compensation
prohibited
under Section 8, Article IX(B) of the 1987 Constitution41 as they are in fact
authorized by
BAR raises the alleged failure of BOC to publish the required notice of public
hearing and
to conduct public hearings to give all parties the opportunity to be heard prior
to the
issuance of CAO 1-2005 as required under Section 9(2), Chapter I, Book VII of
the
publish or circulate notices of proposed rules and afford interested parties the
opportunity to submit their
(2) In the fixing of rates, no rule or final order shall be valid unless the
proposed rates shall have been
The BOC created a committee to re-evaluate the proposed increase in the rate
of
overtime pay and for two years, several meetings were conducted with the
agencies
concerned to discuss the proposal. BAR and the Airline Operators Council
participated in these meetings and discussions. Hence, BAR cannot claim that
it was
denied due process in the imposition of the increase of the overtime rate. CAO
1-2005
2005, or 15 days after its publication, the BOC-NAIA still deferred BARs
compliance until
16 March 2005.
WHEREFORE, we DENY the petition in G.R. No. 193247. We GRANT the petition
in G.R.
No. 194276 and SET ASIDE the 9 July 2009 Decision and 26 October 2010
Resolution of
SO ORDERED.
CASE 25
SUPREME COURT
Manila
EN BANC
vs.
Office of the Solicitor General Pompeyo Diaz and Solicitor Felix V. Makasiar for
respondent.
REYES, J.:
manager of the National Abaca and Other Fibers Corporation, otherwise known
as the NAFCO.
It appears that petitioner was in 1949 the manager of the NAFCO with a salary
of P15,000 a year. By a resolution of
of not exceeding P400 a month effective the first of that month. Submitted the
Control Committee of the Government
Enterprises Council for approval, the said resolution was on August 3, 1949,
disapproved by the said Committee on
general manager thereof at the sum not to exceed P15,000 a year, and (2) that
the precarious financial condition of
On March 16, 1949, the petitioner asked the Control Committee to reconsider
its action and approve his claim for
allowance for January to June 15, 1949, amounting to P1,650. The claim was
again referred by the Control
Committee to the auditor General for comment. The latter, in turn referred it to
the NAFCO auditor, who reaffirmed
that
the
fact
that
the
view of this, the auditor General also reiterated his previous opinion against
the granting of the petitioner's claim and
so informed both the Control Committee and the petitioner. But as the
petitioner insisted on his claim the Auditor
General Informed him on June 19, 1950, of his refusal to modify his decision.
Hence this petition for review.
The NAFCO was created by the Commonwealth Act No. 332, approved on June
18, 1939, with a capital stock of
provisions of the corporation law in so far as they were compatible with the
provisions of its charter and the
purposes of which it was created and was to enjoy the general powers
mentioned in the corporation law in addition
to those granted in its charter. The members of the board were to receive each
each day of meeting actually attended, except the chairman of the board, who
was to be at the same time the
of the board of directors and managing heads of all such corporations as exofficio members, and such additional
members as the President might appoint from time to time with the consent of
the Commission on Appointments.
The council was to advise the President in the excercise of his power of
supervision and control over these
corporations and to formulate and adopt such policy and measures as might be
necessary to coordinate their
functions and activities. The Executive Order also provided that the council was
to have a Control Committee
from among the members of the council as vice-chairman and the secretary as
ex-officio member, and with the
(1) To supervise, for and under the direction of the President, all the
corporations owned or controlled by the
(2) To pass upon the program of activities and the yearly budget of
expenditures approved by the respective
(3) To carry out the policies and measures formulated by the Government
Enterprises Council with the
With its controlling stock owned by the Government and the power of
appointing its directors vested in the President
provisions of Republic Act No. 51 and the executive order (No. 93) promulgated
in accordance therewith.
which is the power of supervision for the purpose of insuring efficiency and
economy in the operations of the
corporation and also the power to pass upon the program of activities and the
yearly budget of expenditures
corporation's budget. That the Control Committee had good grounds for
disapproving the resolution is also clear,
for, as pointed out by the Auditor General and the NAFCO auditor, the granting
of the allowance amounted to an
illegal increase of petitioner's salary beyond the limit fixed in the corporate
charter and was furthermore not justified
It is argued, however, that Executive Order No. 93 is null and void, not only
because it is based on a law that is
The second ground ignores the rule that in the computation of the time for
doing an act, the first day is excluded and
the last day included (Section 13 Rev. Ad. Code.) As the act was approved on
October 4, 1946, and the President
was given a period of one year within which to promulgate his executive order
and that the order was in fact
promulgated on October 4, 1947, it is obvious that under the above rule the
said executive order was promulgated
As to the first ground, the rule is that so long as the Legislature "lays down a
policy and a standard is established by
the statute" there is no undue delegation. (11 Am. Jur. 957). Republic Act No.
51 in authorizing the President of the
Philippines, among others, to make reforms and changes in governmentcontrolled corporations, lays down a
standard and policy that the purpose shall be to meet the exigencies attendant
upon the establishment of the free
operations. The standard was set and the policy fixed. The President had to
carry the mandate. This he did by
promulgating the executive order in question which, tested by the rule above
cited, does not constitute an undue
It is also contended that the quarters allowance is not compensation and so the
granting of it to the petitioner by the
NAFCO board of directors does not contravene the provisions of the NAFCO
charter that the salary of the chairman
of said board who is also to be general manager shall not exceed P15,000 per
anum. But regardless of whether
as compensation or not,
the
the
payment
of
quarters
and employees entitled to this under existing law." The amendment is a clear
indication that quarters allowance was
excepted it from the prohibition. This being so, we hold that, for the purpose of
the executive order just mentioned,
In view of the foregoing, the petition for review is dismissed, with costs.
Paras, C.J., Feria, Pablo, Bengzon, Tuason, Montemayor and Bautista Angelo, JJ.,
concur.
CASE 26
SUPREME COURT
Manila
EN BANC
vs.
JOHNS, J.:
At its special session of 1919, the Philippine Legislature passed Act No. 2868,
entitled "An Act penalizing the
monopoly and holding of, and speculation in, palay, rice, and corn under
extraordinary circumstances, regulating the
distribution and sale thereof, and authorizing the Governor-General, with the
consent of the Council of State, to
Governor-General of the Philippines, dated the 1st of August, 1919, under the
authority of section 1
Upon this charge, he was tried, found guilty and sentenced to five months'
imprisonment and to pay a fine of P500,
from which he appealed to this court, claiming that the lower court erred in
finding Executive Order No. 53 of 1919,
to be of any force and effect, in finding the accused guilty of the offense
charged, and in imposing the sentence.
The official records show that the Act was to take effect on its approval; that it
was approved July 30, 1919; that the
Governor-General issued his proclamation on the 1st of August, 1919; and that
the law was first published on the
13th of August, 1919; and that the proclamation itself was first published on
the 20th of August, 1919.
The question here involves an analysis and construction of Act No. 2868, in so
far as it authorizes the Governor-
General to fix the price at which rice should be sold. It will be noted that
section 1 authorizes the Governor-General,
with the consent of the Council of State, for any cause resulting in an
extraordinary rise in the price of palay, rice or
corn, to issue and promulgate temporary rules and emergency measures for
carrying out the purposes of the Act.
reasons the Governor-General shall issue the proclamation, but says that it
may be issued "for any cause," and
leaves the question as to what is "any cause" to the discretion of the GovernorGeneral. The Act also says: "For any
specify or define what is "an extraordinary rise." That is also left to the
discretion of the Governor-General. The Act
also says that the Governor-General, "with the consent of the Council of State,"
is authorized to issue and
promulgate "temporary rules and emergency measures for carrying out the
purposes of this Act." It does not specify
measures shall remain in force and effect, or when they shall take effect. That
is to say, the Legislature itself has not
in any manner specified or defined any basis for the order, but has left it to the
sole judgement and discretion of the
Governor-General to say what is or what is not "a cause," and what is or what is
not "an extraordinary rise in the
Act. Under this state of facts, if the law is valid and the Governor-General
price at which rice should be sold, any dealer who, with or without notice, sells
rice at a higher price, is a criminal.
There may not have been any cause, and the price may not have been
extraordinary, and there may not have been
By the organic law of the Philippine Islands and the Constitution of the United
States all powers are vested in the
law; and of the Judiciary to construe the law. The Legislature has no authority
to execute or construe the law, the
Executive has no authority to make or construe the law, and the Judiciary has
no power to make or execute the law.
Subject to the Constitution only, the power of each branch is supreme within its
own jurisdiction, and it is for the
Judiciary only to say when any Act of the Legislature is or is not constitutional.
Assuming, without deciding, that the
Legislature itself has the power to fix the price at which rice is to be sold, can it
delegate that power to another, and,
if so, was that power legally delegated by Act No. 2868? In other words, does
the Act delegate legislative power to
Legislature cannot delegate the legislative power to enact any law. If Act no
2868 is a law unto itself and within itself,
and it does nothing more than to authorize the Governor-General to make rules
and regulations to carry the law into
effect, then the Legislature itself created the law. There is no delegation of
power and it is valid. On the other hand,
if the Act within itself does not define crime, and is not a law, and some
legislative act remains to be done to make it
a law or a crime, the doing of which is vested in the Governor-General, then the
Act is a delegation of legislative
The Supreme Court of the United States in what is known as the Granger Cases
(94 U.S., 183-187; 24 L. ed., 94),
decision in Munn vs. Ill., ante, 77, are subject to legislative control as to their
rates of fare and freight
The Illinois statute of Mar. 23, 1874, to establish reasonable maximum rates of
charges for the
It was there for the first time held in substance that a railroad was a public
utility, and that, being a public utility, the
State had power to establish reasonable maximum freight and passenger rates.
This was followed by the State of
what was a just and reasonable rate. The constitutionality of this law was
attacked and upheld by the Supreme
Milwaukee & St. Paul ry. Co. (38 Minn., 281), in which the court held:
reasonable fares and rates for the transportation of persons and property by a
railway company is
It will be noted that the law creating the railroad commission expressly
provides
That all charges by any common carrier for the transportation of passengers
and property shall be
With that as a basis for the law, power is then given to the railroad commission
to investigate all the facts, to hear
and determine what is a just and reasonable rate. Even then that law does not
make the violation of the order of the
commission a crime. The only remedy is a civil proceeding. It was there held
That the legislative itself has the power to regulate railroad charges is now too
well settled to require
The difference between the power to say what the law shall be, and the power
to adopt rules and
The legislature enacts that all freights rates and passenger fares should be just
and reasonable. It
had the undoubted power to fix these rates at whatever it deemed equal and
reasonable.
be exercised in the execution of the law, and under and in pursuance of it,
which is entirely
permissible. The legislature itself has passed upon the expediency of the law,
and what is shall be.
no other power.
The delegation of legislative power was before the Supreme Court of Wisconsin
in Dowling vs. Lancoshire Ins. Co.
"The true distinction is between the delegation of power to make the law,
which necessarily involves
exercised under and in pursuance of the law. The first cannot be done; to the
latter no valid objection
can be made."
The act, in our judgment, wholly fails to provide definitely and clearly what the
standard policy should contain, so
that it could be put in use as a uniform policy required to take the place of all
others, without the determination of the
delegated, and without which the act could not possibly be put in use as an act
in confirmity to which all fire
The result of all the cases on this subject is that a law must be complete, in all
its terms and provisions, when it
leaves the legislative branch of the government, and nothing must be left to
the judgement of the electors or other
which may be left to take effect in futuro, if necessary, upon the ascertainment
of any prescribed fact or event.
The delegation of legislative power was before the Supreme Court in United
States vs. Grimaud (220 U.S., 506; 55
L. ed., 563), where it was held that the rules and regulations of the Secretary
of Agriculture as to a trespass on
government land in a forest reserve were valid constitutional. The Act there
provided that the Secretary of
Agriculture ". . . may make such rules and regulations and establish such
service as will insure the object of such
reservations; namely, to regulate their occupancy and use, and to preserve the
forests thereon from destruction; and
any violation of the provisions of this act or such rules and regulations shall be
punished, . . ."
In refusing permits to use a forest reservation for stock grazing, except upon
stated terms or in
stated ways, the Secretary of Agriculture merely assert and enforces the
proprietary right of the
United States over land which it owns. The regulation of the Secretary,
therefore, is not an exercise
landowner's authorized agent to allow person having no right in the land to use
it as they will. The
From the beginning of the government, various acts have been passed
conferring upon executive
officers power to make rules and regulations, not for the government of their
departments, but for
administering the laws which did govern. None of these statutes could confer
legislative power. But
when Congress had legislated power. But when Congress had legislated and
could give to those who were to act under such general provisions "power to fill
up the details" by the
done.
If, after the passage of the act and the promulgation of the rule, the
defendants drove and grazed
their sheep upon the reserve, in violation of the regulations, they were making
an unlawful use of the
Congress.
The subjects as to which the Secretary can regulate are defined. The lands are
set apart as a forest reserve. He is
the occupancy and use and to preserve the forests from destruction.' A
violation of reasonable rules regulating the
use and occupancy of the property is made a crime, not by the Secretary, but
by Congress."
The above are leading cases in the United States on the question of delegating
legislative power. It will be noted
that in the "Granger Cases," it was held that a railroad company was a public
corporation, and that a railroad was a
Islands. In the very nature of things, all of that class of laws should be general
and uniform. Otherwise, there would
When Act No. 2868 is analyzed, it is the violation of the proclamation of the
Governor-General which constitutes the
crime. Without that proclamation, it was no crime to sell rice at any price. In
other words, the Legislature left it to the
sole discretion of the Governor-General to say what was and what was not "any
cause" for enforcing the act, and
what was and what was not "an extraordinary rise in the price of palay, rice or
corn," and under certain undefined
conditions to fix the price at which rice should be sold, without regard to grade
or quality, also to say whether a
proclamation should be issued, if so, when, and whether or not the law should
be enforced, how long it should be
enforced, and when the law should be suspended. The Legislature did not
specify or define what was "any cause,"
or what was "an extraordinary rise in the price of rice, palay or corn," Neither
did it specify or define the conditions
alleged sale was made a crime, if at all, because the Governor-General issued
the proclamation. The act or
proclamation does not say anything about the different grades or qualities of
rice, and the defendant is charged with
the sale "of one ganta of rice at the price of eighty centavos (P0.80) which is a
price greater than that fixed by
We are clearly of the opinion and hold that Act No. 2868, in so far as it
undertakes to authorized the Governor-
General in his discretion to issue a proclamation, fixing the price of rice, and to
make the sale of rice in violation of
the price of rice, and to make the sale of rice in violation of the proclamation a
crime, is unconstitutional and void.
It may be urged that there was an extraordinary rise in the price of rice and
profiteering, which worked a severe
hardship on the poorer classes, and that an emergency existed, but the
question here presented is the
constitutionality.
of the rich and the poor alike, and that protection ought not to change with the
wind or any emergency condition.
The fundamental question involved in this case is the right of the people of the
Philippine Islands to be and live
republican form of government, under the terms and conditions specified in Act
No. 2868, has ever enacted a law
delegating the power to any one, to fix the price at which rice should be sold.
That power can never be delegated
In the fixing of the price at which the defendant should sell his rice, the law
was not dealing with government
property. It was dealing with private property and private rights, which are
sacred under the Constitution. If this law
should be sustained, upon the same principle and for the same reason, the
Legislature could authorize the
It may be said that this was a war measure, and that for such reason the
provision of the Constitution should be
suspended. But the Stubborn fact remains that at all times the judicial power
was in full force and effect, and that
while that power was in force and effect, such a provision of the Constitution
could not be, and was not, suspended
even in times of war. It may be claimed that during the war, the United States
Government undertook to, and did, fix
the price at which wheat and flour should be bought and sold, and that is true.
There, the United States had
declared war, and at the time was at war with other nations, and it was a war
measure, but it is also true that in
doing so, and as a part of the same act, the United States commandeered all
the wheat and flour, and took
and fixed the price to be paid for it. That is not this case. Here the rice sold was
the personal and private property of
the defendant, who sold it to one of his customers. The government had not
bought and did not claim to own the
rice, or have any interest in it, and at the time of the alleged sale, it was the
personal, private property of the
defendant. It may be that the law was passed in the interest of the public, but
the members of this court have taken
on solemn oath to uphold and defend the Constitution, and it ought not to be
construed to meet the changing winds
a law authorizing any executive, under the conditions states, to fix the price at
which a price person would sell his
own rice, and make the broad statement that no decision of any court, on
principle or by analogy, will ever be found
which sustains the constitutionality of the particular portion of Act No. 2868
here in question. By the terms of the
the Legislative, which is elected by a direct vote of the people of the Philippine
Islands. As to the question here
This opinion is confined to the particular question here involved, which is the
right of the Governor-General, upon
the terms and conditions stated in the Act, to fix the price of rice and make it a
crime to sell it at a higher price, and
which holds that portions of the Act unconstitutional. It does not decide or
undertake to construe the constitutionality
The judgment of the lower court is reversed, and the defendant discharged. So
ordered.
Separate Opinions
I concur in the result for reasons which reach both the facts and the law. In the
first place, as to the facts, one
the alleged violation thereof occurred on August 6, 1919, while the Act of the
Legislature in question was not
published until August 13, 1919, and the order was not published until August
20, 1919. In the second place, as to
law and the order fail to set up an ascertainable standard of guilt. (U.S. vs.
Cohen Grocery Company [1921], 255
U.S., 81, holding section 4 of the Federal Food Control Act of August 10, 1917,
as amended, invalid.)
In order that there may not be any misunderstanding of our position, I would
respectfully invite attention to the
decision of the United States Supreme Court in German Alliance Ins. Co. vs.
Lewis ([1914, 233 U.S., 389),
decision of the United States Supreme Court, that of Marshall Field & Co. vs.
Clark ([1892], 143 U.S., 649), which
adopts as its own the principles laid down in the case of Locke's Appeal
([1873], 72 Pa. St., 491), namely; "The
Legislature cannot delegate its power to make a law; but it can make a law to
delegate a power to determine some
fact or state of things upon which the law makes, or intends to make, its own
to stop the wheels of government. There are many things upon which wise and
useful legislation must depend which
CASE 27
SUPREME COURT
Manila
EN BANC
vs.
CONCEPCION, J.:
During the period from September 4 to October 29, 1964 the President of the
Philippines, purporting to act pursuant
present special civil action, for a writ of prohibition with preliminary injunction,
against the Auditor General, to
restrain him, as well as his representatives and agents, from passing in audit
any expenditure of public funds in
Petitioner alleges that said executive orders are null and void, upon the ground
that said Section 68 has been
maintains the contrary view and avers that the present action is premature and
that not all proper parties referring
away from the former the barrios composing the new political subdivisions
intervened in the case. Moreover,
Barrios shall not be created or their boundaries altered nor their names
changed except under the
All barrios existing at the time of the passage of this Act shall come under the
provisions hereof.
Upon petition of a majority of the voters in the areas affected, a new barrio
may be created or the
barrio may be created if its population is less than five hundred persons.
Hence, since January 1, 1960, when Republic Act No. 2370 became effective,
barrios may "not be created or their
"upon petition of a majority of the voters in the areas affected" and the
"recommendation of the council of the
President, under this new law, cannot even create a barrio, can he create a
municipality which is composed of
the
theory
that
new
barrios, such as, by placing old barrios under the jurisdiction of the new
municipality. This theory overlooks,
however, the main import of the petitioner's argument, which is that the
statutory denial of the presidential authority
several barrios. The cogency and force of this argument is too obvious to be
denied or even questioned. Founded
which case the board shall enter an order creating a municipal corporation and
fixing the name of the same
Poultry Corporation vs. U.S. (79 L. Ed. 1570) is quite relevant to the one at bar.
The Schechter case involved the
Industrial
Recovery
Act
provided that such codes are not designed "to promote monopolies or to
eliminate or oppress small enterprises and
will not operate to discriminate against them, and will tend to effectuate the
policy" of said Act. The Federal
To summarize and conclude upon this point: Sec. 3 of the Recovery Act is
without precedent. It
supplies no standards for any trade, industry or activity. It does not undertake
to prescribe rules of
declaration, and of the nature of the few restrictions that are imposed, the
discretion of the President
in approving or prescribing codes, and thus enacting laws for the government
of trade and industry
throughout the country, is virtually unfettered. We think that the code making
authority thus conferred
broader connotation, leads to the same result. In fact, if the validity of the
delegation of powers made in Section 68
It may not be amiss to note that the executive orders in question were issued
after the legislative bills for the
creation of the municipalities involved in this case had failed to pass Congress.
A better proof of the fact that the
The President shall have control of all the executive departments, bureaus, or
offices, exercise
general supervision over all local governments as may be provided by law, and
take care that the
The power of control under this provision implies the right of the President to
interfere in the exercise of such
officers
of
the
executive
insofar as local governments are concerned. With respect to the latter, the
fundamental law permits him to wield no
more authority than that of checking whether said local governments or the
officers thereof perform their duties as
same or its officers act Within the scope of their authority. He may not enact an
ordinance which the municipal
council has failed or refused to pass, even if it had thereby violated a duty
imposed thereto by law, although he may
officials
take
appropriate
set aside or annul an ordinance passed by said council within the scope of its
jurisdiction, no matter how patently
unwise it may be. He may not even suspend an elective official of a regular
municipality or take any disciplinary
Upon the other hand if the President could create a municipality, he could, in
effect, remove any of its officials, by
creating a new municipality and including therein the barrio in which the
official concerned resides, for his office
without actually creating it, he could compel local officials to submit to his
dictation, thereby, in effect, exercising
Then, also, the power of control of the President over executive departments,
bureaus or offices implies no more
Manifestly, such control does not include the authority either to abolish an
executive department or bureau, or to
necessarily connote the exercise by him of an authority even greater than that
of control which he has over the
merely fail to comply with the constitutional mandate above quoted. Instead of
giving the President less power over
local governments than that vested in him over the executive departments,
bureaus or offices, it reverses the
process and does the exact opposite, by conferring upon him more power over
municipal corporations than that
There are only two (2) other points left for consideration, namely, respondent's
claim (a) that "not all the proper
As regards the first point, suffice it to say that the records do not show, and the
parties do not claim, that the officers
the Government of the Philippines, its offices and agents, in any official
investigation, proceeding or matter requiring
With respect to the second point, respondent alleges that he has not as yet
acted on any of the executive order & in
question and has not intimated how he would act in connection therewith. It is,
however, a matter of common, public
knowledge, subject to judicial cognizance, that the President has, for many
years, issued executive orders creating
municipal corporations and that the same have been organized and in actual
operation, thus indicating, without
by the General Auditing Office and its officials. There is no reason to believe,
therefore, that respondent would adopt
a different policy as regards the new municipalities involved in this case, in the
absence of an allegation to such
WHEREFORE, the Executive Orders in question are hereby declared null and
void ab initio and the respondent
Bengzon, C.J., Bautista Angelo, Reyes, J.B.L., Barrera and Dizon, JJ., concur.
Separate Opinions
So it was that the Governor-General during the time of the Jones Law was given
authority by the Legislature (Act
No. 1748) to act upon certain details with respect to said local governments,
such as fixing of boundaries,
subdivisions and mergers. And the Supreme Court, within the framework of the
Jones Law, ruled in 1917 that the
Municipality
of
Cardona
vs.
and again invoking it to issue executive orders providing for the creation of
municipalities.
From September 4, 1964 to October 29, 1964 the President of the Philippines
issued executive orders to create
Suing as private citizen and taxpayer, Vice President Emmanuel Pelaez filed in
this Court a petition for prohibition
with preliminary injunction against the Auditor General. It seeks to restrain the
respondent or any person acting in
expenditure
of
public
funds
in
aforementioned.
the least, already repealed, in light of the Philippine Constitution and Republic
Act 2370 (The Barrio Charter).
therein, may divide any province into one or more subprovinces, separate any
political division other
than a province, into such portions as may be required, merge any of such
subdivisions or portions
with another, name any new subdivision so created, and may change the seat
of government within
any subdivision to such place therein as the public welfare may require:
Provided, That the
and
advice
of
the
head
of
the
control of such officer, shall redistrict the territory of the several officers to the
new districts so
formed.
than a province, into such portions as may be required, merge any such
subdivisions or portions with another, name
any new subdivision so created." The issue, however, is whether the legislature
can validly delegate to the
that it cannot be delegated; that what is delegable is not the power to create
municipalities but only the power to
follows a fortiori that the power to create them, all the more cannot be so
conferred or exercised.
the Revised Administrative Code as far as the latter empowers the President to
create local governments. Repeal
Phil. 289. And it was there held that such repeal differs from a declaration of
unconstitutionality of a posterior
lesser is the need for the national government's intervention in its political
affairs. Furthermore, for practical reasons,
local autonomy cannot be given from the top downwards. The national
government, in such a case, could still
denying it over municipalities. For this reason, I disagree with the majority
view that because the President could not
It is my view, therefore, that the Constitution, and not Republic Act 2370,
repealed Section 68 of the Revised
agree with the ruling in the majority opinion that the executive orders in
question are null and void.
In thus ruling, the Court is but sustaining the fulfillment of our historic desire
to be free and independent under a
CASE 28
SUPREME COURT
Manila
EN BANC
vs.
BIDIN, J.:
Republic Act No. 7675, otherwise known as "An Act Converting the Municipality
of Mandaluyong into a Highly
statute,
the
municipalities
of
sponsored the bill which eventually became R.A. No. 7675. President Ramos
signed R.A. No. 7675 into law on
February 9, 1994.
Pursuant to the Local Government Code of 1991, a plebiscite was held on April
10, 1994. The people of
urbanized city as provided under R.A. No. 7675. The turnout at the plebiscite
was only 14.41% of the voting
Petitioners now come before this Court, contending that R.A. No. 7675,
specifically Article VIII, Section 49 thereof, is
unconstitutional
Constitution.
for
being
violative
of
three
specific
provisions
of
the
legislative district of San Juan with its first representative to be elected at the
same election.
Petitioner's first objection to the aforequoted provision of R.A. No. 7675 is that
it contravenes the "one subject-one
bill" rule, as enunciated in Article VI, Section 26(1) of the Constitution, to wit:
Sec. 26(1). Every bill passed by the Congress shall embrace only one subject
which shall be
Petitioners allege that the inclusion of the assailed Section 49 in the subject
law resulted in the latter embracing two
Petitioners contend that the second aforestated subject is not germane to the
subject matter of R.A. No. 7675 since
the said law treats of the conversion of Mandaluyong into a highly urbanized
city, as expressed in the title of the law.
Therefore, since Section 49 treats of a subject distinct from that stated in the
title of the law, the "one subject-one
Petitioners' second and third objections involve Article VI, Sections 5(1) and (4)
of the Constitution, which provide, to
wit:
Sec. 5(1). The House of Representatives shall be composed of not more than
two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative
districts apportioned
among the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their
respective inhabitants, and on the basis of a uniform and progressive ratio, and
those who, as
Sec. 5(4). Within three years following the return of every census, the Congress
shall make a
Petitioners argue that the division of San Juan and Mandaluyong into separate
congressional districts under Section
pursuant to any census showing that the subject municipalities have attained
the minimum population requirements.
And finally, petitioners assert that Section 49 has the effect of preempting the
right of Congress to reapportion
Anent the first issue, we agree with the observation of the Solicitor General
Mandaluyong into a highly urbanized city with a population of not less than two
hundred fifty thousand indubitably
. . . Each city with a population of at least two hundred fifty thousand, or each
province, shall have at
district for the City of Mandaluyong is decreed under Article VIII, Section 49 of
R.A. No. 7675.
separate and distinct from the subject of its conversion into a highly urbanized
city but is a natural and logical
consequence of its conversion into a highly urbanized city. Verily, the title of
R.A. No. 7675, "An Act Converting the
Moreover, a liberal construction of the "one title-one subject" rule has been
invariably adopted by this court so as not
The liberal construction of the "one title-one subject" rule had been further
elucidated in Lidasan v. Comelec (21
Of course, the Constitution does not require Congress to employ in the title of
an enactment,
details therein. It suffices if the title should serve the purpose of the
constitutional demand that it
inform the legislators, the persons interested in the subject of the bill and the
public, of the nature,
scope and consequences of the proposed law and its operation" (emphasis
supplied).
assailed law of any census to show that Mandaluyong and San Juan had each
attained the minimum requirement of
250,000 inhabitants to justify their separation into two legislative districts, the
same does not suffice to strike down
the validity of R.A. No. 7675. The said Act enjoys the presumption of having
passed through the regular
As to the contention that the assailed law violates the present limit on the
number of representatives as set forth in
the Constitution, a reading of the applicable provision, Article VI, Section 5(1),
as aforequoted, shows that the
present limit of 250 members is not absolute. The Constitution clearly provides
that the House of Representatives
shall be composed of not more than 250 members, "unless otherwise provided
by law." The inescapable import of
the latter clause is that the present composition of Congress may be increased,
if Congress itself so mandates
Thus, in the absence of proof that Mandaluyong and San Juan do not qualify to
have separate legislative districts,
As to the contention that Section 49 of R.A. No. 7675 in effect preempts the
right of Congress to reapportion
legislative districts, the said argument borders on the absurd since petitioners
overlook the glaring fact that it was
Congress itself which drafted, deliberated upon and enacted the assailed law,
including Section 49 thereof.
Aside from the constitutional objections to R.A. No. 7675, petitioners present
further arguments against the validity
thereof.
Petitioners contend that the people of San Juan should have been made to
participate in the plebiscite on R.A. No.
7675 as the same involved a change in their legislative district. The contention
thereto.
Thus,
the
from the said plebiscite as they had nothing to do with the change of status of
neighboring Mandaluyong.
Similarly, petitioners' additional argument that the subject law has resulted in
"gerrymandering," which is the practice
SO ORDERED.