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Consti 1 cases:

1. Macariola vs Asuncion 114 SCRA 77


2. Lambino vs COMELEC Oct 26, 2006
3. Tolentino vs COMELEC 41 SCRA 702
4. PCGG vs Sandiganbayan 530 SCRA 13
5. Magallona vs Ermita 655 SCRA 476
6. EPG Construction Co., et al., vs Vigilar, et. al, Mar 16, 2001
7. DepEd vs Oate 524 SCRA 200
8. Republic vs Hidalgo 534 SCRA 619
9. Republic vs Sandiganbayan 484 SCRA 119
10. The Holy See vs Rosario 238 SCRA 524
11. US vs Guinto , Feb 26, 1990
12. US vs Reyes March 1, 1993
13. Pharmaceutical and Health Care Association of the Philippines vs Duque III,
535 SCRA 265
14. Pierce vs Society of Sisters 262 U.S. 510
15. Taada et., al vs Angara et. al, 82 SCAD 241
16. Pamatong vs COMELEC, April 13, 2004
17. In Re: Production of Court Records and Documents and the Attendance of
Court Officials and Employees, Feb 4, 2012
18. Office of the Court Administrator vs Reyes, 621 SCRA 511
19. Senate of the Philippines vs Ermita, 488 SCRA 1
20. Casibang vs Aquino, 92 SCRA 642
21. Daza vs Singson, 180 SCRA 496
22. Sanidad vs COMELEC, 73 SCRA 333
23. Taada vs Cuenco, 100 Phil 1101
24. Carbonilla vs Board of Airline Representatives, 657 SCRA 775
25. Cervantes vs Auditor General , 91 SCRA 359
26. US vs Ang Tang Ho, 43 SCRA 659
27. Pelaez vs Auditor General, 15 SCRA 569

28. Tobias vs Abalos, 239 SCRA 106


29. Garcia vs Mata 65 SCRA 523
30. Tolentino vs Secretary of Finance, August 25, 1994
31. Social Justice Society vs Dangerous Drugs Board, Nov 3, 2008

CASE 1

Republic of the Philippines

SUPREME COURT

Manila
EN BANC

A.M. No. 133-J May 31, 1982

BERNARDITA R. MACARIOLA, complainant,


vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of Leyte,
respondent.

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

Sinforosa R. Bales, Luz R. Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela


Reyes, Priscilla Reyes and defendant Bernardita R. Macariola, in such a way that
the extent of the total share of plaintiff Sinforosa R. Bales in the hereditary
estate shall not exceed the equivalent of two-fifth (2/5) of the total share of any
or each of the other plaintiffs and the defendant (Art. 983, New Civil Code),
each of the latter to receive equal shares from the hereditary estate, (Ramirez
vs. Bautista, 14 Phil. 528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.] p. 33);

(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)

Directing the plaintiff Sinforosa R. Bales and defendant Bernardita R.


Macariola to pay the costs of this suit, in the proportion of one-third (1/3) by the
first named and two-thirds (2/3) by the second named; and (I 1) Dismissing all
other claims of the parties [pp 27-29 of Exh. C].

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:

A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION

(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;

(2) dismissing the complaint against Judge Elias B. Asuncion;


(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay defendant Judge
Elias B. Asuncion, (a) the sum of FOUR HUNDRED THOUSAND PESOS [P400,000.00]
for moral damages; (b) the sum of TWO HUNDRED THOUSAND PESOS
[P200,000.001 for exemplary damages; (c) the sum of FIFTY THOUSAND PESOS
[P50,000.00] for nominal damages; and (d) he sum of TEN THOUSAND PESOS
[PI0,000.00] for Attorney's Fees.

B. IN THE CASE AGAINST THE DEFENDANT MARIQUITA VILLASIN, FOR HERSELF


AND FOR THE HEIRS OF THE DECEASED GERARDO VILLASIN

(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

(1) Dismissing the complaint against defendants Sinforosa R. Bales, Adela R.


Herrer, Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng and Ruperto O. Reyes.

D. IN THE CASE AGAINST DEFENDANT BONIFACIO RAMO

(1) Dismissing the complaint against Bonifacio Ramo;


(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost of the suit.

SO ORDERED [pp. 531-533, rec.]

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:

Article 1491. The following persons cannot acquire by purchase, even at a


public or judicial action, either in person or through the mediation of another:
xxx xxx xxx
(5)
Justices, judges, prosecuting attorneys, clerks of superior and inferior courts,
and other officers and employees connected with the administration of justice, the
property and rights in litigation or levied upon an execution before the court within
whose jurisdiction or territory they exercise their respective functions; this
prohibition includes the act of acquiring by assignment and shall apply to lawyers,
with respect to the property and rights which may be the object of any litigation in
which they may take part by virtue of their profession [emphasis supplied].
The prohibition in the aforesaid Article applies only to the sale or assignment of the
property which is the subject of litigation to the persons disqualified therein. WE have
already ruled that "... for the prohibition to operate, the sale or assignment of the
property must take place during the pendency of the litigation involving the property"
(The Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de Laig vs.
Court of Appeals, 86 SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of
Lot 1184-E, the decision in Civil Case No. 3010 which he rendered on June 8, 1963 was
already final because none of the parties therein filed an appeal within the reglementary
period; hence, the lot in question was no longer subject of the litigation. Moreover, at the
time of the sale on March 6, 1965, respondent's order dated October 23, 1963 and the
amended order dated November 11, 1963 approving the October 16, 1963 project of
partition made pursuant to the June 8, 1963 decision, had long become final for there was
no appeal from said orders. Furthermore, respondent Judge did not buy the lot in question
on March 6, 1965 directly from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio

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).
xxx xxx xxx
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

previous understanding with Judge Asuncion (pp. 391- 394, rec.).


On the contention of complainant herein that respondent Judge acted illegally in
approving the project of partition although it was not signed by the parties, We quote
with approval the findings of the Investigating Justice, as follows:
1. I agree with complainant that respondent should have required the signature of the
parties more particularly that of Mrs. Macariola on the project of partition submitted to
him for approval; however, whatever error was committed by respondent in that respect
was done in good faith as according to Judge Asuncion he was assured by Atty. Bonifacio
Ramo, the counsel of record of Mrs. Macariola, That he was authorized by his client to
submit said project of partition, (See Exh. B and tsn p. 24, January 20, 1969). While it is
true that such written authority if there was any, was not presented by respondent in
evidence, nor did Atty. Ramo appear to corroborate the statement of respondent, his
affidavit being the only one that was presented as respondent's Exh. 10, certain
actuations of Mrs. Macariola lead this investigator to believe that she knew the contents
of the project of partition, Exh. A, and that she gave her conformity thereto. I refer to the
following documents:

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

in which they discharge their duties:

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.
xxx xxx xxx
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.

WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF APPEALS IS


HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES.

SO ORDERED.

Teehankee, Guerrero, De Castro, Melencio-Herrera, Plana, Vasquez, Relova and


Gutierrez, JJ., concur.

Concepcion Jr., J., is on leave.

Fernando, C.J., Abad Santos and Esolin JJ., took no part.

CASE 2

SEE HARD COPY

CASE 3

SEE HARD COPY

CASE 4

SECOND DIVISION

PRESIDENTIAL COMMISSION G.R. No. 124772


ON GOOD GOVERNMENT and MAGTANGGOL C. GUNIGUNDO,in his capacity as
CHAIRMAN thereof,
Petitioners, Present:
- versus - Chairperson,

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;

(2) lack of jurisdiction on account of the act of state doctrine;


(3) lack of cause of action for being premature for failure to exhaust administrative
remedies; and
(4) lack of cause of action for the reason that mandamus does not lie to compel
performance of a discretionary act, there being no showing of grave abuse of
discretion on the part of petitioners.

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.

Act of State Doctrine


The classic American statement of the act of state doctrine, which appears to have taken
root in England as early as 1674,36[36] and began to emerge in American jurisprudence
in the late eighteenth and early nineteenth centuries, is found in Underhill v.
Hernandez,37[37] where Chief Justice Fuller said for a unanimous Court:
Every sovereign state is bound to respect the independence of every other state, and the
courts of one country will not sit in judgment on the acts of the government of another,
done within its territory. Redress of grievances by reason of such acts must be obtained
through the means open to be availed of by sovereign powers as between
themselves.38[38] The act of state doctrine is one of the methods by which States
prevent their national courts from deciding disputes which relate to the internal affairs of
another State, the other two being immunity and non-justiciability.39[39] It is an
avoidance technique that is directly related to a States obligation to respect the
independence and equality of other States by not requiring them to submit to
adjudication in a national court or to settlement of their disputes without their
consent.40[40] It requires the forum court to exercise restraint in the adjudication of
disputes relating to legislative or other governmental acts which a foreign State has
performed within its territorial limits.41[41] It is petitioners contention that the
Sandiganbayan could not grant or deny the prayers in [Officecos] complaint without first
examining and scrutinizing the freeze order of the Swiss officials in the light of the
evidence, which however is in the possession of said officials and that it would therefore
sit in judgment on the acts of the government of another country.42[42] We disagree.
The parameters of the use of the act of state doctrine were clarified in Banco Nacional de
Cuba v. Sabbatino.43[43] There, the U.S. Supreme Court held that international law does
not require the application of this doctrine nor does it forbid the application of the rule
even if it is claimed that the act of state in question violated international law. Moreover,
due to the doctrines peculiar nation-to-nation character, in practice the usual method for
an individual to seek relief is to exhaust local remedies and then repair to the executive
authorities of his own state to persuade them to champion his claim in diplomacy or
before an international tribunal.44[44]Even assuming that international law requires the
application of the act of state doctrine, it bears stressing that the Sandiganbayan will not
examine and review the freeze orders of the concerned Swiss officials in Civil Case No.
0164. The Sandiganbayan will not require the Swiss officials to submit to its adjudication
nor will it settle a dispute involving said officials. In fact, as prayed for in the complaint,
the Sandiganbayan will only review and examine the propriety of maintaining PCGGs
position with respect to Officecos accounts with BTAG for the purpose of further
determining the propriety of issuing a writ against the PCGG and the OSG. Everything
considered, the act of state doctrine finds no application in this case and petitioners
resort to it is utterly mislaid.

Exhaustion of Administrative Remedies


Petitioners advert to Officecos failure to exhaust the administrative remedies provided in
Secs. 5 and 6 of the PCGG Rules and Regulations Implementing Executive Orders No. 1
and No. 2.45[45] However, a reading of said provisions shows that they refer only to
sequestration orders, freeze orders and hold orders issued by the PCGG in the Philippines.
They cannot be made to apply to the freeze orders involved in this case which were
issued by the government of another country.It was thus error for petitioners to treat
Officecos request for the lifting of the freeze orders as a request under Secs. 5 and 6 of its
rules. First, the PCGG cannot even grant the remedy embodied in the said rules, i.e.,
lifting of the freeze orders. Second, any argument towards a conclusion that PCGG can
grant the remedy of lifting the freeze order is totally inconsistent with its earlier argument
using the act of state doctrine. PCGGs cognizance of such a request and treating it as a
request under Secs. 5 and 6 of its rules would require a re-examination or review of the
decision of the Swiss court, a procedure that is prohibited by the act of state doctrine.
Complaint States a Cause of Action
While the stated issue is whether mandamus lies, the real crux of the matter is whether
Officecos complaint before the Sandiganbayan states a cause of action. We uphold the
sufficiency of the complaint.It may be recalled that Officeco had alleged that it had sent
several letters to the PCGG and the OSG for these bodies to advise the Swiss authorities
to drop or exclude Officecos account with BTAG from the freeze or sequestration, but no
formal response was received by petitioners on these letters. Copies of at least four (4) of
these letters were in fact attached as annexes to the complaint.46[46] Section 5(a) of
Republic Act No. 6713, or the Code of Conduct and Ethical Standards for Public Officials
and
Employees, states:
public officials and employees are under obligation to:
fifteen (15) working days from receipt thereof, respond to letters, telegrams or other
means of communications sent by the public. The reply must contain the action taken on
the request. [Emphasis supplied.]
Since neither the PCGG nor the OSG replied to the requests of Officeco within fifteen (15)
days as required by law, such inaction is equivalent to a denial of these requests. As
such, no other recourse was left except for judicial relief. The appreciation of the
allegations in the complaint from this standpoint allows us to see how the cause of action
precisely materialized. Even if these allegations were not cast in the framework of a
mandamus action, they still would give rise to a viable cause of action, subject to the
proof of the allegations during trial. A motion to dismiss on the ground of failure to state a
cause of action in the complaint hypothetically admits the truth of the facts alleged
therein. The hypothetical admission extends to the relevant and material facts well
pleaded in the complaint and inferences fairly deducible therefrom. Hence, if the
allegations in the complaint furnish sufficient basis by which the complaint can be
maintained, the same should not be dismissed regardless of the defense that may be
assessed by the defendants.47[47] The following allegations culled from Officecos
complaint in the Sandiganbayan would, if proven, entitle Officeco to the main reliefs
sought in its complaint in view of petitioners refusal to exclude Officecos account with
BTAG in the list of ill-gotten wealth, to wit: (1) The freeze order has been in effect for
eleven (11) years, since 1986, without any judicial action instituted by the PCGG and the
OSG against Officeco; (2) The PCGG and the OSG have no document or proof that the

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.

WHEREFORE, premises considered, the instant petition is DISMISSED.

No pronouncement as to costs.

SO ORDERED.

DANTE O. TINGA

Associate Justice

CASE 5

EN BANC

PROF. MERLIN M. MAGALLONA, G.R No. 187167

AKBAYAN PARTY-LIST REP. RISA HONTIVEROS, PROF. HARRY C. Present:

ROQUE, JR., AND UNIVERSITY OF


THE PHILIPPINES COLLEGE OF CORONA, C.J.,
LAW STUDENTS, ALITHEA CARPIO,
BARBARA ACAS, VOLTAIRE VELASCO, JR.,
ALFERES, CZARINA MAY LEONARDO-DE CASTRO,
ALTEZ, FRANCIS ALVIN ASILO, BRION,
SHERYL BALOT, RUBY AMOR PERALTA,
BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,
ROMINA BERNARDO, VALERIE DEL CASTILLO,
PAGASA BUENAVENTURA, EDAN ABAD,
MARRI CAETE, VANN ALLEN VILLARAMA, JR.,
DELA CRUZ, RENE DELORINO, PEREZ,
PAULYN MAY DUMAN, SHARON MENDOZA, and
ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.

GIRLIE FERRER, RAOULLE OSEN


FERRER, CARLA REGINA GREPO,
ANNA MARIE CECILIA GO, IRISH
KAY KALAW, MARY ANN JOY LEE,
MARIA LUISA MANALAYSAY,
MIGUEL RAFAEL MUSNGI,
MICHAEL OCAMPO, JAKLYN HANNA

PINEDA, WILLIAM RAGAMAT,


MARICAR RAMOS, ENRIK FORT
REVILLAS, JAMES MARK TERRY
RIDON, JOHANN FRANTZ RIVERA IV,
CHRISTIAN RIVERO, DIANNE MARIE
ROA, NICHOLAS SANTIZO, MELISSA
CHRISTINA SANTOS, CRISTINE MAE
TABING, VANESSA ANNE TORNO,
MARIA ESTER VANGUARDIA, and
MARCELINO VELOSO III,

Petitioners,

- versus -

HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON. ALBERTO


ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF FOREIGN AFFAIRS,
HON. ROLANDO ANDAYA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT OF
BUDGET AND MANAGEMENT, HON. DIONY VENTURA, IN HIS CAPACITY AS ADMINISTRATOR
OF THE NATIONAL MAPPING & RESOURCE INFORMATION AUTHORITY, and HON. HILARIO
DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE PERMANENT MISSION OF THE
REPUBLIC OF THE PHILIPPINES Promulgated:

TO THE UNITED NATIONS,

Respondents. July 16, 2011

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

The petition raises the following 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.

The Ruling of the Court


On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit
as citizens and (2) the writs of certiorari and prohibition are proper remedies to test the
constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522
unconstitutional.
On the Threshold Issues
Petitioners Possess Locus Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and
taxpayers because the petition alleges neither infringement of legislative prerogative15
nor misuse of public funds,16 occasioned by the passage and implementation of RA 9522.
Nonetheless, we recognize petitioners locus standi as citizens with constitutionally
sufficient interest in the resolution of the merits of the case which undoubtedly raises
issues of national significance necessitating urgent resolution. Indeed, owing to the
peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing
a more direct and specific interest to bring the suit, thus satisfying one of the
requirements for granting citizenship standing.17

The Writs of Certiorari and Prohibition


Are Proper Remedies to Test the Constitutionality of Statutes In praying for the dismissal
of the petition on preliminary grounds, respondents seek a strict observance of the offices
of the writs of certiorari and prohibition, noting that the writs cannot issue absent any
showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or
ministerial powers on the part of respondents and resulting prejudice on the part of

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

guides, which, absent enabling legislation, do not embody judicially enforceable


constitutional rights x x x.49 Article II provisions serve as guides in formulating and
interpreting implementing legislation, as well as in interpreting executory provisions of
the Constitution. Although Oposa v. Factoran50 treated the right to a healthful and
balanced ecology under Section 16 of Article II as an exception, the present petition lacks
factual basis to substantiate the claimed constitutional violation. The other provisions
petitioners cite, relating to the protection of marine wealth (Article XII, Section 2,
paragraph 251) and subsistence fishermen (Article XIII, Section 752), are not violated by
RA 9522. In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of all living
and non-living resources within such zone. Such a maritime delineation binds the
international community since the delineation is in strict observance of UNCLOS III. If the
maritime delineation is contrary to UNCLOS III, the international community will of course
reject it and will refuse to be bound by it. UNCLOS III favors States with a long coastline
like the Philippines. UNCLOS III creates a sui generis maritime space the exclusive
economic zone in waters previously part of the high seas. UNCLOS III grants new rights to
coastal States to exclusively exploit the resources found within this zone up to 200
nautical miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of
other States that attached to this zone beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress was
not bound to pass RA 9522.54 We have looked at the relevant provision of UNCLOS III55
and we find petitioners reading plausible. Nevertheless, the prerogative of choosing this
option belongs to Congress, not to this Court. Moreover, the luxury of choosing this option
comes at a very steep price. Absent an UNCLOS III compliant baselines law, an
archipelagic State like the Philippines will find itself devoid of internationally acceptable
baselines from where the breadth of its maritime zones and continental shelf is
measured. This is recipe for a two-fronted disaster: first, it sends an open invitation to the
seafaring powers to freely enter and exploit the resources in the waters and submarine
areas around our archipelago; and second, it weakens the countrys case in any
international dispute over Philippine maritime space. These are consequences Congress
wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and
adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation
of the breadth of the Philippines maritime zones and continental shelf. RA 9522 is
therefore a most vital step on the part of the Philippines in safeguarding its maritime
zones, consistent with the Constitution and our national interest.

WHEREFORE, we DISMISS the petition.

CASE 6

SECOND DIVISION

[G.R. No. 131544. March 16, 2001]

EPG CONSTRUCTION CO.,


CONSTRUCTION CO., PHIL.

CIPER

ELECTRICAL

&

ENGINEERING,

SEPTA

PLUMBING CO., HOME CONSTRUCTION INC., WORLD BUILDERS CO., GLASS


WORLD INC.,

PERFORMANCE BUILDERS DEVT. CO., DE LEON-ARANETA CONST. CO., J.D.


MACAPAGAL

CONST. CO., All represented by their Atty. IN FACT, MARCELO D, FORONDA,


petitioners, vs. HON.

GREGORIO R. VIGILAR, In His Capacity as Secretary of Public Works and


Highways, respondent.

DECISION

BUENA, J.:

Sought to be reversed in the instant Petition for Certiorari is the Decision,


dated 07 November 1997, of the Regional

Trial Court of Quezon City, Branch 226, in Civil Case No. Q-96-29243,1[1]
dismissing the Petition for Mandamus filed by

herein petitioners against herein respondent Hon. Gregorio Vigilar, in his


capacity as Secretary of the Department of

Public Works and Highways (DPWH).

The tapestry of facts unfurls.

In 1983, the Ministry of Human Settlement, through the BLISS Development


Corporation, initiated a housing project

on a government property along the east bank of the Manggahan Floodway in


Pasig City. For this purpose, the Ministry of

Human Settlement entered into a Memorandum of Agreement (MOA) with the


Ministry of Public Works and Highways,2

[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

petitioners EPG Construction Co., Ciper Electrical and Engineering, Septa


Construction Co., Phil. Plumbing Co., Home

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

and forthcoming, petitioners agreed to undertake and perform additional


constructions4[4] for the completion of the housing

units, despite the absence of appropriations and written contracts to cover

subsequent expenses for the additional

constructions.

Petitioners then received payment for the construction work duly covered by
the individual written contracts, thereby

leaving an unpaid balance of P5,918,315.63,5[5] which amount represents the


expenses for the additional constructions for

the completion of the existing housing units. On 14 November 1988, petitioners


sent a demand letter to the DPWH

Secretary and submitted that their claim for


recommended by DPWH Assistant Secretary for

payment

was

favorably

Legal Services Dominador Madamba, who recognized the existence of implied


contracts covering the additional

constructions. Notwithstanding, DPWH Assistant Secretary Madamba opined


that payment of petitioners money claims

should be based on quantum meruit and should be forwarded to the


Commission on Audit (COA) for its due

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

no objection to the payment of the money claims subject to whatever action


the COA may adopt.

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

(sic) outstanding obligations of the government.


Undersecretary of Budget and Management dated 20

In

Letter

of

the

December 1994, the amount of P5,819,316.00 was then released for the
payment of petitioners money claims, under

Advise of Allotment No. A4-1303-04-41-303.

In an Indorsement dated 27 December 1995, the COA referred anew the money
claims to the DPWH pursuant to

COA Circular 95-006, thus:

Respectfully returned thru the Auditor to the Honorable Secretary, Department


of Public Works and Highways, Port

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

claims without exception so as to vest on agency heads the prerogative to


exercise fiscal responsibility thereon.

The audit of the transaction shall be done after payment.

In a letter dated 26 August 1996, respondent DPWH Secretary Gregorio Vigilar


denied the subject money claims

prompting herein petitioners to file before the Regional Trial Court of Quezon
City, Branch 226, a Petition for Mandamus

praying that herein respondent be ordered:

1) To pay petitioners the total of P5,819,316.00;

2) To pay petitioners moral and exemplary damages in the amount to be fixed


by the Court and sum of

P500,000.00 as attorneys fees.

On 18 February 1997, the lower court conducted a pre-trial conference where


the parties appeared and filed their

respective pre-trial briefs. Further, respondent submitted a Memorandum to


which petitioners filed a Rejoinder.

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

for a public works housing project.

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

Undersecretary Aber P. Canlas, despite the absence of the corresponding


supplemental contracts and appropriate funding.9

[9] According to respondent, sans showing of certificate of availability of funds,


the implied contracts are considered

fatally defective and considered inexistent and void ab initio. Respondent


concludes that inasmuch as the additional work

done was pursued in violation of the mandatory provisions of the laws


concerning contracts involving expenditure of

public funds and in excess of the public officials contracting authority, the
same is not binding on the government and

impose no liability therefor.10[10]

Although this Court agrees with respondents postulation that the implied
contracts, which covered the additional

constructions, are void, in view of violation of applicable laws, auditing rules


and lack of legal requirements,11[11] we

nonetheless find the instant petition laden with merit and uphold, in the
interest of substantial justice, petitioners-

contractors right to be compensated for the "additional constructions" on the


public works housing project, applying the

principle of quantum meruit.

Interestingly, this case is not of first impression. In Eslao vs. Commission on


Audit,12[12] this Court likewise allowed

recovery by the contractor on the basis of quantum meruit, following our


pronouncement in Royal Trust Construction vs.

Commission on Audit,13[13] thus:

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

overflowing of the neighboring areas and to irrigate the adjacent farmlands.


The contractor sought compensation for 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

existence of corresponding appropriations covering the contract cost. Under


COA Res. No. 36-58 dated November 15,

1986, its existing policy is to allow recovery from covering contracts on the
basis of quantum meruit if there is delay in

the accomplishment of the required certificate of availability of funds to


support a contract. (Emphasis ours)

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

Public Works, which has twice recommended


petitioners request for payment. Despite the

favorable

action

on

the

admitted absence of a specific covering appropriation as required under COA


Resolution No. 36-58, the petitioner

may nevertheless be compensated for the services rendered by it, concededly


for the public benefit, from the general

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,

the filing of a complaint in court for recovery of the compensation claimed,


would entail additional expense,

inconvenience and delay which in fairness should be imposed on the petitioner.

Accordingly, in the interest of substantial justice and equity, the respondent


Commission on Audit is DIRECTED to

determine on a quantum meruit basis the total compensation due to the


petitioner for the services rendered by it in the

channel improvement of the Betis River in Pampanga and to allow the payment
thereof immediately upon completion of

the said determination. (Emphasis ours)

Similarly, this Court applied the doctrine of quantum meruit in Melchor vs.
Commission on Audit14[14] and explained

that where payment is based on quantum meruit, the amount of recovery


would only be the reasonable value of the thing

or services rendered regardless of any agreement as to value.15[15]

Notably, the peculiar circumstances present in the instant case buttress


petitioners claim for compensation for the

additional constructions, despite the illegality and void nature of the implied
contracts forged between the DPWH and

petitioners-contractors. On this matter, it bears stressing that the illegality of


the subject contracts proceeds from an

express declaration or prohibition by law,16[16] and not from any intrinsic


illegality. Stated differently, the subject contracts

are not illegal per se.

Of equal significance are circumstances attendant and peculiar in this case


which necessitate allowance of petitioners

money claimson the basis of quantum meruit for work accomplished on the
government housing project.

To begin with, petitioners-contractors assented and agreed to undertake


additional constructions for the completion of

the housing units, believing in good faith and in the interest of the government
and, in effect, the public in general, that

appropriations to cover the additional constructions and completion of the


public works housing project would be

available and forthcoming. On this particular score, the records reveal that the
verbal request and assurance of then

DPWH Undersecretary Canlas led petitioners-contractors to undertake the


completion of the government housing

project, despite the absence of covering appropriations, written contracts, and


certification of availability of funds, as

mandated by law and pertinent auditing rules and issuances. To put it


differently, the implied contracts, declared void in

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

into between the government and the contractors.

Further, petitioners-contractors sent to the DPWH Secretary a demand letter


pressing for their money claims, on the

strength of a favorable recommendation from the DPWH Assistant Secretary


for Legal Affairs to the effect that implied

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,

subject to whatever action the COA may adopt.

Beyond this, the sum of P5,819,316.00 representing the amount of petitioners


money claims, had already been

released by the Department of Budget and Management (DBM), under Advise


of Allotment No. A4-1303-04-41-303.

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

government pursuant to its public works housing project.

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

toil and labor.

Incidentally, respondent likewise argues that the State may not be sued in the
instant case, invoking the constitutional

doctrine of Non-suability of the State,17[17] otherwise known as the Royal


Prerogative of Dishonesty.

Respondents argument is misplaced inasmuch as the Principle of State


Immunity finds no application in the case

before us.

Under these circumstances, respondent may not validly invoke the Royal

Prerogative of Dishonesty and

conveniently hide under the States cloak of invincibility


considering that this principle yields to certain settled

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

from suit cannot serve as an instrument for perpetrating an injustice on a


citizen. It is just as important, if not more so,

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

the payment of just compensation for expropriated property, this Court


nonetheless finds the doctrine enunciated in the

aforementioned cases applicable to the instant controversy, considering that


the ends of justice would be subverted if we

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

cannot sanction an injustice so patent

on its face, and allow itself to be an instrument in the perpetration thereof.


Justice and equity sternly demand that the

States cloak of invincibility against suit be shred in this particular instance,


and that petitionerscontractors be duly

compensated on the basis of quantum meruit for construction done on the


public works housing project.

IN VIEW WHEREOF, the instant petition is GRANTED. The assailed decision of


the Regional Trial Court dated

07 November 1997 is REVERSED AND SET ASIDE.

ACCORDINGLY, the Commission on Audit is hereby directed to determine and


ascertain with dispatch, on a

quantum meruit basis, the total compensation due to petitioners-contractors


for the additional constructions on the housing

project and to allow payment


determination. No costs.

SO ORDERED.

CASE 7

Republic of the Philippines

SUPREME COURT

thereof

upon

the

completion

of

said

Manila

SECOND DIVISION

DEPARTMENT OF EDUCATION, G.R. No. 161758

DIVISION OF ALBAY

represented by its SCHOOLS Present:

DIVISION SUPERINTENDENT,

Petitioner, QUISUMBING, J., Chairperson,

CARPIO,

CARPIO MORALES,

- versus - TINGA, and

VELASCO, JR., JJ.

Promulgated:

CELSO OATE,

Respondent. June 8, 2007

x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

A little neglect may lead to great prejudice.

The Case

This is a Petition for Review on Certiorari54[1] under Rule 45 seeking to


reverse and set aside the January 14, 2004

Decision55[2] of the Court of Appeals (CA) in CA-G.R. CV No. 60659, which


affirmed the November 3, 1997 Decision56[3]

of the Legaspi City Regional Trial Court (RTC), Branch I, declaring as null and
void the December 21, 1998 Deed of

Donation57[4] executed by the Municipality of Daraga, Albay in favor of


petitioner, and directing the latter to return to

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

grandson of Claro Oate, being the son of Francisco Oate.

In 1940, Bagumbayan Elementary School of Daraga was constructed on a


portion of the disputed lot. The school

was eventually renamed Daraga North Central


Municipality of Daraga leveled the area while

Elementary

School.

The

petitioner Department of Education Culture and Sports (DECS; now Department


of Education [DepEd]) developed and

built various school buildings and facilities on the disputed lot.

Sometime in 1991, respondent filed a reconstitution proceeding of OCT No.


2563 which was granted by the

Legaspi City RTC, Branch V after due notice, publication, and hearing.
Consequently, OCT No. RO-1897158[5] was issued

in the name of spouses Claro Oate and Gregoria Los Baos.

On August 26, 1991, a Deed of Extrajudicial Settlement of Estate and Cession


was executed by respondent and

his three (3) sisters, namely: Melba O. Napil, Cielo O. Lardizabal, and Maria
Visia O. Maldo, who waived their

successional rights in favor of respondent Celso Oate. Asserting that the


disputed lot was inherited by his father, Francisco

Oate, from the latters father, Claro Oate, by virtue of a prior partition among

the three (3) sons of Claro Oate and Gregoria

Los Baos, respondent in turn claimed ownership of said lot through the deed of
extrajudicial settlement.

Meanwhile, the issue of whether respondents father, Francisco Oate, truly


acquired the disputed lot through a

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

TCT No. T-83950.64[11]

On December 15, 1992, through his counsel, respondent sent a letter to


petitioner apprising it about the facts and

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

Jovencio Revil subsequently referred


Superintendent Rizalina D. Saquido for

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,

Albay Engineering District about the on-going construction projects in the


school.67[14] Engr. Roces then informed

respondents counsel that petitioner DECS is the owner of the school site having
acquired the disputed lot by virtue of a

Deed of Donation executed by the Municipality of Daraga, Albay in favor of


petitioner.68[15]

Consequently, on March 18, 1993, respondent instituted a Complaint69[16] for


Annulment of Donation and/or

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

Division Superintendent of Schools, Mrs. Rizalina


Municipality of Daraga, Albay, represented by the

D.

Saquido;

and

the

Municipal Mayor, Honorable Cicero Triunfante.

In its April 28, 1993 Answer,70[17] the Municipality of Daraga, Albay, through
Mayor Cicero Triunfante, denied

respondents ownership of the disputed lot as it alleged that sometime in 1940,


the Municipality bought said lot from Claro

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

ownership also through adverse possession. Moreover, it claimed that the


disputed lot had been declared in the name of

defendant municipality in the Municipal Assessors Office under Tax Declaration


No. 31954 from 1940 until 1988 for

purposes of exemption from real estate taxes. Further, defendant Municipality


contended that respondent was guilty of

laches and was estopped from assailing ownership over the disputed lot.

Similarly, petitioners April 29, 1993 Answer71[18] reiterated in essence the


defenses raised by the Municipality of

Daraga, Albay and further contended that respondent had no cause of action
because it acquired ownership over the

disputed lot by virtue of a Deed of Donation executed on December 21, 1988 in


its favor; and that respondents claim was

vague as it was derived from a void Deed of Extrajudicial Settlement of Estate


and Cession disposing of the disputed lot

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,

Felicito Armenta, a tenant cultivating a portion of disputed Lot 6849, testified


that respondent indeed owned said lot and

the share of the crops cultivated were paid to respondent.73[20]

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

Opposition to Joint Motion to Dismiss.75[22] Subsequently, the trial court


denied the Joint Motion to Dismiss, ruling that the

State had given implied consent by entering into a contract.76[23]

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

Certification78[25] from the Office of the Treasurer of the Municipality of


Daraga, Albay attesting to respondents payment

of realty taxes for Lot 6849 from 1980 to 1990.

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

cancelled Tax Declaration No. 30235, in the name of Municipality of Daraga


with the annotation of Ex-Officio Deputy

Assessor Natalio Grageda attesting to the purchase by the Municipality under


Municipal Voucher No. 69, August 1940

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

School, who testified on the Municipalitys donation of disputed Lot 6849 to


petitioner and the improvements on said lot

amounting to more than PhP 11 million; and Mrs. Toribia Milleza,85[32] a


retired government employee and resident of

Bagumbayan, Daraga, Albay since 1955, who testified on the Municipalitys


continuous and adverse possession of the

disputed lot since 1940.

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

disputed lot. Petitioner and co-defendant Municipality of Daraga, Albay were


about to file a complaint for intervention in

said case, but it was overtaken by the resolution of the case on August 14,
1995 with the trial court dismissing the

complaint.

The Ruling of the RTC

On November 3, 1997, the trial court rendered a Decision in favor of


respondent Celso Oate. The dispositive

portion declared, thus:

against the defendants:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the


plaintiff and

1. Declaring the Deed of Donation executed by the Municipality of Daraga,


Albay in favor of

the defendant Department of Education Culture and Sports through the Albay
Schools

Division as null and void;

2. Declaring the plaintiff as the owner in fee simple of Lots Nos. 6849-A, 6849C, 6849-D and

6849-E which are registered in his name;

3. Commanding the defendants to return the possession of the portion of the


land occupied by

the school site to the herein plaintiff Celso Oate;

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

Civil Code of the Philippines;

5. The defendant Department of Education Culture and Sports being a builder


in good faith, the

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

favor of plaintiffs counsel.

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

was bolstered by the Deed of Extrajudicial Settlement of Estate and Cession,


where respondents sister waived their

successional rights in his favor. Thus, the trial court ruled in favor of
respondents title. Besides, it further ruled that

defendants could not assail the registered title of respondent in a collateral


proceeding.

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

6849-A, and the Deed of Donation executed by the Municipality of Daraga,


Albay in favor of petitioner must be nullified.

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.

The Ruling of the Court of Appeals

Aggrieved, petitioner DECS and Municipality of Daraga, Albay filed their


respective Notices of Appeal88[35]

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

subsequently reinstated.91[38] The Municipality of Daraga, Albay, however,


totally lost its appeal due to inaction, and the

appellate court correspondingly issued a Partial Entry of Judgment on July 9,


1998.92[39]

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.

Furthermore, it reiterated the trial courts holding that petitioner is precluded


from attacking collaterally respondents title

over the disputed lot in this proceeding.

The CA emphasized that petitioners failure to present TCT No. 4812allegedly


issued in the name of the

Municipality of Daraga, Albay in 1940 in lieu of OCT No. 2563 and the Deed of
Conveyance executed by the original

owner, Claro Oate, in favor of the Municipalitywas fatal to the defense. It


reasoned that all the more had their claim of

ownership become doubtful when defendants-appellants [sic] failed to explain


from their pleadings and the evidence

submitted before Us their failure to present the two documents.93[40] The


appellate court concluded that given these facts,

no title in the name of the Municipality ever existed and thus it could not have
validly donated the subject property to

petitioner.

Anent the issue of the applicability of Amigable v. Cuenca,94[41] the CA


affirmed the doctrine enunciated in said

case that to uphold the States immunity from suit would subvert the ends of
justice. In fine, the appellate court pointed out

the inconvenience and impossibility of restoring possession of Lot 6849-A to


respondent considering the substantial

improvements built on said lot by the government which amounted to almost


PhP 12 million; and that the only relief

available was for the government to pay just compensation in favor of


respondent computed on the basis of the value of

the property at the time of the governments taking of the land.

Through its assailed Decision,95[42] the CA dismissed petitioners appeal for


lack of merit and affirmed the trial

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

RESPONDENTS CAUSE OF ACTION TO RECOVER POSSESSION OF THE SUBJECT

PROPERTY IS NOT YET BARRED BY LACHES.

II

THE COURT OF APPEALS ERRED IN ACCORDING GREAT WEIGHT ON

RESPONDENTS RECONSTITUTED ORIGINAL CERTIFICATE OF TITLE (OCT) NO.


2563

COVERING SUBJECT PROPERTY.

III

THE COURT OF APPEALS ERRED IN RULING THAT PETITIONER MAY BE SUED IN

VIOLATION OF THE STATES IMMUNITY FROM SUIT.

IV

THE COURT OF APPEALS ERRED IN RULING THAT PETITIONER MAY BE SUED

INDEPENDENTLY OF THE REPUBLIC OF THE PHILIPPINES.96[43]

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

supplementary issue is whether petitioner DECS can be sued independently of


the Republic of the Philippines.

We rule that petitioner DECS can be sued without its permission as a result of
its being privy to the Deed of

Donation executed by the Municipality of Daraga, Albay over the disputed


property. When it voluntarily gave its consent

to the donation, any dispute that may arise from it would necessarily bring
petitioner DECS down to the level of an

ordinary citizen of the State vulnerable to a suit by an interested or affected


party. It has shed off its mantle of immunity

and relinquished and forfeited its armor of non-suability of the State.97[44]

The auxiliary issue of non-joinder of the Republic of the Philippines is likewise


resolved in the negative. While it

is true that petitioner is an unincorporated government agency, and as such


technically requires the Republic of the

Philippines to be impleaded in any suit against the former, nonetheless,


considering our resolution of the main issue

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

arrive at the same ruling.

The Republic of the Philippines need not be impleaded as a party-defendant in


Civil Case No. 8715 considering

that it impliedly gave its approval to the involvement of petitioner DECS in the
Deed of Donation. In a situation involving

a contract between a government department and a third party, the Republic of


the Philippines need not be impleaded as a

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.

Main Issue: Equitable Remedy of Laches

Petitioner strongly asserts that the Municipality


continuous, open, and adverse possession in

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]

When petitioner received the lot as donation from the Municipality on


December 21, 1988, it possessed the

subject lot also in the concept of an owner and continued to introduce


improvements on the lot. Consequently, when

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.

Petitioner maintains that significantly, respondent and his siblings succeeding


their father Francisco as the alleged

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

possession of, and title to, the disputed lot.

Laches and its elements

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

inexcusable neglect to bar the latters action as it would be inequitable and


unjust to the defendant.

Laches is defined as the failure or neglect, for an unreasonable and


unexplained length of time, to do that whichby

the exercise of due diligencecould or should have been done earlier.99[46]


Verily, laches serves to deprive a party guilty of it

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

complainant having had knowledge or notice of the defendant's conduct as


having been afforded an opportunity to

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

complainant, or the suit is not held barred.100[47]

In Felix Gochan and Sons Realty Corporation, we held that [t]hough laches
applies even to imprescriptible

actions, its elements must be proved positively. Laches is evidentiary in nature


which could not be established by

mere allegations in the pleadings and can not be resolved in a motion to


dismiss (emphases supplied).101[48] In the same

vein, we explained in Santiago v. Court of Appeals that there is no absolute rule


as to what constitutes laches or staleness

of demand; each case is to be determined according to its particular


circumstances.102[49]

Issue of laches not barred by adverse judgment

against Daraga, Albay

It is unfortunate that defendant Municipality of Daraga, Albay lost its appeal in


CA-G.R. CV No. 60659 before

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

Municipality of Daraga, Albay.

As an off-shoot, with respect to the Municipality of Daraga, the Deed of


Donation in favor of petitioner DECS

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

cancelled and annulled (if not yet cancelled).

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

significance on DECS appeal since precisely, it is DECS position that it should


retain possession of the land. From these

considerations, the final RTC November 3,


Municipality of Daraga has no substantial and

1997

Decision

against

the

material effect upon the DECS appeal.

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.

We rule in the affirmative.

Laches has set in

A brief scrutiny of the records does show tell-tale signs of laches. The first
element is undisputed: the then

Bagumbayan Elementary School of Daraga was constructed in 1940 on a


portion of disputed Lot 6849, specifically Lot

No. 6849-A containing 13,072 square meters under TCT No. T-83946. Moreover,
Mrs. Toribia Milleza,103[50] a retired

government employee and resident of Bagumbayan, Daraga since 1955


pertinently testified, thus:

Q: How long have you been residing in this place, Bagumbayan, Daraga, Albay?

A: Maybe I stayed there in 1955 until the present.104[51]

xxxx

Q: Now, can you further recall the kind of building that was constructed in this
property?

A: Seva type, building.

Q: At present how many buildings were constructed in this property?

A: Plenty of school buildings.

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

during the Marcos time.105[52]

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.

8715 and thereafter up to the present.

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

predecessors-in-interest ever took any action, administrative or judicial, nor


either party questioned or protested the

Municipalitys adverse occupation of a portion of Lot 6849. As petitioner had


demonstrated laches by persuasive and

credible evidence, it is incumbent upon respondent


predecessors-in-interest indeed protected their rights

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 failed to substantiate such defense of ownership and possession of


the lot and even skirted this issue.

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

grandparents). However, it is interesting to note that he testified that he only


came to know in 1991 that the elementary

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

respondent and his predecessors-in-interest, their inaction and delay in


protecting their rights were certainly excessive and

unjustified.

In the third element, the records clearly bear out the fact that petitioner DECS
did not know nor anticipate that

their possession and occupancy of a portion of Lot 6849 would later be


questioned. In fact, petitioner built additional

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

the improvements on it.107[54] After more than forty-eight (48) years of


unquestioned, peaceful, and uninterrupted

possession by petitioner DECS, it had no knowledge nor reason to believe that


respondent would assert any right over the

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

government, in general, and to petitioner, in particular, if the instant action is


not barred without even considering the cost

of the construction of the school buildings and facilities and the deleterious
effect on the school children and affected

school teachers and personnel if Lot No. 6849-A would be returned to


respondent.

Verily, the application of laches is addressed to the sound discretion of the


court as its application is controlled by

equitable

considerations.

In

the

instant

case,

with

the

foregoing

considerations, we are constrained from giving

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-

interest had slept on their rights for 52 years.

Also, the inaction of respondent Oate and his predecessors-in-interest for over
50 years has reduced their right to

regain possession of Lot 6849-A to a stale demand.

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.

These portions were never occupied by the Municipality and petitioner.


Agricultural tenant Felicito Armenta testified that

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

a purchase, it is likewise guilty of laches in not protecting or contesting the


cultivation by Oates agricultural tenants of

said portions of Lot 6849.

Transfer Certificates of Title on portions of Lot 6849 valid

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

deed of conveyance in favor of the Municipality, as well as TCT No. 4812 as a


registered land owner may lose the right to

recover possession of a registered property by reason of laches. Petitioner


concludes that the long delayed reconstitution

of OCT No. 2563 by respondent was a mere afterthought and intended to


camouflage his and his predecessors

unreasonably long inaction which indicates an awareness that they have no


valid claim whatsoever over disputed Lot

6849.

We disagree.

It must be noted that a reconstitution proceeding is one in rem and is thus


binding to the whole world. While it is

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

the lost or destroyed OCT No. 2563 is valid.

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

disputed nor controverted by respondent, should have been given evidentiary


weight by the trial and appellate courts as

the presumptions of regularity and validity of such official act have not been
overcome, such documents cannot defeat the

registered title of respondent.

Between a clear showing of ownership evidenced by a registered title and a

certification in a tax declaration,

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

up by petitioner and Municipality of Daraga, Albay, it is incumbent for them to


present these documents. Therefore, the

unmistakable inference is that there was indeed no sale and conveyance by


Claro Oate of Lot 6849 in favor of the

Municipality. Consequently, the TCTs cancelling OCT No. RO-18971 covering Lot
Nos. 6849-A, 6849-B, 6849-C, 6849-

D, and 6849-E were likewise validly issued.

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

consistently applied in laches:

The law108[55] provides that no title to registered land in derogation of that of

the registered owner

can be acquired by prescription or adverse possession. Nonetheless, while it is


true that a Torrens Title is

indefeasible and imprescriptible, the registered landowner may lose his right to
recover the possession of

his registered property by reason of laches.109[56]

Thus, with our resolution of the principal issue of applicability of the equitable
remedy of laches, the issue of

suability of the State has been mooted.

A final word. Considering our foregoing disquisition and upon grounds of


equity, a modification of the final

decision prevailing between respondent Oate and the Municipality of Daraga,


Albay is in order. It would be grossly

iniquitous for respondent Oate to pay PhP 50,000 to the Municipality of Daraga,
Albay considering that he is not entitled

to recover the possession and usufruct of Lot No. 6849-A.

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,

assigns, and successors-in-interest are prohibited from selling, mortgaging, or


encumbering Lot 6849-A while the said lot

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

of Deeds of Albay; and

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

under TCT No. T-84049 of the Registry of Deeds of Albay;

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

REPUBLIC OF THE PHILIPPINES,

Petitioner,

- versus -

HON. VICENTE A. HIDALGO, in his capacity as Presiding

Judge of the Regional Trial Court of Manila, Branch 37,

CARMELO V. CACHERO, in his capacity as Sheriff IV,

Regional Trial Court of Manila, and TARCILA LAPERAL

MENDOZA,

G.R. No. 161657

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

violation of the Constitution, law and jurisprudence.

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

constitutional and legal questions surrounding the controversy, presents


special and compelling reasons of public interests

why direct recourse to the Court should be allowed, as an exception to the


policy on hierarchy of courts.

At the core of the litigation is a 4,924.60-square meter lot once covered by


Transfer Certificate of Title (TCT) No.

118527 of the Registry of Deeds of Manila in the name of the herein private
respondent Tarcila Laperal Mendoza

(Mendoza), married to Perfecto Mendoza. The lot is situated at No. 1440


Arlegui St., San Miguel, Manila, near the

Malacaang Palace complex. On this lot, hereinafter referred to as the Arlegui


property, now stands the Presidential Guest

House which was home to two (2) former Presidents of the Republic and now
appears to be used as office building of the

Office of the President.110[1]

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

further proceedings.111[2] On appeal, this Court, in G.R. No. 155231, sustained


the CAs reversal action.112[3]

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.

118911, Mendoza also asked for the reinstatement


118527.113[4] In the same third amended complaint,

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

Presidential Security Group [PSG] of the then President Ferdinand E. Marcos,


had forcibly entered [her] residence and

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

of conveyance covering the disputed property in favor of the Republic, let


alone appearing before Fidel Vivar.

Inter alia, she prayed for the following:

4. Ordering the Republic to pay plaintiff [Mendoza] a reasonable compensation


or rental for the

use or occupancy of the subject property in the sum of FIVE HUNDRED


THOUSAND (P500,000.00)

PESOS a month with a five (5%) per cent yearly increase, plus interest thereon
at the legal rate, beginning

July 1975 until it finally vacates the same;

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

Cancellation of scheduled pre-trial). In it, the Republic manifested its inability


to simply adopt its previous answer and,

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

Republic as in default and allowing the private respondent to present her


evidence ex-parte.

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

deed is fictitious or inexistent, as evidenced by separate certifications, the first


(Exh. E), issued by the Register of Deeds

5. Ordering the Republic to pay plaintiffs counsel a sum equivalent to TWENTY


FIVE (25%)

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

supposed conveying deed cannot, despite diligent efforts of records personnel,


be located, while Exhibit F117[8] states that

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.

Eventually, the trial court rendered a judgment by default119[10] for Mendoza


and against the Republic. To the trial

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:

WHEREFORE, judgment is hereby rendered:

1. Declaring the deed of sale dated July 15, 1975, annotated at the back of
[TCT] No.

118527 as PE:2035/T-118911, as non-existent and/or fictitious, and, therefore,


null and

void from the beginning;

2. Declaring that [TCT] No. 118911 of the defendant Republic of the Philippines
has no

basis, thereby making it null and void from the beginning;

3. Ordering the defendant Register of Deeds for the City of Manila to reinstate
plaintiff

[Mendozas TCT] No. 118527;

4. Ordering the defendant Republic to pay just compensation in the sum of ONE

HUNDRED FORTY THREE MILLION SIX HUNDRED THOUSAND

(P143,600,000.00) PESOS, plus interest at the legal rate, until the whole
amount is paid

in full for the acquisition of the subject property;

5. Ordering the plaintiff, upon payment of the just compensation for the
acquisition of her

property, to execute the necessary deed of conveyance in favor of the


defendant Republic

; 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

thereof, a new Transfer Certificate of Title in favor of the defendant Republic;

6. Ordering the defendant Republic to pay the plaintiff the sum of ONE BILLION
FOUR

HUNDRED EIGHTY MILLION SIX HUNDRED TWENTY SEVEN THOUSAND

SIX HUNDRED EIGHTY EIGHT (P1,480,627,688.00) PESOS, representing the

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;

7. Ordering the defendant Republic to pay the plaintiff attorneys fee, in an


amount

equivalent to FIFTEEN (15%) PER CENT of the amount due to the plaintiff.

With pronouncement as to the costs of suit.

SO ORDERED. (Words in bracket and emphasis added.)

Subsequently, the Republic moved for, but was denied, a new trial per order of
the trial court of October 7,

2003.120[11] Denied also was its subsequent plea for reconsideration.121[12]


These twin denial orders were followed by several

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

been filed beyond the reglementary period.123[14]

3. December 19, 2003 - - Order124[15] granting the private respondents


motion for execution.

4. December 22, 2003 - - Writ of Execution.125[16]

Hence, this petition for certiorari.

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

resolution on the merits owing to the inability of the parties to agree on an


acceptable compromise.

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

grave abuse of discretion amounting to lack or in excess of jurisdiction, are the


orders and processes enumerated

immediately above issued after the rendition of the default judgment.

Petitioner lists five (5) overlapping grounds for allowing its petition. It starts
off by impugning the order of default

and the judgment by default. To the petitioner, the respondent judge


committed serious jurisdictional error when he

proceeded to hear the case and eventually awarded the private respondent a
staggering amount without so much as giving

the petitioner the opportunity to present its defense.

Petitioners posture is simply without merit.

Deprivation of procedural due process is obviously the petitioners threshold


theme. Due process, in its procedural

aspect, guarantees in the minimum the opportunity to be heard.127[18] Grave


abuse of discretion, however, cannot plausibly

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

a responsive pleading. The provision reads:

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

requires the claimant to submit evidence .128[19]

While the ideal lies in avoiding orders of default,129[20] the policy of the law

being to have every litigated case tried

on its full merits,130[21] the act of the respondent judge in rendering the
default judgment after an order of default was

properly issued cannot be struck down as a case of grave abuse of discretion.

The term grave abuse of discretion, in its juridical sense, connotes capricious,
despotic, oppressive or whimsical

exercise of judgment as is equivalent to lack of jurisdiction.131[22] The abuse


must be of such degree as to amount to an

evasion of a positive duty or a virtual refusal to perform a duty enjoined by


law, as where the power is exercised in a

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

declared in default, the defaulting defendant is

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

as a form of penalty against one unwilling without justification to join issue


upon the allegations tendered by the plaintiff.

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

of the property involved.

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,

Rule 37 of the Rules of Court for such recourse.133[24] Withal, there is no


cogent reason to disturb the denial by the trial

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

September 13, 2003, a Saturday, within which to perfect an appeal; (b) On


September 15, 2003, a Monday, the OSG filed

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

December 17, 2003 merits approval:

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

executory.135[26] (Words in bracket added; Emphasis in the original.)

It cannot be over-emphasized at this stage that the special civil action of


certiorari is limited to resolving only

errors of jurisdiction; it is not a remedy to correct errors of judgment. Hence,


the petitioners lament, partly covered by and

discussed under the first ground for allowing its petition, about the trial court
taking cognizance of the case

notwithstanding private respondents claim or


prescription and/or laches cannot be considered

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

prescribe;136[27] that a void transfer of property can be recovered by accion


reivindicatoria;137[28] and that the legal fiction of

indefeasibility of a Torrens title cannot be used as a shield to perpetuate


fraud,138[29] the trial courts disinclination not to

appreciate in favor of the Republic the general principles of prescription or


laches constitutes, at best, errors of judgment

not correctable by certiorari.

The evidence adduced below indeed adequately supports a conclusion that the
Office of the President, during the

administration of then President Marcos, wrested possession of the property in


question and somehow secured a certificate

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

Republic. Accordingly, granting private respondents basic plea for recovery of


the Arlegui property, which was legally

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,

restoring private respondent to her possession of the Arlegui property is still


legally and physically feasible. For what is

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

property. The restoration ought to be complemented by some form of monetary


compensation for having been unjustly

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

forth therein to be erroneous. And the error relates to basic fundamentals of


law as to constitute grave abuse of discretion.

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

and that the petitioner be ordered to pay her, as reasonable compensation or


rental use or occupancy thereof, the sum of

P500,000.00 a month, or P6 Million a year, with a five percent (5%) yearly


increase plus interest at the legal rate

beginning July 1975. From July 1975 when the PSG allegedly took over the
subject property to July 2003, a month before

the trial court rendered judgment, or a period of 28 years, private respondents


total rental claim would, per the OSGs

computation, only amount to P371,440,426.00. In its assailed decision,


however, the trial court ordered the petitioner to

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

thereon at the legal rate and the opportunity cost.

This figure is on top of the P143,600,000.00 which represents the acquisition


cost of the disputed property. All told, the

trial court would have the Republic pay the total amount of about P1.624
Billion, exclusive of interest, for the taking of a

property with a declared assessed value of P2,388,900.00. This is not to


mention the award of attorneys fees in an amount

equivalent to 15% of the amount due the private respondent.

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

complaint or beyond that proved by the evidence.140[31] While a defaulted


defendant may be said to be at the mercy of 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

monthly rental value of at least P500,000.00 or P6,000,000.00 a year, the


amount private respondent particularly sought

and attempted to prove. This asking figure is clearly unconscionable, if not


downright ridiculous, attendant circumstances

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

the Court takes stock of:

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

was any; and

restrictive entry and egress conditions prevailing at the vicinity at that time
and even after.

To be sure, the grant of monetary award is not without parallel. In Alfonso v.


Pasay City,142[33] a case where a

registered owner also lost possession of a piece of lot to a municipality which


took it for a public purposes without

instituting expropriation proceedings or paying any compensation for the lot,


the Court, citing Herrera v. Auditor

General,143[34] ordered payment of just compensation but in the form of


interest when a return of the property was no longer

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

Republic, unless otherwise provided by law.144[35]

The assailed trial courts issuance of the writ of execution145[36] against


government funds to satisfy its money

judgment is also nullified. It is basic that government funds and properties may
not be seized under writs of execution or

garnishment to satisfy such judgments.146[37] Republic v. Palacio147[38]


teaches that a judgment against the State generally

operates merely to liquidate and establish the plaintiffs claim in the absence of
express provision; otherwise, they can not

be enforced by processes of law.

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

elementary sense of justice, it behooves that office to make the appropriate


budgetary arrangements towards paying

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

pay its obligation with reasonable dispatch or in a manner acceptable to the


private respondent, then simple justice, while

perhaps delayed, will have its day. Private respondent is in the twilight of her
life, being now over 90 years of age.148[39]

Any delay in the implementation of this disposition would be a bitter cut.

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

respondent Tarcila L. Mendozas TCT No. 118527, or to issue her a new


certificate of title is AFFIRMED. Should it be

necessary, the Register of Deeds of Manila shall execute the necessary


conveying deed to effect the reinstatement of title

or the issuance of a new title to her.

It is MODIFIED in the sense that for the use and occupancy of the Arlegui
property, petitioner Republic is

ordered to pay private respondent the reasonable amount of P20,000.00 a


month beginning July 1975 until it vacates the

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.

Accordingly, a writ of certiorari is hereby ISSUED in the sense that:

1. The respondent courts assailed decision of August 27, 2003 insofar as it


ordered the petitioner Republic of the

Philippines to pay private respondent Tarcila L. Mendoza the sum of One Billion
Four Hundred Eighty Million Six

Hundred Twenty Seven Thousand Six Hundred


(P1,480,627,688.00) representing the purported rental

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

null and void.

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

are permanently enjoined from enforcing said writ of execution.

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

budgetary arrangements to pay private respondent Tarcila L. Mendoza or her


assigns the amount adjudged due her under

this disposition.

SO ORDERED.

CASE 9

Republic of the Philippines

Supreme Court

Manila

SECOND DIVISION

REPUBLIC OF THE PHILIPPINES

represented by the PRESIDENTIAL

COMMISSION ON GOOD GOVERNMENT

(PCGG),

Petitioner,

G.R. No. 129406

Present:

- versus -

PUNO, J., Chairperson,

SANDOVAL-GUTIERREZ,

CORONA,

AZCUNA, and

GARCIA, JJ.

SANDIGANBAYAN (SECOND DIVISION)

and ROBERTO S. BENEDICTO,

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

(PCGG) to pay private respondent Roberto S. Benedicto or his corporations the


value of 227 shares of stock of

the Negros Occidental Golf and Country Club, Inc. (NOGCCI) at P150,000.00 per
share, registered in the name

of said private respondent or his corporations.

The facts:

Civil Case No. 0034 entitled Republic of the Philippines, plaintiff, v. Roberto S.
Benedicto, et al.,

defendants, is a complaint for reconveyance,


reconstitution and damages. The case is

reversion,

accounting,

one of several suits involving ill-gotten or unexplained wealth that petitioner


Republic, through the PCGG, filed

with the Sandiganbayan against private respondent Roberto S. Benedicto and


others pursuant to Executive

Order (EO) No. 14,151[3] series of 1986.

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

personal, owned or registered in

the name of private respondent Benedicto, or of corporations in which he


appeared to have controlling or

majority interest. Among the properties thus sequestered and taken over by
PCGG fiscal agents were the 227

shares in NOGCCI owned by private respondent Benedicto and registered in his


name or under the names of

corporations he owned or controlled.

Following the sequestration process, PCGG representatives sat as members of


the Board of Directors of

NOGCCI, which passed, sometime in October 1986, a resolution effecting a


corporate policy change. The

change consisted of assessing a monthly membership due of P150.00 for each


NOGCCI share. Prior to this

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.

Subsequently, on March 29,


resolution, this time increasing

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

membership due thereon totaling P2,959,471.00. On account thereof, the 227


sequestered shares were

declared delinquent to be disposed of in an auction sale.

Apprised of the above development and evidently to prevent the projected


auction sale of the same

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.

On November 3, 1990, petitioner Republic and private respondent Benedicto


entered into a

Compromise Agreement in Civil Case No. 0034. The agreement contained a


general release clause153[5]

whereunder petitioner Republic agreed


sequestration on the 227 NOGCCI shares,

and

bound

itself

to

lift

the

among other Benedictos properties, petitioner Republic acknowledging that it


was within private respondent

Benedictos capacity to acquire the same shares out of his income from
business and the exercise of his

profession.154[6] Implied in this undertaking is the recognition by petitioner


Republic that the subject shares of

stock could not have been ill-gotten.

In a decision dated October 2, 1992, the Sandiganbayan approved the


Compromise Agreement and

accordingly rendered judgment in accordance with its terms.

In the process of implementing the Compromise Agreement, either of the


parties would, from time to

time, move for a ruling by the Sandiganbayan on the proper manner of


implementing or interpreting a specific

provision therein.

On February 22, 1994, Benedicto filed in Civil Case No. 0034 a Motion for
Release from Sequestration

and Return of Sequestered Shares/Dividends praying, inter alia, that his


NOGCCI shares of stock be specifically

released from sequestration and returned, delivered or paid to him as part of


the parties Compromise

Agreement in that case. In a Resolution155[7] promulgated on December 6,


1994, the Sandiganbayan granted

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

Sequestration and Return of Sequestered Shares/Dividends is hereby GRANTED


and it is directed

that said shares/dividends be delivered/placed under the custody of the Clerk


of Court,

Sandiganbayan, Manila subject to this Courts disposition.

On March 28, 1995, the Sandiganbayan came out with the herein first assailed
Resolution,156[8]

which clarified its aforementioned December 6, 1994 Resolution and directed


the immediate implementation

thereof by requiring PCGG, among other things:

(b) To deliver to the Clerk of Court the 227 sequestered shares of [NOGCCI]
registered in the name

of nominees of ROBERTO S. BENEDICTO free from all liens and encumbrances,


or in default

thereof, to pay their value at P150,000.00 per share which can be deducted
from [the

Republics] cash share in the Compromise Agreement. [Words in bracket added]


(Emphasis

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

Early Resolution dated

February 12, 1996. Acting thereon, the Sandiganbayan promulgated yet


another Resolution157[9] on February

23, 1996, dispositively reading:

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

Commission on Good Government is hereby given a final extension of fifteen


(15) days from receipt

hereof within which to comply with the Order of December 6, 1994 as stated
hereinabove.

On April 1, 1996, PCGG filed a


Reconsideration,158[10] praying for the

Manifestation

with

Motion

for

setting aside of the Resolution of February 23, 1996. On April 11, 1996, private
respondent Benedicto filed a

Motion to Enforce Judgment Levy.


Sandiganbayan, in its second assailed

Resolving

these

two

motions,

the

Resolution159[11] dated March 13, 1997, denied that portion of the PCGGs
Manifestation with Motion for

Reconsideration concerning the subject 227 NOGCCI shares and granted


Benedictos Motion to Enforce

Judgment Levy.

Hence, the Republics present recourse on the sole issue of whether or not the
public respondent

Sandiganbayan, Second Division, gravely abused its discretion in holding that


the PCGG is at fault for not

paying the membership dues on the 227 sequestered NOGCCI shares of stock, a
failing which eventually led to

the foreclosure sale thereof.

The petition lacks merit.

To begin with, PCGG itself does not dispute its being considered as a receiver
insofar as the

sequestered 227 NOGCCI shares of stock are concerned.160[12] PCGG also


acknowledges that as such receiver,

one of its functions is to pay outstanding debts pertaining to the sequestered


entity or property,161[13] in this

case the 227 NOGCCI shares in question.


membership dues owing to a golf club

It

contends,

however,

that

cannot be considered as an outstanding debt for which PCGG, as receiver, must

pay. It also claims to have

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

enjoin the foreclosure sale of the shares.

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

over-emphasized that it behooved the PCGGs fiscal agents to preserve, like a


responsible father of the family,

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

default in payment of the dues. For another, the PCGG as sequestrator-receiver


of such shares is, as stressed

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 Sandiganbayan, to be sure, cannot plausibly be faulted for finding the


PCGG liable for the loss of

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

NOGCCI Board of Directors agreed to the amendment of the rule pertaining to


membership dues. Hence, it is

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.

While perhaps anti-climactic to so mention it at this stage, the unfortunate loss


of the shares ought not to

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,

it is a well-settled rule of jurisprudence that certiorari will issue only to correct


errors of jurisdiction, not errors

of judgment. Corollarily, errors of procedure or mistakes in the courts findings


and conclusions are beyond the

corrective hand of certiorari.162[14] The extraordinary writ of certiorari may


be availed only upon a showing, in

the minimum, that the respondent tribunal or officer exercising judicial or


quasi-judicial functions has acted

without or in excess of its or his jurisdiction, or with grave abuse of


discretion.163[15]

The term grave abuse of discretion connotes capricious and whimsical exercise
of judgment as is

equivalent to excess, or a lack of jurisdiction.164[16] The abuse must be so


patent and gross as to amount to an

evasion of a positive duty or a virtual refusal to perform a duty enjoined by


law, or to act at all in

contemplation of law as where the power is exercised in an arbitrary and


despotic manner by reason of

passion or hostility.165[17] Sadly, this is completely absent in the present


case. For, at bottom, the assailed

resolutions of the Sandiganbayan did no more than to direct PCGG to comply


with its part of the bargain under

the compromise agreement it freely entered into with private respondent


Benedicto. Simply put, the assailed

resolutions of the Sandiganbayan have firm basis in fact and in law.

Lest it be overlooked, the issue of liability for the shares in question had, as
both public and private

respondents asserted, long become final and executory. Petitioners narration


of facts in its present petition is

even misleading as it conveniently fails to make reference to two (2)


resolutions issued by the Sandiganbayan.

We refer to that courts resolutions of December 6, 1994166[18] and February


23, 1996167[19] as well as several

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

reiterated and clarified the graft courts underlying resolution of December 6,


1994. And to place matters in the

proper perspective, PCGGs failure to comply with the December 6, 1994


resolution prompted the issuance of

the clarificatory and/or reiteratory resolutions aforementioned.

In a last-ditch attempt to escape liability, petitioner Republic, through the


PCGG, invokes state

immunity from suit.170[22] As argued, the order for it to pay the value of the
delinquent shares would fix

monetary liability on a government agency,


appropriation of public funds to satisfy the

judgment claim.171[23] But, as private


countered, the PCGG fails to take stock of

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

cannot be effectively invoked.172[24] For, as jurisprudence teaches, when the


State, through its duly authorized

officers, takes the initiative in a suit against a private party, it thereby


descends to the level of a private

individual and thus opens itself to whatever counterclaims or defenses the


latter may have against it.173[25]

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

respondent Benedictos prayers in the same case.

In fact, by entering into a Compromise Agreement with private respondent


Benedicto, petitioner

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

purpose and pursuant to constitutional legislative authority, whereby mutual or


reciprocal benefits accrue 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

corresponding right to the other party to the agreement.

Finally, it is apropos to stress that the Compromise Agreement in Civil Case No.
0034 envisaged the

immediate recovery of alleged ill-gotten wealth without further litigation by


the government, and buying peace

on the part of the aging Benedicto.175[27] Sadly, that stated objective has
come to naught as not only had the

litigation continued to ensue, but, worse, private respondent Benedicto passed


away on May 15, 2000,176[28]

with the trial of Civil Case No. 0034 still in swing, so much so that the late
Benedicto had to be substituted by

the administratrix of his estate.177[29]

WHEREFORE, the instant petition is hereby DISMISSED.

SO ORDERED.

CASE 10

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 101949 December 1, 1994

THE HOLY SEE, petitioner,

vs.

THE HON. ERIBERTO U. ROSARIO, JR., as Presiding Judge of the Regional Trial
Court of Makati,

Branch 61 and STARBRIGHT SALES ENTERPRISES, INC., respondents.

Padilla Law Office for petitioner.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

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

Civil Case No. 90-183.

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

the Philippines by the Papal Nuncio.

Private respondent, Starbright Sales


corporation engaged in the real estate

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,

Transfer Certificate of Title No. 390440) located in the Municipality of


Paraaque, Metro Manila and registered

in the name of petitioner.

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.

Later, Licup assigned his rights to the sale to private respondent.

In view of the refusal of the squatters to vacate the lots sold to private

respondent, a dispute arose as to who of

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

against petitioner, represented by the


defendants: namely, Msgr. Domingo A.

Papal

Nuncio,

and

three

other

Cirilos, Jr., the PRC and Tropicana (Civil Case No.

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

private respondent of the squatters' refusal to vacate the lots, proposing


instead either that private respondent

undertake the eviction or that the earnest money be returned to the latter; (6)
private respondent

counterproposed that if it would undertake the eviction of the squatters, the


purchase price of the lots should

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

another over Lots 5-B and 5-D;

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

the expense of private respondent; (10) private respondent demanded the


rescission of the sale to Tropicana

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

opposition to the motion was filed by private respondent.

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"

(Rollo, pp. 20-21).

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

Jurisdictional Defense." So as to facilitate the determination of its defense of


sovereign immunity, petitioner

prayed that a hearing be conducted to allow it to establish certain facts upon


which the said defense is based.

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).

Petitioner forthwith elevated the matter to us. In its petition, petitioner


invokes the privilege of sovereign

immunity only on its own behalf and on behalf of its official representative, the
Papal Nuncio.

On December 9, 1991, a Motion for Intervention was filed before us by the


Department of Foreign Affairs,

claiming that it has a legal interest in the outcome of the case as regards the
diplomatic immunity of petitioner,

and that it "adopts by reference, the allegations contained in the petition of


the Holy See insofar as they refer to

arguments relative to its claim of sovereign immunity from suit" (Rollo, p. 87).

Private respondent opposed the intervention of the Department of Foreign


Affairs. In compliance with the

resolution of this Court, both parties and the Department of Foreign Affairs
submitted their respective

memoranda.

II

A preliminary matter to be threshed out is the procedural issue of whether the


petition for certiorari under Rule

65 of the Revised Rules of Court can be availed of to question the order


denying petitioner's motion to dismiss.

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

before the trial court. But the

general rule admits of exceptions, and one of these is when it is very clear in
the records that the trial court has

no alternative but to dismiss the complaint (Philippine National Bank v.


Florendo, 206 SCRA 582 [1992];

Zagada v. Civil Service Commission, 216 SCRA 114 [1992]. In such a case, it
would be a sheer waste of time

and energy to require the parties to undergo the rigors of a trial.

The other procedural question raised by private respondent is the personality


or legal interest of the

Department of Foreign Affairs to intervene in the case in behalf of the Holy See
(Rollo, pp. 186-190).

In Public International Law, when a state or international agency wishes to


plead sovereign or diplomatic

immunity in a foreign court, it requests the Foreign Office of the state where it
is sued to convey to the court

that said defendant is entitled to immunity.

In the United States, the procedure followed is the process of "suggestion,"


where the foreign state or the

international organization sued in an American court requests the Secretary of


State to make a determination

as to whether it is entitled to immunity. If the Secretary of State finds that the

defendant is immune from suit,

he, in turn, asks the Attorney General to submit to the court a "suggestion"
that the defendant is entitled to

immunity. In England, a similar procedure is followed, only the Foreign Office


issues a certification to that effect

instead of submitting a "suggestion" (O'Connell, I International Law 130 [1965];


Note: Immunity from Suit of

Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088


[1941]).

In the Philippines, the practice is for the foreign government or the


international organization to first secure an

executive endorsement of its claim of sovereign or diplomatic immunity. But


how the Philippine Foreign Office

conveys its endorsement to the courts varies. In International Catholic


Migration Commission v. Calleja, 190

SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to
the Secretary of Labor and

Employment, informing the latter that the respondent-employer could not be


sued because it enjoyed

diplomatic immunity. In World Health Organization v. Aquino, 48 SCRA 242


(1972), the Secretary of Foreign

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

the United States Naval Base at Olongapo City, Zambales, a "suggestion" to


respondent Judge. The Solicitor

General embodied the "suggestion" in a Manifestation and Memorandum as


amicus curiae.

In the case at bench, the Department of Foreign Affairs, through the Office of
Legal Affairs moved with this

Court to be allowed to intervene on the side of petitioner. The Court allowed


the said Department to file its

memorandum in support of petitioner's claim of sovereign immunity.

In some cases, the defense of sovereign immunity was submitted directly to


the local courts by the

respondents through their private counsels (Raquiza v. Bradford, 75 Phil. 50


[1945]; Miquiabas v. Philippine-

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

enjoying sovereign immunity. On the other hand, private respondent insists


that the doctrine of non-suability is

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.

A. The Holy See

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

recognized the right of the Holy See to

receive foreign diplomats, to send its own diplomats to foreign countries, and
to enter into treaties according to

International Law (Garcia, Questions and Problems In International Law, Public


and Private 81 [1948]).

The Lateran Treaty established the statehood of the Vatican City "for the
purpose of assuring to the Holy See

absolute and visible independence and of guaranteeing to it indisputable


sovereignty also in the field of

international relations" (O'Connell, I International Law 311 [1965]).

In view of the wordings of the Lateran Treaty, it is difficult to determine


whether the statehood is vested in the

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"

must be made in a sense different from that in which it is applied to other


states (Fenwick, International Law

124-125 [1948]; Cruz, International Law 37 [1991]). In a community of national


states, the Vatican City

represents an entity organized not for political but for ecclesiastical purposes

and international objects. Despite

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

as to make it in a sense an "international state" (Fenwick, supra., 125; Kelsen,


Principles of International Law

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

international personality (Kunz, The Status of the Holy See in International


Law, 46 The American Journal of

International Law 308 [1952]).

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

since 1957 (Rollo, p. 87). This appears to be the universal practice in


international relations.

B. Sovereign Immunity

As expressed in Section 2 of Article II of the 1987 Constitution, we have


adopted the generally accepted

principles of International Law. Even without this affirmation, such principles of


International Law are deemed

incorporated as part of the law of the land as a condition and consequence of


our admission in the society of

nations (United States of America v. Guinto, 182 SCRA 644 [1990]).

There are two conflicting concepts of sovereign immunity, each widely held and
firmly established. According

to the classical or absolute theory, a sovereign cannot, without its consent, be


made a respondent in the courts

of another sovereign. According to the newer or restrictive theory, the


immunity of the sovereign is recognized

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

Law 194 [1984]).

Some states passed legislation to serve as guidelines for the executive or


judicial determination when an act

may be considered as jure gestionis. The United States passed the Foreign
Sovereign Immunities Act of 1976,

which defines a commercial activity as "either a regular course of commercial


conduct or a particular

commercial transaction or act." Furthermore, the law declared that the


"commercial character of the activity

shall be determined by reference to the nature of the course of conduct or


particular transaction or act, rather

than by reference to its purpose." The Canadian Parliament enacted in 1982 an


Act to Provide For State

Immunity in Canadian Courts. The Act defines a "commercial activity" as any


particular transaction, act or

conduct or any regular course of conduct that by reason of its nature, is of a


"commercial character."

The restrictive theory, which is intended to be a solution to the host of


problems involving the issue of

sovereign immunity, has created problems of its own. Legal treatises and the
decisions in countries which

follow the restrictive theory have difficulty in characterizing whether a contract


of a sovereign state with a

private party is an act jure gestionis or an act jure imperii.

The restrictive theory came about because of the entry of sovereign states into
purely commercial activities

remotely connected with the discharge of governmental functions. This is


particularly true with respect to the

Communist states which took control of nationalized business activities and


international trading.

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

(Sanders v. Veridiano, 162 SCRA 88 [1988]).

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

American servicemen and the general public (United States of America v.


Rodrigo, 182 SCRA 644 [1990]); and

(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

is undoubtedly for profit as a commercial and not a governmental activity. By


entering into the employment

contract with the cook in the discharge of its proprietary function, the United
States government impliedly

divested itself of its sovereign immunity from suit.

In the absence of legislation defining what activities and transactions shall be


considered "commercial" and as

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,

or an incident thereof, then it is an act jure imperii, especially when it is not


undertaken for gain or profit.

As held in United States of America v. Guinto, (supra):

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

capacity. It is only when the contract involves its sovereign or governmental


capacity that no

such waiver may be implied.

In the case at bench, if petitioner has bought and sold lands in the ordinary
course of a real estate business,

surely the said transaction can be categorized as an act jure gestionis.


However, petitioner has denied that the

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.

Lot 5-A was acquired by petitioner as a donation from the Archdiocese of


Manila. The donation was made not

for commercial purpose, but for the use of petitioner to construct thereon the
official place of residence of the

Papal Nuncio. The right of a foreign sovereign to acquire property, real or


personal, in a receiving state,

necessary for the creation and maintenance of its diplomatic mission, is


recognized in the 1961 Vienna

Convention on Diplomatic Relations (Arts. 20-22). This treaty was concurred in


by the Philippine Senate and

entered into force in the Philippines on November 15, 1965.

In Article 31(a) of the Convention, a diplomatic envoy is granted immunity from


the civil and administrative

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

governmental character. Petitioner did not sell Lot

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

private respondent in its complaint (Rollo, pp. 26, 27).

The issue of petitioner's non-suability can be determined by the trial court


without going to trial in the light of

the pleadings, particularly the admission of private respondent. Besides, the


privilege of sovereign immunity in

this case was sufficiently established by the Memorandum and Certification of


the Department of Foreign

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

diplomatic mission or embassy in this country (Rollo, pp. 156-157). The


determination of the executive arm of

government that a state or instrumentality is entitled to sovereign or


diplomatic immunity is a political question

that is conclusive upon the courts (International Catholic Migration Commission


v. Calleja, 190 SCRA 130

[1990]). Where the plea of immunity is recognized and affirmed by the


executive branch, it is the duty of the

courts to accept this claim so as not to embarrass the executive arm of the
government in conducting the

country's foreign relations (World Health Organization v. Aquino, 48 SCRA 242


[1972]). As in International

Catholic Migration Commission and in World Health Organization, we abide by


the certification of the

Department of Foreign Affairs.

Ordinarily, the procedure would be to remand the case and order the trial court
to conduct a hearing to

establish the facts alleged by petitioner in its motion. In view of said


certification, such procedure would

however be pointless and unduly circuitous (Ortigas & Co. Ltd. Partnership v.
Judge Tirso Velasco, G.R. No.

109645, July 25, 1994).

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

Against Foreign States, Selected Readings on Protection by Law of Private


Foreign Investments 905, 919

[1964]). Once the Philippine government decides to espouse the claim, the
latter ceases to be a private cause.

According to the Permanent Court of International Justice, the forerunner of


the International Court of Justice:

By taking up the case of one of its subjects and by reporting to diplomatic

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

Palestine Concessions, 1 Hudson, World Court Reports 293, 302 [1924]).

WHEREFORE, the petition for certiorari is GRANTED and the complaint in Civil
Case No. 90-183 against

petitioner is DISMISSED.

SO ORDERED.

CASE 11

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 76607 February 26, 1990

UNITED STATES OF AMERICA, FREDERICK M. SMOUSE AND YVONNE REEVES,


petitioners,

vs.

HON. ELIODORO B. GUINTO, Presiding Judge, Branch LVII, Regional Trial Court,
Angeles City,

ROBERTO T. VALENCIA, EMERENCIANA C. TANGLAO, AND PABLO C. DEL PILAR,


respondents.

G.R. No. 79470 February 26, 1990

UNITED STATES OF AMERICA, ANTHONY LAMACHIA, T/SGT. USAF, WILFREDO


BELSA, PETER

ORASCION AND ROSE CARTALLA, petitioners,

vs.

HON. RODOLFO D. RODRIGO, as Presiding Judge of Branch 7, Regional Trial


Court (BAGUIO CITY), La

Trinidad, Benguet and FABIAN GENOVE, respondents.

G.R. No. 80018 February 26, 1990

UNITED STATES OF AMERICA, TOMI J. KINGI, DARREL D. DYE and STEVEN F.


BOSTICK, petitioners,

vs.

HON. JOSEFINA D. CEBALLOS, As Presiding Judge, Regional Trial Court, Branch


66, Capas, Tarlac,

and LUIS BAUTISTA, respondents.

G.R. No. 80258 February 26, 1990

UNITED STATES OF AMERICA, MAJOR GENERAL MICHAEL P. C. CARNS, AIC


ERNEST E.

RIVENBURGH, AIC ROBIN BLEVINS, SGT. NOEL A. GONZALES, SGT. THOMAS


MITCHELL, SGT.

WAYNE L. BENJAMIN, ET AL., petitioners,

vs.

HON. CONCEPCION S. ALARCON VERGARA, as Presiding Judge, Branch 62


REGIONAL TRIAL

COURT, Angeles City, and RICKY SANCHEZ, FREDDIE SANCHEZ AKA FREDDIE
RIVERA, EDWIN

MARIANO, AKA JESSIE DOLORES SANGALANG, ET AL., respondents.

Luna, Sison & Manas Law Office for petitioners.

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

denial of its motions by the respondent judges.

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

the said base.

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

submitted their bids were private


Emerenciana C. Tanglao, and Pablo

respondents

Roberto

T.

Valencia,

C. del Pilar. Valencia had been a concessionaire inside Clark for 34 years; del
Pilar for 12 years; and

Tanglao for 50 years.

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

was not included in

the invitation to bid.

The private respondents complained to the Philippine Area Exchange (PHAX).


The latter, through its

representatives, petitioners Yvonne Reeves and Frederic M. Smouse explained


that the Civil

Engineering concession had not been awarded to Dizon as a result of the


February 24, 1986

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

further explained that the solicitation of the CE barbershop would be available


only by the end of June

and the private respondents would be notified.

On June 30, 1986, the private respondents filed a complaint in the court below
to compel PHAX and the

individual petitioners to cancel the award to defendant Dizon, to conduct a


rebidding for the

barbershop concessions and to allow the private respondents by a writ of


preliminary injunction to

continue operating the concessions pending litigation. 1

Upon the filing of the complaint, the respondent court issued an ex parte order
directing the individual

petitioners to maintain the status quo.

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

Force, were also immune from suit.

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

is called by the relationship between the plaintiffs as well as the defendants,


including

the US Government, in that prior to the bidding or solicitation in question,


there was a

binding contract between the plaintiffs as well as the defendants, including the
US

Government. By virtue of said contract of concession it is the Court's


understanding that

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

of commissions to the Philippine Area Exchange. The same circumstance would


become

in effect when the Philippine Area Exchange opened for bidding or solicitation
the

questioned barber shop concessions. To this extent, therefore, indeed a


commercial

transaction has been entered, and for purposes of the said solicitation, would

necessarily be entered between the plaintiffs as well as the defendants.

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

preliminary injunction, we issued a temporary restraining order against further


proceedings in the

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

manager, suspended him and thereafter referred the case to a board of


arbitrators conformably to the

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:

It is the understanding of the Court, based on the allegations of the complaint


which

have been hypothetically admitted by defendants upon the filing of their


motion to

dismiss that although defendants acted initially in their official capacities,


their going

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

extension of Clark Air Base, was arrested following a buy-bust operation


conducted by the individual

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

sworn statements made by them, an information for violation of R.A. 6425,


otherwise known as 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-

US Military Bases Agreement.

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

without its consent.

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

issued on October 14, 1987, a temporary restraining order. 8

In G.R. No. 80258, a complaint for damages was filed by the private
respondents against the herein

petitioners (except the United States of America), for injuries allegedly


sustained by the plaintiffs as a

result of the acts of the defendants. 9 There is a conflict of factual allegations

here. According to the

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

immediately taken to the medical center for treatment of their wounds.

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

acts done by them in the performance of their official functions.

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

allegations, of the complaint which is sought to be dismissed, had to be


hypothetically

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

Court. We issued a temporary restraining order on October 27, 1987. 11

II

The rule that a state may not be sued without its consent, now expressed in
Article XVI, Section 3, of

the 1987 Constitution, is one


international law that we have

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

to abide by the rules of the international community.

Even without such affirmation, we would still be bound by the generally


accepted principles of

international law under the doctrine of incorporation. Under this doctrine, as


accepted by the majority

of states, such principles are deemed incorporated in the law of every civilized
state as a condition and

consequence of its membership in the society of nations. Upon its admission to


such society, the state

is automatically obligated to comply with these principles in its relations with


other states.

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

jurisdiction over one another. A contrary disposition would, in the language of a


celebrated case,

"unduly vex the peace of nations." 13

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. 14 In such a situation, the state
may move to dismiss the

complaint on the ground that it has been filed without its consent.

The doctrine is sometimes


dishonesty" because of the

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 consent of the state to be sued may be manifested expressly or impliedly.


Express consent may

be embodied in a general law or a special law. Consent is implied when the


state enters into a contract

or it itself commences litigation.

The general law waiving the immunity of the state from suit is found in Act No.
3083, under which the

Philippine government "consents and submits to be sued upon any moneyed


claim involving liability

arising from contract, express or implied, which could serve as a basis of civil
action between private

parties." In Merritt v. Government of the Philippine Islands, 15 a special law


was passed to enable a

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

complaint, thus opening itself to a counterclaim. 17

The above rules are subject to qualification. Express consent is effected only by
the will of the

legislature through the medium of a duly enacted statute. 18 We have held


that not all contracts entered

into by the government will operate as a waiver of its non-suability; distinction


must be made between

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

immunity from suit. It is emphasized that in Baer, the Court held:

The invocation of the doctrine of immunity from suit of a foreign state without
its consent

is appropriate. More specifically, insofar as alien armed forces is concerned,


the starting

point is Raquiza v. Bradford, a 1945 decision. In dismissing a habeas corpus


petition for

the release of petitioners confined by American army authorities, Justice Hilado

speaking for the Court, cited Coleman v. Tennessee, where it was explicitly
declared: 'It

is well settled that a foreign army, permitted to march through a friendly


country or to be

stationed in it, by permission of its government or sovereign, is exempt from


the civil and

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,

Oppenheim, Westlake, Hyde, and McNair and Lauterpacht. Accuracy demands


the

clarification that after the conclusion of the Philippine-American Military Bases

Agreement, the treaty


assumption being

provisions

should

control

on

such

matter,

the

that there was a manifestation of the submission to jurisdiction on the part of


the foreign

power whenever appropriate. More to the point is Syquia v. Almeda Lopez,


where

plaintiffs as lessors sued the Commanding General of the United States Army in
the

Philippines, seeking the restoration to them of the apartment buildings they


owned

leased to the United States armed forces stationed in the Manila area. A
motion to

dismiss on the ground of non-suability was filed and upheld by respondent


Judge. The

matter was taken to this Court in a mandamus proceeding. It failed. It was the
ruling that

respondent Judge acted correctly considering that the 4 action must be


considered as

one against the


continued: 'It is

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

action against a foreign government without said government's consent, which


renders

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

unnecessary to cite authorities in support thereof then came Marvel Building


Corporation

v. Philippine War Damage Commission, where respondent, a United States


Agency

established to compensate damages suffered by the Philippines during World


War II was

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

Government is therefore the real party in interest.' So it was in Philippine Alien


Property

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

effect is Parreno v. McGranery, as the following excerpt from the opinion of


justice

Tuazon clearly shows: 'It is a widely accepted principle of international law,


which is

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

without its consent.' Finally, there is Johnson v. Turner, an appeal by the


defendant, then

Commanding General, Philippine Command (Air Force, with office at Clark Field)
from a

decision ordering the return to plaintiff of the confiscated military payment

certificates

known as scrip money. In reversing the lower court decision, this Tribunal,
through

Justice Montemayor, relied on Syquia v. Almeda Lopez, explaining why it could


not be

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

impliedly waived its non-suability if it has entered into a contract in its


proprietary or private capacity.

It is only when the contract involves its sovereign or governmental capacity


that no such waiver may

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

Bay. As this was a clearly

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

principles of independence and equality of States. However, the rules of


International

Law are not petrified; they are constantly developing and evolving. And
because the

activities of states have multiplied, it has been necessary to distinguish them


between

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,

the United kingdom and other states in Western Europe.

xxx xxx xxx

The restrictive application of State immunity is proper only when the


proceedings arise

out of commercial transactions of the foreign sovereign, its commercial


activities or

economic affairs. Stated differently, a State may be said to have descended to


the level of

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

nor dedicated to commercial or business purposes.

The other petitioners in the cases before us all aver they have acted in the
discharge of their official

functions as officers or agents of the United States. However, this is a matter of


evidence. The charges

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.

In Festejo v. Fernando, 23 a bureau director, acting without any authority


whatsoever, appropriated

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

sued in his private capacity for a personal tort.

With these considerations in mind, we now proceed to resolve the cases at


hand.

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

function of preventing the distribution, possession and use of prohibited drugs


and prosecuting those

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

Given the official character of the above-described letters, we have to conclude


that the

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

responsible for their acts.

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.

There seems to be a failure to distinguish between suability and liability and a


misconception that the

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 defendant is liable.

The said article establishes a rule of liability, not suability. The government

may be held liable under

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

denominated, as in the case at bar. No less important, the said provision


appears to regulate only the

relations of the local state with its inhabitants and, hence, applies only to the
Philippine government

and not to foreign governments impleaded in our courts.

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

jurisdiction. As we noted in Republic v. Purisima, 25 express waiver of


immunity cannot be made by a

mere counsel of the government but must be effected through a duly-enacted


statute. Neither does

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

happened to the plaintiffs. The record is too meager to indicate if the


defendants were really

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

determine, if still necessary, if the doctrine of state immunity is applicable.

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

manager of this complex, petitioner Lamachia is responsible for eleven


diversified activities generating

an annual income of $2 million. Under his executive management are three


service restaurants, a

cafeteria, a bakery, a Class VI store, a coffee and pantry shop, a main cashier
cage, an administrative

office, and a decentralized warehouse which maintains a stock level of


$200,000.00 per month in resale

items. He supervises 167 employees, one of whom was Genove, with whom the
United States

government has concluded a collective bargaining agreement.

From these circumstances, the Court can assume that the restaurant services
offered at the John Hay

Air Station partake of the nature of a business enterprise undertaken by the


United States government

in its proprietary capacity. Such services are not extended to the American
servicemen for free as a

perquisite of membership in the Armed Forces of the United States. Neither


does it appear that they

are exclusively offered to these servicemen; on the contrary, it is well known


that they are available to

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

other customers as in ordinary restaurants. Although the prices are concededly


reasonable and

relatively low, such services are undoubtedly operated for profit, as a


commercial and not a

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

its proprietary functions, it impliedly divested itself of its sovereign immunity


from suit.

But these considerations notwithstanding, we hold that the complaint against


the petitioners in the

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

we have carefully examined.

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

the board of arbitrators provided for in the collective bargaining agreement.


This board unanimously

affirmed the findings of the


dismissal. There was nothing

investigators

and

recommended

Genove's

arbitrary about the proceedings. The petitioners acted quite properly in


terminating the private

respondent's employment for his unbelievably nauseating act. It is surprising


that he should still have

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

the United States government are commercial enterprises operated by private


person's. They are not

agencies of the United States Armed Forces nor are their facilities demandable
as a matter of right by

the American servicemen. These establishments provide for the grooming


needs of their customers

and offer not only the basic haircut and shave (as required in most military
organizations) but such

other amenities as shampoo, massage, manicure and other similar indulgences.


And all for a fee.

Interestingly, one of the concessionaires, private respondent Valencia, was


even sent abroad to

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

remit to the United States government fixed commissions in consideration of


the exclusive

concessions granted to them in their respective areas.

This being the case, the petitioners cannot plead any immunity from the
complaint filed by the private

respondents in the court below. The contracts in question being decidedly


commercial, the conclusion

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

court below for further proceedings.

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

accommodation and respect, without the inconvenience and asperity of


litigation and always with

justice to both parties.

WHEREFORE, after considering all the above premises, the Court hereby

renders judgment as follows:

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

order dated December 11, 1986, is LIFTED.

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

order dated October 27, 1987, is LIFTED.

All without any pronouncement as to costs.

SO ORDERED.

Fernan,

C.J.,

Narvasa,

Melencio-Herrera,

Gutierrez,

Jr.,

Paras,

Feliciano,

Gancayco, Padilla, Bidin,

Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

CASE 12

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 79253 March 1, 1993

UNITED STATES OF AMERICA and MAXINE BRADFORD, petitioners,

vs.

HON. LUIS R. REYES, as Presiding Judge of Branch 22, Regional Trial Court of
Cavite, and NELIA T.

MONTOYA, respondents.

Luna, Sison & Manas for petitioners.

Evelyn R. Dominguez for private respondent.

DAVIDE, JR., J.:

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

Resolution of 17 July 1987 of Branch 22 of the Regional Trial Court (RTC) of


Cavite in Civil Case No. 224-87.

The said resolution denied, for lack of merit, petitioners' motion to dismiss the
said case and granted the

private respondent's motion for the


attachment. Likewise sought to be set

issuance of a writ of preliminary

aside is the writ of attachment subsequently issued by the RTC on 28 July 1987.

The doctrine of state immunity is at the core of this controversy.

The readings disclose the following material operative facts:

Private respondent, hereinafter referred to as Montoya, is an American citizen


who, at the time material to this

case, was employed as an identification (I.D.) checker at the U.S. Navy


Exchange (NEX) at the Joint United

States Military Assistance Group (JUSMAG) headquarters in Quezon City. She is

married to one Edgardo H.

Montoya, a Filipino-American serviceman employed by the U.S. Navy and


stationed in San Francisco,

California. Petitioner Maxine Bradford, hereinafter referred to as Bradford, is


likewise an American citizen who

was the activity exchange manager at the said JUSMAG Headquarters.

As a consequence of an incident which occurred on 22 January 1987 whereby


her body and belongings were

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

raffled off to Branch 22 at Imus, Cavite, alleges the following, material


operative facts:

xxx xxx xxx

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

and informed her that she needed to search her bags;

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

Jusmag employees that day;

6. That the search was thereafter made on the person, car and bags of the
plaintiff by Mrs.

Yong Kennedy in the presence of the defendant and numerous curious


onlookers;

7. That having found nothing irregular on her person and belongings, plaintiff
was allowed to

leave the premises;

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

as set forth in par. 5 hereof and as evidenced by the memorandum dated


January 30, 1987

made by other Filipino Jusmag employees, a photocopy of which is hereto


attached as ANNEX

"A" and made integral (sic) part hereof:

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;

10. That plaintiff knows of no circumstances sufficient to trigger suspicion of a


wrongdoing on

her part but on the other hand, is aware of the propensity of defendant to lay
suspicion on

Filipinos for theft and/or shoplifting;

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;

14. That considering the above, plaintiff is entitled to be compensated by way


of moral damages

in the amount of P500,000.00;

15. That to serve as a deterrent to those inclined to follow the oppressive act
of the defendant,

exemplary damages in the amount of P100,000.00 should also be awarded. 2

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

Summons and a copy of the complaint were served on Bradford on 13 May


1987. In response thereto, she

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

government of the United States of America (hereinafter referred to as the


public petitioner), filed on 25 June

1987, also through the law firm of Luna, Sison and Manas, a Motion to Dismiss
5 based on the following

grounds:

1) (This) action is 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; and

2) Defendant, Maxine Bradford, as manager of the US Navy Exchange Branch at


JUSMAG,

Quezon City, is immune from suit for act(s) done by her in the performance of
her official

functions under the Philippines-United States Military Assistance Agreement of


1947 and

Military Bases Agreement of 1947, as amended. 6

In support of the motion, the petitioners claimed that JUSMAG, composed of an


Army, Navy and Air Group,

had been established under the Philippine-United States Military Assistance


Agreement entered into on 21

March 1947 to implement the United States' program of rendering military


assistance to the Philippines. Its

headquarters in Quezon City is considered a temporary installation under the


provisions of Article XXI of the

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,

equipment and material." JUSMAG maintains, at its Quezon City headquarters,


a Navy Exchange referred to

as the NEX-JUSMAG. Checking of purchases at the NEX is a routine procedure


observed at base retail outlets

to protect and safeguard merchandise, cash and equipment pursuant to


paragraphs 2 and 4(b) of

NAVRESALEACT SUBIC INST. 5500.1. 7 Thus, Bradford's order to have purchases


of all employees checked

on 22 January 1987 was made in the exercise of her duties as Manager of the
NEX-JUSMAG.

They further claimed that the Navy Exchange (NAVEX), an instrumentality of


the U.S. Government, is

considered essential for the performance of governmental functions. Its


mission is to provide a convenient and

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

does to the mission, functions and responsibilities of a unit of the United


States Navy, cannot then be allowed.

To do so would constitute a violation of the military bases agreement.


Moreover, the rights, powers and

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

American personnel, employees, equipment and material. Such rights, power


and authority within the bases

can only be exercised by the United States through the officers and officials of
its armed forces, such as

Bradford. Baer vs. Tizon 8 and United States of America vs.

Ruiz 9 were invoked to support these claims.

On 6 July 1987, Montoya filed a motion for preliminary attachment 10 on the


ground that Bradford was about to

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

improper, unlawful and highly discriminatory act against a Filipino employee


and had exceeded the scope of

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

within or outside the scope of her authority.

On 16 July 1987, public petitioner and Bradford filed a reply to Montoya's


opposition and an opposition to the

motion for preliminary attachment. 12

On 17 July 1987, 13 the trial court 14 resolved both the motion to dismiss and
the motion for preliminary

attachment in this wise:

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.

The motion for preliminary attachment is granted in the interest of justice,


upon the plaintiff's

filing of a bond in the sum of P50,000.00.

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

therefor, they allege that:

10. The respondent judge committed a grave abuse of discretion amounting to


lack of

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

official functions as manager of the US Navy Exchange Branch at the


Headquarters of

JUSMAG, under the Philippines-United States Military Assistance Agreement of


1947 and

Military Bases Agreement of 1947, as amended. 17

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

On 12 August 1987, this Court resolved to require the respondents to comment


on the petition. 19

On 19 August 1987, petitioners filed with the trial court a Motion

to Suspend Proceedings 20 which the latter denied in its Order of 21 August


1987. 21

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:

Prescinding from the foregoing, it is hereby determined that the unreasonable


search on the

plaintiff's person and bag caused (sic) done recklessly and oppressively by the
defendant,

violated, impaired and undermined the plaintiff's liberty guaranteed by the


Constitution, entitling

her to moral and exemplary damages against the defendant. The search has
unduly subjected

the plaintiff to intense humiliation and indignities and had consequently


ridiculed and

embarrassed publicly said plaintiff so gravely and immeasurably.

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

damages, P100,000.00 for exemplary damages and P50,000.00 for actual


expenses and

attorney's fees.

No costs.

SO ORDERED. 24

Bradford received a copy of the decision on 21 September 1987. On that same


date, she and the public

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

In the meantime, since no motion for reconsideration or appeal had been


interposed by Bradford challenging

the 10 September 1987 Decision which she had received on 21 September


1987, respondent Judge issued on

14 October 1987 an order directing that an entry of final judgment be made. A


copy thereof was received by

Bradford on 21 October, 1987. 27

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

case a temporary restraining order, it had nevertheless resolved to require the


respondents to comment on the

petition. It was further averred that execution thereof would cause Bradford
grave injury; moreover,

enforcement of a writ of execution may lead to regrettable incidents and


unnecessarily complicate the situation

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

Consequently, the petitioners filed on 4 December 1987, a Manifestation and


Motion reciting the foregoing

incidents obtaining before the trial court and praying that their petition for a
restraining order be resolved. 31

On 7 December 1987, this Court issued a Temporary Restraining Order


"ENJOINING the respondents and the

Provincial Sheriff of Pasig, Metro Manila, from enforcing the Decision dated
September 10, 1987, and the Writs

of Attachment and Execution issued in Civil Case No. 224-87." 32

On 28 November 1988, after the private respondent filed a Rejoinder to the


Consolidated Reply to the

Comments filed by the petitioners, this Court gave due course to the petition
and required the parties to submit

their respective memoranda-Petitioners filed their Memorandum on 8 February

1989 33 while private respondent filed her Memorandum on 14 November

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

Assistance Agreement of 1947 and the Military Bases Agreement of 1947, as


amended.

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

applicable in International Law. It is claimed that the application of the


immunity doctrine does not turn upon

the lawlessness of the act or omission attributable to the foreign national for if
this were the case, the concept

of immunity would be meaningless as inquiry into the lawlessness or illegality


of the act or omission would first

have to be made before considering the question of immunity; in other words,


immunity will lie only if such act

or omission is found to be lawful.

On the other hand, Montoya submits that Bradford is not covered by the
protective mantle of the doctrine of

sovereign immunity from suit as the latter is a mere civilian employee of


JUSMAG performing non-

governmental and proprietary functions. And even assuming arguendo that


Bradford is performing

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

against Filipino employees. Bradford's authority to order a search, it is


asserted, should have been exercised

with restraint and should have been in accordance with the guidelines and
procedures laid down by the cited

"NAVRESALEACT, Subic Inst." Moreover, ultra vires acts of a public officer or


employee, especially tortious

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

(6) other senior members thereof designated by him will be accorded


diplomatic immunity; 35 and (c) the acts

complained of do not fall under those offenses where the U.S. has been given
the right to exercise its

jurisdiction (per Article 13 of the 1947 Military Bases Agreement, as amended


by the, Mendez-Blair Notes of 10

August 1965). 36

Finally, Montoya maintains that at the very least, Philippine courts may inquire
into the factual circumstances of

the case to determine whether petitioner Bradford is immune from suit or


exempt from Philippine jurisdiction.

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

consider some procedural matters.

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

suit was in effect against it

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.

Of course, Montoya could have also impleaded the public petitioner as an


additional defendant by amending

the complaint if she so believed that the latter is an indispensible or necessary


party.

Since the trial court entertained the motion to dismiss and the subsequent
pleadings filed by the public

petitioner and Bradford, it may be deemed to have allowed the public


petitioner to intervene. Corollarily,

because of its voluntary appearance, the public petitioner must be deemed to


have submitted itself to the

jurisdiction of the trial court.

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

official functions. The upshot of this contention is actually lack of cause of


action a specific ground for

dismissal under the aforesaid Rule because assuming arguendo that


Montoya's rights had been violated by

the public petitioner and Bradford, resulting in damage or injury to the former,
both would not be liable therefor,

and no action may be maintained thereon, because of the principle of state


immunity.

The test of the sufficiency of the facts to constitute a cause of action is


whether or not, admitting the facts

alleged in the complaint, the court could render a valid judgment upon the
same, in accordance with the prayer

in the complaint. 38

A motion to dismiss on the ground of failure to state a cause of action


hypothetically admits the truth of the

allegations in the complaint.

In deciding a motion to dismiss, a court may grant, deny, allow amendments to


the pleadings or defer the

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

solution on the motion instead of denying it for lack of merit.

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

court should have deferred resolution on or denied outright the motion to


dismiss for lack of merit is no longer

pertinent or relevant.

The complaint in Civil Case No. 224-87 is for damages arising from what
Montoya describes as an "illegal

search" on her "person and belongings" conducted outside the JUSMAG


premises in front of many people and

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.

Howsoever viewed, it is beyond doubt that Montoya's cause of action is

premised on the theory that the acts

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

hypothetically admitted the truth of the allegation in the complaint which


support this theory.

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

Section 3, of the 1987 Constitution, is one of the generally accepted principles


of international

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,

that the rule is not so all-encompassing as to be applicable under all


circumstances.

It is a different matter where the public official is made to account in his


capacity as such for

acts contrary to law and injurious to the rights of plaintiff. As was clearly set
forth by Justice

Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen,


etc., et al. 43

"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

or invades the personal and property rights of the plaintiff, under an


unconstitutional act or

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:

There should be no misinterpretation of the scope of the decision reached by


this

Court. Petitioner, as the Commander of the United States Naval Base in

Olongapo, does not possess diplomatic immunity. He may therefore be

proceeded against in his personal capacity, or when the action taken by him

cannot be imputed to the government which he represents.

Also, in Animos, et al. vs. Philippine Veterans Affairs Office, et al., 47 we held
that:

. . . it is equally well-settled that where a litigation may have adverse

consequences on the public treasury, whether in the disbursements of funds or

loss of property, the public official proceeded against not being liable in his

personal capacity, then the doctrine of non-suability may appropriately be

invoked. It has no application, however, where the suit against such a


functionary

had to be instituted because of his failure to comply with the duty imposed by

statute appropriating public funds for the benefit of plaintiff or petitioner. . . . .

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

sued in his private

and personal capacity as an ordinary citizen. The cloak of protection afforded


the officers and

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

vested in him. It is a well-settled principle of law that a public official may be


liable in his

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

the United States in the discharge of their official functions.

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

vulnerable to a motion to dismiss based on the grounds relied upon by the


petitioners because as a

consequence of the hypothetical admission of the truth of the allegations


therein, the case falls within the

exception to the doctrine of state immunity.

In the recent cases of Williams vs. Rarang 50 and Minucher vs. Court of
Appeals, 51 this Court reiterated this

exception. In the former, this Court observed:

There is no question, therefore,


participated in screening the

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.

It is to be noted, however, that the petitioners were sued in their personal


capacities for their

alleged tortious acts in publishing a libelous article.

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

Assistance Agreement creating the JUSMAG 52 this Court ruled:

Even Article 31 of the Vienna Convention on Diplomatic Relations admits of


exceptions. It

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

jurisdiction except in the case of:

xxx xxx xxx

(c) an action relating to any professional or commercial activity

exercised by the diplomatic agent in the receiving State outside

his official functions (Emphasis supplied).

There can be no doubt that on the basis of the allegations in the complaint,
Montoya has a sufficient and viable

cause of action. Bradford's purported non-suability on the ground of state


immunity is then a defense which

may be pleaded in the answer and proven at the trial.

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

Temporary Restraining Order on 7 December 1987 cannot be impugned. The


filing of the instant petition and

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

injunction restraining it." 53

WHEREFORE, the instant petition is DENIED for lack of merit. The Temporary
Restraining Order of 7

December 1987 is hereby LIFTED.

Costs against petitioner Bradford.

SO ORDERED.

CASE 13

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 173034

October 9, 2007

PHARMACEUTICAL AND HEALTH CARE ASSOCIATION OF THE PHILIPPINES,


petitioner,

vs.

HEALTH SECRETARY FRANCISCO T. DUQUE III; HEALTH UNDER SECRETARIES DR.


ETHELYN P.

NIETO, DR. MARGARITA M. GALON, ATTY. ALEXANDER A. PADILLA, & DR. JADE F.
DEL MUNDO; and

ASSISTANT SECRETARIES DR. MARIO C. VILLAVERDE, DR. DAVID J. LOZADA, AND


DR. NEMESIO T.

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

Order (A.O.) No. 2006-0012


Regulations of Executive Order

entitled,

No. 51, Otherwise Known as The


Agreements, Penalizing Violations

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.

Named as respondents are the Health Secretary, Undersecretaries, and


Assistant Secretaries of the

Department of Health (DOH). For purposes of herein petition, the DOH is


deemed impleaded as a co-

respondent since respondents issued the questioned RIRR in their capacity as


officials of said executive

agency.1

Executive Order No. 51 (Milk Code) was issued by President Corazon Aquino on
October 28, 1986 by virtue of

the legislative powers granted to the


Constitution. One of the preambular clauses

president

under

the

Freedom

of the Milk Code states that the law seeks to give effect to Article 112 of the

International Code of Marketing of

Breastmilk Substitutes (ICMBS), a code adopted by the World Health Assembly


(WHA) in 1981. From 1982 to

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.

In 1990, the Philippines ratified the International Convention on the Rights of


the Child. Article 24 of said

instrument provides that State Parties should take appropriate measures to


diminish infant and child mortality,

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

Restraining Order (TRO) or Writ of Preliminary Injunction.

The main issue raised in the petition is whether respondents officers of the
DOH acted without or in excess of

jurisdiction, or with grave abuse of discretion amounting to lack or excess of


jurisdiction, and in violation of the

provisions of the Constitution in promulgating the RIRR.3

On August 15, 2006, the Court issued a Resolution granting a TRO enjoining
respondents from implementing

the questioned RIRR.

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:

The Court hereby sets the following issues:

1. Whether or not petitioner is a real party-in-interest;

2. Whether Administrative Order No. 2006-0012 or the Revised Implementing


Rules and Regulations

(RIRR) issued by the Department of Health (DOH) is not constitutional;

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

Philippines are part of the law of

the land and may be implemented by the DOH through the RIRR; If in the
affirmative, whether the

RIRR is in accord with the international agreements;

2.3 Whether Sections 4, 5(w), 22, 32, 47, and 52 of the RIRR violate the due
process clause and are in

restraint of trade; and

2.4 Whether Section 13 of the RIRR on Total Effect provides sufficient


standards.

_____________

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.

The parties filed their respective memoranda.

The petition is partly imbued with merit.

On the issue of petitioner's standing

With regard to the issue of whether petitioner may prosecute this case as the

real party-in-interest, the Court

adopts the view enunciated in Executive Secretary v. Court of Appeals,4 to wit:

The modern view is that an association has standing to complain of injuries to


its members. This view

fuses the legal identity of an association with that of its members. An


association has standing to file

suit for its workers despite its lack of direct interest if its members are affected
by the action. An

organization has standing to assert the concerns of its constituents.

xxxx

x x x We note that, under its Articles of Incorporation, the respondent was


organized x x x to act as the

representative of any individual, company, entity or association on matters


related to the manpower

recruitment industry, and to perform other acts and activities necessary to


accomplish the purposes

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

respondent [association] is but the medium through which its individual


members seek to make

more effective the expression of their voices and the redress of their
grievances. 5 (Emphasis

supplied)

which was reasserted in Purok Bagong Silang Association, Inc. v. Yuipco,6


where the Court ruled that an

association has the legal personality to represent its members because the
results of the case will affect their

vital interests.7

Herein petitioner's Amended Articles of Incorporation contains a similar


provision just like in Executive

Secretary, that the association is formed "to represent directly or through


approved representatives the

pharmaceutical and health care industry before the Philippine Government and
any of its agencies, the medical

professions and the general public."8 Thus, as an organization, petitioner


definitely has an interest in fulfilling its

avowed purpose of representing members who are part of the pharmaceutical


and health care industry.

Petitioner is duly authorized9 to take the appropriate course of action to bring


to the attention of government

agencies and the courts any grievance suffered by its members which are
directly affected by the RIRR.

Petitioner, which is mandated by its Amended Articles of Incorporation to


represent the entire industry, would

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

members, should be considered as a real party-in-interest which stands to be


benefited or injured by any

judgment in the present action.

On the constitutionality of the provisions of the RIRR

First, the Court will determine if pertinent international instruments adverted


to by respondents are part of the

law of the land.

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

implement them through the RIRR.

The Court notes that the following international instruments invoked by


respondents, namely: (1) The United

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

instruments do not contain specific provisions regarding the use or marketing


of breastmilk substitutes.

The international instruments that do have specific provisions regarding


breastmilk substitutes are the ICMBS

and various WHA Resolutions.

Under the 1987 Constitution, international law can become part of the sphere
of domestic law either by

transformation or incorporation.11 The transformation method requires that an


international law be

transformed into a domestic law through a constitutional mechanism such as


local legislation. The

incorporation method applies when, by


international law is deemed to have the

mere

constitutional

declaration,

force of domestic law.12

Treaties become part of the law of the land through transformation pursuant to
Article VII, Section 21 of the

Constitution which provides that "[n]o treaty or international agreement shall


be valid and effective unless

concurred in by at least two-thirds of all the members of the Senate." Thus,


treaties or conventional

international law must go through a process prescribed by the Constitution for


it to be transformed into

municipal law that can be applied to domestic conflicts.13

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

jurisdiction and not the ICMBS per se.

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

provides that advertising, promotion, or other marketing materials may be


allowed if such materials are

duly authorized and approved by the Inter-Agency Committee (IAC).

On the other hand, Section 2, Article II of the 1987 Constitution, to wit:

SECTION 2. The Philippines renounces war as an instrument of national policy,


adopts the generally

accepted principles of international law as part of the law of the land and
adheres to the policy of

peace, equality, justice, freedom, cooperation and amity with all nations.
(Emphasis supplied)

embodies the incorporation method.14

In Mijares v. Ranada,15 the Court held thus:

[G]enerally accepted principles


incorporation clause of the

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

classical formulation in international law sees those customary rules accepted


as binding result from

the combination [of] two elements:


consistent practice on the part of

the

established,

States; and a psychological element


necessitates (opinion as to law or

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

the existence of a rule of law requiring it.16 (Emphasis supplied)

"Generally accepted principles of international law" refers to norms of general


or customary international law

which are binding on all states,17 i.e., renunciation of war as an instrument of


national policy, the principle of

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

process of reasoning based on the common identity of all legal systems. If


there should be doubt or

disagreement, one must look to state practice and determine whether the
municipal law principle provides a

just and acceptable solution. x x x 21 (Emphasis supplied)

Fr. Joaquin G. Bernas defines customary international law as follows:

Custom or customary international law means "a general and consistent


practice of states followed by

them from a sense of legal obligation [opinio juris]." (Restatement) This


statement contains the two

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

several elements: duration, consistency, and generality of the practice of


states.

The required duration can be either short or long. x x x

xxxx

Duration therefore is not the most important element. More important is the
consistency and the

generality of the practice. x x x

xxxx

Once the existence of state practice has been established, it becomes


necessary to determine why

states behave the way they do. Do states behave the way they do because they
consider it

obligatory to behave thus or do they do it only as a matter of courtesy? Opinio


juris, or the belief

that a certain form of behavior is obligatory, is what makes practice an


international rule.

Without it, practice is not law.22 (Underscoring and Emphasis supplied)

Clearly, customary international law is deemed incorporated into our domestic


system.23

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?

The World Health Organization (WHO) is one of the international specialized


agencies allied with the United

Nations (UN) by virtue of Article 57,24 in relation to Article 6325 of the UN


Charter. Under the 1946 WHO

Constitution, it is the WHA which determines the policies of the WHO,26 and
has the power to adopt regulations

concerning "advertising and labeling of biological, pharmaceutical and similar


products moving in international

commerce,"27 and to "make recommendations to members with respect to any


matter within the competence of

the Organization."28 The legal effect of its regulations, as opposed to


recommendations, is quite different.

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

to any matter within the competence of the Organization. A two-thirds vote of


the Health Assembly shall

be required for the adoption of such conventions or agreements, which shall

come into force for

each Member when accepted by it in accordance with its constitutional


processes.

Article 20. Each Member undertakes that it will, within eighteen months after
the adoption by the

Health Assembly of a convention or agreement, take action relative to the


acceptance of such

convention or agreement. Each Member shall notify the Director-General of the


action taken, and if it

does not accept such convention or agreement within the time limit, it will
furnish a statement of the

reasons for non-acceptance. In case of acceptance, each Member agrees to


make an annual report to

the Director-General in accordance with Chapter XIV.

Article 21. The Health Assembly shall have authority to adopt regulations
concerning: (a) sanitary and

quarantine requirements and other procedures designed to prevent the


international spread of disease;

(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,

purity and potency of biological, pharmaceutical and similar products moving in


international commerce;

(e) advertising and labeling of biological, pharmaceutical and similar products


moving in international

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

the Director-General of rejection or reservations within the period stated in the


notice. (Emphasis

supplied)

On the other hand, under Article 23, recommendations of the WHA do not come
into force for members,

in the same way that conventions or agreements under Article 19 and


regulations under Article 21 come into

force. Article 23 of the WHO Constitution reads:

Article 23. The Health Assembly shall have authority to make recommendations
to Members with

respect to any matter within the competence of the Organization. (Emphasis


supplied)

The absence of a provision in Article 23 of any mechanism by which the

recommendation would come into

force for member states is conspicuous.

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

collective membership of the highest international body in the field of


health."29 Even the ICMBS itself was

adopted as a mere recommendation, as WHA Resolution No. 34.22 states:

"The Thirty-Fourth World Health Assembly x x x adopts, in the sense of Article


23 of the

Constitution, the International Code of Marketing of Breastmilk Substitutes


annexed to the present

resolution." (Emphasis supplied)

The Introduction to the ICMBS also reads as follows:

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

recommendation rather than a regulation. x x x (Emphasis supplied)

The legal value of WHA Resolutions as recommendations is summarized in


Article 62 of the WHO

Constitution, to wit:

Art. 62. Each member shall report annually on the action taken with respect to
recommendations made

to it by the Organization, and with respect to conventions, agreements and


regulations.

Apparently, the WHA Resolution adopting the ICMBS and subsequent WHA
Resolutions urging member states

to implement the ICMBS are merely recommendatory and legally non-binding.


Thus, unlike what has been

done with the ICMBS whereby the legislature enacted most of the provisions
into law which is the Milk

Code, the subsequent WHA Resolutions,30 specifically providing for exclusive


breastfeeding from 0-6

months, continued breastfeeding up to 24 months, and absolutely prohibiting


advertisements and

promotions of breastmilk substitutes, have not been adopted as a domestic


law.

It is propounded that WHA Resolutions may constitute "soft law" or nonbinding norms, principles and practices

that influence state behavior.31

"Soft law" does not fall into any of the categories of international law set forth
in Article 38, Chapter III of the

1946 Statute of the International Court of Justice.32 It is, however, an


expression of non-binding norms,

principles, and practices that influence state behavior.33 Certain declarations


and resolutions of the UN General

Assembly fall under this category.34 The most notable is the UN Declaration of
Human Rights, which this Court

has enforced in various cases, specifically, Government of Hongkong Special


Administrative Region v. Olalia,35

Mejoff v. Director of Prisons,36 Mijares


International Hotel Management, Ltd. v.

v.

Raada37

and

Shangri-la

Developers Group of Companies, Inc..38

The World Intellectual Property Organization (WIPO), a specialized agency


attached to the UN with the

mandate to promote and protect intellectual property worldwide, has resorted


to soft law as a rapid means of

norm creation, in order "to reflect and respond to the changing needs and
demands of its constituents."39 Other

international organizations which have resorted to soft law include the


International Labor Organization and the

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

(SARS) and Avian flu outbreaks.

Although the IHR Resolution does not create new international law binding on
WHO member

states, it provides an excellent example of the power of "soft law" in


international relations.

International lawyers
law-"hard law"-from

typically

distinguish

binding

rules

of

international

non-binding norms, principles, and practices that influence state behavior-"soft


law." WHO has

during its existence generated many soft law norms, creating a "soft law
regime" in

international governance for public health.

The "soft law" SARS and IHR Resolutions represent significant steps in laying
the political groundwork

for improved international cooperation


resolutions clearly define WHO

on

infectious

diseases.

These

member states' normative duty to cooperate fully with other countries and with
WHO in connection with

infectious disease surveillance and response to outbreaks.

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

in, and enhancing, international cooperation on infectious disease controls is in


a country's self-interest

x x x if this warning is heeded, the "soft law" in the SARS and IHR Resolution
could inform the

development of general and consistent state practice on infectious disease


surveillance and outbreak

response, perhaps crystallizing eventually into customary international law on


infectious disease

prevention and control.41

In the Philippines, the executive department implemented certain measures


recommended by WHO to address

the outbreaks of SARS and Avian flu by issuing Executive Order (E.O.) No. 201
on April 26, 2003 and E.O. No.

280 on February 2, 2004, delegating to various departments broad powers to


close down

schools/establishments, conduct health surveillance and monitoring, and ban


importation of poultry and

agricultural products.

It must be emphasized that even under such an international emergency, the


duty of a state to implement the

IHR Resolution was still considered not binding or enforceable, although said
resolutions had great political

influence.

As previously discussed, for an international rule to be considered as


customary law, it must be established

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

signed by most of the member states, were in fact enforced or practiced by at


least a majority of the member

states; neither have respondents proven that any compliance by member


states with said WHA Resolutions

was obligatory in nature.

Respondents failed to establish that


Resolutions are customary international

the

provisions

of

pertinent

WHA

law that may be deemed part of the law of the land.

Consequently, legislation is necessary to transform the provisions of the WHA


Resolutions into domestic law.

The provisions of the WHA Resolutions cannot be considered as part of the law
of the land that can be

implemented by executive agencies without the need of a law enacted by the


legislature.

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.

Section 3, Chapter 1, Title IX of the Revised Administrative Code of 1987


provides that the DOH shall define

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

established health policies.

It is crucial to ascertain whether the absolute prohibition on advertising and


other forms of promotion of

breastmilk substitutes provided in some WHA Resolutions has been adopted as


part of the national health

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)

ideal breastfeeding practices, such as early initiation of breastfeeding,


exclusive breastfeeding for the first six

months, extended breastfeeding up to two years and beyond; (2) appropriate


complementary feeding, which is

to start at age six months; (3) micronutrient supplementation; (4) universal


salt iodization; (5) the exercise of

other feeding options; and (6) feeding in exceptionally difficult circumstances.


Indeed, the primacy of

breastfeeding for children is emphasized as a national health policy. However,


nowhere in A.O. No. 2005-

0014 is it declared that as part of such health policy, the advertisement or


promotion of breastmilk

substitutes should be absolutely prohibited.

The national policy of protection, promotion and support of breastfeeding


cannot automatically be equated with

a total ban on advertising for breastmilk substitutes.

In view of the enactment of the Milk Code which does not contain a total ban on
the advertising and promotion

of breastmilk substitutes, but instead, specifically creates an IAC which will


regulate said advertising and

promotion, it follows that a total ban policy could be implemented only


pursuant to a law amending the Milk

Code passed by the constitutionally authorized branch of government, the


legislature.

Thus, only the provisions of the Milk Code, but not those of subsequent WHA
Resolutions, can be validly

implemented by the DOH through the subject RIRR.

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:

MILK CODE RIRR

WHEREAS, in order to ensure that safe and

adequate nutrition for infants is provided,

there is a need to protect and promote

breastfeeding and to inform the public about

the proper use of breastmilk substitutes and

supplements and related products through

adequate, consistent and objective

information and appropriate regulation of the

marketing and distribution of the said

substitutes, supplements and related

products;

SECTION 4(e). "Infant" means a person

falling within the age bracket of 0-12 months.

Section 2. Purpose These Revised Rules

and Regulations are hereby promulgated to

ensure the provision of safe and adequate

nutrition for infants and young children by

the promotion, protection and support of

breastfeeding and by ensuring the proper

use of breastmilk substitutes, breastmilk

supplements and related products when

these are medically indicated and only when

necessary, on the basis of adequate

information and through appropriate

marketing and distribution.

Section 5(ff). "Young Child" means a

person from the age of more than twelve

(12) months up to the age of three (3) years

(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

declares that "there is no substitute nor replacement for breastmilk":

MILK CODE RIRR

WHEREAS, in order to ensure that safe and

adequate nutrition for infants is provided,

there is a need to protect and promote

breastfeeding and to inform the public about

the proper use of breastmilk substitutes and

supplements and related products through

Section 4. Declaration of Principles The

following are the underlying principles from

which the revised rules and regulations are

premised upon:

a. Exclusive breastfeeding is for infants from

adequate, consistent and objective

information and appropriate regulation of the

marketing and distribution of the said

substitutes, supplements and related

products;

3. The Milk Code only regulates


requirements for advertising and

and

does

not

impose

unreasonable

promotion; RIRR imposes an absolute ban on such activities for breastmilk


substitutes intended for

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:

MILK CODE RIRR

SECTION 6. The General Public and

Mothers.

(a) No advertising, promotion or other

marketing materials, whether written, audio

or visual, for products within the scope of

this Code shall be printed, published,

distributed, exhibited and broadcast unless

such materials are duly authorized and

approved by an inter-agency committee

created herein pursuant to the applicable

standards provided for in this Code.

0 to six (6) months.

b. There is no substitute or replacement for

breastmilk.

Section 4. Declaration of Principles The

following are the underlying principles from

which the revised rules and regulations are

premised upon:

xxxx

f. Advertising, promotions, or sponsor-ships

of infant formula, breastmilk substitutes and

other related products are prohibited.

Section 11. Prohibition No advertising,

promotions, sponsorships, or marketing

materials and activities for breastmilk

substitutes intended for infants and young

children up to twenty-four (24) months, shall

be allowed, because they tend to convey or

give subliminal messages or impressions

that undermine breastmilk and breastfeeding

or otherwise exaggerate breastmilk

substitutes and/or replacements, as well as

related products covered within the scope of

this Code.

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 in the

advertising concept. It must not in any case

undermine breastmilk or breastfeeding. The

"total effect" should not directly or indirectly

suggest that buying their product would

produce better individuals, or resulting in

greater love, intelligence, ability, harmony or

in any manner bring better health to the

baby or other such exaggerated and

unsubstantiated claim.

Section 15. Content of Materials. - The

following shall not be included in advertising,

promotional and marketing materials:

a. Texts, pictures, illustrations or information

which discourage or tend to undermine the

benefits or superiority of breastfeeding or

which idealize the use of breastmilk

substitutes and milk supplements. In this

connection, no pictures of babies and

children together with their mothers, fathers,

siblings, grandparents, other relatives or

caregivers (or yayas) shall be used in any

advertisements for infant formula and

breastmilk supplements;

b. The term "humanized," "maternalized,"

"close to mother's milk" or similar words in

describing breastmilk substitutes or milk

supplements;

c. Pictures or texts that idealize the use of

infant and milk formula.

Section 16. All health and nutrition claims

for products within the scope of the Code

are absolutely prohibited. For this purpose,

any phrase or words that connotes to

increase emotional, intellectual abilities of

the infant and young child and other like

phrases shall not be allowed.

4. The RIRR imposes additional labeling requirements not found in the Milk
Code:

MILK CODE RIRR

SECTION 10. Containers/Label.

(a) Containers and/or labels shall be

designed to provide the necessary

information about the appropriate use of the

products, and in such a way as not to

discourage breastfeeding.

(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, and which shall include the following

points:

(i) the words "Important Notice" or their

equivalent;

(ii) a statement of the superiority of

breastfeeding;

(iii) a statement that the product shall be

Section 26. Content Each container/label

shall contain such message, in both Filipino

and English languages, and which message

cannot be readily separated therefrom,

relative the following points:

(a) The words or phrase "Important Notice"

or "Government Warning" or their

equivalent;

(b) A statement of the superiority of

breastfeeding;

(c) A statement that there is no substitute for

breastmilk;

(d) 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;

(e) Instructions for appropriate prepara-tion,

and a warning against the health hazards of

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.

inappropriate preparation; and

(f) The health hazards of unnecessary or

improper use of infant formula and other

related products including information that

powdered infant formula may contain

pathogenic microorganisms and must be

prepared and used appropriately.

5. The Milk Code allows dissemination of information on infant formula to


health professionals; the

RIRR totally prohibits such activity:

MILK CODE RIRR

SECTION 7. Health Care System.

(b) No facility of the health care system shall

be used for the purpose of promoting infant

formula or other products within the scope of

this Code. This Code does not, however,

preclude the dissemination of information to

health professionals as provided in Section

8(b).

SECTION 8. Health Workers. -

(b) Information provided by manufacturers

and distributors to health professionals

regarding products 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 also include the

information specified in Section 5(b).

6. The Milk Code permits milk manufacturers and distributors to extend


assistance in research and

continuing education of health professionals; RIRR absolutely forbids the same.

MILK CODE RIRR

SECTION 8. Health Workers

(e) Manufacturers and distributors of

products within the scope of this Code may

assist in the research, scholarships and

continuing education, of health

professionals, in accordance with the rules

and regulations promulgated by the Ministry

of Health.

Section 22. No manufacturer, distributor, or

representatives of products covered by the

Code shall be allowed to conduct or be

involved in any activity on breastfeeding

promotion, education and production of

Information, Education and Communication

(IEC) materials on breastfeeding, holding of

or participating as speakers in classes or

seminars for women and children activities

and to avoid the use of these venues to

market their brands or company names.

SECTION 16. All health and nutrition claims

for products within the scope of the Code

are absolutely prohibited. For this purpose,

any phrase or words that connotes to

increase emotional, intellectual abilities of

the infant and young child and other like

phrases shall not be allowed.

Section 4. Declaration of Principles

The following are the underlying principles

from which the revised rules and regulations

are premised upon:

i. Milk companies, and their representatives,

should not form part of any policymaking

body or entity in relation to the advancement

of breasfeeding.

SECTION 22. No manufacturer, distributor,

or representatives of products covered by

the Code shall be allowed to conduct or be

involved in any activity on breastfeeding

promotion, education and production of

Information, Education and Communication

(IEC) materials on breastfeeding, holding of

or participating as speakers in classes or

seminars for women and children activities

and to avoid the use of these venues to

market their brands or company names.

SECTION 32. Primary Responsibility of

Health Workers - It is the primary

responsibility of the health workers to

promote, protect and support breastfeeding

and appropriate infant and young child

feeding. Part of this responsibility is to

continuously update their knowledge and

skills on breastfeeding. No assistance,

support, logistics or training from milk

companies shall be permitted.

7. The Milk Code regulates the giving of donations; RIRR absolutely prohibits it.

MILK CODE RIRR

SECTION 6. The General Public and

Mothers.

(f) Nothing herein contained shall prevent

donations from manufacturers and

distributors of products within the scope of

this Code upon request by or with the

approval of the Ministry of Health.

Section 51. Donations Within the Scope

of This Code - Donations of products,

materials, defined and covered under the

Milk Code and these implementing rules and

regulations, shall be strictly prohibited.

Section 52. Other Donations By Milk

Companies Not Covered by this Code. -

Donations of products, equipments, and the

like, not otherwise falling within the scope of

this Code or these Rules, given by milk

companies and their agents,

representatives, whether in kind or in cash,

may only be coursed through the Inter

Agency Committee (IAC), which shall

determine whether such donation be

accepted or otherwise.

8. The RIRR provides for administrative sanctions not imposed by the Milk
Code.

MILK CODE RIRR

Section 46. Administrative Sanctions.

The following administrative sanctions shall

be imposed upon any person, juridical or

natural, found to have violated the

provisions of the Code and its implementing

Rules and Regulations:

a) 1st violation Warning;

b) 2nd violation Administrative fine of a

minimum of Ten Thousand (P10,000.00) to

Fifty Thousand (P50,000.00) Pesos,

depending on the gravity and extent of the

violation, including the recall of the offending

product;

c) 3rd violation Administrative Fine of a

minimum of Sixty Thousand (P60,000.00) to

One Hundred Fifty Thousand (P150,000.00)

Pesos, depending on the gravity and extent

of the violation, and in addition thereto, the

recall of the offending product, and

suspension of the Certificate of Product

Registration (CPR);

d) 4th violation Administrative Fine of a

minimum of Two Hundred Thousand

(P200,000.00) to Five Hundred

(P500,000.00) Thousand Pesos, depending

on the gravity and extent of the violation;

and in addition thereto, the recall of the

product, revocation of the CPR, suspension

of the License to Operate (LTO) for one

year;

e) 5th and succeeding repeated violations

Administrative Fine of One Million

(P1,000,000.00) Pesos, the recall of the

offending product, cancellation of the CPR,

revocation of the License to Operate (LTO)

of the company concerned, including the

blacklisting of the company to be furnished

the Department of Budget and Management

(DBM) and the Department of Trade and

Industry (DTI);

f) An additional penalty of Two Thou-sand

Five Hundred (P2,500.00) Pesos per day

shall be made for every day the violation

continues after having received the order

from the IAC or other such appropriate body,

notifying and penalizing the company for the

infraction.

For purposes of determining whether or not

there is "repeated" violation, each product

violation belonging or owned by a company,

including those of their subsidiaries, are

deemed to be violations of the concerned

milk company and shall not be based on the

specific violating product alone.

9. The RIRR provides for repeal of existing laws to the contrary.

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 of the Milk Code states:

SECTION 3. Scope of the Code The Code applies to the marketing, and
practices related thereto, of

the following products: breastmilk substitutes, including infant formula; other


milk products, foods and

beverages, including bottle-fed complementary foods, when marketed or


otherwise represented to be

suitable, with or without modification, for use as a partial or total replacement


of breastmilk; feeding

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

substitute as separate and distinct product categories.

Section 4(h) of the Milk Code defines infant formula as "a breastmilk substitute
x x x to satisfy the normal

nutritional requirements of infants up to between four to six months of age,


and adapted to their physiological

characteristics"; while under Section 4(b), bottle-fed complementary food


refers to "any food, whether

manufactured or locally prepared, suitable as a complement to breastmilk or


infant formula, when either

becomes insufficient to satisfy the nutritional requirements of the infant." An


infant under Section 4(e) is a

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.

But there is another target group. Breastmilk substitute is defined under


Section 4(a) as "any food being

marketed or otherwise presented as a partial or total replacement for


breastmilk, whether or not suitable for

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.

Therefore, by regulating breastmilk substitutes, the Milk Code also intends to


protect and promote the

nourishment of children more than 12 months old.

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

breastmilk substitutes may be a proper and possible substitute for breastmilk.

The entirety of the RIRR, not merely truncated portions thereof, must be
considered and construed together.

As held in De Luna v. Pascual,44 "[t]he particular words, clauses and phrases in


the Rule should not be studied

as detached and isolated expressions, but the whole and every part thereof
must be considered in fixing the

meaning of any of its parts and in order to produce a harmonious whole."

Section 7 of the RIRR provides that "when medically indicated and only when
necessary, the use of

breastmilk substitutes is proper if


information." Section 8 of the RIRR also

based

on

complete

and

updated

states that information and educational materials should include information

on the proper use of infant formula

when the use thereof is needed.

Hence, the RIRR, just like the Milk Code, also recognizes that in certain cases,
the use of breastmilk

substitutes may be proper.

3. The Court shall ascertain the merits of allegations 345 and 446 together as
they are interlinked with each

other.

To resolve the question of whether the labeling requirements and advertising


regulations under the RIRR are

valid, it is important to deal first with the nature, purpose, and depth of the
regulatory powers of the DOH, as

defined in general under the 1987 Administrative Code,47 and as delegated in


particular under the Milk Code.

Health is a legitimate subject matter for regulation by the DOH (and certain
other administrative agencies) in

exercise of police powers delegated to it. The sheer span of jurisprudence on


that matter precludes the need to

further discuss it..48 However, health information, particularly advertising


materials on apparently non-toxic

products like breastmilk substitutes and supplements, is a relatively new area


for regulation by the DOH.49

As early as the 1917 Revised Administrative Code of the Philippine Islands,50


health information was already

within the ambit of the regulatory powers of the predecessor of DOH.51


Section 938 thereof charged it with the

duty to protect the health of the people, and vested it with such powers as "(g)
the dissemination of hygienic

information among the people and especially the inculcation of knowledge as


to the proper care of

infants and the methods


communicable diseases."

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

Section 3 of the Administrative Code the power to "(6) propagate health


information and educate the

population on important health, medical and environmental matters which


have health implications."53

When it comes to information regarding nutrition of infants and young


children, however, the Milk Code

specifically delegated to the Ministry of Health (hereinafter referred to as DOH)

the power to ensure that there

is adequate, consistent and objective information on breastfeeding and use of


breastmilk substitutes,

supplements and related products; and the power to control such information.
These are expressly provided

for in Sections 12 and 5(a), to wit:

SECTION 12. Implementation and Monitoring

xxxx

(b) The Ministry of Health shall be


implementation and enforcement of the

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

of this Code and the accomplishment of its purposes and objectives.

xxxx

(4) To exercise such other powers and functions as may be necessary for or
incidental to the

attainment of the purposes and objectives of this Code.

SECTION 5. Information and Education

(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

infant nutrition. (Emphasis supplied)

Further, DOH is authorized by the Milk Code to control the content of any
information on breastmilk vis--vis

breastmilk substitutes, supplement and related products, in the following


manner:

SECTION 5. x x x

(b) Informational and educational materials, whether written, audio, or visual,


dealing with the feeding of

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)

where needed, the proper use of infant formula, whether manufactured


industrially or home-prepared.

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

methods; and, in particular, the health hazards of unnecessary or improper use


of infant

formula and other breastmilk substitutes. Such materials shall not use any
picture or text which

may idealize the use of breastmilk substitutes.

SECTION 8. Health Workers

xxxx

(b) Information provided by manufacturers


professionals regarding products

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 bottlefeeding is equivalent or


superior to

breastfeeding. It shall also include the information specified in Section 5(b).

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary


information about the

appropriate use of the products, and in such a way as not to discourage


breastfeeding.

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

pregnant women, mothers of infants, and health professionals and workers in


the health care system is

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

breastmilk vis-a-vis breastmilk substitutes is not absolute as the power to


control does not encompass the

power to absolutely prohibit the advertising, marketing, and promotion of


breastmilk substitutes.

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:

a) Section 2 which requires adequate information and appropriate marketing


and distribution of

breastmilk substitutes, to wit:

SECTION 2. Aim of the Code The aim of the Code is to contribute to the
provision of safe and

adequate nutrition for infants


breastfeeding and by ensuring

by

the

protection

and

promotion

of

the proper use of breastmilk substitutes and breastmilk supplements when


these are necessary,

on the basis of adequate information and through appropriate marketing and


distribution.

b) Section 3 which specifically states that the Code applies to the marketing of
and practices related to

breastmilk substitutes, including infant formula, and to information concerning


their use;

c) Section 5(a) which provides that the government shall ensure that objective
and consistent

information is provided on infant feeding;

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

information on the health hazards of unnecessary or improper use of said


product;

e) Section 6(a) in relation to Section 12(a) which creates and empowers the IAC
to review and examine

advertising, promotion, and other marketing materials;

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

belief that bottlefeeding is equivalent or superior to breastfeeding; and

g) Section 10 which provides that containers or labels should not contain


information that would

discourage breastfeeding and idealize the use of infant formula.

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:

a) that there be a statement that there is no substitute to breastmilk; and b)


that there be a statement that

powdered infant formula may contain pathogenic microorganisms and must be


prepared and used

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.

These requirements and limitations are consistent with the provisions of


Section 8 of the Milk Code, to wit:

SECTION 8. Health workers -

xxxx

(b) Information provided by manufacturers


professionals regarding products

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 bottlefeeding is equivalent or


superior to

breastfeeding. It shall also include the information specified in Section 5.58

(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

any milk product equivalent to breastmilk


maternalized, as such information would be

or

which

is

humanized

or

inconsistent with the superiority of breastfeeding.

It may be argued that Section 8 of the Milk Code refers only to information
given to health workers regarding

breastmilk substitutes, not to containers and labels thereof. However, such


restrictive application of Section

8(b) will result in the absurd situation in which milk companies and distributors
are forbidden to claim to health

workers that their products are substitutes or equivalents of breastmilk, and


yet be allowed to display on the

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

breastmilk vis-a-vis breastmilk substitutes be consistent, at the same time

giving the government control over

planning, provision, design, and dissemination of information on infant


feeding.

Thus, Section 26(c) of the RIRR which requires containers and labels to state
that the product offered is not a

substitute for breastmilk, is a reasonable means of enforcing Section 8(b) of


the Milk Code and deterring

circumvention of the protection and promotion of breastfeeding as embodied in


Section 260 of the Milk Code.

Section 26(f)61 of the RIRR is an equally reasonable labeling requirement. It


implements Section 5(b) of the

Milk Code which reads:

SECTION 5. x x x

xxxx

(b) Informational and educational materials, whether written, audio, or visual,


dealing with the feeding of

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

manufactured industrially or home-prepared. 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 methods; and, in particular, the health hazards


of unnecessary

or improper use of infant formula and other breastmilk substitutes. Such


materials shall not use

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

breastmilk substitutes are mothers of infants, and Section 26 of the RIRR


merely adds a fair warning about the

likelihood of pathogenic microorganisms being present in infant formula and


other related products when these

are prepared and used inappropriately.

Petitioners counsel has admitted during the hearing on June 19, 2007 that
formula milk is prone to

contaminations and there is as yet no technology that allows production of


powdered infant formula that

eliminates all forms of contamination.62

Ineluctably, the requirement under Section 26(f) of the RIRR for the label to
contain the message regarding

health hazards including the possibility of contamination with pathogenic


microorganisms is in accordance with

Section 5(b) of the Milk Code.

The authority of DOH to control information regarding breastmilk vis-a-vis


breastmilk substitutes and

supplements and related products cannot be questioned. It is its intervention


into the area of advertising,

promotion, and marketing that is being assailed by petitioner.

In furtherance of Section 6(a) of the Milk Code, to wit:

SECTION 6. The General Public and Mothers.

(a) No advertising, promotion or other marketing materials, whether written,


audio or visual, for products

within the scope of this Code shall be printed, published, distributed, exhibited
and broadcast unless

such materials are duly authorized and approved by an inter-agency committee


created herein

pursuant to the applicable standards provided for in this Code.

the Milk Code invested regulatory authority over advertising, promotional and
marketing materials to an IAC,

thus:

SECTION 12. Implementation and Monitoring -

(a) For purposes of Section 6(a) of this Code, an inter-agency committee


composed of the following

members is hereby created:

Minister of Health ------------------- Chairman

Minister of Trade and Industry ------------------- Member

Minister of Justice ------------------- Member

Minister of Social Services and Development ------------------- Member

The members may designate their duly authorized representative to every


meeting of the Committee.

The Committee shall have the following powers and functions:

(1) To review and examine all advertising. promotion or other marketing


materials, whether

written, audio or visual, on products within the scope of this Code;

(2) To approve or disapprove, delete objectionable portions from and prohibit


the printing,

publication, distribution, exhibition and broadcast of, all advertising promotion


or other marketing

materials, whether written, audio or visual, on products within the scope of


this Code;

(3) To prescribe the internal and operational procedure for the exercise of its
powers and

functions as well as the performance of its duties and responsibilities; and

(4) To promulgate such rules and regulations as are necessary or proper for the

implementation of Section 6(a) of this Code. x x x (Emphasis supplied)

However, Section 11 of the RIRR, to wit:

SECTION 11. Prohibition No advertising, promotions, sponsorships, or


marketing materials and

activities for breastmilk substitutes intended for infants and young children up
to twenty-four (24)

months, shall be allowed, because they tend to convey or give subliminal


messages or impressions that

undermine breastmilk and breastfeeding or otherwise exaggerate breastmilk


substitutes and/or

replacements, as well as related products covered within the scope of this


Code.

prohibits advertising, promotions, sponsorships or marketing materials and


activities for breastmilk substitutes

in line with the RIRRs declaration of principle under Section 4(f), to wit:

SECTION 4. Declaration of Principles

xxxx

(f) Advertising, promotions, or sponsorships of infant formula, breastmilk


substitutes and other related

products are prohibited.

The DOH, through its co-respondents, evidently arrogated to itself not only the
regulatory authority given to the

IAC but also imposed absolute prohibition on advertising, promotion, and


marketing.

Yet, oddly enough, Section 12 of the RIRR reiterated the requirement of the
Milk Code in Section 6 thereof for

prior approval by IAC of all advertising, marketing and promotional materials


prior to dissemination.

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:

SOLICITOR GENERAL DEVANADERA:

xxxx

x x x Now, the crux of the matter that is being questioned by Petitioner is

whether or not there is an

absolute prohibition on advertising making AO 2006-12 unconstitutional. We


maintained that what AO

2006-12 provides is not an absolute prohibition because Section 11 while it


states and it is entitled

prohibition it states that no advertising, promotion, sponsorship or marketing


materials and activities for

breast milk substitutes intended for infants and young children up to 24


months shall be allowed

because this is the standard they tend to convey or give subliminal messages
or impression undermine

that breastmilk or breastfeeding x x x.

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

and promotion materials.

xxxx

What AO 2006-12, what it does, it does not prohibit the sale and manufacture,
it simply regulates the

advertisement and the promotions of breastfeeding milk substitutes.

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

dissemination that are straight forward information dissemination. What the


AO 2006 is trying to prevent

is any material that will undermine the practice of breastfeeding, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

Madam Solicitor General, under the Milk Code, which body has authority or
power to promulgate Rules

and Regulations regarding the Advertising, Promotion and Marketing of


Breastmilk Substitutes?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, it is provided that the Inter-Agency Committee, Your Honor.

xxxx

ASSOCIATE JUSTICE SANTIAGO:

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

content of materials under Section 13 and 15 of the rules and regulations?

SOLICITOR GENERAL DEVANADERA:

Your Honor, please, first we would like to stress that there is no total absolute
ban. Second, the Inter-

Agency Committee is under the Department of Health, Your Honor.

xxxx

ASSOCIATE JUSTICE NAZARIO:

x x x Did I hear you correctly, Madam Solicitor, that there is no absolute ban on
advertising of

breastmilk substitutes in the Revised Rules?

SOLICITOR GENERAL DEVANADERA:

Yes, your Honor.

ASSOCIATE JUSTICE NAZARIO:

But, would you nevertheless agree that there is an absolute ban on advertising
of breastmilk substitutes

intended for children two (2) years old and younger?

SOLICITOR GENERAL DEVANADERA:

It's not an absolute ban, Your Honor, because we have the Inter-Agency
Committee that can evaluate

some advertising and promotional materials, subject to the standards that we


have stated earlier, which

are- they should not undermine breastfeeding, Your Honor.

xxxx

x x x Section 11, while it is titled Prohibition, it must be taken in relation with


the other Sections,

particularly 12 and 13 and 15, Your Honor, because it is recognized that the
Inter-Agency Committee

has that power to evaluate promotional materials, Your Honor.

ASSOCIATE JUSTICE NAZARIO:

So in short, will you please clarify there's no absolute ban on advertisement


regarding milk substitute

regarding infants two (2) years below?

SOLICITOR GENERAL DEVANADERA:

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

and promotions will not undermine breastmilk and breastfeeding, Your


Honor.63

Sections 11 and 4(f) of the RIRR are clearly violative of the Milk Code.

However, although it is the IAC which is authorized to promulgate rules and


regulations for the approval or

rejection of advertising, promotional, or other marketing materials under


Section 12(a) of the Milk Code, said

provision must be related to Section 6 thereof which in turn provides that the
rules and regulations must be

"pursuant to the applicable standards provided for in this Code." Said


standards are set forth in Sections 5(b),

8(b), and 10 of the Code, which, at the risk of being repetitious, and for easy
reference, are quoted hereunder:

SECTION 5. Information and Education

xxxx

(b) Informational and educational materials, whether written, audio, or visual,


dealing with the feeding of

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)

where needed, the proper use of infant formula, whether manufactured


industrially or home-prepared.

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,

in particular, the health hazards of unnecessary or improper use of infant


formula and other breastmilk

substitutes. Such materials shall not use any picture or text which may idealize
the use of breastmilk

substitutes.

xxxx

SECTION 8. Health Workers.

xxxx

(b) Information provided by manufacturers


professionals regarding products

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

also include the information specified in Section 5(b).

xxxx

SECTION 10. Containers/Label

(a) Containers and/or labels shall be designed to provide the necessary


information about the

appropriate use of the products, and in such a way as not to discourage


breastfeeding.

(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,

and which shall include the following points:

(i) the words "Important Notice" or their equivalent;

(ii) a statement of the superiority of breastfeeding;

(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.

Section 12(b) of the Milk Code designates


implementing agency for the enforcement

the

DOH

as

the

principal

of the provisions of the Code. In relation to such responsibility of the DOH,


Section 5(a) of the Milk Code states

that:

SECTION 5. Information and Education

(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

infant nutrition. (Emphasis supplied)

Thus, the DOH has the significant responsibility to translate into operational

terms the standards set

forth in Sections 5, 8, and 10 of the Milk Code, by which the IAC shall screen
advertising, promotional,

or other marketing materials.

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 in the advertising concept. It must not in any case undermine


breastmilk or

breastfeeding. The "total effect" should not directly or indirectly suggest that
buying their product would

produce better individuals, or resulting in greater love, intelligence, ability,


harmony or in any manner

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,

promotional and marketing materials


substitutes, supplements and other

on

breastmilk

vis-a-vis

breastmilk

related products. It also sets a viable standard against which the IAC may
screen such materials before they

are made public.

In Equi-Asia Placement, Inc. vs. Department of Foreign Affairs,64 the Court


held:

x x x [T]his Court had, in the past, accepted as sufficient standards the


following: "public interest,"

"justice and equity," "public convenience


economy and welfare."65

and

welfare," and

"simplicity,

In this case, correct information as to infant feeding and nutrition is infused


with public interest and welfare.

4. With regard to activities for dissemination of information to health


professionals, the Court also finds that

there is no inconsistency between the provisions of the Milk Code and the
RIRR. Section 7(b)66 of the Milk

Code, in relation to Section 8(b)67 of the same Code, allows dissemination of


information to health

professionals but such information is restricted to scientific and factual


matters.

Contrary to petitioner's claim, Section 22 of the RIRR does not prohibit the
giving of information to health

professionals on scientific and factual matters. What it prohibits is the


involvement of the manufacturer and

distributor of the products covered by the Code in activities for the promotion,
education and production of

Information, Education and Communication


breastfeeding that are intended for

(IEC)

materials

regarding

women and children. Said provision cannot be construed to encompass even


the dissemination of

information to health professionals, as restricted by the Milk Code.

5. Next, petitioner alleges that Section 8(e)68 of the Milk Code permits milk
manufacturers and distributors to

extend assistance in research and in the continuing education of health


professionals, while Sections 22 and

32 of the RIRR absolutely forbid the same. Petitioner also assails Section 4(i)69
of the RIRR prohibiting milk

manufacturers' and distributors' participation in any policymaking body in


relation to the advancement of

breastfeeding.

Section 4(i) of the RIRR provides that milk companies and their representatives
should not form part of any

policymaking body or entity in relation to the advancement of breastfeeding.


The Court finds nothing in said

provisions which contravenes the Milk Code. Note that under Section 12(b) of
the Milk Code, it is the DOH

which shall be principally responsible for the implementation and enforcement


of the provisions of said

Code. It is entirely up to the DOH to decide which entities to call upon or allow
to be part of policymaking

bodies on breastfeeding. Therefore, the RIRR's prohibition on milk companies


participation in any

policymaking body in relation to the advancement of breastfeeding is in accord


with the Milk Code.

Petitioner is also mistaken in arguing that Section 22 of the RIRR prohibits milk
companies from giving

reasearch assistance and continuing education to health professionals. Section


2270 of the RIRR does not

pertain to research assistance to or the continuing education of health


professionals; rather, it deals

with breastfeeding promotion and education for women and children. Nothing
in Section 22 of the RIRR

prohibits milk companies from giving assistance for research or continuing


education to health professionals;

hence, petitioner's argument against this particular provision must be struck


down.

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

ethics committee, and with certain disclosure requirements imposed on the


milk company and on the

recipient of the research award.

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

by milk companies are completely in accord with the Milk Code.

Petitioner complains that Section 3273 of the RIRR prohibits milk companies
from giving assistance, support,

logistics or training to health workers. This provision is within the prerogative


given to the DOH under Section

8(e)74 of the Milk Code, which provides that manufacturers and distributors of
breastmilk substitutes may assist

in researches, scholarships and the continuing


professionals in accordance with the rules

education,

of

health

and regulations promulgated by the Ministry of Health, now DOH.

6. As to the RIRR's prohibition on donations, said provisions are also consistent


with the Milk Code. Section

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

donation should be accepted or refused. As reasoned out by respondents, the


DOH is not mandated by the

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

DOH from refusing donations.

7. With regard to Section 46 of the RIRR providing for administrative sanctions


that are not found in the Milk

Code, the Court upholds petitioner's objection thereto.

Respondent's reliance on Civil Aeronautics Board v. Philippine Air Lines, Inc.76


is misplaced. The glaring

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.

In a more recent case, Perez v. LPG Refillers Association of the Philippines,


Inc.,77 the Court upheld the

Department of Energy (DOE) Circular No. 2000-06-10 implementing Batas


Pambansa (B.P.) Blg. 33. The

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:

SECTION 13. Sanctions

(a) Any person who violates the provisions of this Code or the rules and
regulations issued

pursuant to this Code shall, upon conviction, be punished by a penalty of two


(2) months to one (1)

year imprisonment or a fine of not less than One Thousand Pesos (P1,000.00)
nor more than Thirty

Thousand Pesos (P30,000.00) or both. Should the offense be committed by a


juridical person, the

chairman of the Board of Directors, the president, general manager, or the


partners and/or the persons

directly responsible therefor, shall be penalized.

(b) Any license, permit or authority issued by any government agency to any
health worker, distributor,

manufacturer, or marketing firm or personnel for the practice of their


profession or occupation, or for the

pursuit of their business, may, upon recommendation of the Ministry of Health,


be suspended or

revoked in the event of repeated violations of this Code, or of the rules and
regulations issued pursuant

to this Code. (Emphasis supplied)

8. Petitioners claim that Section 57 of the RIRR repeals existing laws that are

contrary to the RIRR is frivolous.

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

regulations. Thus, said provision is valid as it is within the DOH's rule-making


power.

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

statute and the Constitution, and subject to the doctrine of non-delegability


and separability of powers.78 Such

express grant of rule-making power necessarily includes the power to amend,


revise, alter, or repeal the

same.79 This is to allow administrative agencies flexibility in formulating and


adjusting the details and manner by

which they are to implement the provisions of a law,80 in order to make it more

responsive to the times. Hence,

it is a standard provision in administrative rules that prior issuances of


administrative agencies that are

inconsistent therewith are declared repealed or modified.

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

consonance with the Milk Code.

Lastly, petitioner makes a "catch-all" allegation that:

x x x [T]he questioned RIRR sought to be implemented by the Respondents is


unnecessary and

oppressive, and is offensive to the due process clause of the Constitution,


insofar as the same

is in restraint of trade and because a provision therein is inadequate to provide


the public with a

comprehensible basis to determine whether or not they have committed a


violation.81 (Emphasis

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

Philippines v. Fertilizer and Pesticide Authority,91 it was held thus:

x x x Furthermore, as held in Association of Philippine Coconut Desiccators v.


Philippine Coconut

Authority, despite the fact that "our present Constitution enshrines free
enterprise as a policy, it

nonetheless reserves to the government the power to intervene whenever


necessary to promote

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

enterprise does not call for removal of protective regulations." x x x It must


be clearly explained

and proven by competent evidence just exactly how such protective regulation
would result in

the restraint of trade. [Emphasis and underscoring supplied]

In this case, petitioner failed to


manufacturers participation in any

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

unreasonably hamper the trade of breastmilk substitutes. Petitioner has not


established that the proscribed

activities are indispensable to the trade of breastmilk substitutes. Petitioner


failed to demonstrate that the

aforementioned provisions of the RIRR are unreasonable and oppressive for


being in restraint of trade.

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:

SECTION 5 x x x. (w) "Milk Company" shall refer to the owner, manufacturer,


distributor of infant

formula, follow-up milk, milk formula, milk supplement, breastmilk substitute


or replacement, or by any

other description of such nature, including their representatives who promote


or otherwise advance

their commercial interests in marketing those products;

On the other hand, Section 4 of the Milk Code provides:

(d) "Distributor" means a person, corporation or any other entity in the public
or private sector engaged

in the business (whether directly or indirectly) of marketing at the wholesale or


retail level a product

within the scope of this Code. A "primary distributor" is a manufacturer's sales


agent, representative,

national distributor or broker.

xxxx

(j) "Manufacturer" means a corporation or other entity in the public or private


sector engaged in the

business or function (whether directly or indirectly or through an agent or and


entity controlled by or

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)

the products manufactured or distributed by an entity that would qualify it as a


"milk company," whereas in the

Milk Code, what is used is the phrase "products within the scope of this Code."

Those are the only differences

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

"milk company" in the RIRR and the


"manufacturer" provided for under the Milk

definitions

of

"distributor"

and

Code are practically the same.

The Court is not convinced that the definition of "milk company" provided in
the RIRR would bring about any

change in the treatment or regulation of "distributors" and "manufacturers" of


breastmilk substitutes, as defined

under the Milk Code.

Except Sections 4(f), 11 and 46, the rest of the provisions of the RIRR are in
consonance with the objective,

purpose and intent of the Milk Code, constituting reasonable regulation of an


industry which affects public

health and welfare and, as such, the rest of the RIRR do not constitute illegal
restraint of trade nor are they

violative of the due process clause of the Constitution.

WHEREFORE, the petition is PARTIALLY GRANTED. Sections 4(f), 11 and 46 of


Administrative Order No.

2006-0012 dated May 12, 2006 are declared NULL and VOID for being ultra
vires. The Department of Health

and respondents are PROHIBITED from implementing said provisions.

The Temporary Restraining Order issued on August 15, 2006 is LIFTED insofar
as the rest of the provisions of

Administrative Order No. 2006-0012 is concerned.

SO ORDERED.

Puno, (Chief Justice), Quisumbing,


Carpio, Corona, Carpio-Morales,

Ynares-Santiago,

Sandoval-Gutierrez,

Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., Nachura, Reyes, JJ., concur.

CASE 14

U.S. Supreme Court

Pierce v. Society of Sisters, 268 U.S. 510 (1925)

Pierce v. Society of Sisters

Nos. 583, 584

Argued March 16, 17, 1925

Decided June 1, 1925

268 U.S. 510

APPEALS FROM THE DISTRICT COURT OF THE UNITED STATES

FOR THE DISTRICT OF OREGON

Syllabus

1. The fundamental theory of liberty upon which all governments of this Union
rest excludes any general power

of the State to standardize its children by forcing them to accept instruction


from public teachers only. P. 268

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

current year, is an unreasonable interference with the liberty of the parents


and guardians to direct the

upbringing of the children, and in that respect violates the Fourteenth


Amendment. P. 268 U. S. 534.

3. In a proper sense, it is true that corporations cannot claim for themselves


the liberty guaranteed by the

Fourteenth Amendment, and, in general, no person in any business has such an


interest in possible customers

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

property through the improper and unconstitutional compulsion exercised by


this statute upon parents and

guardians, their interest is direct and immediate, and entitles them to


protection by injunction. Truax v. Raich,

239 U. S. 33. P. 268 U. S. 535.

5. The Act, being intended to have general application, cannot be construed in


its application to such

corporations as an exercise of power to amend their charters. Berea College v.


Kentucky, 211 U. S. 45. P. 268

U. S. 535.

6. Where the injury threatened by an unconstitutional statute is present and

real before the statute is to be

effective, and will

Page 268 U. S. 511

become irreparable if relief be postponed to that time, a suit to restrain future


enforcement of the statute is not

premature. P. 268 U. S. 536.

296 Fed. 928, affirmed.

APPEALS from decrees of the District Court granting preliminary injunctions


restraining the Governor, and

other officials, of the State of Oregon from threatening or attempting to


enforce an amendment to the school

law -- an initiative measure adopted by the people November 7, 1922, to


become effective in 1926 -- requiring

parents and others having control of young children to send them to the
primary schools of the State. The

plaintiffs were two Oregon corporations owning and conducting schools.

Page 268 U. S. 529

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

These appeals are from decrees, based upon undenied allegations, which

granted preliminary orders

restraining

Page 268 U. S. 530

appellants from threatening or attempting


Education Act * adopted November 7,

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.

The challenged Act, effective September 1, 1926, requires every parent,


guardian or other person having

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

failure so to do is declared a misdemeanor. There are

Page 268 U. S. 531

exemptions not specially important here -- for children who are not normal, or
who have completed he eighth

grade, or who reside at considerable distances from any public school, or


whose parents or guardians hold

special permits from the County Superintendent. The manifest purpose is to


compel general attendance at

public schools by normal children, between eight and sixteen, who have not
completed the eighth grade. And

without doubt enforcement of the statute would seriously impair, perhaps


destroy, the profitable features of

appellees' business and greatly diminish the value of their property.

Appellee, the Society of Sisters, is an Oregon corporation, organized in 1880,


with power to care for orphans,

educate and instruct the youth, establish and maintain academies or schools,
and acquire necessary real and

personal

Page 268 U. S. 532

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,

both temporal and religious, contemplate


appellee's charge; the primary schools

continuity

of

training

under

are essential to the system and the most profitable. It owns valuable buildings,
especially constructed and

equipped for school purposes. The business is remunerative -- the annual


income from primary schools

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,

have proclaimed their purpose strictly to enforce the statute.

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

useful business or profession, and is accordingly repugnant to the Constitution


and void. And, further, that,

unless enforcement of the measure is enjoined the corporation's business and


property will suffer irreparable

injury.

Appellee, Hill Military Academy, is a private corporation organized in 1908


under the laws of Oregon, engaged

Page 268 U. S. 533

in owning, operating and conducting


preparatory and military training school

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

Education. Military instruction and


supervision of an Army officer. It owns

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

and threat of enforcement, appellee's business is being destroyed and its


property depreciated; parents and

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

corporation's rights guaranteed by the Fourteenth Amendment and that, unless


appellants are restrained from

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

(Jud.Code 266) on motions for preliminary injunctions upon the specifically


alleged facts. The court ruled that

the Fourteenth Amendment guaranteed appellees against the

Page 268 U. S. 534

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

that enforcement of the challenged statute would unlawfully deprive them of


patronage, and thereby destroy

their owners' business and property. Finally, that the threats to enforce the Act
would continue to cause

irreparable injury, and the suits were not premature.

No question is raised concerning the power of the State reasonably to regulate


all schools, to inspect,

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

is manifestly inimical to the

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

meritorious. Certainly there is nothing in the present records to indicate that


they have failed to discharge their

obligations to patrons, students or the State. And there are no peculiar


circumstances or present emergencies

which demand extraordinary measures relative to primary education.

Under the doctrine of Meyer v. Nebraska, 262 U. S. 390, we think it entirely


plain that the Act of 1922

unreasonably interferes with the liberty of parents and guardians to direct the
upbringing and education of

children

Page 268 U. S. 535

under their control: as often heretofore pointed out, rights guaranteed by the
Constitution may not be abridged

by legislation which has no reasonable relation to some purpose within the


competency of the State. The

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

Fourteenth Amendment guarantees. Accepted in the proper sense, this is true.


Northwestern Life Ins. Co. v.

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

through the unwarranted compulsion which appellants are exercising over


present and prospective patrons of

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.

Evidently it was expected to have general application, and cannot be construed


as though merely intended to

amend the charters of certain private corporations, as in Berea College v.


Kentucky, 211 U. S. 45. No

argument in favor of such view has been advanced.

Generally it is entirely true, as urged by counsel, that no person in any


business has such an interest in

possible customers as to enable him to restrain exercise of proper power of the


State upon the ground that he

will be deprived

Page 268 U. S. 536

of patronage. But the injunctions here sought are not against the exercise of
any proper power. Plaintiffs asked

protection against arbitrary, unreasonable and unlawful interference with their


patrons and the consequent

destruction of their business and property. Their interest is clear and


immediate, within the rule approved in

Truax v. Raich, Truax v. Corrigan and Terrace v. Thompson, supra, and many
other cases where injunctions

have issued to protect business enterprises against interference with the


freedom of patrons or customers.

Hitchman Coal & Coke Co. v. Mitchell, 245 U. S. 229; Duplex Printing Press Co.
v. Deering, 254 U. S. 443;

American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184;


Nebraska District v. McKelvie, 262

U. S. 404; Truax v. Corrigan, supra, and cases there cited.

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

irreparable. Prevention of impending injury by unlawful action is a well


recognized function of courts of equity.

The decrees below are

Affirmed.

"Be it Enacted by the People of the State of Oregon:"

"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

age of eight years or over at the commencement of a term of public school of


the district in which said child

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

cases, children shall not be required to attend public schools:"

"(a) Children Physically Unable -- Any child who is abnormal, subnormal or


physically unable to attend school."

"(b) Children Who Have Completed the Eighth Grade -- Any child who has
completed the eighth grade, in

accordance with the provisions of the state course of study."

"(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

transportation to and from school is furnished by the school district, this


exemption shall not apply."

"(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

taught by a parent or a private teacher, such parent or private teacher must


receive written permission from the

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

misdemeanor, and shall, on conviction thereof, be subject to a fine of not less


than $5, nor more than $100, or

to imprisonment in the county jail not less than two nor more than thirty days,
or by both such fine and

imprisonment in the discretion of the court."

"This Act shall take effect and be and remain in force from and after the first
day of September, 1926."

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Please check official sources.

CASE 15

EN BANC

[G.R. No. 118295. May 2, 1997]

WIGBERTO E. TAADA and ANNA DOMINIQUE COSETENG, as members of the

Philippine Senate and

as taxpayers; GREGORIO ANDOLANA and JOKER ARROYO as members of the


House of

Representatives and as taxpayers; NICANOR P. PERLAS and HORACIO R.


MORALES, both as

taxpayers; CIVIL LIBERTIES UNION, NATIONAL ECONOMIC PROTECTIONISM


ASSOCIATION,

CENTER
FOR
KAUNLARAN

ALTERNATIVE

FOUNDATION,
INC.,
DEMOKRATIKONG

DEVELOPMENT

PHILIPPINE

RURAL

INITIATIVES,

RECONSTRUCTION

LIKAS-KAYANG

MOVEMENT,

KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and PHILIPPINE PEASANT


INSTITUTE, in

representation of various taxpayers and as non-governmental organizations,


petitioners, vs.

EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-SHAHANI, HEHERSON


ALVAREZ,

AGAPITO AQUINO, RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO HERRERA,


JOSE

LINA, GLORIA MACAPAGAL-ARROYO, ORLANDO MERCADO, BLAS OPLE, JOHN


OSMEA,

SANTANINA RASUL, RAMON REVILLA, RAUL ROCO, FRANCISCO TATAD and


FREDDIE WEBB,

in their respective capacities as members of the Philippine Senate who


concurred in the

ratification by the President of the Philippines of the Agreement Establishing


the World Trade

Organization; SALVADOR ENRIQUEZ, in his capacity as Secretary of Budget and


Management;

CARIDAD VALDEHUESA, in her capacity as National Treasurer; RIZALINO


NAVARRO, in his

capacity as Secretary of Trade and Industry; ROBERTO SEBASTIAN, in his


capacity as

Secretary of Agriculture; ROBERTO DE OCAMPO, in his capacity as Secretary of


Finance;

ROBERTO ROMULO, in his capacity as Secretary of Foreign Affairs; and


TEOFISTO T.

GUINGONA, in his capacity as Executive Secretary, respondents.

DECISION

PANGANIBAN, J.:

The emergence on January 1, 1995 of the World Trade Organization, abetted by


the membership thereto

of the vast majority of countries has revolutionized international business and


economic relations amongst

states. It has irreversibly propelled the world towards trade liberalization and

economic globalization.

Liberalization, globalization, deregulation


millennium buzz words, are ushering in a

and

privatization,

the

third-

new borderless world of business by sweeping away as mere historical relics


the heretofore traditional modes

of promoting and protecting national economies like tariffs, export subsidies,


import quotas, quantitative

restrictions, tax exemptions and currency controls. Finding market niches and
becoming the best in specific

industries in a market-driven and export-oriented global scenario are replacing


age-old beggar-thy-neighbor

policies that unilaterally protect weak and inefficient domestic producers of


goods and services. In the words of

Peter Drucker, the well-known management guru, Increased participation in the


world economy has become

the key to domestic economic growth and prosperity.

Brief Historical Background

To hasten worldwide recovery from the devastation wrought by the Second


World War, plans for the

establishment of three multilateral institutions -- inspired by that grand


political body, the United Nations -- were

discussed at Dumbarton Oaks and Bretton Woods. The first was the World Bank

(WB) which was to address

the rehabilitation and reconstruction of war-ravaged and later developing


countries; the second, the

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

governing access to the economies


institutionalized body administering the

of

treaty

adherents

with

no

agreements or dependable system of dispute settlement.

After half a century and several dizzying rounds of negotiations, principally the
Kennedy Round, the Tokyo

Round and the Uruguay Round, the


administering body -- the World Trade

world

finally

gave

birth

to

that

Organization -- with the signing of the Final Act in Marrakesh, Morocco and the
ratification of the WTO

Agreement by its members.22[1]

Like many other developing countries, the Philippines joined WTO as a


founding member with the goal, as

articulated by President Fidel V. Ramos in two letters to the Senate (infra), of


improving Philippine access to

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

system of dispute settlement by judicial adjudication through the independent


WTO settlement bodies called

(1) Dispute Settlement Panels and (2) Appellate Tribunal. Heretofore, trade
disputes were settled mainly

through negotiations where solutions were arrived at frequently on the basis of


relative bargaining strengths,

and where naturally,


disadvantage.

weak

and

underdeveloped

countries

were

at

The Petition in Brief

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

and independent national economy effectively controlled by Filipinos x x x (to)


give preference to qualified

Filipinos (and to) promote the preferential use of Filipino labor, domestic
materials and locally produced goods.

Simply stated, does the Philippine Constitution prohibit Philippine participation


in worldwide trade

liberalization and economic globalization?


integration into a global economy that is

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

grounds, of the concurrence of the Philippine Senate in the ratification by the


President of the Philippines of the

Agreement Establishing the World Trade Organization (WTO Agreement, for


brevity) and (2) for the prohibition

of its implementation and enforcement through the release and utilization of


public funds, the assignment of

public officials and employees, as well as the use of government properties and
resources by respondent-

heads of various executive offices concerned therewith. This concurrence is


embodied in Senate Resolution

No. 97, dated December 14, 1994.

The Facts

On April 15, 1994, Respondent Rizalino Navarro, then Secretary of the


Department of Trade and Industry

(Secretary Navarro, for brevity), representing the Government of the Republic


of the Philippines, signed in

Marrakesh, Morocco, the Final Act Embodying the Results of the Uruguay
Round of Multilateral Negotiations

(Final Act, for brevity).

By signing the Final Act,23[2] Secretary Navarro on behalf of the Republic of


the Philippines, agreed:

(a) to submit, as appropriate, the WTO Agreement for the consideration of their
respective

competent authorities, with a view to seeking approval of the Agreement in

accordance with their

procedures; and

(b) to adopt the Ministerial Declarations and Decisions.

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

the Understanding on Commitments in Financial Services are hereby submitted


to the Senate for its

concurrence pursuant to Section 21, Article VII of the Constitution.

On December 9, 1994, the President of the Philippines certified the necessity of


the immediate adoption of

P.S. 1083, a resolution entitled Concurring in the Ratification of the Agreement


Establishing the World Trade

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

pages 137 et seq. of Volume I of the 36-volume Uruguay Round of Multilateral


Trade Negotiations and

includes various agreements and associated legal instruments (identified in the


said Agreement as Annexes 1,

2 and 3 thereto and collectively referred to as Multilateral Trade Agreements,


for brevity) as follows:

ANNEX 1

Annex 1A: Multilateral Agreement on Trade in Goods

General Agreement on Tariffs and Trade 1994

Agreement on Agriculture

Agreement on the Application of Sanitary and

Phytosanitary Measures

Agreement on Textiles and Clothing

Agreement on Technical Barriers to Trade

Agreement on Trade-Related Investment Measures

Agreement on Implementation of Article VI of the General Agreement on Tariffs

Agreement on Implementation of Article VII of the General on Tariffs and Trade

Agreement on Pre-Shipment Inspection

Agreement on Rules of Origin

Agreement on Imports Licensing Procedures

Agreement on Subsidies and Coordinating Measures

Agreement on Safeguards

Annex 1B: General Agreement on Trade in Services and Annexes

and Trade 1994

1994

Annex 1C: Agreement on Trade-Related Aspects of Intellectual Property Rights

ANNEX 2

Understanding on Rules and Procedures Governing the Settlement of Disputes

ANNEX 3

Trade Policy Review Mechanism

On December 16, 1994, the President of the Philippines signed28[7] the


Instrument of Ratification, declaring:

NOW THEREFORE, be it known that I, FIDEL V. RAMOS, President of the


Republic of the

Philippines, after having seen and considered the aforementioned Agreement


Establishing the World

Trade Organization and the agreements and associated legal instruments


included in Annexes one

(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.

To emphasize, the WTO Agreement ratified by the President of the Philippines


is composed of the

Agreement Proper and the associated legal instruments included in Annexes


one (1), two (2) and three (3) of

that Agreement which are integral parts thereof.

On the other hand, the Final Act signed by Secretary Navarro embodies not
only the WTO Agreement

(and its integral annexes aforementioned)


Declarations and Decisions and (2) the

but

also

(1)

the

Ministerial

Understanding on Commitments in Financial Services. In his Memorandum


dated May 13, 1996,29[8] the Solicitor

General describes these two latter documents as follows:

The Ministerial Decisions and Declarations are twenty-five declarations and


decisions on a wide

range of matters, such as measures in favor of least developed countries,


notification procedures,

relationship of WTO with the


agreements on technical barriers

International

Monetary

Fund

(IMF),

and

to trade and on dispute settlement.

The Understanding on Commitments in Financial Services dwell on, among


other things,

standstill or limitations and qualifications of commitments to existing nonconforming measures,

market access, national treatment, and definitions of non-resident supplier of


financial services,

commercial presence and new financial service.

On December 29, 1994, the present


deliberation on respondents comment

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.

Bautista, the Philippine Ambassador to the United Nations stationed in Geneva,


Switzerland, to submit a

paper, hereafter referred to as Bautista Paper,30[9] for brevity, (1) providing a


historical background of and (2)

summarizing the said agreements.

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

(2) the transcript of proceedings/hearings in the Senate; 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

resolution. In a Compliance dated September 16, 1996, the Solicitor General


submitted a printed copy of the

36-volume Uruguay Round of Multilateral Trade Negotiations, and in another


Compliance dated October 24,

1996, he listed the various bilateral or multilateral treaties or international


instruments involving derogation of

Philippine sovereignty. Petitioners, on


Compliance dated January 28, 1997, on

the

other

hand,

submitted

their

January 30, 1997.

The Issues

In their Memorandum dated March 11, 1996, petitioners summarized the issues
as follows:

A. Whether the petition presents a political question or is otherwise not


justiciable.

B. Whether the petitioner members of the Senate who participated in the


deliberations and voting

leading to the concurrence are estopped from impugning the validity of the
Agreement

Establishing the World Trade Organization or of the validity of the concurrence.

C. Whether the provisions of the Agreement Establishing the World Trade


Organization contravene

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

restrict and impair Philippine sovereignty specifically the legislative power


which, under Sec. 2,

Article VI, 1987 Philippine Constitution is vested in the Congress of the


Philippines;

E. Whether provisions of the


Organization interfere with the

Agreement

Establishing

the

World

Trade

exercise of judicial power.

F. Whether the respondent members of the Senate acted in grave abuse of


discretion amounting to

lack or excess of jurisdiction when they voted for concurrence in the


ratification of the

constitutionally-infirm Agreement Establishing the World Trade Organization.

G. Whether the respondent members of the Senate acted in grave abuse of


discretion amounting to

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

included the Final


Understanding on

Act,

Ministerial

Declaration

and

Decisions,

and

the

Commitments in Financial Services.

On the other hand, the Solicitor


synthesized the several issues raised

General

as

counsel

for

respondents

by petitioners into the following:31[10]

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)

of that agreement cited by petitioners directly contravene or undermine the


letter, spirit and intent of

Section 19, Article II and Sections 10 and 12, Article XII of the 1987
Constitution.

2. Whether or not certain provisions of the Agreement unduly limit, restrict or


impair the exercise

of legislative power by Congress.

3. Whether or not certain provisions of the Agreement impair the exercise of

judicial power by this

Honorable Court in promulgating the rules of evidence.

4. Whether or not the concurrence of the Senate in the ratification by the


President of the

Philippines of the Agreement establishing the World Trade Organization implied


rejection of the treaty

embodied in the Final Act.

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

justiciable; (2) whether petitioner-members of the Senate (Wigberto E. Taada


and Anna Dominique Coseteng)

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

respondents have effectively waived it by not pursuing it in any of their


pleadings; in any event, this

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

that grave constitutional issues, expenditures of public funds and serious


international commitments of the

nation are involved here, and that transcendental public interest requires that
the substantive issues be met

head on and decided on the merits, rather than skirted or deflected by


procedural matters.32[11]

To recapitulate, the issues that will be ruled upon shortly are:

(1) DOES THE PETITION PRESENT A JUSTICIABLE CONTROVERSY? OTHERWISE


STATED,

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?

(3) DO THE PROVISIONS OF SAID AGREEMENT AND ITS ANNEXES LIMIT,


RESTRICT, OR

IMPAIR THE EXERCISE OF LEGISLATIVE POWER BY CONGRESS?

(4) DO SAID PROVISIONS UNDULY IMPAIR OR INTERFERE WITH THE EXERCISE OF


JUDICIAL

POWER BY THIS COURT IN PROMULGATING RULES ON EVIDENCE?

(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,

MINISTERIAL DECLARATIONS AND DECISIONS, AND THE UNDERSTANDING ON

COMMITMENTS IN FINANCIAL SERVICES?

The First Issue: Does the Court Have Jurisdiction Over the Controversy?

In seeking to nullify an act of the Philippine Senate on the ground that it


contravenes the Constitution, the

petition no doubt raises a justiciable controversy. Where an action of the


legislative branch is seriously alleged

to have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the

dispute. The question thus posed is judicial rather than political. The duty (to
adjudicate) remains to assure that

the supremacy of the Constitution is upheld.33[12] Once a controversy as to


the application or interpretation of a

constitutional provision is raised before this Court (as in the instant case), it
becomes a legal issue which the

Court is bound by constitutional mandate to decide.34[13]

The jurisdiction of this Court to adjudicate the matters35[14] raised in the


petition is clearly set out in the 1987

Constitution,36[15] as follows:

Judicial power includes the duty of the courts of justice to settle actual

controversies involving

rights which are legally demandable and enforceable, and to determine


whether or not there has been

a grave abuse of discretion amounting to lack or excess of jurisdiction on the


part of any branch or

instrumentality of the government.

The foregoing text emphasizes the judicial departments duty and power to
strike down grave abuse of

discretion on the part of any branch or instrumentality of government including


Congress. It is an innovation in

our political law.37[16] As explained by


Concepcion,38[17] the judiciary is the final

former

Chief

Justice

Roberto

arbiter on the question of whether or not a branch of government or any of its


officials has acted without

jurisdiction or in excess of jurisdiction or so capriciously as to constitute an


abuse of discretion amounting to

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

discretion brought before it in appropriate cases, committed by any officer,


agency, instrumentality or

department of the government.

As the petition alleges grave abuse of discretion and as there is no other plain,
speedy or adequate

remedy in the ordinary course of law, we have no hesitation at all in holding


that this petition should be given

due course and the vital questions raised therein ruled upon under Rule 65 of
the Rules of Court. Indeed,

certiorari, prohibition and mandamus are appropriate remedies to raise


constitutional issues and to review

and/or prohibit/nullify, when proper, acts of legislative and executive officials.


On this, we have no

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

merits of trade liberalization as a policy espoused by said international body.


Neither will it rule on the propriety

of the governments economic policy of reducing/removing tariffs, taxes,


subsidies, quantitative restrictions, and

other import/trade barriers. Rather, it will only exercise its constitutional duty
to determine whether or not there

had been a grave abuse of discretion amounting to lack or excess of


jurisdiction on the part of the Senate in

ratifying the WTO Agreement and its three annexes.

Second Issue: The WTO Agreement and Economic Nationalism

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

nationalism are violated by the so-called parity provisions and national


treatment clauses scattered in various

parts not only of the WTO Agreement and its annexes but also in the Ministerial
Decisions and Declarations

and in the Understanding on Commitments in Financial Services.

Specifically, the flagship constitutional provisions referred to are Sec. 19,


Article II, and Secs. 10 and 12,

Article XII, of the Constitution, which are worded as follows:

Article II

DECLARATION OF PRINCIPLES AND STATE POLICIES

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

NATIONAL ECONOMY AND PATRIMONY

xx xx xx

Sec. 10. x x x. The Congress shall enact measures that will encourage the
formation and

operation of enterprises whose capital is wholly owned by Filipinos.

In the grant of rights, privileges, and concessions covering the national


economy and patrimony,

the State shall give preference to qualified Filipinos.

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

Petitioners aver that these sacred constitutional principles are desecrated by


the following WTO provisions

quoted in their memorandum:40[19]

a) In the area of investment measures related to trade in goods (TRIMS, for


brevity):

1. Without prejudice to other rights and obligations under GATT 1994. no


Member shall apply

2. An Illustrative list of TRIMS that are inconsistent with the obligations of


general elimination

Article 2

National Treatment and Quantitative Restrictions.

any TRIM that is inconsistent with the provisions of Article III or Article XI of
GATT 1994.

of quantitative restrictions provided for in paragraph I of Article XI of GATT


1994 is

contained in the Annex to this Agreement. (Agreement on Trade-Related


Investment

Measures, Vol. 27, Uruguay Round, Legal Instruments, p.22121, emphasis


supplied).

The Annex referred to reads as follows:

ANNEX

Illustrative List

1. TRIMS that are inconsistent with the obligation of national treatment


provided for in

paragraph 4 of Article III of GATT 1994 include those which are mandatory or
enforceable

under domestic law or under administrative rulings, or compliance with which


is necessary

to obtain an advantage, and which require:

(a) the purchase or use by an enterprise of products of domestic origin or from


any domestic

source, whether specified in terms of particular products, in terms of volume or


value of

products, or in terms of proportion of volume or value of its local production; or

to the volume or value of local products that it exports.

(b) that an enterprises purchases or use of imported products be limited to an


amount related

2. TRIMS that are inconsistent with the obligations of general elimination of


quantitative restrictions

provided for in paragraph 1 of Article XI of GATT 1994 include those which are
mandatory or

enforceable under domestic


compliance with which is

laws

or

under

administrative

rulings,

or

necessary to obtain an advantage, and which restrict:

(a) the importation by an enterprise of products used in or related to the local


production that

(b) the importation by an enterprise of products used in or related to its local


production by

(c) the exportation or sale for export specified in terms of particular products,
in terms of

it exports;

restricting its access to foreign exchange inflows attributable to the enterprise;


or

volume or value of products, or in terms of a preparation of volume or value of


its local

production. (Annex to the Agreement on Trade-Related Investment Measures,


Vol. 27,

Uruguay Round Legal Documents, p.22125, emphasis supplied).

The paragraph 4 of Article III of GATT 1994 referred to is quoted as follows:

other contracting party shall be accorded treatment no less favorable than that
accorded

to like products of national origin in respect of laws, regulations and


requirements

affecting their internal sale, offering for sale, purchase, transportation,


distribution or use. the

provisions of this paragraph shall not prevent the application of differential


internal

transportation charges which are based exclusively on the economic operation


of the means

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-

84 in relation to paragraph 1(a) of the General Agreement on Tariffs and Trade


1994, Vol. 1,

Uruguay Round, Legal Instruments p.177, emphasis supplied).

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

intellectual property... (par. 1, Article 3, Agreement on Trade-Related Aspect of


Intellectual

Property rights, Vol. 31, Uruguay Round, Legal Instruments, p.25432 (emphasis
supplied)

(c) In the area of the General Agreement on Trade in Services:

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

2. A Member may meet the requirement of paragraph I by according to services


and service

3. Formally identical or formally different treatment shall be considered to be


less favourable

National Treatment

out therein, each Member shall accord to services and service suppliers of any
other

Member, in respect of all measures affecting the supply of services, treatment


no less

favourable than it accords to its own like services and service suppliers.

suppliers of any other Member, either formally identical treatment or formally


different

treatment to that it accords to its own like services and service suppliers.

if it modifies the conditions of completion in favour of services or service


suppliers of the

Member compared to like services or service suppliers of any other Member.


(Article XVII,

General Agreement on Trade in Services, Vol. 28, Uruguay Round Legal


Instruments,

p.22610 emphasis supplied).

It is petitioners position that the foregoing national treatment and parity


provisions of the WTO Agreement

place nationals and products of member countries on the same footing as


Filipinos and local products, in

contravention of the Filipino First policy of the Constitution. They allegedly


render meaningless the phrase

effectively controlled by Filipinos. The constitutional conflict becomes more


manifest when viewed in the

context of the clear duty imposed on the Philippines as a WTO member to


ensure the conformity of its laws,

regulations and administrative procedures with its obligations as provided in


the annexed agreements.41[20]

Petitioners further argue that these provisions contravene constitutional


limitations on the role exports play in

national development and negate the preferential treatment accorded to


Filipino labor, domestic materials and

locally produced goods.

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

invoked by petitioners should not be read in isolation but should be related to


other relevant provisions of Art.

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

the Philippines from the harshness of sudden trade liberalization.

We shall now discuss and rule on these arguments.

Declaration of Principles Not Self-Executing

By its very title, Article II of the Constitution is a declaration of principles and


state policies. The

counterpart of this article in the 1935 Constitution42[21] is called the basic


political creed of the nation by Dean

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

power of judicial review, and by the legislature in its enactment of laws. As


held in the leading case of

Kilosbayan, Incorporated vs. Morato,45[24] the principles and state policies


enumerated in Article II and some

sections of Article XII are not self-executing provisions, the disregard of which
can give rise to a cause of

action in the courts. They do not embody judicially enforceable constitutional


rights but guidelines for

legislation.

In the same light, we held in Basco vs. Pagcor46[25] that broad constitutional
principles need legislative

enactments to implement them, thus:

On petitioners allegation that P.D. 1869 violates Sections 11 (Personal Dignity)


12 (Family) and

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

of principles and policies. As such, they are basically not self-executing,


meaning a law should be

passed by Congress to clearly define and effectuate such principles.

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

the language of the ballot. (Bernas, Vol. II, p. 2).

The reasons for denying a cause of action to an alleged infringement of broad


constitutional principles are

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

Oposa vs. Factoran, Jr.,47[26] explained these reasons as follows:

My suggestion is simply that petitioners must, before the trial court, show a

more specific legal

right -- a right cast in language of a significantly lower order of generality than


Article II (15) of the

Constitution -- that is or may be violated by the actions, or failures to act,


imputed to the public

respondent by petitioners so that the trial court can validly render judgment
granting all or part of the

relief prayed for. To my mind, the court should be understood as simply saying
that such a more

specific legal right or rights may well exist in our corpus of law, considering the
general policy

principles found in the Constitution and the existence of the Philippine


Environment Code, and that

the trial court should have given petitioners an effective opportunity so to


demonstrate, instead of

aborting the proceedings on a motion to dismiss.

It seems to me important that the legal right which is an essential component


of a cause of action

be a specific, operable legal right, rather than a constitutional or statutory


policy, for at least two (2)

reasons. One is that unless the legal right claimed to have been violated or
disregarded is given

specification in operational terms, defendants may well be unable to defend


themselves intelligently

and effectively; in other words, there are due process dimensions to this
matter.

The second is a broader-gauge consideration -- where a specific violation of law


or applicable

regulation is not alleged or proved, petitioners can be expected to fall back on


the expanded

conception of judicial power in the second paragraph of Section 1 of Article VIII


of the Constitution

which reads:

In general, therefore, the 1935 provisions were not intended to be selfexecuting

Section 1. x x x

Judicial power includes the duty of the courts of justice to settle actual
controversies

involving rights which are legally demandable and enforceable, and to


determine whether or

not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on

the part of any branch or instrumentality of the Government. (Emphases


supplied)

When substantive standards as general as the right to a balanced and healthy


ecology and the

right to health are combined with remedial standards as broad ranging as a


grave abuse of discretion

amounting to lack or excess of jurisdiction, the result will be, it is respectfully


submitted, to propel

courts into the uncharted ocean of social and economic policy making. At least
in respect of the vast

area of environmental protection and management, our courts have no claim to


special technical

competence and experience and professional qualification. Where no specific,


operable norms and

standards are shown to exist, then the policy making departments -- the
legislative and executive

departments -- must be given a real and effective opportunity to fashion and


promulgate those norms

and standards, and to implement them before the courts should intervene.

Economic Nationalism Should Be Read with Other Constitutional Mandates to


Attain Balanced

Development of Economy

On the other hand, Secs. 10 and 12 of Article XII, apart from merely laying
down general principles

relating to the national economy and patrimony,


understood in relation to the other sections

should

be

read

and

in said article, especially Secs. 1 and 13 thereof which read:

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

all, especially the underprivileged.

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

given optimum opportunity to develop. x x x

xxxxxxxxx

Sec. 13. The State shall pursue a trade policy that serves the general welfare
and utilizes all

forms and arrangements of exchange on the basis of equality and reciprocity.

As pointed out by the Solicitor General, Sec. 1 lays down the basic goals of
national economic

development, as follows:

1. A more equitable distribution of opportunities, income and wealth;

2. A sustained increase in the amount of goods and services provided by the


nation for the benefit of the

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

expressing preference in favor of qualified Filipinos in the grant of rights,


privileges and concessions covering

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)

by requiring the State to develop a self-reliant and independent national


economy effectively controlled by

Filipinos.50[29] In similar language, the Constitution takes into account the


realities of the outside world as it

requires the pursuit of a trade policy that serves the general welfare and
utilizes all forms and arrangements of

exchange on the basis of equality and reciprocity;51[30] and speaks of


industries which are competitive in both

domestic and foreign markets as well as of the protection of Filipino


enterprises against unfair foreign

competition and trade practices.

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

which is complete in itself and which needs no further guidelines or


implementing laws or rules for its

enforcement. From its very words the provision does not require any legislation
to put it in operation. It is per

se judicially enforceable. However, as the constitutional provision itself states,


it is enforceable only in regard to

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

paragraph of Sec. 10 of Art. XII is self-executing or not. Rather, the issue is


whether, as a rule, there are

enough balancing provisions in the Constitution to allow the Senate to ratify


the Philippine concurrence in the

WTO Agreement. And we hold that there are.

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

bases of equality and reciprocity and limits protection of Filipino enterprises


only against foreign competition

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

equality and reciprocity, frowning only on foreign competition that is unfair.

WTO Recognizes Need to Protect Weak Economies

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

WTO equivalent of the UN Security Council.

WTO decides by consensus whenever possible, otherwise, decisions of the


Ministerial

Conference and the General Council shall be taken by the majority of the votes
cast, except in cases

of interpretation of the Agreement or waiver of the obligation of a member


which would require three

fourths vote. Amendments would


Amendments to MFN provisions

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

one-on-one negotiations with developed countries. Within the WTO, developing


countries can form powerful

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

international trade commensurate with


development. These basic principles are

the

needs

of

their

economic

found in the preamble55[34] of the WTO Agreement as follows:

The Parties to this Agreement,

Recognizing that their relations in the field of trade and economic endeavour
should be

conducted with a view to raising standards of living, ensuring full employment


and a large and steadily

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

objective of sustainable development, seeking both to protect and preserve the


environment and to

enhance the means for doing so in a manner consistent with their respective
needs and concerns at

different levels of economic development,

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

Being desirous of contributing to these objectives by entering into reciprocal


and mutually

advantageous arrangements directed to the substantial reduction of tariffs and


other barriers to trade

and to the elimination of discriminatory treatment in international trade


relations,

Resolved, therefore, to develop an integrated, more viable and durable


multilateral trading system

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,

Determined to preserve the basic principles and to further the objectives


underlying this

multilateral trading system, x x x. (underscoring supplied.)

Specific WTO Provisos Protect Developing Countries

So too, the Solicitor General points out that pursuant to and consistent with
the foregoing basic principles,

the WTO Agreement grants developing countries a more lenient treatment,


giving their domestic industries

some protection from the rush of foreign competition. Thus, with respect to
tariffs in general, preferential

treatment is given to developing countries in terms of the amount of tariff


reduction and the period within which

the reduction is to be spread out. Specifically, GATT requires an average tariff


reduction rate of 36% for

developed countries to be effected within a period of six (6) years while


developing countries -- including the

Philippines -- are required to effect an average tariff reduction of only 24%


within ten (10) years.

In respect to domestic subsidy, GATT requires developed countries to reduce


domestic support to

agricultural products by 20% over six (6) years, as compared to only 13% for
developing countries to be

effected within ten (10) years.

In regard to export subsidy for agricultural products, GATT requires developed


countries to reduce their

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

including anti-dumping measures, countervailing measures and safeguards


against import surges. Where local

businesses are jeopardized by unfair foreign competition, the Philippines can


avail of these measures. There is

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

simply because we believe only in other economic policies. As earlier stated,


the Court in taking jurisdiction of

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.

Constitution Does Not Rule Out Foreign Competition

Furthermore, the constitutional policy of a self-reliant and independent


national economy56[35] does not

necessarily rule out the entry of foreign investments, goods and services. It
contemplates neither economic

seclusion nor mendicancy in the international community. As explained by


Constitutional Commissioner

Bernardo Villegas, sponsor of this constitutional policy:

Economic self-reliance is a primary objective of a developing country that is


keenly aware of

overdependence on external assistance for even its most basic needs. It does
not mean autarky or

economic seclusion; rather, it means avoiding mendicancy in the international


community.

Independence refers to the freedom from undue foreign control of the national
economy, especially in

such strategic industries as in the development of natural resources and public


utilities.57[36]

The WTO reliance on most favored nation, national treatment, and trade
without discrimination cannot be

struck down as unconstitutional as in fact they are rules of equality and


reciprocity that apply to all WTO

members. Aside from envisioning a trade policy based on equality and


reciprocity,58[37] the fundamental law

encourages industries that are competitive in both domestic and foreign


markets, thereby demonstrating a

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

enterprises have shown capability and tenacity to compete internationally. And


given a free trade environment,

Filipino entrepreneurs and managers in Hongkong have demonstrated the


Filipino capacity to grow and to

prosper against the best offered under a policy of laissez faire.

Constitution Favors Consumers, Not Industries or Enterprises

The Constitution has not really shown any unbalanced bias in favor of any
business or enterprise, nor

does it contain any specific pronouncement that Filipino companies should be


pampered with a total

proscription of foreign competition. On the other hand, respondents claim that


WTO/GATT aims to make

available to the Filipino consumer the best goods and services obtainable
anywhere in the world at the most

reasonable prices. Consequently, the


WTO/GATT will favor the general welfare

question

boils

down

to

whether

of the public at large.

Will adherence to the WTO treaty bring this ideal (of favoring the general
welfare) to reality?

Will WTO/GATT succeed in promoting the Filipinos general welfare because it


will -- as promised by its

promoters -- expand the countrys exports and generate more employment?

Will it bring more prosperity, employment, purchasing power and quality


products at the most reasonable

rates to the Filipino public?

The responses to these questions involve judgment calls by our policy makers,
for which they are

answerable to our people during appropriate


questions and the answers thereto are

electoral

exercises.

Such

not subject to judicial pronouncements based on grave abuse of discretion.

Constitution Designed to Meet Future Events and Contingencies

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

Constitution might not have contemplated a diminution of the absoluteness of


sovereignty when the Philippines

signed the UN Charter, thereby effectively surrendering part of its control over
its foreign relations to the

decisions of various UN organs like the Security Council?

It is not difficult to answer this question. Constitutions are designed to meet


not only the vagaries of

contemporary events. They should be interpreted to cover even future and


unknown circumstances. It is to the

credit of its drafters that a Constitution can withstand the assaults of bigots
and infidels but at the same time

bend with the refreshing winds of change necessitated by unfolding events. As


one eminent political law writer

and respected jurist59[38] explains:

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

shape, not in a twinkling by mandate of our delegates, but slowly in the


crucible of Filipino minds and

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

the Constitutional Convention, nor can it conjure by mere fiat an instant


Utopia. It must grow with the

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

pulsing, living law attuned to the heartbeat of the nation.

Third Issue: The WTO Agreement and Legislative Power

The WTO Agreement provides that (e)ach Member shall ensure the conformity
of its laws, regulations and

administrative procedures with its obligations as provided in the annexed


Agreements.60[39] Petitioners maintain

that this undertaking unduly limits, restricts


sovereignty, specifically the legislative power

and

impairs

Philippine

which under Sec. 2, Article VI of the 1987 Philippine Constitution is vested in


the Congress of the Philippines. It

is an assault on the sovereign powers of the Philippines because this means


that Congress could not pass

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

money x x x as well as to a whole slew of agreements on socio-cultural matters


x x x.61[40]

More specifically, petitioners claim that said WTO proviso derogates from the
power to tax, which is

lodged in the Congress.62[41] And while the Constitution allows Congress to


authorize the President to fix tariff

rates, import and export quotas, tonnage and wharfage dues, and other duties
or imposts, such authority is

subject to specified limits and x x x such limitations and restrictions as


Congress may provide,63[42] as in fact it

did under Sec. 401 of the Tariff and Customs Code.

Sovereignty Limited by International Law and Treaties

This Court notes and appreciates the ferocity and passion by which petitioners
stressed their arguments

on this issue. However, while sovereignty has traditionally been deemed


absolute and all-encompassing on the

domestic level, it is however subject to restrictions and limitations voluntarily


agreed to by the Philippines,

expressly or impliedly, as a member of the family of nations. Unquestionably,


the Constitution did not envision

a hermit-type isolation of the country from the rest of the world. In its
Declaration of Principles and State

Policies, the Constitution adopts the


international law as part of the law of the

generally

land, and adheres to the policy of peace,


cooperation and amity, with all nations."64[43]

accepted

equality,

principles

justice,

of

freedom,

By the doctrine of incorporation, the country is bound by generally accepted


principles of international law,

which are considered to be automatically part of our own laws.65[44] One of


the oldest and most fundamental

rules in international law is pacta sunt servanda -- international agreements


must be performed in good faith. A

treaty engagement is not a mere moral obligation but creates a legally binding
obligation on the parties x x x. A

state which has contracted valid international obligations is bound to make in


its legislations such modifications

as may be necessary
undertaken.66[45]

to

ensure

the

fulfillment

of

the

obligations

By their inherent nature, treaties really limit or restrict the absoluteness of


sovereignty. By their voluntary

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

regulation of conduct of hostilities, the formation of alliances, the regulation of


commercial relations, the settling

of claims, the laying down of rules governing conduct in peace and the
establishment of international

organizations.67[46] The sovereignty of a state therefore cannot in fact and in


reality be considered absolute.

Certain restrictions enter into the picture: (1) limitations imposed by the very
nature of membership in the family

of nations and (2) limitations imposed by treaty stipulations. As aptly put by


John F. Kennedy, Today, no nation

can build its destiny alone. The age of self-sufficient nationalism is over. The
age of interdependence is here.68

[47]

UN Charter and Other Treaties Limit Sovereignty

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

taking preventive or enforcement action. Such assistance includes payment of


its corresponding share not

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

corresponding share in such expenses. In this sense, the Philippine Congress is


restricted in its power to

appropriate. It is compelled to appropriate funds whether it agrees with such


peace-keeping expenses or not.

So too, under Article 105 of the said Charter, the UN and its representatives
enjoy diplomatic privileges and

immunities, thereby limiting again the exercise of sovereignty of members


within their own territory. Another

example: although sovereign equality and domestic jurisdiction of all members


are set forth as underlying

principles in the UN Charter, such provisos are however subject to enforcement


measures decided by the

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

international agreement, their

obligation under the present charter shall prevail, thus unquestionably denying
the Philippines -- as a member -

- the sovereign power to make a choice as to which of conflicting obligations, if


any, to honor.

Apart from the UN Treaty, the Philippines has entered into many other
international pacts -- both bilateral

and multilateral -- that involve limitations on Philippine sovereignty. These are


enumerated by the Solicitor

General in his Compliance dated October 24, 1996, as follows:

(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

Overseas Private Investment Corporation of the United States. Likewise, in said


convention,

wages, salaries and similar remunerations paid by the United States to its
citizens for labor and

personal services performed by them as employees or officials of the United


States are exempt

from income tax by the Philippines.

(b) Bilateral agreement with Belgium, providing, among others, for the
avoidance of double taxation

with respect to taxes on income.

(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

equipment, spare parts and supplies arriving with said aircrafts.

(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

separate air service

agreements.

(h) Bilateral notes with Israel for the abolition of transit and visitor visas where
the Philippines

exempted Israeli nationals from the requirement of obtaining transit or visitor


visas for a sojourn in

the Philippines not exceeding 59 days.

(I) Bilateral agreement with France exempting French nationals from the
requirement of obtaining

transit and visitor visa for a sojourn not exceeding 59 days.

(j) Multilateral Convention on Special Missions, where the Philippines agreed


that premises of Special

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

duties, taxes and related charges.

(k) Multilateral Convention on the Law of Treaties. In this convention, the


Philippines agreed to be

governed by the Vienna Convention on the Law of Treaties.

(l) Declaration of the President of the Philippines accepting compulsory


jurisdiction of the International

Court of Justice. The International Court of Justice has jurisdiction in all legal
disputes concerning

the interpretation of a treaty, any question of international law, the existence


of any fact which, if

established, would constitute a breach of international obligation.

In the foregoing treaties, the Philippines has effectively agreed to limit the
exercise of its sovereign powers

of taxation, eminent domain and police power. The underlying consideration in


this partial surrender of

sovereignty is the reciprocal commitment of the other contracting states in


granting the same privilege and

immunities to the Philippines, its officials and its citizens. The same reciprocity
characterizes the Philippine

commitments under WTO-GATT.

International treaties, whether relating to nuclear disarmament, human rights,


the environment,

the law of the sea, or trade, constrain domestic political sovereignty through
the assumption of

external obligations. But unless anarchy in international relations is preferred


as an alternative, in

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

to durable, well-defined substantive norms and objective dispute resolution


procedures reduce the

risks of larger countries exploiting raw economic power to bully smaller


countries, by subjecting power

relations to some form of legal ordering. In addition, smaller countries typically


stand to gain

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

enhanced success to the smaller countrys market.70[48]

The point is that, as shown by the foregoing treaties, a portion of sovereignty


may be waived without

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.

Fourth Issue: The WTO Agreement and Judicial Power

Petitioners aver that paragraph 1, Article 34 of the General Provisions and


Basic Principles of the

Agreement on Trade-Related Aspects of


(TRIPS)71[49] intrudes on the power of the

Supreme Court to
procedures.72[50]

promulgate

rules

Intellectual

concerning

Property

pleading,

Rights

practice

and

To understand the scope and meaning of Article 34, TRIPS,73[51] it will be


fruitful to restate its full text as

follows:

Article 34

Process Patents: Burden of Proof

1. For the purposes of civil proceedings in respect of the infringement of the


rights of the owner

referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a


process for obtaining a

product, the judicial authorities shall have the authority to order the defendant
to prove that the

process to obtain an identical product is different from the patented process.


Therefore, Members

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

have been obtained by the patented process:

(b) if there is a substantial likelihood that the identical product was made by
the process and

(a) if the product obtained by the patented process is new;

the owner of the patent has been unable through reasonable efforts to
determine the

process actually used.

2. Any Member shall be free to provide that the burden of proof indicated in
paragraph 1 shall be on

the alleged infringer only if the condition referred to in subparagraph (a) is


fulfilled or only if the

condition referred to in subparagraph (b) is fulfilled.

3. In the adduction of proof to the contrary, the legitimate interests of


defendants in protecting their

manufacturing and business secrets shall be taken into account.

From the above, a WTO Member is required to provide a rule of disputable


(note the words in the absence

of proof to the contrary) presumption that a product shown to be identical to

one produced with the use of a

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

by Article 34 should actually be understood as the duty of the alleged patent


infringer to overthrow such

presumption. Such burden, properly understood, actually refers to the burden


of evidence (burden of going

forward) placed on the producer of the identical (or fake) product to show that
his product was produced

without the use of the patented process.

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

identical product was made by the patented process.

The foregoing should really present no problem in changing the rules of


evidence as the present law on

the subject, Republic Act No. 165, as amended, otherwise known as the Patent
Law, provides a similar

presumption in cases of infringement of patented design or utility model, thus:

SEC. 60. Infringement. - Infringement of a design patent or of a patent for


utility model shall

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

model shall constitute evidence of copying. (underscoring supplied)

Moreover, it should be noted that the requirement of Article 34 to provide a


disputable presumption applies

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

able through reasonable effort

to determine the process used. Where either of these two provisos does not
obtain, members shall be free to

determine the appropriate method of implementing the provisions of TRIPS


within their own internal systems

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,

consistent as it is with due process and the concept of adversarial dispute


settlement inherent in our judicial

system.

So too, since the Philippine is a signatory to most international conventions on


patents, trademarks and

copyrights, the adjustment in legislation and rules of procedure will not be


substantial.74[52]

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

Understanding on Commitments in Financial Services -- is defective and


insufficient and thus constitutes

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

representation of the Republic upon authority of the President. They contend


that the second letter of the

President to the Senate75[53] which enumerated what constitutes the Final


Act should have been the subject of

concurrence of the Senate.

A final act, sometimes called protocol de clture, is an instrument which records


the winding up of the

proceedings of a diplomatic conference and usually includes a reproduction of


the texts of treaties,

conventions, recommendations and other acts agreed upon and signed by the
plenipotentiaries attending the

conference.76[54] It is not the treaty itself. It is rather a summary of the


proceedings of a protracted conference

which may have taken place over several years. The text of the Final Act
Embodying the Results of the

Uruguay Round of Multilateral Trade Negotiations is contained in just one


page77[55] in Vol. I of the 36-volume

Uruguay Round of Multilateral Trade Negotiations. By signing said Final Act,


Secretary Navarro as

representative of the Republic of the Philippines undertook:

"(a) to submit, as appropriate, the WTO Agreement for the consideration of


their respective competent

authorities with a view to seeking approval of the Agreement in accordance


with their procedures;

and

(b) to adopt the Ministerial Declarations and Decisions."

The assailed Senate Resolution No. 97 expressed concurrence in exactly what


the Final Act required from

its signatories, namely, concurrence of the Senate in the WTO Agreement.

The Ministerial Declarations and Decisions were deemed adopted without need
for ratification. They were

approved by the ministers by virtue of Article XXV: 1 of GATT which provides


that representatives of the

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]

The Understanding on Commitments in Financial Services also approved in


Marrakesh does not apply to

the Philippines. It applies only to those 27 Members which have indicated in


their respective schedules of

commitments on standstill, elimination of monopoly, expansion of operation of


existing financial service

suppliers, temporary entry of personnel, free transfer and processing of


information, and national treatment

with respect to access to payment, clearing systems and refinancing available


in the normal course of

business.79[57]

On the other hand, the WTO Agreement itself expresses what multilateral
agreements are deemed

included as its integral parts,80[58] as follows:

Article II

Scope of the WTO

1. The WTO shall provide the common institutional framework for the conduct
of trade relations

among its Members in matters to the agreements and associated legal


instruments included in the

Annexes to this Agreement.

2. The Agreements and associated legal instruments included in Annexes 1, 2,


and 3 (hereinafter

referred to as Multilateral Agreements) are integral parts of this Agreement,


binding on all Members.

3. The Agreements and associated legal instruments included in Annex 4


(hereinafter referred to as

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

obligation or rights for Members that have not accepted them.

4. The General Agreement on Tariffs and Trade 1994 as specified in annex 1A


(hereinafter referred to

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

Committee of the United Nations Conference on Trade and Employment, as


subsequently rectified,

amended or modified (hereinafter referred to as GATT 1947).

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

Organization? And on that basis, Senator Tolentino raised a point of order


which, however, he agreed

to withdraw upon understanding that his suggestion for an alternative solution


at that time was

acceptable. That suggestion was to treat the proceedings of the Committee as


being in the nature of

briefings for Senators until the question of the submission could be clarified.

And so, Secretary Romulo, in effect, is the President submitting a new... is he


making a new

submission which improves on the clarity of the first submission?

MR. ROMULO: Mr. Chairman, to make sure that it is clear cut and there should
be no

misunderstanding, it was his intention to clarify all matters by giving this


letter.

THE CHAIRMAN: Thank you.

Can this Committee hear from Senator Taada and later on Senator Tolentino
since they were the

ones that raised this question yesterday?

Senator Taada, please.

SEN. TAADA: Thank you, Mr. Chairman.

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

Agreement on the World Trade Organization as well as the Ministerial


Declarations and Decisions,

and the Understanding and Commitments in Financial Services.

I am now satisfied with the wording of the new submission of President Ramos.

SEN. TAADA. . . . of President Ramos, Mr. Chairman.

THE CHAIRMAN. Thank you, Senator Taada. Can we hear from Senator
Tolentino? And after

him Senator Neptali Gonzales and Senator Lina.

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

submitted to with the governments of the participants.

In paragraph 2 of the Final Act, we read and I quote:

the WTO Agreement for the consideration of the respective competent


authorities with a view

to seeking approval of the Agreement in accordance with their procedures.

In other words, it is not the Final Act that was agreed to be submitted to the
governments for

ratification or acceptance as whatever their constitutional procedures may


provide but it is the World

Trade Organization Agreement. And if that is the one that is being submitted
now, I think it satisfies

both the Constitution and the Final Act itself.

Thank you, Mr. Chairman.

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

repeating the same.

Now, I would consider the new submission as an act ex abudante cautela.

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

have no further comment to make.

By signing the present Final Act, the representatives agree: (a) to submit as
appropriate

Epilogue

In praying for the nullification of the Philippine ratification of the WTO


Agreement, petitioners are invoking

this Courts constitutionally imposed duty to determine whether or not there


has been grave abuse of discretion

amounting to lack or excess of jurisdiction on the part of the Senate in giving


its concurrence therein via

Senate Resolution No. 97. Procedurally, a writ of certiorari grounded on grave


abuse of discretion may be

issued by the Court under Rule 65 of the Rules of Court when it is amply shown
that petitioners have no other

plain, speedy and adequate remedy in the ordinary course of law.

By grave abuse of discretion is meant such capricious and whimsical exercise of


judgment as is equivalent

to lack of jurisdiction.83[61] Mere abuse of discretion is not enough. It must be


grave abuse of discretion as when

the power is exercised in an arbitrary or despotic manner by reason of passion


or personal hostility, and must

be so patent and so gross as to amount to an evasion of a positive duty or to a


virtual refusal to perform the

duty enjoined or to act at all in contemplation of law.84[62] Failure on the part


of the petitioner to show grave

abuse of discretion will result in the dismissal of the petition.85[63]

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

convincing proof and persuasive arguments are presented to overthrow such


presumptions, this Court will

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

grave abuse of discretion to the Senates exercise of its power of concurrence in


the WTO Agreement granted

it by Sec. 21 of Article VII of the Constitution.86[64]

It is true, as alleged by petitioners, that broad constitutional principles require


the State to develop an

independent national economy effectively controlled by Filipinos; and to


protect and/or prefer Filipino labor,

products, domestic materials and locally produced goods. But it is equally true
that such principles -- while

serving as judicial and legislative guides -- are not in themselves sources of


causes of action. Moreover, there

are other equally fundamental constitutional principles relied upon by the


Senate which mandate the pursuit of

a trade policy that serves the general welfare and utilizes all forms and
arrangements of exchange on the basis

of equality and reciprocity and the promotion of industries which are


competitive in both domestic and foreign

markets, thereby justifying its acceptance of said treaty. So too, the alleged
impairment of sovereignty in the

exercise of legislative and judicial powers is balanced by the adoption of the


generally accepted principles of

international law as part of the law of the land and the adherence of the
Constitution to the policy of

cooperation and amity with all nations.

That the Senate, after deliberation and voting, voluntarily and overwhelmingly
gave its consent to the WTO

Agreement thereby making it a part of the law of the land is a legitimate


exercise of its sovereign duty and

power. We find no patent and gross arbitrariness or despotism by reason of


passion or personal hostility in

such exercise. It is not impossible to surmise that this Court, or at least some
of its members, may even agree

with petitioners that it is more advantageous to the national interest to strike


down Senate Resolution No. 97.

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

globalization is a matter that our people should determine in electing their


policy makers. After all, the WTO

Agreement allows withdrawal of membership, should this be the political desire


of a member.

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

in the WTO. Notwithstanding objections against possible limitations on national


sovereignty, the WTO remains

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

original membership, keenly aware of the advantages and disadvantages of


globalization with its on-line

experience, and endowed with a vision of the future, the Philippines now
straddles the crossroads of an

international strategy for economic prosperity and stability in the new


millennium. Let the people, through their

duly authorized elected officers, make their free choice.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

CASE 16

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 161872

April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,

vs.

COMMISSION ON ELECTIONS, respondent.

RESOLUTION

TINGA, J.:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for
President on December 17, 2003.

Respondent Commission on Elections (COMELEC) refused to give due course to


petitioners Certificate of

Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision,
however, was not unanimous since

Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to include


petitioner as they believed he had

parties or movements to back up his candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No.


6558. Petitioners Motion for

Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on
petitioners Motion for

Reconsideration and on similar motions filed by other aspirants for national


elective positions, denied the same

under the aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The
COMELEC declared petitioner and

thirty-five (35) others nuisance candidates who could not wage a nationwide
campaign and/or are not nominated by

a political party or are not supported by a registered political party with a


national constituency. Commissioner

Sadain maintained his vote for petitioner. By then, Commissioner Tancangco


had retired.

In this Petition For Writ of Certiorari, petitioner seeks to reverse the


resolutions which were allegedly rendered in

violation of his right to "equal access to opportunities for public service" under
Section 26, Article II of the 1987

Constitution,1 by limiting the number of qualified candidates only to those who


can afford to wage a nationwide

campaign and/or are nominated by political parties. In so doing, petitioner


argues that the COMELEC indirectly

amended the constitutional provisions on the electoral process and limited the
power of the sovereign people to

choose their leaders. The COMELEC supposedly erred in disqualifying him since
he is the most qualified among all

the presidential candidates, i.e., he possesses all the constitutional and legal
qualifications for the office of the

president, he is capable of waging a national campaign since he has numerous


national organizations under his

leadership, he also has the capacity to wage an international campaign since


he has practiced law in other

countries, and he has a platform of government. Petitioner likewise attacks the


validity of the form for the Certificate

of Candidacy prepared by the COMELEC. Petitioner claims that the form does
not provide clear and reasonable

guidelines for determining the qualifications of candidates since it does not ask
for the candidates bio-data and his

program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioners invocation of the constitutional provision ensuring


"equal access to opportunities for public

office" is the claim that there is a constitutional right to run for or hold public
office and, particularly in his case, to

seek the presidency. There is none. What is recognized is merely a privilege


subject to limitations imposed by law.

Section 26, Article II of the Constitution neither bestows such a right nor
elevates the privilege to the level of an

enforceable right. There is nothing in the plain language of the provision which
suggests such a thrust or justifies an

interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the


Constitution, entitled "Declaration of Principles

and State Policies." The provisions under the Article are generally considered
not self-executing,2 and there is no

plausible reason for according a different treatment to the "equal access"


provision. Like the rest of the policies

enumerated in Article II, the provision does not contain any judicially
enforceable constitutional right but merely

specifies a guideline for legislative or executive action.3 The disregard of the


provision does not give rise to any

cause of action before the courts.4

An inquiry into the intent of the framers5 produces the same determination
that the provision is not self-executory.

The original wording of the present Section 26, Article II had read, "The State
shall broaden opportunities to public

office and prohibit public dynasties."6 Commissioner (now Chief Justice) Hilario
Davide, Jr. successfully brought forth

an amendment that changed the word "broaden" to the phrase "ensure equal
access," and the substitution of the

word "office" to "service." He explained his proposal in this wise:

I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is
important would be

equal access to the opportunity. If you broaden, it would necessarily mean that
the government would

be mandated to create as many offices as are possible to accommodate as


many people as are also

possible. That is the meaning of broadening opportunities to public service. So,


in order that we should

not mandate the State to make the government the number one employer and
to limit offices only to

what may be necessary and expedient yet offering equal opportunities to


access to it, I change the

word "broaden."7 (emphasis supplied)

Obviously, the provision is not intended to compel the State to enact positive
measures that would accommodate as

many people as possible into public office. The approval of the "Davide
amendment" indicates the design of the

framers to cast the provision as simply enunciatory of a desired policy


objective and not reflective of the imposition

of a clear State burden.

Moreover, the provision as written leaves much to be desired if it is to be


regarded as the source of positive rights. It

is difficult to interpret the clause as operative in the absence of legislation


since its effective means and reach are

not properly defined. Broadly written, the myriad of claims that can be
subsumed under this rubric appear to be

entirely open-ended.8 Words and phrases


"opportunities," and "public service" are

such

as

"equal

access,"

susceptible to countless interpretations owing to their inherent impreciseness.


Certainly, it was not the intention of

the framers to inflict on the people an operative but amorphous foundation


from which innately unenforceable rights

may be sourced.

As earlier noted, the privilege of equal access to opportunities to public office


may be subjected to limitations. Some

valid limitations specifically on the privilege to seek elective office are found in
the provisions9 of the Omnibus

Election Code on "Nuisance Candidates" and COMELEC Resolution No. 645210


dated December 10, 2002 outlining

the instances wherein the COMELEC may motu proprio refuse to give due
course to or cancel a Certificate of

Candidacy.

As long as the limitations apply to everybody equally without discrimination,


however, the equal access clause is not

violated. Equality is not sacrificed as long as the burdens engendered by the


limitations are meant to be borne by

any one who is minded to file a certificate of candidacy. In the case at bar,
there is no showing that any person is

exempt from the limitations or the burdens which they create.

Significantly, petitioner does not challenge the constitutionality or validity of


Section 69 of the Omnibus Election

Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their
presumed validity stands and has

to be accorded due weight.

Clearly, therefore, petitioners reliance on the equal access clause in Section


26, Article II of the Constitution is

misplaced.

The rationale behind the prohibition against nuisance candidates and the
disqualification of candidates who have

not evinced a bona fide intention to run for office is easy to divine. The State
has a compelling interest to ensure that

its electoral exercises are rational, objective, and orderly. Towards this end, the
State takes into account the

practical considerations in conducting elections. Inevitably, the greater the


number of candidates, the greater the

opportunities for logistical confusion, not to mention the increased allocation


of time and resources in preparation for

the election. These practical difficulties should, of course, never exempt the
State from the conduct of a mandated

electoral exercise. At the same time, remedial actions should be available to


alleviate these logistical hardships,

whenever necessary and proper. Ultimately, a disorderly election is not merely


a textbook example of inefficiency,

but a rot that erodes faith in our democratic institutions. As the United States
Supreme Court held:

[T]here is surely an important state interest in requiring some preliminary


showing of a significant modicum

of support before printing the name of a political organization and its


candidates on the ballot the interest,

if no other, in avoiding confusion, deception and even frustration of the


democratic [process].11

The COMELEC itself recognized these


promulgated Resolution No. 6558 on 17

practical

considerations

when

it

January 2004, adopting the study Memorandum of its Law Department dated 11
January 2004. As observed in the

COMELECs Comment:

There is a need to limit the number of candidates especially in the case of


candidates for national positions

because the election process becomes a mockery even if those who cannot
clearly wage a national

campaign are allowed to run. Their names would have to be printed in the
Certified List of Candidates,

Voters Information Sheet and the Official Ballots. These would entail additional
costs to the government. For

the official ballots in automated counting and canvassing of votes, an


additional page would amount to more

or less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00).

xxx[I]t serves no practical purpose to allow those candidates to continue if they


cannot wage a decent

campaign enough to project the prospect of winning, no matter how slim.12

The preparation of ballots is but one aspect that would be affected by


allowance of "nuisance candidates" to run in

the elections. Our election laws provide various entitlements for candidates for
public office, such as watchers in

every polling place,13 watchers in the board of canvassers,14 or even the


receipt of electoral contributions.15 Moreover,

there are election rules and regulations the formulations of which are
dependent on the number of candidates in a

given election.

Given these considerations, the ignominious nature of a nuisance candidacy


becomes even more galling. The

organization of an election with bona fide candidates standing is onerous


enough. To add into the mix candidates

with no serious intentions or capabilities to run a viable campaign would


actually impair the electoral process. This is

not to mention the candidacies which are palpably ridiculous so as to


constitute a one-note joke. The poll body

would be bogged by irrelevant minutiae covering every step of the electoral


process, most probably posed at the

instance of these nuisance candidates. It would be a senseless sacrifice on the


part of the State.

Owing to the superior interest in ensuring a credible and orderly election, the
State could exclude nuisance

candidates and need not indulge in, as the song goes, "their trips to the moon
on gossamer wings."

The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of
the compelling State interest to

ensure orderly and credible elections by excising impediments thereto, such as


nuisance candidacies that distract

and detract from the larger purpose. The COMELEC is mandated by the
Constitution with the administration of

elections16 and endowed with considerable latitude in adopting means and


methods that will ensure the promotion of

free, orderly and honest elections.17 Moreover, the Constitution guarantees


that only bona fide candidates for public

office shall be free from any form of harassment and discrimination.18 The
determination of bona fide candidates is

governed by the statutes, and the concept, to our mind is, satisfactorily
defined in the Omnibus Election Code.

Now, the needed factual premises.

However valid the law and the COMELEC issuance involved are, their proper
application in the case of the

petitioner cannot be tested and reviewed by this Court on the basis of what is
now before it. The assailed resolutions

of the COMELEC do not direct the Court to the evidence which it considered in
determining that petitioner was a

nuisance candidate. This precludes the Court from reviewing at this instance
whether the COMELEC committed

grave abuse of discretion in disqualifying petitioner, since such a review would


necessarily take into account the

matters which the COMELEC considered in arriving at its decisions.

Petitioner has submitted to this Court mere photocopies of various documents


purportedly evincing his credentials

as an eligible candidate for the presidency. Yet this Court, not being a trier of
facts, can not properly pass upon the

reproductions as evidence at this level. Neither the COMELEC nor the Solicitor
General appended any document to

their respective Comments.

The question of whether a candidate is a nuisance candidate or not is both


legal and factual. The basis of the factual

determination is not before this Court. Thus, the remand of this case for the
reception of further evidence is in order.

A word of caution is in order. What is at stake is petitioners aspiration and


offer to serve in the government. It

deserves not a cursory treatment but a hearing which conforms to the


requirements of due process.

As to petitioners attacks on the validity of the form for the certificate of


candidacy, suffice it to say that the form

strictly complies with Section 74 of the Omnibus Election Code. This provision
specifically enumerates what a

certificate of candidacy should contain, with the required information tending


to show that the candidate possesses

the minimum qualifications for the position aspired for as established by the
Constitution and other election laws.

IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby
remanded to the COMELEC

for the reception of further evidence, to determine the question on whether


petitioner Elly Velez Lao Pamatong is a

nuisance candidate as contemplated in Section 69 of the Omnibus Election


Code.

The COMELEC is directed to hold and complete the reception of evidence and
report its findings to this Court with

deliberate dispatch.

SO ORDERED.

Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, SandovalGutierrez, Carpio, Austria-Martinez,

Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

CASE 17

SEE PDF COPY

CASE 18

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

A.M. No. P-08-2535

June 23, 2010

(Formerly A.M. OCA IPI No. 04- 2022-P and A.M. No. 04-434-RTC)

OFFICE OF THE COURT ADMINISTRATOR, Complainant,

vs.

FLORENCIO M. REYES,1 Officer-in-Charge, and RENE DE GUZMAN, Clerk,


Regional Trial Court, Branch 31,

Guimba, Nueva Ecija, Respondents.

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)

relative to the alleged incompetence/inefficiency of the RTC of Guimba, Nueva


Ecija, Branch 31, in the transmittal of

the records of Criminal Case No. 1144-G2 to the Court of Appeals.

In our Resolution dated September 17, 2007, we adopted the findings and
recommendation of the Office of the

Court Administrator (OCA) declaring as closed


administrative matter relative to the delay in the

and

terminated

the

transmittal of the records of Criminal Case No. 1144-G, and exonerating De


Guzman and Florencio M. Reyes

(Reyes), the Officer-in-Charge of the RTC of Guimba, Nueva Ecija, Branch 31.

However, in the same Resolution, we also required De Guzman to comment on


the allegation that he is using illegal

drugs and had been manifesting irrational and queer behavior while at work.
According to Reyes, De Guzmans

manifestations of absurd behavior prompted Judge Napoleon R. Sta. Romana


(Judge Sta. Romana) to request the

Philippine National Police Crime Laboratory to perform a drug test on De


Guzman. As alleged by Reyes:

x x x Mr. Rene de Guzman, the Docket Clerk, was [in] charge of the preparation
and transmission of the records on

appeal x x x. Nonetheless, x x x Judge Sta. Romana would x x x often x x x


[remind him] about the transmittal of

records of the appealed cases [for more than] a dozen times, even personally
confronting Mr. Rene de Guzman

about the matter, x x x though unsuccessfully x x x. Mr. De Guzman would just x


x x dismiss the subject in ridicule

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

bordering on the irrational if not to say that a sense of responsibility is utterly


lacking may have given cue for Judge

Sta. Romana to have Mr. De Guzman undergo a drug test x x x.3

That Mr. De Guzman could brush aside even the personal importuning by the
judge is a fete no other of our co-

employees dare emulate. On the contrary, everybody is apprehensive for his


well being and in his behalf. x x x

On May 24, 2004, Judge Sta. Romana requested the Nueva Ecija Provincial
Crime Laboratory Office to conduct a

drug test on De Guzman. On May 26, 2004, De Guzman underwent a qualitative


examination the results of which

yielded positive for Tetrahydrocannabinol


Methamphetamine (shabu), both dangerous

metabolites

(marijuana)

and

drugs.

In our Resolution of September 17, 2007, we required De Guzman to submit his


comment on the charge of

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

recommendation. The OCA submitted its Report and Recommendation on July


23, 2008 which reads in part:

xxxx

Noticeably, respondent de Guzman did not challenge the authenticity and


validity of the chemistry report of the

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

use of prohibited drugs.

Relative to respondents delay in filing his comment to the charge of


misconduct, his claim that he "lost and

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.

It is settled that respondents "indifference to [the resolutions] requiring him


to comment on the accusation(s) in the

complaint thoroughly and substantially is gross misconduct, and may even be


considered as outright disrespect to

the Court." After all, a resolution of the Supreme Court is not a mere request
and should be complied with promptly

and completely. Such failure to comply accordingly betrays not only a


recalcitrant streak in character, but has

likewise been considered as an utter lack of interest to remain with, if not


contempt of the judicial system.

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

with for his failure to comply with a show cause order.

For failure to overcome the charge of use of prohibited drugs and to


satisfactorily explain his failure to submit

promptly his compliance to the Courts show cause order, respondent may be
held guilty of two counts of gross

misconduct.

The OCA thus submitted the following recommendations for consideration of


the Court viz:

1. The instant matter be RE-DOCKETED as a regular administrative case; and

2. Respondent Rene de Guzman be found guilty of gross misconduct and


accordingly be DISMISSED from

the service effective immediately with forfeiture of all benefits except accrued
leave credits, with prejudice to

his re-employment in any branch or instrumentality of the government,


including government-owned or

controlled agencies, corporations and financial institutions.4

On August 27, 2008, we required De Guzman to manifest within 10 days from


receipt whether he is willing to submit

the case for resolution on the basis of the pleadings/records already filed and
submitted. As before, De Guzman

simply ignored our directive. Consequently, on September 28, 2009, we


deemed waived the filing of De Guzmans

manifestation.

Our Ruling

We adopt the findings and recommendation of the OCA.

We note that De Guzman is adept at ignoring the Courts directives. In his


letter-explanation in the administrative

matter relative to the delay in the transmittal of the records of Criminal Case

No. 1144-G, he requested for a period

of 10 days or until November 15, 2004 within which to submit the Affidavit of
George Caoile (Caoile), the retired

Stenographer, as part of his comment. However, despite the lapse of five


months, De Guzman still failed to submit

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

undertaking. Thus, on August 10, 2005, we required De Guzman to show cause


why he should not be disciplinarily

dealt with or held in contempt for such failure.

Unfortunately, De Guzman merely ignored our show cause order. Consequently,


on November 20, 2006, we

imposed upon him a fine of P1,000.00. Finally, on January 24, 2007, or after the
lapse of one year and two months,

De Guzman submitted the affidavit of Caoile.

Similarly, we also required De Guzman to file his comment within 10 days from
notice as regards the allegation that

he was using prohibited drugs. However, he again ignored our directive as


contained in the Resolution of

September 17, 2007. Thus, on January 23, 2008, we required him to show cause
why he should not be held in

contempt for such failure. By way of explanation, De Guzman submitted a letter


dated March 12, 2008 wherein he

claimed that he failed to file his comment on the charge of miscondouct


because he allegedly lost his copy of the

said September 17, 2007 Resolution.

Finally, on August 27, 2008, we required De Guzman to manifest whether he is


willing to submit the case for

resolution based on the pleadings submitted. As before, he failed to comply


with the same.

As correctly observed by the OCA, De Guzman has shown his propensity to defy
the directives of this Court.5

However, at this juncture, we are no longer wont to countenance such


disrespectful behavior. As we have

categorically declared in Office of the Court Administrator v. Clerk of Court Fe P.


Ganzan, MCTC, Jasaan, Claveria,

Misamis Oriental:6

x x x A resolution of the Supreme Court should not be construed as a mere


request, and should be complied with

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

with, if not contempt of, the system. Ganzans transgression is highlighted


even more by the fact that she is an

employee of the Judiciary, who, more than an ordinary citizen, should be aware
of her duty to obey the orders and

processes of the Supreme Court without delay. x x x

Anent the use of illegal drugs, we have upheld in Social Justice Society (SJS) v.
Dangerous Drugs Board7 the

validity and constitutionality of the mandatory but random drug testing of


officers and employees of both public and

private offices. As regards public officers and employees, we specifically held


that:

Like their counterparts in the private


employees also labor under reasonable

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

of the said program are as follows:

1. To detect the use of dangerous drugs among lower court employees, impose
disciplinary sanctions, and

provide administrative remedies in cases where an employee is found positive


for dangerous drug use.

2. To discourage the use and abuse of dangerous drugs among first and second
level court employees and

enhance awareness of their adverse effects by information dissemination and


periodic random drug testing.

3. To institute other measures that address the menace of drug abuse within
the personnel of the Judiciary.

In the instant administrative matter, De Guzman never challenged the


authenticity of the Chemistry Report of the

Nueva Ecija Provincial Crime Laboratory Office. Likewise, the finding that De
Guzman was found positive for use of

marijuana and shabu remains unrebutted. De Guzmans general denial that he


is not a drug user cannot prevail

over this compelling evidence.

The foregoing constitutes more than substantial evidence that De Guzman was
indeed found positive for use of

dangerous drugs. In Dadulo v. Court of Appeals,10


"(a)dministrative proceedings are governed by the

we

substantial evidence rule. Otherwise stated,


administrative case would have to be sustained

of

finding

held

guilt

that

in

an

for as long as it is supported by substantial evidence that the respondent has


committed acts stated in the

complaint. Substantial evidence is more than a mere scintilla of evidence. It


means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion, even if


other minds equally reasonable might

conceivably opine otherwise."11

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

court of justice is mirrored in the conduct, official and otherwise, of the


personnel who work thereat. Thus, the

conduct of a person serving the judiciary must, at all times, be characterized by


propriety and decorum and above

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."

Article XI of the Constitution mandates that:

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,

and lead modest lives.

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

job performance, Judge Sta. Romana gave De Guzman an unsatisfactory rating.

Moreover, De Guzmans efficiency as a custodian of court records is also totally


wanting. As early as May 12, 2004,

Judge Sta. Romana issued a Memorandum addressed to De Guzman relative to


the "sleeping cases" inside the

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:

1. Crim. Case No. 1849-C, PP v. Ruben Villanueva Order of transmittal to the


Office of the Provincial

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

Court on November 18, 2002;

3. Crim. Case No. 2013-G, PP vs. Brgy. Capt. BAYANI CAMIS Information dated
September 23, 2002

received by this court on January 24, 2003;

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

agencies for implementation.

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

directives, De Guzman is guilty of gross misconduct and has already forfeited


his privilege of being an employee of

the Court. Likewise, we can no longer countenance his manifestations of queer


behavior, bordering on absurd,

irrational and irresponsible, because it has greatly affected his job performance
and efficiency. By using prohibited

drugs, and being a front-line representative of the Judiciary, De Guzman has


exposed to risk the very institution

which he serves. It is only by weeding out the likes of De Guzman from the
ranks that we would be able to preserve

the integrity of this institution.

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

time to give a chance for contrition and change.

However, the legislative policy as embodied in Republic Act No. 9165 in


deterring dangerous drug use by resort to

sustainable programs of rehabilitation and treatment must be considered in


light of this Courts constitutional power

of administrative supervision over courts and court personnel. The legislative


power imposing policies through laws

is not unlimited and is subject to the substantive and constitutional limitations


that set parameters both in the

exercise of the power itself and the allowable subjects of legislation.15 As


such, it cannot limit the Courts power to

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

conduct of justices, judges and court employees.

Likewise, we cannot subscribe to the idea that De Guzmans irrational behavior


stems solely from his being a drug

user. Such queer behavior can be attributed to several factors. However, it


cannot by any measure be categorically

stated at this point that it can be attributed solely to his being a drug user.

Finally, it must be emphasized at this juncture that De Guzmans dismissal is


not grounded only on his being a drug

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.

ACCORDINGLY, Rene de Guzman, Clerk, Regional Trial Court of Guimba, Nueva


Ecija, Branch 31, is hereby

DISMISSED from the service with forfeiture of all retirement benefits, except
accrued leave credits, and

disqualification from reinstatement or appointment to any public office,


including government-owned or controlled

corporations.

SO ORDERED.

CASE 19

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 169777*

April 20, 2006

SENATE OF THE PHILIPPINES, represented by FRANKLIN M. DRILON, in his


capacity as Senate President,

JUAN M. FLAVIER, in his capacity as Senate President Pro Tempore, FRANCIS N.


PANGILINAN, in his

capacity as Majority Leader, AQUILINO Q. PIMENTEL, JR., in his capacity as


Minority Leader, SENATORS

RODOLFO G. BIAZON, "COMPANERA" PIA S. CAYETANO, JINGGOY EJERCITO

ESTRADA, LUISA "LOI"

EJERCITO ESTRADA, JUAN PONCE ENRILE, RICHARD J. GORDON, PANFILO M.


LACSON, ALFREDO

S.LIM, M. A. MADRIGAL, SERGIO OSMENA III, RALPH G. RECTO, and MAR ROXAS,
Petitioners,

vs.

EDUARDO R. ERMITA, in his capacity as Executive Secretary and alter-ego of


President Gloria Macapagal-

Arroyo, and anyone acting in his stead and in behalf of the President of the
Philippines, Respondents.

x-------------------------x

G.R. No. 169659

April 20, 2006

BAYAN MUNA represented by DR. REYNALDO LESACA, JR., Rep. SATUR OCAMPO,
Rep. CRISPIN

BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA MAZA, Rep. TEODORO CASINO, Rep.
JOEL VIRADOR,

COURAGE represented by FERDINAND GAITE, and COUNSELS FOR THE DEFENSE


OF LIBERTIES

(CODAL) represented by ATTY. REMEDIOS BALBIN, Petitioners,

vs.

EDUARDO ERMITA, in his capacity as Executive Secretary and alter-ego of


President Gloria Macapagal-

Arroyo, Respondent.

x-------------------------x

G.R. No. 169660

April 20, 2006

FRANCISCO I. CHAVEZ, Petitioner,

vs.

EDUARDO R. ERMITA, in his capacity as Executive Secretary, AVELINO J. CRUZ,


JR., in his capacity as

Secretary of Defense, and GENEROSO S. SENGA, in his capacity as AFP Chief of


Staff, Respondents.

x-------------------------x

G.R. No. 169667

April 20, 2006

ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.

HON. EDUARDO R. ERMITA, in his capacity as Executive Secretary, Respondent.

x-------------------------x

G.R. No. 169834

April 20, 2006

PDP- LABAN, Petitioner,

vs.

EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

x-------------------------x

G.R. No. 171246

April 20, 2006

JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE


AMOR AMORANDO,

ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III, MANUEL P. LEGASPI, J. B. JOVY


C. BERNABE,

BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and the INTEGRATED BAR FOR THE
PHILIPPINES,

Petitioners,

vs.

HON. EXECUTIVE SECRETARY EDUARDO R. ERMITA, Respondent.

DECISION

CARPIO MORALES, J.:

A transparent government is one of the hallmarks of a truly republican state.


Even in the early history of republican

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

distinguished delegate to the U.S. Constitutional Convention said: "Decision,


activity, secrecy, and dispatch will

generally characterize the proceedings of one man, in a much more eminent


degree than the proceedings of any

greater number; and in proportion as the number is increased, these qualities


will be diminished."1

History has been witness, however, to the fact that the power to withhold
information lends itself to abuse, hence,

the necessity to guard it zealously.

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

void for being unconstitutional.

In resolving the controversy, this Court shall proceed with the recognition that
the issuance under review has come

from a co-equal branch of government, which thus entitles it to a strong


presumption of constitutionality. Once the

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

of the government that contravenes its mandates.

In the exercise of its legislative power, the Senate of the Philippines, through
its various Senate Committees,

conducts inquiries or investigations in aid of legislation which call for, inter


alia, the attendance of officials and

employees of the executive department, bureaus, and offices including those


employed in Government Owned and

Controlled Corporations, the Armed Forces of the Philippines (AFP), and the
Philippine National Police (PNP).

On September 21 to 23, 2005, the Committee of the Senate as a whole issued


invitations to various officials of the

Executive Department for them to appear on September 29, 2005 as resource


speakers in a public hearing on the

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

North Rail Project.

The Senate Committee on National Defense and Security likewise issued


invitations2 dated September 22, 2005 to

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;

Assistant Superintendent of the Philippine Military Academy (PMA) Brig. Gen.


Francisco V. Gudani; and Assistant

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";

(3) Privilege Speech of Senator Rodolfo Biazon delivered on August 1, 2005


entitled "Clear and Present Danger";

(4) Senate Resolution No. 285 filed by Senator Maria Ana Consuelo Madrigal
Resolution Directing the Committee

on National Defense and Security to Conduct an Inquiry, in Aid of Legislation,


and in the National Interest, on the

Role of the Military in the So-called "Gloriagate Scandal"; and (5) Senate
Resolution No. 295 filed by Senator

Biazon Resolution Directing the Committee on National Defense and Security


to Conduct an Inquiry, in Aid of

Legislation, on the Wire-Tapping of the President of the Philippines.

Also invited to the above-said hearing scheduled on September 28 2005 was


the AFP Chief of Staff, General

Generoso S. Senga who, by letter3 dated September 27, 2005, requested for its
postponement "due to a pressing

operational situation that demands [his utmost personal attention" while


"some of the invited AFP officers are

currently attending to other urgent operational matters."

On September 28, 2005, Senate President Franklin M. Drilon received from


Executive Secretary Eduardo R. Ermita

a letter4 dated September 27, 2005 "respectfully


postponement of the hearing [regarding the

request[ing] for the

NorthRail project] to which various officials of the Executive Department have


been invited" in order to "afford said

officials ample time and opportunity to study and prepare for the various
issues so that they may better enlighten the

Senate Committee on its investigation."

Senate President Drilon, however, wrote5 Executive Secretary Ermita that the
Senators "are unable to accede to [his

request]" as it "was sent belatedly" and "[a]ll preparations and arrangements


as well as notices to all resource

persons were completed [the previous] week."

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

Purposes,"7 which, pursuant to

Section 6 thereof, took effect immediately. The salient provisions of the Order
are as follows:

SECTION 1. Appearance by Heads of Departments Before Congress. In


accordance with Article VI, Section 22 of

the Constitution and to implement the Constitutional provisions on the


separation of powers between co-equal

branches of the government, all heads of departments of the Executive Branch


of the government shall secure the

consent of the President prior to appearing before either House of Congress.

When the security of the State or the public interest so requires and the
President so states in writing, the

appearance shall only be conducted in executive session.

SECTION. 2. Nature, Scope and Coverage of Executive Privilege.

(a) Nature and Scope. - The rule of confidentiality based on executive privilege
is fundamental to the operation of

government and rooted in the separation of powers under the Constitution


(Almonte vs. Vasquez, G.R. No. 95367,

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.

Executive privilege covers all confidential or classified information between the


President and the public officers

covered by this executive order, including:

Conversations and correspondence between the President and the public


official covered by this executive order

(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

Government, G.R. No. 130716, 9 December 1998).

Information between inter-government agencies prior to the conclusion of


treaties and executive agreements

(Chavez v. Presidential Commission on Good Government, G.R. No. 130716, 9


December 1998);

Discussion in close-door Cabinet meetings (Chavez v. Presidential Commission


on Good Government, G.R. No.

130716, 9 December 1998);

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:

Senior officials of executive departments who in the judgment of the


department heads are covered by the executive

privilege;

Generals and flag officers of the Armed Forces of the Philippines and such other
officers who in the judgment of the

Chief of Staff are covered by the executive privilege;

Philippine National Police (PNP) officers with rank of chief superintendent or


higher and such other officers who in

the judgment of the Chief of the PNP are covered by the executive privilege;

Senior national security officials who in the judgment of the National Security
Adviser are covered by the executive

privilege; and

Such other officers as may be determined by the President.

SECTION 3. Appearance of Other Public Officials Before Congress. All public


officials enumerated in Section 2 (b)

hereof shall secure prior consent of the President prior to appearing before
either House of Congress to ensure the

observance of the principle of separation of powers, adherence to the rule on


executive privilege and respect for the

rights of public officials appearing in inquiries in aid of legislation. (Emphasis


and underscoring supplied)

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,

Chairperson of the Committee on National Defense and Security, informing him


"that per instruction of [President

Arroyo], thru the Secretary of National Defense, no officer of the [AFP] is


authorized to appear before any Senate or

Congressional hearings without seeking a written approval from the President"


and "that no approval has been

granted by the President to any AFP officer to appear before the public hearing
of the Senate Committee on

National Defense and Security scheduled [on] 28 September 2005."

Despite the communications received from Executive Secretary Ermita and


Gen. Senga, the investigation scheduled

by the Committee on National Defense and Security pushed through, with only
Col. Balutan and Brig. Gen. Gudani

among all the AFP officials invited attending.

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.

As to the NorthRail project hearing scheduled on September 29, 2005,


Executive Secretary Ermita, citing E.O. 464,

sent letter of regrets, in response to the invitations sent to the following


government officials: Light Railway Transit

Authority Administrator Melquiades Robles, Metro Rail Transit Authority


Administrator Roberto Lastimoso,

Department of Justice (DOJ) Chief State Counsel Ricardo V. Perez, then

Presidential Legal Counsel Merceditas

Gutierrez, Department of Transportation


Undersecretary Guiling Mamonding, DOTC

and

Communication

(DOTC)

Secretary Leandro Mendoza, Philippine National Railways General Manager Jose


Serase II, Monetary Board

Member Juanita Amatong, Bases


Chairperson Gen. Narciso Abaya and

Conversion

Development

Authority

Secretary Romulo L. Neri.10 NorthRail President Cortes sent personal regrets


likewise citing E.O. 464.11

On October 3, 2005, three petitions, docketed as G.R. Nos. 169659, 169660,


and 169667, for certiorari and

prohibition, were filed before this Court challenging the constitutionality of


E.O. 464.

In G.R. No. 169659, petitioners party-list


Representatives Members Satur Ocampo, Crispin

Bayan

Muna,

House

of

Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, Courage,
an organization of government

employees, and Counsels for the Defense of Liberties (CODAL), a group of


lawyers dedicated to the promotion of

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;

that respondent Executive Secretary Ermita, in his capacity as Executive


Secretary and alter-ego of President

Arroyo, be prohibited from imposing, and threatening to impose sanctions on


officials who appear before Congress

due to congressional summons. Additionally, petitioners claim that E.O. 464


infringes on their rights and impedes

them from fulfilling their respective obligations. Thus, Bayan Muna alleges that
E.O. 464 infringes on its right as a

political party entitled to participate in governance; Satur Ocampo, et al. allege


that E.O. 464 infringes on their rights

and duties as members of Congress to conduct investigation in aid of


legislation and conduct oversight functions in

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

transparent governance are threatened by the imposition of E.O. 464.

In G.R. No. 169660, petitioner Francisco I.


constitutional rights as a citizen, taxpayer and

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

void for being unconstitutional.

In G.R. No. 169667, petitioner Alternative Law Groups, Inc.12 (ALG), alleging
that as a coalition of 17 legal resource

non-governmental organizations engaged in developmental lawyering and work


with the poor and marginalized

sectors in different parts of the country, and as an organization of citizens of


the Philippines and a part of the

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.

On October 14, 2005, PDP-Laban, a registered political party with members


duly elected into the Philippine Senate

and House of Representatives, filed a similar petition for certiorari and


prohibition, docketed as G.R. No. 169834,

alleging that it is affected by the challenged E.O. 464 because it hampers its
legislative agenda to be implemented

through its members in Congress, particularly in the conduct of inquiries in aid


of legislation and transcendental

issues need to be resolved to avert a constitutional crisis between the


executive and legislative branches of the

government.

Meanwhile, by letter14 dated February 6, 2006, Senator Biazon reiterated his


invitation to Gen. Senga for him and

other military officers to attend the hearing on the alleged wiretapping


scheduled on February 10, 2005. Gen. Senga

replied, however, by letter15 dated February 8, 2006, that "[p]ursuant to


Executive Order No. 464, th[e] Headquarters

requested for a clearance from the President to allow [them] to appear before
the public hearing" and that "they will

attend once [their] request is approved by the President." As none of those


invited appeared, the hearing on

February 10, 2006 was cancelled.16

In another investigation conducted jointly by the Senate Committee on


Agriculture and Food and the Blue Ribbon

Committee on the alleged mismanagement and use of the fertilizer fund under
the Ginintuang Masaganang Ani

program of the Department of Agriculture (DA), several Cabinet officials were


invited to the hearings scheduled on

October 5 and 26, November 24 and December 12, 2005 but most of them
failed to attend, DA Undersecretary

Belinda Gonzales, DA Assistant Secretary Felix Jose Montes, Fertilizer and


Pesticide Authority Executive Director

Norlito R. Gicana,17 and those from


Management18 having invoked E.O. 464.

the

Department

of

Budget

and

In the budget hearings set by the Senate on February 8 and 13, 2006, Press
Secretary and Presidential

Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul M. Gonzalez20 and


Department of Interior and Local

Government Undersecretary Marius P. Corpus21 communicated their inability to


attend due to lack of appropriate

clearance from the President pursuant to E.O. 464. During the February 13,
2005 budget hearing, however,

Secretary Bunye was allowed to attend by Executive Secretary Ermita.

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

of all Philippine lawyers, all invoking their constitutional right to be informed


on matters of public interest, filed their

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,

enforcing, and observing E.O. 464.

In the oral arguments on the petitions conducted on February 21, 2006, the
following substantive issues were

ventilated: (1) whether respondents committed grave abuse of discretion in


implementing E.O. 464 prior to its

publication in the Official Gazette or in a newspaper of general circulation; and


(2) whether E.O. 464 violates the

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

that it is not, it is unconstitutional as applied in four instances, namely: (a) the


so called Fertilizer scam; (b) the

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

not file any memorandum.

Petitioners Bayan Muna et al. in G.R. No. 169659, after their motion for
extension to file memorandum27 was

granted, subsequently filed a manifestation28 dated March 14, 2006 that it


would no longer file its memorandum in

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

Art. VI, Sec. 2130

Art. VI, Sec. 2231

Art. VI, Sec. 132

Art. XI, Sec. 133

Art. III, Sec. 734

Art. III, Sec. 435

Art. XIII, Sec. 16 36

Art. II, Sec. 2837

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.

The Court synthesizes the issues to be resolved as follows:

1. Whether E.O. 464 contravenes the power of inquiry vested in Congress;

2. Whether E.O. 464 violates the right of the people to information on matters
of public concern; and

3. Whether respondents have committed grave abuse of discretion when they


implemented E.O. 464 prior to

its publication in a newspaper of general circulation.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of E.O. 464,


ascertainment of whether the requisites

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

enforcement; (3) the question of constitutionality must be raised at the earliest


opportunity; and (4) the issue of

constitutionality must be the very lis mota of the case.39

Except with respect to the requisites of standing and existence of an actual


case or controversy where the

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

make it clear that they, adverting to the non-appearance of several officials of


the executive department in the

investigations called by the different committees of the Senate, were brought


to vindicate the constitutional duty of

the Senate or its different committees to conduct inquiry in aid of legislation or


in the exercise of its oversight

functions. They maintain that Representatives Ocampo et al. have not shown
any specific prerogative, power, and

privilege of the House of Representatives which had been effectively impaired


by E.O. 464, there being no mention

of any investigation called by the House of Representatives or any of its


committees which was aborted due to the

implementation of E.O. 464.

As for Bayan Munas alleged interest as a party-list representing the


marginalized and underrepresented, and that of

the other petitioner groups and individuals who profess to have standing as
advocates and defenders of the

Constitution, respondents contend that such interest falls short of that

required to confer standing on them as parties

"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

constitutionality of E.O. 464.

Invoking this Courts ruling in National Economic Protectionism Association v.


Ongpin42 and Valmonte v. Philippine

Charity Sweepstakes Office,43 respondents assert that to be considered a


proper party, one must have a personal

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

a democratic system, but more especially for sound legislation45 is not


disputed. E.O. 464, however, allegedly stifles

the ability of the members of Congress to access information that is crucial to


law-making.46 Verily, the Senate,

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

prerogative, powers and privileges vested by the Constitution in their office


and are allowed to sue to question the

validity of any official action which they claim infringes their prerogatives as
legislators.47

In the same vein, party-list representatives Satur Ocampo (Bayan Muna),


Teodoro Casino (Bayan Muna), Joel

Virador (Bayan Muna), Crispin Beltran


(Anakpawis), and Liza Maza (Gabriela) are

(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

duties as members of Congress to conduct investigation in aid of legislation


and conduct oversight functions in the

implementation of laws.

The national political party, Bayan Muna,


requirement as it obtained three seats in the

likewise

meets

the

standing

House of Representatives in the 2004 elections and is, therefore, entitled to


participate in the legislative process

consonant with the declared policy underlying the party list system of affording
citizens belonging to marginalized

and underrepresented sectors, organizations and parties who lack well-defined


political constituencies to contribute

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

of their co-petitioners Courage and Codal is rendered unnecessary.49

In filing their respective petitions, Chavez, the ALG which claims to be an


organization of citizens, and the

incumbent members of the IBP Board of Governors and the IBP in behalf of its
lawyer members,50 invoke their

constitutional right to information on matters of public concern, asserting that


the right to information, curtailed and

violated by E.O. 464, is essential to the effective


constitutional rights51 and to the maintenance of

exercise

of

other

the balance of power among the three branches of the government through the
principle of checks and balances.52

It is well-settled that when suing as a citizen, the interest of the petitioner in


assailing the constitutionality of laws,

presidential decrees, orders, and other regulations, must be direct and


personal. In Franciso v. House of

Representatives,53 this Court held that when the proceeding involves the
assertion of a public right, the mere fact

that he is a citizen satisfies the requirement of personal interest.

As for petitioner PDP-Laban, it asseverates that it is clothed with legal


standing in view of the transcendental issues

raised in its petition which this Court needs to resolve in order to avert a
constitutional crisis. For it to be accorded

standing on the ground of transcendental importance, however, it must


establish (1) the character of the funds (that

it is public) or other assets involved in the case, (2) the presence of a clear
case of disregard of a constitutional or

statutory prohibition by the public respondent agency or instrumentality of the


government, and (3) the lack of any

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

direct and specific interests in the resolution of the controversy, petitioner


PDP-Laban is bereft of standing to file its

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

threatened, is that indispensable element of a dispute which serves in part to


cast it in a form traditionally capable of

judicial resolution.55 In fine, PDP-Labans alleged interest as a political party


does not suffice to clothe it with legal

standing.

Actual Case or Controversy

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.

Respondents counter that there is no case or controversy, there being no


showing that President Arroyo has

actually withheld her consent or prohibited the appearance of the invited


officials.56 These officials, they claim,

merely communicated to the Senate that they have not yet secured the
consent of the President, not that the

President prohibited their attendance.57 Specifically with regard to the AFP


officers who did not attend the hearing on

September 28, 2005, respondents claim that the instruction not to attend
without the Presidents consent was based

on its role as Commander-in-Chief of the Armed Forces, not on E.O. 464.

Respondents thus conclude that the petitions merely rest on an unfounded


apprehension that the President will

abuse its power of preventing the appearance of officials before Congress, and
that such apprehension is not

sufficient for challenging the validity of E.O. 464.

The Court finds respondents assertion that the President has not withheld her
consent or prohibited the appearance

of the officials concerned immaterial in determining the existence of an actual


case or controversy insofar as E.O.

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.

As the implementation of the challenged order has already resulted in the


absence of officials invited to the hearings

of petitioner Senate of the Philippines, it would make no sense to wait for any
further event before considering the

present case ripe for adjudication. Indeed, it would be sheer abandonment of


duty if this Court would now refrain

from passing on the constitutionality of E.O. 464.

Constitutionality of E.O. 464

E.O. 464, to the extent that it bars the appearance of executive officials before
Congress, deprives Congress of the

information in the possession of these officials. To resolve the question of


whether such withholding of information

violates the Constitution, consideration of the general power of Congress to


obtain information, otherwise known as

the power of inquiry, is in order.

The power of inquiry

The Congress power of inquiry is expressly recognized in Section 21 of Article


VI of the Constitution which reads:

SECTION 21. The Senate or the House of Representatives or any of its


respective committees may conduct

inquiries in aid of legislation in accordance with its duly published rules of


procedure. The rights of persons

appearing in or affected by such inquiries shall be respected. (Underscoring


supplied)

This provision is worded exactly as Section 8 of Article VIII of the 1973


Constitution except that, in the latter, it vests

the power of inquiry in the unicameral legislature established therein the


Batasang Pambansa and its

committees.

The 1935 Constitution did not contain a similar provision. Nonetheless, in


Arnault v. Nazareno,58 a case decided in

1950 under that Constitution, the Court already recognized that the power of
inquiry is inherent in the power to

legislate.

Arnault involved a Senate investigation of the reportedly anomalous purchase


of the Buenavista and Tambobong

Estates by the Rural Progress Administration. Arnault, who was considered a


leading witness in the controversy,

was called to testify thereon by the Senate. On account of his refusal to answer
the questions of the senators on an

important point, he was, by resolution of the Senate, detained for contempt.


Upholding the Senates power to punish

Arnault for contempt, this Court held:

Although there is no provision in the Constitution expressly investing either


House of Congress with power to make

investigations and exact testimony to the end that it may exercise its
legislative functions advisedly and effectively,

such power is so far incidental to the legislative function as to be implied. In


other words, the power of inquiry with

process to enforce it is an essential and appropriate auxiliary to the


legislative function. A legislative body cannot

legislate wisely or effectively in the absence of information respecting the


conditions which the legislation is intended

to affect or change; and where the legislative body does not itself possess the
requisite information which is not

infrequently true recourse must be had to others who do possess it.


Experience has shown that mere requests for

such information are often unavailing, and also that information which is
volunteered is not always accurate or

complete; so some means of compulsion is essential to obtain what is


needed.59 . . . (Emphasis and underscoring

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

that the operation of government, being a legitimate subject for legislation, is


a proper subject for investigation.

Thus, the Court found that the Senate investigation of the government
transaction involved in Arnault was a proper

exercise of the power of inquiry. Besides being related to the expenditure of


public funds of which Congress is the

guardian, the transaction, the Court held, "also involved government agencies
created by Congress and officers

whose positions it is within the power of Congress to regulate or even abolish."

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.

As discussed in Arnault, the power of inquiry, "with process to enforce it," is


grounded on the necessity of

information in the legislative process. If the information possessed by


executive officials on the operation of their

offices is necessary for wise legislation on that subject, by parity of reasoning,


Congress has the right to that

information and the power to compel the disclosure thereof.

As evidenced by the American experience during the so-called "McCarthy era,"


however, the right of Congress to

conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse

than executive or judicial power. It

may thus be subjected to judicial review pursuant to the Courts certiorari


powers under Section 1, Article VIII of the

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.

Parenthetically, one possible way for Congress to avoid such a result as


occurred in Bengzon is to indicate in its

invitations to the public officials concerned, or to any person for that matter,
the possible needed statute which

prompted the need for the inquiry. Given such statement in its invitations,
along with the usual indication of the

subject of inquiry and the questions relative to and in furtherance thereof,


there would be less room for speculation

on the part of the person invited on whether the inquiry is in aid of legislation.

Section 21, Article VI likewise establishes 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

procedure, necessarily implying the constitutional infirmity of an inquiry

conducted without duly published rules of

procedure. Section 21 also mandates that the rights of persons appearing in or


affected by such inquiries be

respected, an imposition that obligates Congress to adhere to the guarantees


in the Bill of Rights.

These abuses are, of course, remediable before the courts, upon the proper
suit filed by the persons affected, even

if they belong to the executive branch. Nonetheless, there may be exceptional


circumstances, none appearing to

obtain at present, wherein a clear pattern of abuse of the legislative power of


inquiry might be established, resulting

in palpable violations of the rights guaranteed to members of the executive


department under the Bill of Rights. In

such instances, depending on the particulars of each case, attempts by the


Executive Branch to forestall these

abuses may be accorded judicial sanction.

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

is crucial for determining the constitutionality of E.O. 464.

Executive privilege

The phrase "executive privilege" is not new in this jurisdiction. It has been used
even prior to the promulgation of the

1986 Constitution.63 Being of American origin, it is best understood in light of


how it has been defined and used in

the legal literature of the United States.

Schwartz defines executive privilege as "the power of the Government to


withhold information from the public, 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

Executive privilege is, nonetheless, not a clear or unitary concept. 66 It has


encompassed claims of varying kinds.67

Tribe, in fact, comments that while it is customary to employ the phrase


"executive privilege," it may be more

accurate to speak of executive privileges "since presidential refusals to furnish


information may be actuated by any

of at least three distinct kinds of considerations, and may be asserted, with


differing degrees of success, in the

context of either judicial or legislative investigations."

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

diplomatic objectives. Another variety is the informers privilege, or the


privilege of the Government not to disclose

the identity of persons who furnish information of violations of law to officers


charged with the enforcement of that

law. Finally, a generic privilege for internal deliberations has been said to
attach to intragovernmental documents

reflecting advisory opinions, recommendations and deliberations comprising


part of a process by which

governmental decisions and policies are formulated. 68

Tribes comment is supported by the ruling in In re Sealed Case, thus:

Since the beginnings of our nation, executive officials have claimed a variety of
privileges to resist disclosure of

information the confidentiality of which they felt was crucial to fulfillment of


the unique role and responsibilities of the

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

government informers in some circumstances and a qualified right to withhold


information related to pending

investigations. x x x"69 (Emphasis and underscoring supplied)

The entry in Blacks Law Dictionary on "executive privilege" is similarly


instructive regarding the scope of the

doctrine.

This privilege, based on the constitutional doctrine of separation of powers,


exempts the executive from disclosure

requirements applicable to the ordinary citizen or organization where such


exemption is necessary to the discharge

of highly important executive responsibilities


governmental operations, and extends not only

involved

in

maintaining

to military and diplomatic secrets but also to documents integral to an


appropriate exercise of the executive

domestic decisional and policy making functions, that is, those documents
reflecting the frank expression necessary

in intra-governmental advisory and deliberative communications.70 (Emphasis


and underscoring supplied)

That a type of information is recognized as privileged does not, however,


necessarily mean that it would be

considered privileged in all instances. For in determining the validity of a claim


of privilege, the question that must be

asked is not only whether the requested information falls within one of the
traditional privileges, but also whether

that privilege should be honored in a given procedural setting.71

The leading case on executive privilege in the United States is U.S. v. Nixon, 72
decided in 1974. In issue in that case

was the validity of President Nixons claim of executive privilege against a


subpoena issued by a district court

requiring the production of certain tapes and documents relating to the


Watergate investigations. The claim of

privilege was based on the Presidents general interest in the confidentiality of


his conversations and

correspondence. The U.S. Court held that while there is no explicit reference to
a privilege of confidentiality in the

U.S. Constitution, it is constitutionally based to the extent that it relates to the


effective discharge of a Presidents

powers. The Court, nonetheless, rejected the Presidents claim of privilege,


ruling that the privilege must be

balanced against the public interest in the fair administration of criminal


justice. Notably, the Court was careful to

clarify that it was not there addressing the issue of claims of privilege in a civil
litigation or against congressional

demands for information.

Cases in the U.S. which involve claims of executive privilege against Congress
are rare.73 Despite frequent assertion

of the privilege to deny information to Congress, beginning with President


Washingtons refusal to turn over treaty

negotiation records to the House of Representatives, the U.S. Supreme Court


has never adjudicated the issue.74

However, the U.S. Court of Appeals for the District of Columbia Circuit, in a case
decided earlier in the same year as

Nixon, recognized the Presidents privilege over his conversations against a


congressional subpoena.75 Anticipating

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

In this jurisdiction, the doctrine of executive privilege was recognized by this


Court in Almonte v. Vasquez.77 Almonte

used the term in reference to the same privilege subject of Nixon. It quoted the
following portion of the Nixon

decision which explains the basis for the privilege:

"The expectation of a President to the confidentiality of his conversations and


correspondences, like the claim of

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,

and even blunt or harsh opinions in Presidential decision-making. A President


and those who assist him must be

free to explore alternatives in the process of shaping policies and making


decisions and to do so in a way many

would be unwilling to express except privately. These are the considerations


justifying a presumptive privilege for

Presidential communications. The privilege is fundamental to the operation of


government and inextricably rooted in

the separation of powers under the Constitution x x x " (Emphasis and


underscoring supplied)

Almonte involved a subpoena duces tecum issued by the Ombudsman against


the therein petitioners. It did not

involve, as expressly stated in the decision, the right of the people to


information.78 Nonetheless, the Court

recognized that there are certain types of information which the government
may withhold from the public, thus

acknowledging, in substance if not in name, that executive privilege may be


claimed against citizens demands for

information.

In Chavez v. PCGG,79 the Court held that this jurisdiction recognizes the
common law holding that there is a

"governmental privilege against public disclosure with respect to state secrets


regarding military, diplomatic and

other national security matters."80 The same case held that closed-door
Cabinet meetings are also a recognized

limitation on the right to information.

Similarly, in Chavez v. Public Estates Authority,81 the Court ruled that the right
to information does not extend to

matters recognized as "privileged information


powers,"82 by which the Court meant

under

the

separation

of

Presidential conversations, correspondences, and discussions in closed-door


Cabinet meetings. It also held that

information on military and diplomatic secrets and those affecting national


security, and information on investigations

of crimes by law enforcement agencies before the prosecution of the accused


were exempted from the right to

information.

From the above discussion on the meaning and scope of executive privilege,
both in the United States and in this

jurisdiction, a clear principle emerges. Executive privilege, whether asserted


against Congress, the courts, or the

public, is recognized only in relation to certain types of information of a


sensitive character. While executive privilege

is a constitutional concept, a claim thereof may be valid or not depending on


the ground invoked to justify it and the

context in which it is made. Noticeably absent is any recognition that executive


officials are exempt from the duty to

disclose information by the mere fact of being executive officials. Indeed, the
extraordinary character of the

exemptions indicates that the presumption inclines heavily against executive


secrecy and in favor of disclosure.

Validity of Section 1

Section 1 is similar to Section 3 in that both require the officials covered by


them to secure the consent of the

President prior to appearing before Congress. There are significant differences


between the two provisions,

however, which constrain this Court to discuss the validity of these provisions
separately.

Section 1 specifically applies to department heads. It does not, unlike Section


3, require a prior determination by any

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

made to depend on the department heads possession of any information which


might be covered by executive

privilege. In fact, in marked contrast to Section 3 vis--vis Section 2, there is no


reference to executive privilege at

all. Rather, the required prior consent under Section 1 is grounded on Article
VI, Section 22 of the Constitution on

what has been referred to as the question hour.

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

on any matter pertaining to their departments. Written questions shall be


submitted to the President of the Senate or

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

public interest so requires and the President so states in writing, the


appearance shall be conducted in executive

session.

Determining the validity of Section 1 thus requires an examination of the


meaning of Section 22 of Article VI. Section

22 which provides for the question hour must be interpreted vis--vis Section
21 which provides for the power of

either House of Congress to "conduct inquiries in aid of legislation." As the


following excerpt of the deliberations of

the Constitutional Commission shows, the framers were aware that these two
provisions involved distinct functions

of Congress.

MR. MAAMBONG. x x x When we amended Section 20 [now Section 22 on the


Question Hour] yesterday, I noticed

that members of the Cabinet cannot be compelled anymore to appear before


the House of Representatives or

before the Senate. I have a particular problem in this regard, Madam President,
because in our experience in the

Regular Batasang Pambansa as the Gentleman himself has experienced in the


interim Batasang Pambansa

one of the most competent inputs that we can put in our committee
deliberations, either in aid of legislation or in

congressional investigations, is the testimonies of Cabinet ministers. We


usually invite them, but if they do not come

and it is a congressional investigation, we usually issue subpoenas.

I want to be clarified on a statement made by Commissioner Suarez when he


said that the fact that the Cabinet

ministers may refuse to come to the House of Representatives or the Senate


[when requested under Section 22]

does not mean that they need not come when they are invited or subpoenaed
by the committee of either House

when it comes to inquiries in aid of legislation or congressional investigation.


According to Commissioner Suarez,

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

Question Hour, whereas, Section 21 would refer specifically to inquiries in aid


of legislation, under which anybody

for that matter, may be summoned and if he refuses, he can be held in


contempt of the House.83 (Emphasis and

underscoring supplied)

A distinction was thus made between inquiries in aid of legislation and the
question hour. While attendance was

meant to be discretionary in the question hour, it was compulsory in inquiries


in aid of legislation. The reference to

Commissioner Suarez bears noting, he being one of the proponents of the


amendment to make the appearance of

department heads discretionary in the question hour.

So clearly was this distinction conveyed to the members of the Commission


that the Committee on Style, precisely

in recognition of this distinction, later moved the provision on question hour


from its original position as Section 20 in

the original draft down to Section 31, far from the provision on inquiries in aid
of legislation. This gave rise to the

following exchange during the deliberations:

MR. GUINGONA. [speaking in his capacity as Chairman of the Committee on


Style] We now go, Mr. Presiding

Officer, to the Article on Legislative and may I request the chairperson of the
Legislative Department, Commissioner

Davide, to give his reaction.

THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide is recognized.|


avvphi|.net

MR. DAVIDE. Thank you, Mr. Presiding Officer. I have only one reaction to the
Question Hour. I propose that

instead of putting it as Section 31, it should follow Legislative Inquiries.

THE PRESIDING OFFICER. What does the committee say?

MR. GUINGONA. I ask Commissioner Maambong to reply, Mr. Presiding Officer.

MR. MAAMBONG. Actually, we considered that previously when we sequenced


this but we reasoned that in Section

21, which is Legislative Inquiry, it is actually a power of Congress in terms of its


own lawmaking; whereas, a

Question Hour is not actually a power in terms of its own lawmaking power
because in Legislative Inquiry, it is in aid

of legislation. And so we put Question Hour as Section 31. I hope Commissioner


Davide will consider this.

MR. DAVIDE. The Question Hour is closely related with the legislative power,
and it is precisely as a complement to

or a supplement of the Legislative Inquiry. The appearance of the members of


Cabinet would be very, very essential

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?

MR. DAVIDE. Yes.84 (Emphasis and underscoring supplied)

Consistent with their statements earlier in the deliberations, Commissioners


Davide and Maambong proceeded from

the same assumption that these provisions pertained to two different functions
of the legislature. Both

Commissioners understood that the power to conduct inquiries in aid of


legislation is different from the power to

conduct inquiries during the question hour. Commissioner Davides only


concern was that the two provisions on

these distinct powers be placed closely together, they being complementary to


each other. Neither Commissioner

considered them as identical functions of Congress.

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

functions of Congress. Commissioner Davide, on the other hand, was speaking


in his capacity as Chairman of the

Committee on the Legislative Department. His views may thus be presumed as


representing that of his Committee.

In the context of a parliamentary system of government, the "question hour"


has a definite meaning. It is a period of

confrontation initiated by Parliament to hold the Prime Minister and the other
ministers accountable for their acts and

the operation of the government,85 corresponding to what is known in Britain


as the question period. There was a

specific provision for a question hour in the 1973 Constitution86 which made
the appearance of ministers mandatory.

The same perfectly conformed to the parliamentary system established by that


Constitution, where the ministers are

also members of the legislature and are directly accountable to it.

An essential feature of the parliamentary system of government is the


immediate accountability of the Prime Minister

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

lost the Prime Minister and the Cabinet may be changed.87

The framers of the 1987 Constitution removed the mandatory nature of such
appearance during the question hour in

the present Constitution so as to conform more fully to a system of separation


of powers.88 To that extent, the

question hour, as it is presently understood in this jurisdiction, departs from


the question period of the parliamentary

system. That department heads may not be required to appear in a question


hour does not, however, mean that the

legislature is rendered powerless to elicit information from them in all


circumstances. In fact, in light of the absence

of a mandatory question period, the need to enforce Congress right to


executive information in the performance of

its legislative function becomes more imperative. As Schwartz observes:

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

that in Britain, a clear separation between the legislative and executive


branches. It is this very separation that

makes the congressional right to obtain information from the executive so


essential, if the functions of the Congress

as the elected representatives of the people are adequately to be carried out.


The absence of close rapport between

the legislative and executive branches in this country, comparable to those


which exist under a parliamentary

system, and the nonexistence in the Congress of an institution such as the


British question period have perforce

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

oversight of administration in a system such as ours becomes a power devoid


of most of its practical content, since

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

power to conduct a question hour, the objective of which is to obtain


information in pursuit of Congress oversight

function.

When Congress merely seeks to be informed on how department heads are


implementing the statutes which it has

issued, its right to such information is not as imperative as that of the


President to whom, as Chief Executive, such

department heads must give a report of their performance as a matter of duty.


In such instances, Section 22, in

keeping with the separation of powers, states that Congress may only request
their appearance. Nonetheless, when

the inquiry in which Congress requires their appearance is "in aid of


legislation" under Section 21, the appearance is

mandatory for the same reasons stated in Arnault.90

In fine, the oversight function of Congress may be facilitated by compulsory


process only to the extent that it is

performed in pursuit of legislation. This is consistent with the intent discerned


from the deliberations of the

Constitutional Commission.

Ultimately, the power of Congress to compel the appearance of executive


officials under Section 21 and the lack of

it under Section 22 find their basis in the principle of separation of powers.


While the executive branch is a co-equal

branch of the legislature, it cannot frustrate the power of Congress to legislate


by refusing to comply with its

demands for information.

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,

beyond the reach of Congress except through the power of impeachment. It is


based on her being the highest

official of the executive branch, and the due respect accorded to a co-equal
branch of government which is

sanctioned by a long-standing custom.

By the same token, members of the Supreme Court are also exempt from this
power of inquiry. Unlike the

Presidency, judicial power is vested in a collegial body; hence, each member


thereof is exempt on the basis not only

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

interpellation of the Chief Justice.

Having established the proper interpretation of Section 22, Article VI of the


Constitution, the Court now proceeds to

pass on the constitutionality of Section 1 of E.O. 464.

Section 1, in view of its specific reference to Section 22 of Article VI of the

Constitution and the absence of any

reference to inquiries in aid of legislation, must be construed as limited in its


application to appearances of

department heads in the question hour contemplated in the provision of said


Section 22 of Article VI. The reading is

dictated by the basic rule of construction that issuances must be interpreted,


as much as possible, in a way that will

render it constitutional.

The requirement then to secure presidential consent under Section 1, limited


as it is only to appearances in the

question hour, is valid on its face. For under Section 22, Article VI of the
Constitution, the appearance of department

heads in the question hour is discretionary on their part.

Section 1 cannot, however, be applied to appearances of department heads in


inquiries in aid of legislation.

Congress is not bound in such instances to respect the refusal of the


department head to appear in such inquiry,

unless a valid claim of privilege is subsequently made, either by the President


herself or by the Executive Secretary.

Validity of Sections 2 and 3

Section 3 of E.O. 464 requires all the public officials enumerated in Section 2(b)
to secure the consent of the

President prior to appearing before either house of Congress. The enumeration


is broad. It covers all senior officials

of executive departments, all officers of the AFP and the PNP, and all senior
national security officials who, in the

judgment of the heads of offices designated in the same section (i.e.


department heads, Chief of Staff of the AFP,

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

2 "Nature, Scope and Coverage of Executive Privilege" , it is evident that


under the rule of ejusdem generis,

the determination by the President under this provision is intended to be based


on a similar finding of coverage

under executive privilege.

En passant, the Court notes that Section 2(b) of E.O. 464 virtually states that
executive privilege actually covers

persons. Such is a misuse of the doctrine. Executive privilege, as discussed


above, is properly invoked in relation to

specific categories of information and not to categories of persons.

In light, however, of Sec 2(a) of E.O. 464 which deals with the nature, scope and
coverage of executive privilege,

the reference to persons being "covered by the executive privilege" may be


read as an abbreviated way of saying

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.

Upon a determination by the designated head of office or by the President that


an official is "covered by the

executive privilege," such official is subjected to the requirement that he first


secure the consent of the President

prior to appearing before Congress. This requirement effectively bars the


appearance of the official concerned

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.

Thus, underlying this requirement of prior consent is the determination by a


head of office, authorized by the

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

construed as a declaration to Congress that the President, or a head of office


authorized by the President, has

determined that the requested information is privileged, and that the President
has not reversed such determination.

Such declaration, however, even without mentioning the term "executive


privilege," amounts to an implied claim that

the information is being withheld by the executive branch, by authority of the


President, on the basis of executive

privilege. Verily, there is an implied claim of privilege.

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:

In connection with the inquiry to be conducted by the Committee of the Whole


regarding the Northrail Project of the

North Luzon Railways Corporation on 29 September 2005 at 10:00 a.m., please


be informed that officials of the

Executive Department invited to appear at the meeting will not be able to


attend the same without the consent of the

President, pursuant to Executive Order No. 464 (s. 2005), entitled "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 Purposes".

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

requested to be resource persons falls under the recognized grounds of the


privilege to justify their absence. Nor

does it expressly state that in view of the lack of consent from the President
under E.O. 464, they cannot attend the

hearing.

Significant premises in this letter, however, are left unstated, deliberately or


not. The letter assumes that the invited

officials are covered by E.O. 464. As explained earlier, however, to be covered


by the order means that a

determination has been made, by the designated head of office or the


President, that the invited official possesses

information that is covered by executive privilege. Thus, although it is not


stated in the letter that such determination

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

against their appearance before Congress.

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

President. In fine, an implied claim of privilege has been made by the


executive.

While there is no Philippine case that directly addresses the issue of whether
executive privilege may be invoked

against Congress, it is gathered from Chavez v. PEA that certain information in


the possession of the executive may

validly be claimed as privileged even against Congress. Thus, the case holds:

There is no claim by PEA that the information demanded by petitioner is


privileged information rooted in the

separation of powers. The information does


conversations, correspondences, or discussions

not

cover

Presidential

during closed-door Cabinet meetings which, like internal-deliberations of the


Supreme Court and other collegiate

courts, or executive sessions of either house of Congress, are recognized as


confidential. This kind of information

cannot be pried open by a co-equal branch of government. A frank exchange of


exploratory ideas and assessments,

free from the glare of publicity and pressure by interested parties, is essential
to protect the independence of

decision-making of those tasked to exercise Presidential, Legislative and


Judicial power. This is not the situation in

the instant case.91 (Emphasis and underscoring supplied)

Section 3 of E.O. 464, therefore, cannot be dismissed outright as invalid by the


mere fact that it sanctions claims of

executive privilege. This Court must look further and assess the claim of
privilege authorized by the Order to

determine whether it is valid.

While the validity of claims of privilege must be assessed on a case to case


basis, examining the ground invoked

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

Cabinet meetings, etc.). While Section 2(a)


information that are covered by the privilege

enumerates

the

types

of

under the challenged order, Congress is left to speculate as to which among


them is being referred to by the

executive. The enumeration is not even intended to be comprehensive, but a


mere statement of what is included in

the phrase "confidential or classified information between the President and


the public officers covered by this

executive order."

Certainly, Congress has the right to know why the executive considers the
requested information privileged. It does

not suffice to merely declare that the President, or an authorized head of


office, has determined that it is so, and that

the President has not overturned that determination. Such declaration leaves
Congress in the dark on how the

requested information could be classified as privileged. That the message is


couched in terms that, on first

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.

A claim of privilege, being a claim of exemption from an obligation to disclose


information, must, therefore, be clearly

asserted. As U.S. v. Reynolds teaches:

The privilege belongs to the government and must be asserted by it; it can
neither be claimed nor waived by a

private party. It is not to be lightly invoked. There must be a formal claim of


privilege, lodged by the head of the

department which has control over the


consideration by that officer. The court itself

matter,

after

actual

personal

must determine whether the circumstances are appropriate for the claim of
privilege, and yet do so without forcing a

disclosure of the very


(Underscoring supplied)

thing

the

privilege

is

designed

to

protect.92

Absent then a statement of the specific basis of a claim of executive privilege,


there is no way of determining

whether it falls under one of the traditional privileges, or whether, given the
circumstances in which it is made, it

should be respected.93 These, in substance, were the same criteria in


assessing the claim of privilege asserted

against the Ombudsman in Almonte v. Vasquez94 and, more in point, against a


committee of the Senate in Senate

Select Committee on Presidential Campaign Activities v. Nixon.95

A.O. Smith v. Federal Trade Commission is enlightening:

[T]he lack of specificity renders an assessment of the potential harm resulting


from disclosure impossible, thereby

preventing the Court from balancing such harm against plaintiffs needs to
determine whether to override any claims

of privilege.96 (Underscoring supplied)

And so is U.S. v. Article of Drug:97

On the present state of the record, this Court is not called upon to perform this
balancing operation. In stating its

objection to claimants interrogatories, government asserts, and nothing more,


that the disclosures sought by

claimant would inhibit the free expression of opinion that non-disclosure is


designed to protect. The government has

not shown nor even alleged that those who evaluated claimants product
were involved in internal policymaking,

generally, or in this particular instance. Privilege cannot be set up by an


unsupported claim. The facts upon which

the privilege is based must be established. To find these interrogatories


objectionable, this Court would have to

assume that the evaluation and classification of claimants products was a


matter of internal policy formulation, an

assumption in which this Court is unwilling to indulge sua sponte.98 (Emphasis


and underscoring supplied)

Mobil Oil Corp. v. Department of Energy99 similarly emphasizes that "an


agency must provide precise and certain

reasons for preserving the confidentiality of requested information."

Black v. Sheraton Corp. of America100 amplifies, thus:

A formal and proper claim of executive privilege requires a specific designation


and description of the documents

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

the claim. An improperly asserted claim of privilege is no claim of privilege.


Therefore, despite the fact that a claim

was made by the proper executive as Reynolds requires, the Court can not
recognize the claim in the instant case

because it is legally insufficient to allow the Court to make a just and


reasonable determination as to its applicability.

To recognize such a broad claim in which the Defendant has given no precise or
compelling reasons to shield these

documents from outside scrutiny, would


procedure.101 (Emphasis and underscoring

make

farce

of

the

whole

supplied)

Due respect for a co-equal branch of government, moreover, demands no less


than a claim of privilege clearly

stating the grounds therefor. Apropos is the following ruling in McPhaul v.


U.S:102

We think the Courts decision in United States v. Bryan, 339 U.S. 323, 70 S. Ct.
724, is highly relevant to these

questions. For it is as true here as it was there, that if (petitioner) had


legitimate reasons for failing to produce the

records of the association, a decent respect for the House of Representatives,


by whose authority the subpoenas

issued, would have required that (he) state (his) reasons for noncompliance
upon the return of the writ. Such a

statement would have given the Subcommittee an opportunity to avoid the


blocking of its inquiry by taking other

appropriate steps to obtain the records. To


opportunity to consider the objection or remedy

deny

the

Committee

the

is in itself a contempt of its authority and an obstruction of its processes. His


failure to make any such statement was

"a patent evasion of the duty of one summoned to produce papers before a
congressional committee[, and] cannot

be condoned." (Emphasis and underscoring supplied; citations omitted)

Upon the other hand, Congress must not require the executive to state the
reasons for the claim with such

particularity as to compel disclosure of the information which the privilege is


meant to protect.103 A useful analogy in

determining the requisite degree of particularity would be the privilege against


self-incrimination. Thus, Hoffman v.

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

silence is justified, and to require him to answer if it clearly appears to the


court that he is mistaken. However, if the

witness, upon interposing his claim, were required to prove the hazard in the
sense in which a claim is usually

required to be established in court, he would be compelled to surrender the


very protection which the privilege is

designed to guarantee. To sustain the privilege, it need only be evident from


the implications of the question, in the

setting in which it is asked, that a responsive answer to the question or an


explanation of why it cannot be answered

might be dangerous because injurious disclosure could result." x x x (Emphasis


and underscoring supplied)

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

to determine whether the withholding of information is justified under the


circumstances of each case. It severely

frustrates the power of inquiry of Congress.

In fine, Section 3 and Section 2(b) of E.O. 464 must be invalidated.

No infirmity, however, can be imputed to Section 2(a) as it merely provides


guidelines, binding only on the heads of

office mentioned in Section 2(b), on what is covered by executive privilege. It


does not purport to be conclusive on

the other branches of government. It may thus be construed as a mere


expression of opinion by the President

regarding the nature and scope of executive privilege.

Petitioners, however, assert as another ground for invalidating the challenged

order the alleged unlawful delegation

of authority to the heads of offices in Section 2(b). Petitioner Senate of the


Philippines, in particular, cites the case of

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

information is privileged, such determination is presumed to bear the


Presidents authority and has the effect of

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

privilege by mere silence.

Such presumptive authorization, however, is contrary to the exceptional nature


of the privilege. Executive privilege,

as already discussed, is recognized with respect to information the confidential


nature of which is crucial to the

fulfillment of the unique role and responsibilities of the executive branch,105


or in those instances where exemption

from disclosure is necessary to the discharge of highly important executive

responsibilities.106 The doctrine of

executive privilege is thus premised on the fact that certain informations must,
as a matter of necessity, be kept

confidential in pursuit of the public interest. The privilege being, by definition,


an exemption from the obligation to

disclose information, in this case to Congress, the necessity must be of such


high degree as to outweigh the public

interest in enforcing that obligation in a particular case.

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

personally consulted with her. The privilege being an extraordinary power, it


must be wielded only by the highest

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

explicit but by mere silence. Section 3, in relation to Section 2(b), is further


invalid on this score.

It follows, therefore, that when an official is being summoned by Congress on a


matter which, in his own judgment,

might be covered by executive privilege, he must be afforded reasonable time


to inform the President or the

Executive Secretary of the possible need for invoking the privilege. This is
necessary in order to provide the

President or the Executive Secretary with fair opportunity to consider whether


the matter indeed calls for a claim of

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

legislation." That such rights must indeed be respected by Congress is an echo


from Article VI Section 21 of the

Constitution mandating that "[t]he rights of persons appearing in or affected


by such inquiries shall be respected."

In light of the above discussion of Section 3, it is clear that it is essentially an


authorization for implied claims of

executive privilege, for which reason it must be invalidated. That such


authorization is partly motivated by the need

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

of inquiry and the right of the people to information on matters of public


concern. For one, the demand of a citizen

for the production of documents pursuant to his right to information does not
have the same obligatory force as a

subpoena duces tecum issued by Congress. Neither does the right to


information grant a citizen the power to exact

testimony from government officials. These powers belong only to Congress


and not to an individual citizen.

Thus, while Congress is composed of representatives elected by the people, it


does not follow, except in a highly

qualified sense, that in every exercise of its power of inquiry, the people are
exercising their right to information.

To the extent that investigations in aid of legislation are generally conducted in


public, however, any executive

issuance tending to unduly limit disclosures


investigations necessarily deprives the people of

of

information

in

such

information which, being presumed to be in aid of legislation, is presumed to


be a matter of public concern. The

citizens are thereby denied access to information which they can use in
formulating their own opinions on the matter

before Congress opinions which they can then communicate to their


representatives and other government

officials through the various legal means allowed by their freedom of


expression. Thus holds Valmonte v. Belmonte:

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

thereto can such bear fruit.107 (Emphasis

and underscoring supplied)

The impairment of the right of the people to information as a consequence of


E.O. 464 is, therefore, in the sense

explained above, just as direct as its violation of the legislatures power of


inquiry.

Implementation of E.O. 464 prior to its publication

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,

Taada v. Tuvera states:

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

citizenship to a particular individual, like a relative of President Marcos who


was decreed instant naturalization. It

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

question in the political forums or, if he is a proper party, even in courts of


justice.108 (Emphasis and underscoring

supplied)

Although the above statement was made in reference to statutes, logic dictates
that the challenged order must be

covered by the publication requirement. As explained above, E.O. 464 has a


direct effect on the right of the people

to information on matters of public concern. It is, therefore, a matter of public


interest which members of the body

politic may question before this Court. Due process thus requires that the
people should have been apprised of this

issuance before it was implemented.

Conclusion

Congress undoubtedly has a right to information from the executive branch


whenever it is sought in aid of

legislation. If the executive branch withholds such information on the ground


that it is privileged, it must so assert it

and state the reason therefor and why it must be respected.

The infirm provisions of E.O. 464, however, allow the executive branch to evade
congressional requests for

information without need of clearly asserting a right to do so and/or proffering


its reasons therefor. By the mere

expedient of invoking said provisions, the power of Congress to conduct


inquiries in aid of legislation is frustrated.

That is impermissible. For

[w]hat republican theory did accomplishwas to reverse the old presumption


in favor of secrecy, based on the

divine right of kings and nobles, and replace it with a presumption in favor of
publicity, based on the doctrine of

popular sovereignty. (Underscoring supplied)109

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

operations of government, but we shall have given up something of much


greater value our right as a people to

take part in government.

WHEREFORE, the petitions are PARTLY GRANTED. Sections 2(b) and 3 of


Executive Order No. 464 (series of

2005), "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 Purposes," are declared VOID. Sections 1 and
2(a) are, however, VALID.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

CASE 20

Republic of the Philippines

SUPREME COURT

Manila

FIRST DIVISION

G.R. No. L-38025 August 20, 1979

DANTE O. CASIBANG, petitioner,

vs.

HONORABLE NARCISO A. AQUINO, Judge of the Court of First Instance of


Pangasinan, Branch XIV, and

REMEGIO P. YU, respondents.

Nicanor & Bautista and Agaton D. Yaranon for petitioner.

Bince, Sevilleja, Agsalud & Associates for respondents.

MAKASIAR, J.:

Respondent Remigio P. Yu was proclaimed on November 9, 1971 as the elected


Mayor of Rosales, Pangasinan in

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

the grounds of (1) anomalies and irregularities in the appreciation, counting


and consideration of votes in specified

electoral precincts; (2) terrorism; (3) rampant vote buying; (4) open voting or
balloting; and (5) excessive campaign

expenditures and other violations of the 1971 Election Code.

Respondent Yu filed on November 29, 1971 his answer and counter-protest


which petitioner answered on

December 10, 1971. However, respondent Yu withdrew his counter-protest


after waiving the opening and revision of

the ballot boxes specified therein.

Proceedings therein continued with respect to the election protest of petitioner


before the Court of First Instance of

Pangasinan, Branch XIV, presided by respondent Judge, who initially took


cognizance of the same as it is

unquestionably a justiciable controversy.

In the meantime or on September 21, 1972, the incumbent President of the


Republic of the Philippines issued

Proclamation No. 1081, placing the entire country under Martial Law; and two
months thereafter, more or less, or

specifically on November 29, 1972, the 1971 Constitutional Convention passed


and approved a Constitution to

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]).

Thereafter or on October 10, 1973, at which time petitioner had already


completed presenting his evidence and in

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

principally) Section 9 of Article XVII [Transitory Provisions] and Section 2 of


Article XI a political question has

intervened in the case. Respondent Yu contended that "... the provisions in the
1935 Constitution relative to all local

governments have been superseded by the 1973 Constitution. Therefore, all


local government should adhere to our

parliamentary form of government. This is clear in the New Constitution under


its Article XI." He further submitted

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.

Petitioner vigorously opposed the motion to dismiss, and, relying mainly on


Sections 7 and 8 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

short the tenure of the office, so as to

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

the motion to dismiss was filed manifestly for delay.

Respondent Yu replied pointing out, among others, that petitioner failed to


refute the issue of political question; and

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

exercise of their free will


CONSTITUTION, thus a NEW

and

sovereign

capacity

approved

NEW

FORM OF GOVERNMENT-PARLIAMENTARY IN FORM was enforced. We find this


provision under

Article XI of the New Constitution, which provides:

SEC. 2. The National Assembly shall enact a local government code which may
not

thereafter be amended except by a majority vote of all its members, defining a


more

responsive and accountable local government structure with an effective


system of

recall, allocating among the different local government units their powers,

responsibilities, and resources, and providing for the 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. However,
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 respectfully submitted that the contention of the protestant to the effect


that the New Constitution

"shows that the office of the Municipal Mayor has not been abolished ... ," is
not ACCURATE.

Otherwise, the provisions of Section 9 of Article XVII, is meaningless.

All officials and employees in the existing Government of the Republic shall
continue

in office until otherwise provided by law or decreed by the incumbent President


of the

Philippines, ...

In the above-quoted provision is the protection of the officials and employees


working in our

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

with the New Constitution.

Therefore, election cases of the 1935 Constitution being interwoven in the


political complexion of our

new Constitution should be dismissed because only those incumbent official


and employees existing

in the new government are protected by the transitional provisions of the New
Fundamental Law of

the Land. The protestant, we respectfully submit, is not covered by the


provisions of Section 9 Article

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

proclaimed a winner is derived from the 1935 Constitution which is changed by


the Filipino people.

On December 18, 1973, the trial court, presided by respondent Judge,


sustained the political question theory of

respondent Yu and ordered the dismissal of the electoral protest. Thus:

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. ...

xxx xxx xxx

Under Section 9, Article XVII, of the new Constitution, above-quoted, only those
officials and

employees of the existing Government of the Republic of the Philippines like


the protestee herein,

are given protection and are authorized to continue in office at the pleasure of
the incumbent

President of the Philippines, while under Section 2 of Article XI of the new


Constitution, also above-

quoted, the intention of completely revamp the whole local government


structure, providing for

different qualifications, election and removal, term, salaries, powers, functions,


and duties, is very

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

Government of the Republic of the Philippines, as well as to the qualifications,


election and removal,

term of office, salaries, and powers of all local officials under the parliamentary
form of government

these have been entrusted or delegated by the sovereign people or has


reserved it to be settled

by the incumbent Chief Executive or by the National Assembly with full


discretionary authority

therefor. As if to supplement these delegated powers, the people have also


decreed in a referendum

the suspension of all elections. Thus, in the United States, questions relating to
what persons or

organizations constituted the lawful government of a state of the Union (Luther


vs. Borden, 7 How. 1,

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

commented by Mr. Justice Antonio in a separate opinion in the Javellana, et al.


cases, 69 0. G. No.

36, September 3, 1973, p. 8008:

The essentially political nature of the question is at once manifest by


understanding

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

ratification, but the legitimacy of the government. It is addressed more to the


frame-

work and political character of this government which now functions under the
new

Charter. It seeks to nullify a Constitution that is already effective. In other


words,

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

logical difficulty which is not to be surmounted as the change relates to the


existence

of a prior point in the Court's "chain of title" to its authority and "does not
relate

merely to a question of the horizontal distribution of powers." It involves a


matter

which 'the sovereign has entrusted to the so-called political departments or


has

reserved to be settled by its own extra-governmental action." The present

Government functions under the new Constitution which has become effective

through political action. Judicial power presupposes an established government


and

an effective constitution. If it decides at all as a court, it necessarily affirms the

existence and authority of the Government under which it is exercising judicial


power.

The Court is not unaware of provisions of the new Constitution, particularly


Sections 7 and 8, Article

XVII (Transitory Provisions) decreeing that all existing laws not inconsistent
with the new

Constitution shall remain operative until amended, modified, or repealed by


the National Assembly,

and that all courts existing at the time of the ratification of the said new
Constitution shall continue

and exercise their jurisdiction until otherwise provided by law in accordance


with the new

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

of existing laws or in the invocation of a court's jurisdiction which have not


been "entrusted to the so-

called political department or has reserved to be settled by its own extra


governmental action.

Hence, this petition.

We reverse.

The thrust of the aforesaid political question theory of respondent Yu is that


the 1973 Constitution, through Section 9

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

Department; and that Section 2 of Article XI thereof entrusted to the National


Assembly the revamp of the entire

local government structure by the enactment of a local government code, thus


presenting a question of policy, the

necessity and expediency of which are outside the range of judicial review. In
short, for the respondent Judge to still

continue assuming jurisdiction over the pending election protest of petitioner


is for him to take cognizance of a

question or policy "in regard to which full discretionary authority has been
delegated to the Legislative or Executive

branch of the government."

There is an imperative need to re-state pronouncements of this Court on the


new Constitution which are decisive in

the resolution of the political question theory of respondent Yu.

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]).

2. That "the constitutional grant of privilege to continue in office, made by the


new Constitution for the benefit of

persons who were incumbent officials or employees of the Government when


the new Constitution took effect,

cannot be fairly construed as indiscriminately encompassing every person who


at the time happened to be

performing the duties of an elective office, albeit under protest or contest" and
that "subject to the constraints

specifically mentioned in Section 9, Article XVII of the Transitory Provisions, it


neither was, nor could have been the

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

beamed mainly at the proper determination in a judicial forum of a proclaimed


candidate-elect's right to the

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

subject to question, would be tantamount to giving a stamp of approval to


what could have been an election victory

characterized by fraud, threats, intimidation, vote buying, or other forms of


irregularities prohibited by the Election

Code to preserve inviolate the sanctity of the ballot." (Parades, Sunga and
Valley cases, supra).

3. That "the right of the private respondents (protestees) to continue in office


indefinitely arose not only by virtue of

Section 9 of Article XVII of the New Constitution but principally from their
having been proclaimed elected to their

respective positions as a result of the November 8, 1971 elections. Therefore, if


in fact and in law, they were not

duly elected to their respective positions and consequently, have no right to


hold the same, perform their functions,

enjoy their privileges and emoluments, then certainly, they should not be
allowed to enjoy the indefinite term of

office given to them by said constitutional provision" (Parades, Sunga and

Valley cases, supra).

4. That "until a subsequent law or presidential decree provides otherwise, the


right of respondent (protestee) to

continue as mayor rests on the legality of his election which has been
protested by herein petitioner. Should the

court decide adversely against him the


(protestee) would cease to be mayor even

electoral

protest,

respondent

before a law or presidential decree terminates his tenure of office pursuant to


said Section 9 of Article XVII of the

1973 Constitution" (Euipilag, supra).

5. That "there is a difference between the 'term' of office and the 'right' to hold
an office. A 'term' of office is the

period during winch an elected officer or appointee is entitled to hold office,


perform its functions and enjoy its

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

foreclose any challenge by the herein petitioners, in an election protest, of the


'right' of the private respondents to

continue holding their respective office. What has been directly affected by
said constitutional provision is the 'term'

to the office, although the 'right' of the incumbent to an office which he is


legally holding is co-extensive with the

'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).

6. That the New Constitution recognized the continuing jurisdiction of courts of


first instance to hear, try and decide

election protests: "Section 7 of Article XVII of the New Constitution provides


that 'all existing laws not inconsistent

with this Constitution shall remain operative until amended, modified or


repealed by the National Assembly. 'And

there has been no amendment, modification or repeal of Section 220 of the


Election Code of 1971 which gave the

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

and exercise their jurisdiction until otherwise provided by law in accordance


with this Constitution, and all cases

pending in said courts shall be heard, tried and determined under the laws
then in force.' Consequently, the Courts

of First Instance presided over by the respondent-Judges should continue and


exercise their jurisdiction to hear, try

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

elections, returns, and qualifications of members of the National Assembly as


well as elective provincial and city

officials (par. 2 of Sec. 2, Article XII-C of the 1973 Constitution), such power
does not extend to electoral contests

concerning municipal elective positions.

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

provision (Euipilag, supra).

General Order No. 3, as amended by General Order No. 3-A, does not expressly
include electoral contests of

municipal elective positions as among those removed from the jurisdiction of


the courts; for said General Order,

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,

legality or constitutionality of any decree, order or acts issued by the President


or his duly designated representative

or by public servants pursuant to his decrees and orders issued under


Proclamation No. 1081.

8. That General Order No. 3 may not be invoked by the courts to avoid exercise
of their jurisdiction because to do co

"is nothing short of unwarranted abdication of judicial', authority, which no


judge duly imbued with the implications of

the paramount principle of independence of the judiciary should ever think of


doing. It is unfortunate indeed that

respondent Judge is apparently unaware that it is a matter of highly significant


historical fact that this Court has

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

particular instances of attack against the validity of certain Presidential


decrees raise political questions which the

Judiciary would not interfere with, there is unanimity among Us in the view that
it is for the Court rather than the

Executive to determine whether or not We may take cognizance of any given


case involving the validity of acts of

the Executive Department purportedly under the authority of the martial law
proclamations" (Lina vs. Purisima, 3

PHILAJUR 605, 610-611, 82 SCRA 344 [1978]).

II

1. In the light of the foregoing pronouncements, We hold that the electoral


protest case herein involved has

remained a justiciable controversy. No political question has ever been


interwoven into this case. Nor is there any

act of the incumbent President or the Legislative Department to be indirectly


reviewed or interfered with if the

respondent Judge decides the election protest. The term "political question"
connotes what it means in ordinary

parlance, namely, a question of policy. It refers to those questions which under


the Constitution, are to be decided

by the people in their sovereign capacity; or in regard to which full


discretionary authority has been delegated to the

legislative or executive branch of the government. It is concerned with issues


dependent upon the wisdom, not

legality, of a particular measure" (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

case held to involve a political question is found a textually demonstrable


constitutional commitment of the issue to a

coordinate political department; or a lack of judicially discoverable and


manageable standards for resolving it; or the

impossibility of deciding without an initial policy determination of a kind clearly


for non-judicial discretion; or the

impossibility of a court's undertaking


expressing lack of respect due coordinate

independent

resolution

without

branches of the government; or an unusual need for unquestioning adherence


to a political decision already made;

or the potentiality of embarrassment from multifarious pronouncements by


various departments on one question" (p.

217). And Chief Justice Enrique M. Fernando, then an Associate Justice, of this

Court fixed the limits of the term,

thus: "The term has been made applicable to controversies clearly non-judicial
and therefore beyond its jurisdiction

or to an issue involved in a case appropriately subject to its cognizance, as to


which there has been a prior

legislative or executive determination to which deference must be paid (Cf.


Vera vs. Avelino, 77 Phil. 192 [1946];

Lopez vs. Roxas, L-25716, July 28, 1966, 17 SCRA 756; Gonzales vs. Commission
on Elections, L-28196, Nov. 9,

1967, 21 SCRA 774). It 'has likewise been employed loosely to characterize a


suit where the party proceeded

against is the President or Congress, or any branch thereof (Cf. Planas vs. Gil,
67 Phil. 62 [1937]; Vera vs. Avelino,

77 Phil. 192 [1946]). If to be delimited with accuracy; 'political questions'


should refer to such as would under the

Constitution be decided by the people in their sovereign capacity or in regard


to which full discretionary authority is

vested either in the President or Congress. It is thus beyond the competence of


the judiciary to pass upon. ..."

(Lansang vs. Garcia, 42 SCRA 448, 504-505 [1971]).

2. The only issue in the electoral protest case dismissed by respondent Judge
on the ground of political question is

who between protestant herein petitioner and protestee herein


respondent Yu was the duly elected

mayor of Rosales, Pangasinan, and legally entitled to enjoy the rights,


privileges and emoluments appurtenant

thereto and to discharge the functions, duties and obligations of the position.
If the protestee's election is upheld by

the respondent Judge, then he continues in office; otherwise, it is the


protestant, herein petitioner. That is the only

consequence of a resolution of the issue therein involved a purely justiciable


question or controversy as it implies

a given right, legally demandable and enforceable, an act or ommission


violative of said right, and a remedy,

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

of its resolution by the Court, remains the same as above-stated.

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

elected mayor of Rosales, Pangasinan; hence, entitled to enjoy the extended


term as mandated by said provision of

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

with the power or discretion entrusted by the New Constitution to the


incumbent President or the Legislative

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

or the Legislative Department will take pursuant thereto.

4. Neither does Section 2 of Article XI stigmatize the issue in that electoral


protest case with a political color. For

simply, that section allocated unto the National Assembly the power to enact a
local government code "which may

not thereafter be amended except by a majority of all its Members, defining a


more responsive and accountable

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

Assembly will not be usurped or preempted by whatever ruling or judgment the


respondent Judge will render in the

electoral protest case. Whoever will prevail in that contest will enjoy the
indefinite term of the disputed office of

mayor of Rosales, Pangasinan in the existing set-up of local government in this


country; subject always to whatever

change or modification the National Assembly will introduce when it will enact
the local government code.

III

The construction made by respondent Judge of Sections 7 and 8 of Article XVII


of the New Constitution "... that

these refer to matters raised in the enforcement of existing laws or in the


invocation of a court's jurisdiction which

have not been 'entrusted to the so-called political department or reserved to


be settled by its own extra-

governmental action,"' strained as it is, cannot be sustained in view of the


result herein reached on the issue of

political question as well as Our previous pronouncements as above restated


on the same Sections 7 and 8 of the

New Constitution.

WHEREFORE, RESPONDENT COURT'S ORDER OF DISMISSAL IS HEREBY SET


ASIDE AND THE

RESPONDENT COURT IS DIRECTED TO IMMEDIATELY PROCEED WITH THE TRIAL


AND DETERMINATION

OF THE ELECTION PROTEST BEFORE IT ON THE MERITS. THIS DECISION SHALL


BE IMMEDIATELY

EXECUTORY UPON PROMULGATION HEREOF. NO COSTS.

CASE 21

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 86344 December 21, 1989

REP. RAUL A. DAZA, petitioner,

vs.

REP. LUIS C. SINGSON and HON. RAOUL V. VICTORINO IN THE LATTER'S


CAPACITY AS SECRETARY OF

THE COMMISSION ON APPOINTMENTS, respondent.

CRUZ, J.:

After the congressional elections of May


Representatives proportionally apportioned its

11,

1987,

the

House

of

twelve seats in the Commission on Appointments among the several political


parties represented in that chamber,

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

representative of the Liberal Party. 1

On September 16, 1988, the Laban ng Demokratikong Pilipino was reorganized,


resulting in a political realignment

in the House of Representatives. Twenty four members of the Liberal Party


formally resigned from that party and

joined the LDP, thereby swelling its number to 159 and correspondingly
reducing their former party to only 17

members. 2

On the basis of this development, the House of Representatives revised its


representation in the Commission on

Appointments by withdrawing the seat occupied by the petitioner and giving


this to the newly-formed LDP. On

December 5, 1988, the chamber elected a new set of representatives consisting


of the original members except the

petitioner and including therein respondent Luis C. Singson as the additional


member from the LDP. 3

The petitioner came to this Court on January 13, 1989, to challenge his removal
from the Commission on

Appointments and the assumption of his seat by the respondent. Acting


initially on his petition for prohibition and

injunction with preliminary injunction, we issued a temporary restraining order


that same day to prevent both the

petitioner and the


Appointments. 4

respondent

from

serving

in

the

Commission

on

Briefly stated, the contention of the petitioner is that he cannot be removed


from the Commission on Appointments

because his election thereto is permanent under the doctrine announced in


Cunanan v. Tan. 5 His claim is that the

reorganization of the House representation in the said body is not based on a


permanent political realignment because

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

jurisdiction of this Court. He also maintains that he has been improperly


impleaded, the real party respondent being

the House of Representatives which changed its representation in the


Commission on Appointments and removed

the petitioner. Finally, he stresses that nowhere in the Constitution is it


required that the political party be registered

to be entitled
Appointments.

to

proportional

representation

in

the

Commission

on

In addition to the pleadings filed by the parties, a Comment was submitted by


the Solicitor General as amicus curiae

in compliance with an order from the Court.

At the core of this controversy is Article VI, Section 18, of the Constitution
providing as follows:

Sec. 18. There shall be a Commission on Appointments consisting of the


President of the Senate, as

ex officio Chairman, twelve Senators and twelve Members of the House of


Representatives, elected

by each House on the basis of proportional representation from the political


parties and parties or

organizations registered under the party-list system represented therein. The


Chairman of the

Commission shall not vote, except in case of a tie. The Commission shall act on
all appointments

submitted to it within thirty session days of the Congress from their


submission. The Commission

shall rule by a majority vote of all the Members.

Ruling first on the jurisdictional issue, we hold that, contrary to the


respondent's assertion, the Court has the

competence to act on the matter at bar. Our finding is that what is before us is
not a discretionary act of the House

of Representatives that may not be reviewed by us because it is political in


nature. What is involved here is the

legality, not the wisdom, of the act of that chamber in removing the petitioner
from the Commission on

Appointments. That is not a political question because, as Chief Justice


Concepcion explained in Tanada v. Cuenco.

... 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

Constitution, are to be decided by the people in their sovereign capacity, or in


regard to which full

discretionary authority has been delegated to the Legislature or executive


branch of the

Government." It is concerned with issues dependent upon the wisdom, not


legality, of a particular

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

Party. Senator Lorenzo M. Tanada nominated only himself as the minority


representative in the Tribunal, whereupon

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.

By way of special and affirmative defenses, the respondents contended inter


alia that the subject of the petition was

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

requirement of the Constitution. The petitioners were questioning the manner


of filling the Tribunal, not the discretion

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

the Senate Electoral Tribunal, upon nomination by Senator Primicias-member


and spokesman of the

party having the largest number of votes in the Senate-behalf of its Committee
on Rules,

contravenes the constitutional mandate that said members of the Senate


Electoral Tribunal shall be

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

constitutional limitations which are claimed to be mandatory in nature. It is


clearly within the

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.

Moreover, where the legislative department has by statute prescribed election


procedure in a given

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

constitutional or statutory rights ...' (1 6 C.J.S., 439; emphasis supplied)

It is, therefore, our opinion that we have, not only jurisdiction but also the
duty, to consider and

determine the principal issue raised by the parties herein."

Although not specifically discussed, the same disposition was made in Cunanan
v. Tan as it likewise involved the

manner or legality of the organization of the Commission on Appointments, not


the wisdom or discretion of the

House in the choice of its representatives.

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

political question. Article VII, Section 1, of the Constitution clearly provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may

be established by law.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights

which are legally demandable and enforceable, and to determine whether or


not there has been a

grave abuse of discretion amounting to lack or excess of jurisdiction on the


part of any branch or

instrumentality of the Government.

The respondent's contention that he has been improperly impleaded is even


less persuasive. While he may be

technically correct in arguing that it is not he who caused the petitioner's


removal, we feel that this objection is also

not an insuperable obstacle to the resolution of this controversy. We may, for


one thing, treat this proceeding as a

petition for quo warranto as the petitioner is actually questioning the


respondent's right to sit as a member of the

Commission on Appointments. For another, we have held as early as in the


Emergency Powers Cases 7 that where

serious constitutional questions are involved, "the transcendental importance


to the public of these cases demands that

they be settled promptly and definitely brushing


technicalities of procedure." The same policy has since

aside,

if

we

must,

then been consistently followed by the Court, as in Gonzales v. Commission on


Elections, 8 where we held through Chief

Justice Fernando:

In the course of the deliberations, a serious procedural objection was raised by


five members of the

Court. It is their view that respondent Commission on Elections not being


sought to be restrained

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

rightfully be treated as a petition for prohibition.

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

multiplicity of suits, strong reasons of public policy demand that [its]


constitutionality ... be now

resolved.' It may likewise be added that the exceptional character of the


situation that confronts us,

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

an appropriate invocation of our jurisdiction to prevent the enforcement of an


alleged unconstitutional

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

the case of Cunanan v. Tan to support their respective positions. It is best,


therefore, to make a quick review of that

case for a proper disposition of this one.

In the election for the House of Representatives held in 1961, 72 seats were
won by the Nacionalista Party, 29 by

the Liberal Party and 1 by an independent. Accordingly, the representation of


the chamber in the Commission on

Appointments was apportioned to 8 members from the Nacionalista Party and 4


from the Liberal Party.

Subsequently, 25 members of the Nacionalista Party, professing discontent


over the House leadership, made

common cause with the Liberal Party and formed what was called the Allied
Majority to install a new Speaker and

reorganize the chamber. Included in this reorganization was the House


representation in the Commission on

appointments where three of the Nacionalista congressmen originally chosen


were displaced by three of their party

colleagues who had joined the Allied Majority.

Petitioner Carlos Cunanan's ad interim appointment as Deputy Administrator of

the Reforestration Administration

was rejected by the Commission on Appointments as thus reorganized and


respondent Jorge Tan, Jr. was

thereafter designated in his place. Cunanan then came to this Court,


contending that the rejection of his

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

still members of the Nacionalista Party. The reorganization of the Commission


on Appointments was invalid

because it was not based on the proportional representation of the political


parties in the House of Representatives

as required by the Constitution. The Court held:

... In other words, a shifting of votes at a given time, even if du to


arrangements of a more or less

temporary nature, like the one that has led to the formation of the so-called
"Allied Majority," does

not suffice to authorize a reorganization of the membership of the Commission


for said House.

Otherwise the Commission on Appointments may have to be reorganized as


often as votes shift

from one side to another in the House. The framers of our Constitution could
not have intended to

thus place a constitutional organ, like the Commission on Appointments, at the


mercy of each House

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

floundered, like the UNIDO.

The respondent also cites Cunanan but from a different viewpoint. According to
him, that case expressly allows

reorganization at any time to reflect changes in the political alignments in


Congress, provided only that such

changes are permanent. The creation of the LDP constituting the bulk of the
former PDP-Laban and to which no

less than 24 Liberal congressmen had transferred was a permanent change.


That change fully justified his

designation to the Commission on Appointments after the reduction of the LP


representation therein. Thus, the

Court held:

Upon the other hand, the constitutional provision to the effect that "there shall
be a Commission on

Appointments consisting of twelve (12) Senators and twelve (12) members of


the House of

Representatives
proportional

elected

by

each

House,

respectively,

on

the

basis

of

REPRESENTATION OF THE POLITICAL PARTIES THEREIN," necessarily connotes


the authority

of each House of Congress to see to it that this requirement is duly complied


with. As a

consequence, it may take appropriate measures, not only upon the initial
organization of the

Commission, but also, subsequently thereto. If by reason of successful election


protests against

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

House is materially changed, the House is clothed with authority to declare


vacant the necessary

number of seats in the Commission on Appointments held by members of said


House belonging to

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

the Solicitor General) an important development


considerably simplify the present controversy.

has

supervened

to

The petitioner, to repeat, bases his argument heavily on the non-registration of


the LDP which, he claims has not

provided the permanent political


reorganization. As he insists:

realignment

to

justify

the

questioned

(c) Assuming that the so-called new coalesced majority is actually the LDP
itself,

then the proposed reorganization is likewise illegal and ineffectual, because


the LDP,

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

representation of political parties in the House of Representatives. 9

xxx xxx xxx

... the clear constitutional intent behind Section 18, Article VI, of the 1987
Constitution, is to give the

right of representation in the Commission on Appointment only to political


parties who are duly

registered with the Comelec. 10

On November 23, 1989, however, that argument boomeranged against the


petitioner. On that date, the Commission

on Elections in an en banc resolution affirmed the resolution of its First Division


dated August 28, 1989, granting 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

speak, and he must now limp to shore as best he can.

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

Representatives (or the Senate) would still not be entitled to representation in


the Commission on Appointments as

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

Commission on Appointments and in the Electoral Tribunals by virtue of its


status as the majority party in both chambers

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

any political organization, especially if it is democratic in structure. In fact even


the monolithic Communist Party in a

number of socialist states has undergone similar dissension, and even


upheavals. But it surely cannot be

considered still temporary because of such discord.

If the petitioner's argument were to be pursued, the 157 members of the LDP
in the House of Representatives would

have to be denied representation in the Commission on Appointments and, for


that matter, also the Electoral

Tribunal. By the same token, the KBL, which the petitioner says is now "history
only," should also be written off. The

independents also cannot be represented because they belong to no political


party. That would virtually leave 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

Appointments, it did not express any objection.


petitioner is now opposed to the withdrawal from it

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.

To summarize, then, we hold, in view of the foregoing considerations, that the


issue presented to us is justiciable

rather political, involving as it does the legality and not the wisdom of the act
complained of, or the manner of filling

the Commission on Appointments as prescribed by the Constitution. Even if the


question were political in nature, it

would still come within our powers of review under the expanded jurisdiction
conferred upon us by Article VIII,

Section 1, of the Constitution, which includes the authority to determine


whether grave abuse of discretion

amounting to excess or lack of jurisdiction has been committed by any branch


or instrumentality of the government.

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

its representation in the Commission on Appointments to reflect at any time


the changes that may transpire in the

political alignments of its membership. It is understood that such changes must


be permanent and do not include the

temporary alliances or factional divisions not involving severance of political


loyalties or formal disaffiliation and

permanent shifts of allegiance from one political party to another.

The Court would have preferred not to intervene in this matter, leaving it to be
settled by the House of

Representatives or the Commission on Appointments as the bodies directly


involved. But as our jurisdiction has

been invoked and, more importantly, because a constitutional stalemate had to


be resolved, there was no

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.

WHEREFORE, the petition is DISMISSED. The temporary restraining order dated


January 13, 1989, is LIFTED. The

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

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-44640 October 12, 1976

PABLO C. SANIDAD and PABLITO V. SANIDAD, petitioner,

vs.

HONORABLE COMMISSION
TREASURER, respondents.

ON

G.R. No. L-44684. October 12,1976

VICENTE M. GUZMAN, petitioner,

vs.

ELECTIONS

and

HONORABLE

NATIONAL

COMMISSION ELECTIONS, respondent.

G.R. No. L-44714. October 12,1976

RAUL M. GONZALES, RAUL T. GONZALES, JR., and ALFREDO SALAPANTAN,


petitioners,

vs.

HONORABLE COMMISSION
TREASURER, respondents.

ON

SELECTIONS

and

HONORABLE

NATIONAL

MARTIN, J,:

The capital question raised in these prohibition suits with preliminary


injunction relates to the power of the incumbent

President of the Philippines to propose


Constitution in the absence of the interim

amendments

to

the

present

National Assembly which has not been convened.

On September 2, 1976, President Ferdinand E. Marcos issued Presidential


Decree No. 991 calling for a national

referendum on October 16, 1976 for the Citizens Assemblies ("barangays") to


resolve, among other things, the

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

national referendum-plebiscite of October


Presidential Decree No. 1031 repealed Section

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

to be submitted to the people in the referendum-plebiscite on October 16,


1976. The Decree recites in its "whereas"

clauses that the people's continued opposition to the convening of the National
Assembly evinces their desire to

have such body abolished and replaced thru a constitutional amendment,


providing for a legislative body, which will

be submitted directly to the people in the referendum-plebiscite of October 16.

The questions ask, to wit:

(1) Do you want martial law to be continued?

(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

contemplation of Section 2 of Article XVI of the Constitution.

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

incumbent President of the Philippines, representatives elected from the


different regions of the nation, those who

shall not be less than eighteen years of age elected by their respective sectors,
and those chosen by the incumbent

President from the members of the Cabinet. Regional representatives shall be


apportioned among the regions in

accordance with the number of their respective inhabitants and on the basis of
a uniform and progressive ratio while

the sectors shall be determined by law. The number of representatives from


each region or sector and the, manner

of their election shall be prescribed and regulated by law.

2. The interim Batasang Pambansa shall have the same powers and its

members shall have the same functions,

responsibilities, rights, privileges, and disqualifications as the interim National


Assembly and the regular National

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

disqualifications as the President (Prime Minister) may prescribe. The President


(Prime Minister) if he so desires

may appoint a Deputy Prime Minister or as many Deputy Prime Ministers as he


may deem necessary.

5. The incumbent President shall continue to exercise legislative powers until


martial law shall have been lifted.

6. Whenever in the judgment of the President (Prime Minister), there exists a


grave emergency or a threat or

imminence thereof, or whenever the interim Batasang Pambansa or the regular


National Assembly fails or is unable

to act adequately on any matter for any reason that in his judgment requires
immediate action, he may, in order to

meet the exigency, issue the necessary decrees,


instructions, which shall form part of the law of

orders

or

letters

of

the land.

7. The barangays and sanggunians shall continue as presently constituted but


their functions, powers, and

composition may be altered by law.

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

whether of national or local interest.

8. All provisions of this Constitution not inconsistent with any of these


amendments shall continue in full force and

effect.

9. These amendments shall take effect after the incumbent President shall
have proclaimed that they have been

ratified by I majority of the votes cast in the referendum-plebiscite."

The Commission on Elections was vested with the exclusive supervision and
control of the October 1976 National

Referendum-Plebiscite.

On September 27, 1976, PABLO C. SANIDAD and PABLITO V. SANIDAD, father


and son, commenced L-44640 for

Prohibition with Preliminary Injunction seeking to enjoin the Commission on


Elections from holding and conducting

the Referendum Plebiscite on October 16; to declare without force and effect
Presidential Decree Nos. 991 and

1033, insofar as they propose amendments to the Constitution, as well as


Presidential Decree No. 1031, insofar as

it directs the Commission on Elections to supervise, control, hold, and conduct


the Referendum-Plebiscite

scheduled on October 16, 1976.

Petitioners contend that under the 1935 and 1973 Constitutions there is no
grant to the incumbent President to

exercise the constituent power to


Constitution. As a consequence, the

propose

amendments

to

the

new

Referendum-Plebiscite on October 16 has no constitutional or legal basis.

On October 5, 1976, the Solicitor General filed the comment for respondent
Commission on Elections, The Solicitor

General principally maintains that petitioners have no standing to sue; the


issue raised is political in nature, beyond

judicial cognizance of this Court; at this state of the transition period, only the
incumbent President has the authority

to exercise constituent power; the referendum-plebiscite is a step towards


normalization.

On September 30, 1976, another action for Prohibition with Preliminary


Injunction, docketed as L-44684, was

instituted by VICENTE M. GUZMAN, a delegate to the 1971 Constitutional


Convention, asserting that the power to

propose amendments to, or revision of the Constitution during the transition


period is expressly conferred on the

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

implementation of Presidential Decrees


Referendum-Plebiscite of October 16.

relative

to

the

forthcoming

These last petitioners argue that even granting him legislative powers under
Martial Law, the incumbent President

cannot act as a constituent assembly to propose amendments to the


Constitution; a referendum-plebiscite is

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

confines the right of suffrage to those citizens of the Philippines 18 years of


age and above.

We find the petitions in the three entitled cases to be devoid of merit.

Justiciability of question raised.

1. As a preliminary resolution, We rule that the petitioners in L-44640 (Pablo C.


Sanidad and Pablito V. Sanidad)

possess locus standi to challenge the constitutional premise of Presidential


Decree Nos. 991, 1031, and 1033. It is

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

of the State for the purpose of executing an unconstitutional act constitutes a


misapplication of such funds. 4 The

breadth of Presidential Decree No. 991 carries all appropriation of Five Million
Pesos for the effective

implementation of its purposes. 5 Presidential Decree No. 1031 appropriates


the sum of Eight Million Pesos to carry

out its provisions. 6 The interest of the aforenamed petitioners as taxpayers in


the lawful expenditure of these

amounts of public money sufficiently clothes them with that personality to


litigate the validity of the Decrees

appropriating said funds. Moreover, as regards taxpayer's suits, this Court


enjoys that open discretion to entertain

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

judicial review. We disagree. The amending process both as to proposal and


ratification, raises a judicial question. 8

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

the 1973 Constitution, the power to propose amendments o the constitution


resides in the interim National Assembly in the period of transition (See. 15,
Transitory

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

Assembly to constitute itself into a constituent assembly the incumbent


President undertook the proposal of amendments and submitted the proposed

amendments thru Presidential Decree 1033 to the people in a ReferendumPlebiscite on October 16. Unavoidably, the regularity regularity of the
procedure for

amendments, written in lambent words in the very Constitution sought to be


amended, raises a contestable issue. The implementing Presidential Decree
Nos. 991,

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

declared unconstitutional without the concurrence of at least ten Members. ..."


The Supreme Court has the last word in the construction not only of treaties
and

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

to the Constitution, but his constitutional authority to perform such act or to


assume the power of a constituent

assembly. Whether the amending process confers on the President that power
to propose amendments is therefore

a downright justiciable question. Should the contrary be found, the actuation of


the President would merely be a

brutum fulmen. If the Constitution provides how it may be amended, the


judiciary as the interpreter of that

Constitution, can declare whether the procedure followed or the authority


assumed was valid or not. 10

We cannot accept the view of the Solicitor General, in pursuing his theory of
non-justiciability, that the question of

the President's authority to propose amendments and the regularity of the


procedure adopted for submission of the

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

they ratified the present Constitution in 1973? Whether, therefore, the


constitutional provision has been followed or

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

determine whether the constitutional norms for amendments have been


observed or not. And, this inquiry must be

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

Philippines proposed by the 1971 Constitutional Convention and appropriating


fund s therefore "is a political one, was

rejected and the Court unanimously considered the issue as justiciable in


nature. Subsequently in the Ratification Cases 12

involving the issue of whether or not the validity of Presidential Proclamation


No. 1102. announcing the Ratification by the

Filipino people of the constitution proposed by the 1971 Constitutional


Convention," partakes of the nature of a political

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

partook of a political nature, and We unanimously

declared that the issue was a justiciable one. With Identical unanimity. We
overruled the respondent's contention in the

1971 habeas corpus cases, questioning Our authority to determine the


constitutional sufficiency of the factual bases of the

Presidential proclamation suspending the privilege of the writ of habeas corpus


on August 21, 1971, despite the opposite

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

modified, in Gonzales vs. Commission on Elections, the political-question theory


adopted in Mabanag vs. Lopez Vito." 13

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

same as those given in support on the political question theory advanced in


said habeas corpus and plebiscite cases,

which were carefully considered by this Court and found by it to be legally


unsound and constitutionally untenable. As a

consequence. Our decisions in the aforementioned habeas corpus cases


partakes of the nature and effect of a stare

decisis which gained added weight by its virtual reiteration."

II

The amending process as laid out

in the new Constitution.

1. Article XVI of the 1973 Constitution on Amendments ordains:

SECTION 1. (1) Any amendment to, or revision of, this Constitution may be
proposed by the

National Assembly upon a vote of three-fourths of all its Members, or by a


constitutional

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

calling such a convention to the electorate in an election.

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

after the approval of such amendment or revision.

In the present period of transition, the interim National Assembly instituted in


the Transitory Provisions is conferred

with that amending power. Section 15 of the Transitory Provisions reads:

SECTION 15. The interim National Assembly, upon special call by the interim
Prime Minister,

may, by a majority vote of all its Members, propose amendments to this


Constitution. Such

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

period of transition. In times of normally, the amending process may be


initiated by the proposals of the (1) regular

National Assembly upon a vote of three-fourths of all its members; or (2) by a


Constitutional Convention called by a

vote of two-thirds of all the Members of the National Assembly. However the
calling of a Constitutional Convention

may be submitted to the electorate in an election voted upon by a majority


vote of all the members of the National

Assembly. In times of transition, amendments may be proposed by a majority


vote of all the Members of the

National Assembly upon special call by the interim Prime Minister,.

2. This Court in Aquino v. COMELEC," had already settled that the incumbent
President is vested with that

prerogative of discretion as to when he shall initially convene the interim


National Assembly. Speaking for the

majority opinion in that case, Justice Makasiar said: "The Constitutional


Convention intended to leave to the

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

of that Constitutional Convention, revealed: "(W)hen the Delegates to the


Constitutional Convention voted on the

Transitory Provisions, they were aware of the fact that under the same, the
incumbent President was given the

discretion as to when he could convene the interim National Assembly; it was


so stated plainly by the sponsor,

Delegate Yaneza; as a matter of fact, the proposal that it be convened


'immediately', made by Delegate Pimentel

(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

referendum of July 24, 1973, the Citizens Assemblies ("bagangays") reiterated


their sovereign will to withhold the

convening of the interim National Assembly. Again, in the referendum of


February 27, 1975, the proposed question

of whether the interim National Assembly shall be initially convened was


eliminated, because some of the members

of Congress and delegates of the Constitutional Convention, who were deemed


automatically members of the I

interim National Assembly, were against its inclusion since in that referendum
of January, 1973, the people had

already resolved against it.

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

Rather, it is exercising a peculiar power bestowed upon it by the fundamental


charter itself. In the Philippines, that

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

legislate for the nation by virtue of constitutional conferment amending of the


Constitution is not legislative in

character. In political science a distinction is made between constitutional


content of an organic character and that of

a legislative character'. The distinction, however, is one of policy, not of law. 17


Such being the case, approval of the

President of any proposed amendment is a misnomer 18 The prerogative of the


President to approve or disapprove applies

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

in the President during

crisis government.

1. In general, the governmental powers in crisis government the Philippines is


a crisis government today are more or

less concentrated in the President. 20 According


concentration of government power in a democracy

to

Rossiter,

"(t)he

faced by an emergency is a corrective to the crisis inefficiencies inherent in the


doctrine of the separation of powers. In

most free states it has generally been regarded as imperative that the total

power of the government be parceled out

among three mutually independent branches executive, legislature, and


judiciary. It is believed to be destructive of

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

separation of powers forms a distinct obstruction to arbitrary governmental


action. By this same token, in abnormal times

it may form an insurmountable barrier to a decisive emergency action in behalf


of the state and its independent existence.

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

complete the separation of powers in a constitutional system, the more difficult


and yet the more necessary will be their

fusion in time of crisis. This is evident in a comparison of the crisis


potentialities of the cabinet and presidential systems of

government. In the former the all-important harmony of legislature and


executive is taken for granted; in the latter it is

neither guaranteed nor to be to confidently expected. As a result, cabinet is


more easily established and more trustworthy

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

Executive is the release of the government from "the paralysis of constitutional


restrains" so that the crisis may be ended

and normal times restored.

2. The presidential exercise of legislative powers in time of martial law is now a


conceded valid at. That sun clear

authority of the President is saddled on Section 3 (pars. 1 and 2) of the


Transitory Provisions, thus: 23

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

powers vested by this Constitution.

All proclamations, orders, decrees, instructions, and acts promulgated, issued,


or done by

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

modified, revoked, or superseded by subsequent proclamations, orders,


decrees,

instructions, or other acts of the incumbent President, or unless expressly and


explicitly

modified or repealed by the regular National Assembly.

"It is unthinkable," said Justice Fernandez, a 1971 Constitutional Convention


delegate, "that the Constitutional

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,

with no one to exercise the lawmaking powers, there would be paralyzation of


the entire governmental machinery." 24

Paraphrasing Rossiter, this is an extremely important


constitutional dictatorship which extends over a period

of time. The separation of executive and legislature


Constitution presents a distinct obstruction to efficient

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

behalf, which involve rebellion, subversion, secession, recession, inflation, and


economic crisis-a crisis greater than war.

In short, while conventional constitutional law just confines the President's


power as Commander-in-Chief to the direction

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

Authority of the incumbent

President t to propose

amendments to the Constitution.

1. As earlier pointed out, the power to legislate is constitutionally consigned to


the interim National Assembly during

the transition period. However, the initial convening of that Assembly is a


matter fully addressed to the judgment of

the incumbent President. And, in the exercise of that judgment, the President
opted to defer convening of that body

in utter recognition of the people's preference. Likewise, in the period of


transition, the power to propose

amendments to the Constitution lies in the interim National Assembly upon


special call by the President (See. 15 of

the Transitory Provisions). Again, harking to the dictates of the sovereign will,
the President decided not to call the

interim National Assembly. Would it then be within the bounds of the


Constitution and of law for the President to

assume that constituent power of the interim


assumption of that body's legislative functions?

Assembly

vis-a-vis

his

The answer is yes. If the President has been legitimately discharging the
legislative functions of the interim

Assembly, there is no reason why he cannot validly discharge the function of


that Assembly to propose

amendments to the Constitution, which is but adjunct, although peculiar, to its


gross legislative power. This, of

course, is not to say that the President has converted his office into a

constituent assembly of that nature normally

constituted by the legislature. Rather, with the interim National Assembly not
convened and only the Presidency and

the Supreme Court in operation, the urges of absolute necessity render it


imperative upon the President to act as

agent for and in behalf of the people to propose amendments to the


Constitution. Parenthetically, by its very

constitution, the Supreme Court possesses no capacity to propose amendments


without constitutional infractions.

For the President to shy away from that actuality and decline to undertake the
amending process would leave the

governmental machineries at a stalemate or create in the powers of the State a


destructive vacuum, thereby

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,

constituent assemblies or constitutional conventions, like the President now,


are mere agents of the people .26

2. The President's action is not a unilateral move. As early as the referendums


of January 1973 and February 1975,

the people had already rejected the calling of the interim National Assembly.
The Lupong Tagapagpaganap of the

Katipunan ng mga Sanggunian, the Pambansang Katipunan ng mga Barangay,


and the Pambansang Katipunan ng

mga Barangay, representing 42,000 barangays, about the same number of


Kabataang Barangay organizations,

Sanggunians in 1,458 municipalities, 72 provinces, 3 sub-provinces, and 60


cities had informed the President that

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

present powers in a referendum to be held on October 16 . 28 The Batasang


Bayan (legislative council) created under Presidential Decree

995 of September 10, 1976, composed of 19 cabinet members, 9 officials with


cabinet rank, 91 members of the Lupong

Tagapagpaganap (executive committee) of the Katipunan ng mga Sangguniang


Bayan voted in session to submit directly

to the people in a plebiscite on October 16, the previously quoted proposed


amendments to the Constitution, including the

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

proposal of amendments to the Constitution and the subsequent issuance of


Presidential

Decree No, 1033 on September 22, 1976 submitting the questions (proposed
amendments) to the people in the National Referendum-Plebiscite on October
16.

The People is Sovereign

1. Unlike in a federal state, the location of sovereignty in a unitary state is


easily seen. In the Philippines, a

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

in the absence of express constitutional prohibition. 33 This is because, as


Holmes said, the Constitution "is an experiment,

as all life is all experiment." 34 "The necessities of orderly government," wrote


Rottschaefer, "do not require that one

generation should be permitted to permanently fetter all future generations."


A constitution is based, therefore, upon a

self-limiting decision of the people when they adopt it. 35

2. The October 16 referendum-plebiscite is a resounding call to the people to


exercise their sovereign power as

constitutional legislator. The proposed amendments, as earlier discussed,


proceed not from the thinking of a single

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

amendments and the question of martial law in a referendum-plebiscite


expresses but the option of the people

themselves implemented only by the authority of the President. Indeed, it may


well be said that the amending

process is a sovereign act, although the authority to initiate the same and the
procedure to be followed reside

somehow in a particular body.

VI

Referendum-Plebiscite not

rendered nugatory by the

participation of the 15-year olds.

1. October 16 is in parts a referendum and a plebiscite. The question - (1) Do


you want martial law to be continued?

- 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

voting age of 18 years may participate. This is the plebiscite aspect, as


contemplated in Section 2, Article XVI of the

new Constitution. 36 On this second question, it would only be the votes of


those 18 years old and above which will have

valid bearing on the results. The fact that


simultaneously asked to answer the referendum

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

constitutional amendments. The fear of commingled votes (15-year olds and


18-year olds above) is readily dispelled by

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

age and above. 37 The ballots in the ballot

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

age groupings, i.e., ballots contained in each of the two boxes. 38

2. It is apt to distinguish here between a "referendum" and a "plebiscite." A


"referendum" is merely consultative in

character. It is simply a means of assessing public reaction to the given issues


submitted to the people foe their

consideration, the calling of which is derived from or within the totality of the
executive power of the President. 39 It is

participated in by all citizens from the age of fifteen, regardless of whether or


not they are illiterates, feeble-minded, or ex-

convicts . 40 A "plebiscite," on the other hand, involves the constituent act of


those "citizens of the Philippines not otherwise

disqualified by law, who are eighteen years of age or over, and who shall have
resided in the Philippines for at least one

year and in the place wherein they propose to vote for at least six months
preceding the election Literacy, property or any

other substantive requirement is not imposed. It is generally associated with


the amending process of the Constitution,

more particularly, the ratification aspect.

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

impressed with a mild character recorded no State imposition for a muffled


voice. To be sure, there are restraints of the

individual liberty, but on certain grounds no total suppression of that liberty is


aimed at. The for the referendum-plebiscite

on October 16 recognizes all the embracing freedoms of expression and


assembly The President himself had announced

that he would not countenance any suppression of dissenting views on the


issues, as he is not interested in winning a

"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

Time for deliberation

is not short.

1. The period from September 21 to October 16 or a period of 3 weeks is not


too short for free debates or

discussions on the referendum-plebiscite issues. The questions are not new.


They are the issues of the day. The

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

without counterparts in previous plebiscites for constitutional amendments.


Justice Makasiar, in the Referendum

Case, recalls: "Under the old Society, 15 days were allotted for the publication
in three consecutive issues of the

Official Gazette of the women's suffrage amendment to the Constitution before


the scheduled plebiscite on April 30,

1937 (Com. Act No. 34). The constitutional amendment to append as ordinance
the complicated Tydings-

Kocialskowski was published in only three consecutive issues of the Official


Gazette for 10 days prior to the

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

Amendment, an involved constitutional amendment affecting the economy as


well as the independence of the

Republic was publicized in three consecutive issues of the Official Gazette for
20 days prior to the plebiscite (Rep.

Act No. 73)." 45

2. It is worthy to note that Article XVI of the Constitution makes no provision as


to the specific date when the

plebiscite shall be held, but simply states that it "shall be held not later than
three months after the approval of such

amendment or revision." In Coleman v. Miller, 46 the United States Supreme


court held that this matter of submission

involves "an appraisal of a great variety of relevant conditions, political, social


and economic," which "are essentially

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

is deemed to be a necessity therefor that amendments are to be proposed, the


reasonable implication being that when

proposed, they are to be considered and disposed of presently, and third,


ratification is but the expression of the

approbation of the people, hence, it must be done contemporaneously. 47 In


the words of Jameson, "(a)n alteration of the

Constitution proposed today has relation to the sentiment and the felt needs of
today, and that, if not ratified early while

that sentiment may fairly be supposed to exist. it ought to be regarded as


waived, and not again to be voted upon, unless

a second time proposed by proper body

IN RESUME

The three issues are

1. Is the question of the constitutionality of Presidential Decrees Nos. 991,


1031 and 1033 political or justiciable?

2. During the present stage of the transition period,


environmental circumstances now obtaining,

and

under,

the

does the President possess power to propose amendments to the Constitution


as well as set up the required

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

and proper submission?

Upon the first issue, Chief Justice Fred Ruiz Castro and Associate Justices
Enrique M. Fernando, Claudio

Teehankee, Antonio P. Barredo, Cecilia Munoz Palma, Hermogenes Concepcion


Jr. and Ruperto G. Martin are of

the view that the question posed is justiciable, while Associate Justices Felix V.
Makasiar, Felix Q. Antonio and

Ramon C. Aquino hold the view that the question is political.

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

the negative. Associate Justice Fernando, conformably to his concurring and


dissenting opinion in Aquino vs. Enrile

(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

therefore beyond the competence and cognizance of this Court, Associate


Justice Fernando adheres to his

concurrence in the opinion of Chief Justice Concepcion in Gonzales vs. COMELEC


(21 SCRA 774).Associate

Justices Teehankee and MUNOZ Palma hold


President's lack of authority to exercise the

that

prescinding

from

the

constituent power to propose the amendments, etc., as above stated, there is


no fair and proper submission with

sufficient information and time to assure intelligent consent or rejection under


the standards set by this Court in 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.

Aquino, J, in the result.

Separate Opinions

CASTRO, C.J.:, concurring:

From the challenge as formulated in the three petitions at bar and the grounds
advanced be the Solicitor General in

opposition thereto, as well as the arguments adduced by the counsels of the


parties at the hearing had on October 7

and 8, 1976, three vital issues readily project themselves as the centers of
controversy, namely:

(1) Is the question of the constitutionality of Presidential Decrees Nos. 991,


1031 and 1033 political or justiciable?

(2) During the present stage of the transition period, and under the
environmental circumstances now obtaining,

does the President possess power to propose amendments to the Constitution


as well as set up the required

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

and proper, submission"

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-

Proposal to amend the Constitution is a highly political function performed by


the Congress

in its sovereign legislative capacity and committed to its charges by the


Constitution itself.

The exercise of this power is even independent of any intervention by the Chief
Executive. If

on grounds of expediency scrupulous attention of the judiciary be needed to


safeguard public

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

Macias vs. Commission on Elections (L-18684, September 14, 1961).

xxx xxx xxx

In short, the issue whether or not a Resolution of Congress-acting as a


constituent assembly-violates the

Constitution is essentially justiciable, not political, and, hence, subject to


judicial review, and, to the extent this view

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,

L-28196, November 9, 1967, 21 SCRA 774, 786-787).

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)

of the 1935 Constitution is inherently and essentially justiciable.

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

parlance, namely, a question of policy in matters concerning the government of


a State, as a

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

sovereign capacity, or in regard to which full discretionary authority has been


delegated to

the Legislature or executive branch of the government.' It is concerned with


issues

dependent upon the wisdom, not legality, of a particular measure.'

Accordingly, when the grant of power is qualified, conditional or subject to


limitations, the issue on whether or not

the prescribed qualifications or conditions have been met, or the limitations


respected, is justiciable or non-political,

the crux of the problem being one of legality or validity of the contested act,
not its wisdom. Otherwise, said

qualifications, conditions or limitations - particularly those prescribed or


imposed by the Constitution - would be set

at naught." (Javellana vs. Executive Secretary, supra).

So it is in the situation here presented. The basic issue is the constitutional


validity of the presidential acts of

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

in the President - a question purely of legality determinable thru interpretation


and construction of the letter and spirit

of the Constitution by the Court as the final arbiter in the delineation of


constitutional boundaries and the allocation

of constitutional powers.

For the Court to shun cognizance of the challenge herein presented, especially
in these parlous years, would be to

abdicate its constitutional powers, shirk its constitutional responsibility, and


deny the people their ultimate recourse

for judicial determination.

I have thus no hesitancy in concluding that the question here presented is well
within the periphery of judicial

inquiry.

II

Second Issue

The main question stands on a different footing; it appears unprecedented


both here and elsewhere. Its solution, I

believe, can be found and unraveled only by a critical assessment of the


existing legal order in the light of the

prevailing political and factual milieu.

To be sure, there is an impressive array of consistent jurisprudence on the


proposition that, normally or under

normal conditions, a Constitution may be amended only in accord with the


procedure set forth therein. Hence, if

there be any such prescription for the amendatory process as invariable there
is because one of the essential parts

of a Constitution is the so-called "constitution of sovereignty" which comprises


the provision or provisions on the

modes in accordance with which formal changes in the fundamental law may be

effected the same would ordinarily

be the controlling criterion for the validity of the amendments sought.

Unfortunately, however, during the present transition period of our political


development, no express provision is

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

National Assembly is convened by the incumbent President and the interim


President and the interim Prime Minister

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

Government described in Articles VII to IX of the Constitution is inaugurated,


following the election of the members

of the regular National Assembly (Article XVII, Section 1) and the election of
the regular President and Prime

Minister,. This is as it should be because it is recognized that the President has


been accorded the discretion to

determine when he shall initially convene the interim National Assembly, and
his decision to defer the convocation

thereof has found overwhelming support by the sovereign people in two


previous referenda, therein giving reality to

an interregnum between the effectivity of the Constitution and the initial


convocation of the interim National

Assembly, which interregnum, as aforesaid, constitutes the first stage in the


transition period.

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

all its Members, propose amendments to this Constitution. Such amendments


shall take effect when ratified in

accordance with Article Sixteen hereof."

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

National Assembly upon a vote of three-fourths of all its Members, or by a


constitutional

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

ceiling such a convention to the electorate in an election.

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

the approval of such amendment or revision.

unequivocally contemplate amendments after the regular Government shall


have become fully operative, referring

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

amendments may be proposed and ratified.

Susceptibility to change is one of the hallmarks of an Ideal Constitution. Not


being a mere declaration of the

traditions of a nation but more the embodiment of a people's hopes and


aspirations, its strictures are not

unalterable. They are, instead, dynamic precepts intended to keep in stride


with and attuned to the living social

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,

there can be no debate.

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

interim National Assembly was not anticipated, hence, the omission of an


express mandate to govern the said

situation in so far as amendments are concerned. But such omission through


inadvertence should not, because it

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,

instead, to provide a simpler and more expeditious mode of amending the


Constitution during the transition period.

For, while under Article XVI thereof, proposals for amendment may be made
directly by the regular National

Assembly by a vote of at least three-fourths of all its members, under Section


15 of Article XVII, a bare majority vote

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

changed or changing circumstances before the establishment of the regular


Government. In this contest, therefore,

it is inutile speculation to assume that the Constitution was intended to render


impotent or ar the effectuation of

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

jurisprudence does not square with such a proposition. As aptly noted in


Aquino vs. Commission on Elections, et al.,

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

possibly to determine whether arbitrariness has infected such exercise; absent


such a taint, the matter is solely in

the keeping of the President. To thus content that only by convening the
interim National Assembly may the

Constitution be amended at this time would effectively override the judgement


vested in the President, even in

default of any he has acted arbitrarily or gravely abuse his discretion.


Furthermore, to sustain such a contention

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

instructions having the stature and force of law.

Given the constitutional stalemate or impasse spawned by these supervening


developments, the logical query that

compels itself for resolution is: By whom, then, may proposals for the
amendment of the Constitution be made and

in what manner may said proposals be ratified by the people?

It is conventional wisdom that, conceptually, the constituent power is not to be


confuse with legislative power in

general because the prerogative to propose amendments to the Constitution is


not in any sense embraced within

the ambit of ordinary law-making. Hence, there is much to recommend the


proposition that, in default of an express

grant thereof, the legislature - traditionally the delegated repository thereof may not claim it under a general grant

of legislative authority. In the same vein, neither would it be altogether


unassailable to say that because by

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

thus exercise it in place of the interim National Assembly. Instead,, as pointed


out in Gonzales vs. Commission on

Elections, et al., supra, the power to amend the Constitution or to propose


amendments thereto

... is part of the inherent powers of the people - as the repository of


sovereignty in a

republican state, such as ours - t o make, and, hence, to amend their own
Fundamental Law.

As such, it is undoubtedly a power that only the sovereign people, either


directly by themselves or through their

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

reputedly the rule in some jurisdictions - a delegation of the constituent


authority amounts to a complete divestiture

from the people of the power delegated which they may not thereafter
unilaterally reclaim from the delegate, there

would be no violence donde to such rule, assuming it to be applicable here,


inasmuch as that power, under the

environmental circumstance adverted to, has not been delegated to anyone in


the first place. The constituent power

during the first stage of the transition period belongs to and remains with the
people, and accordingly may be

exercised by them - how and when - at their pleasure.

At this juncture, a flashback to the recent and contemporary political ferment


in the country proves revelatory. The

people, shocked and revolted by the "obvious immorality" of the unabashed


manner by which the delegates to the

Constitutional Convention virtually legislated themselves into office as ipso


facto members of the interim National

Assembly by the mere fiat of voting for the transitory provisions of the
Constitution. and the stark reality that the

unwieldy political monstrosity that the interim Assembly portended to be


would have proven to be a veritable drain

on the meager financial resources of a nation struggling for survival, have


unequivocally put their foot down, as it

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

understandably agitated for a solution. Through consultations in the barangays


and sanggunian assemblies, the

instrumentalities through which the people's voice is articulated in the unique


system of participatory democracy in

the country today, the underpinnings for the hastening of the return to
constitutional normalcy quickly evolved into

an overwhelming sentiment to amend the Constitution in order to replace the


discredited interim National Assembly

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

concrete action, the Pambansang Katipunan ng Barangay, the Pambansang


Katipunan ng mga Kabataang

Barangay, the Lupong Tagapagpaganap of the Katipunan ng mga Barangay, the

Pambansang Katipunan ng mga

Kabataang Barangay the Lupong Tagapagpaganap of the Katipunan ng mga


Sanggunian, and finally the Batasang

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

could be implemented and the end in view attained as their spokesman,


proposed the amendments under challenge

in the cases at bar.

In the light of this milieu and its imperatives, one thing is inescapable: the
proposals now submitted to the people for

their ratification in the forthcoming referendum-plebiscite are factually not of


the President; they are directly those of

the people themselves speaking thru their authorized instrumentalities. The


President merely formalized the said

proposals in Presidential Decree No. 1033. It being conceded in all quarters


that sovereignty resides in the people

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

development, the conclusion is ineluctable that their exertion of that residuary


power cannot be vulnerable to any

constitutional challenge as being ultra vires. Accordingly, without venturing to


rule on whether or not the President is

vested with constituent power as it does not appear necessary to do so in the


premises the proposals here

challenged, being acts of the sovereign people no less, cannot be said to be


afflicted with unconstitutionality. A

fortiori, the concomitant authority to call a plebiscite and to appropriate funds


therefor is even less vulnerable not

only because the President, in exercising said authority has acted as a mere
alter ego of the people who made the

proposals, but likewise because the said authority is legislative in nature


rather than constituent.

III

Third Issue

Little need be said of the claimed insufficiency and impropriety of the


submission of the proposed amendments for

ratification from the standpoint of time. The thesis cannot be disputed that a
fair submission presupposes an

adequate time lapse to enable the people to be sufficiently enlightened on the


merits or demerits of the amendments

presented for their ratification or rejection. However, circumstances there are


which unmistakably demonstrated that

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

preoccupied the minds of the people and their authorized representatives,


from the very lowest level of the political

hierarchy. Hence, unlike proposals emanating from a legislative body, the same
cannot but be said to have been

mulled over, pondered upon, debated, discussed and sufficiently understood by


the great masses of the nation long

before they ripened into formal proposals.

Besides. it is a fact of which judicial notice may well be taken that in the not so
distant past when the 1973

Constitution was submitted to the people for ratification, an all-out campaign,


in which all the delegates of the

Constitutional Convention reportedly participated, was launched to acquaint


the people with the ramifications and

working of the new system of government


thereunder. It may thus well be assumed that

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

have been constituted do not appear to be of such complexity as to require


considerable time to be brought home to

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

and administrator of martial rule

IV

Conclusion

It is thus my considered view that no question viable for this court to pass

judgment upon is posed. Accordingly, I

vote for the outright dismissal of the three petitions at bar.

FERNANDO, J., concurring and dissenting:

These three petitions, the latest in a series of cases starting from Planas v.
Commission on Elections continuing with

the epochal resolution in Javellana v. Executive Secretary and followed


successively in three crucial decisions,

Aquino v. Ponce Enrile Aquino v. Commission on Elections, and Aquino v Military


Commission, 5 manifest to the same

degree the delicate and awesome character of the function of judicial review.
While previous rulings supply guidance and

enlightenment, care is to be taken to avoid doctrinaire rigidity unmindful of


altered circumstances and the urgencies of the

times. It is inappropriate to resolve the complex problems of a critical period


without full awareness of the consequences

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

matter. The judiciary must survey things as

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

innovative approach to social problems and the vigor of its implementation.


This, on the one side. It must equally be borne

in mind through that this Court must be conscious of the risk inherent in its
being considered as a mere subservient

instrument of government policy however admittedly salutary or desirable.


There is still the need to demonstrate that the

conclusion reached by it in cases appropriate for its determination has support


in the law that must be applied. To my

mind that was the norm followed, the conclusion reached being that the three
petitions be dismissed. I am in agreement. It

is with regret however that based on my reading of past decisions, both


Philippine and American, and more specifically

my concurring opinion in Aquino v. Ponce Enrile, I must dissent from the


proposition set forth in the able and scholarly

opinion of Justice Martin that there is concentration of power in the President


during a crisis government. Consequently, I

cannot see my way clear to accepting the view that the authority to propose
amendments is not open to question. At the

very least, serious doubts could be entertained on the matter.

1. With due respect then, I have to dissociate myself from my brethren who
would rule that governmental powers in

a crisis government, following Rossiter, "are more or less concentrated in the


President." Adherence to my

concurring and dissenting opinion in Aquino v. Ponce Enrile leaves me no


choice.

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

Supreme Court pronouncements on martial law, at the most persuasive in


character and rather few in number "due

no doubt to the, absence in the American Constitution of any provision


concerning it." 7 It was understandable then that it was

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

Duncan v. Kahanamoku, "there was a fuller treatment of the question of martial

law While it is the formulation of Willoughby that for me is most acceptable, my

opinion did take note that another commentator, Burdick, came out earlier with
a similar appraisal. 10 Thus: "So called martial law, except in

occupied territory of an enemy is merely the calling in of the aid of military


forces by the executive, who is charged with

the enforcement of the law, with or without special authorization by the


legislature. Such declaration of martial law does

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

appears necessary, and only justifies such


necessarily to meet the exigency, including the

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

necessity. When honestly and reasonably coping


insurrection or riot a member of the military forces

with

situation

of

cannot be made liable for his acts, and persons reasonably arrested under such
circumstances will not, during the

insurrection or riot, be free by writ of habeas corpus." 11 When the opinion


cited Willoughby's concept of martial law, stress

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,

strictly speaking, no such thing in American law as a declaration of martial law


whereby military law is substituted for civil law. So-called declarations of
martial law

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

The conclusion reached by me as to the state of American federal law on the


question of martial law was expressed

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

otherwise. After Duncan, such an approach becomes even more strongly


fortified. Schwartz, whose treatise is the

latest to be published, has this summary of what he considers the present


state of American law: 'The Milligan and

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

it rests, for even a single minute it becomes a mere exercise of lawless


violence.' Further: Sterling v. Constantin is of

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.

Constantin definitely discredits these earlier decisions and the doctrine of


conclusiveness derived from them. Under

Sterling v. Constantin, where martial law measures impinge upon personal or


property rights-normally beyond the

scope of military power, whose intervention is lawful only because an abnormal


Actuation has made it necessary the

executive's ipse dixit is not of itself conclusive of the necessity.'" 15

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

need for it because of compelling circumstances incident to the state of actual


clash of arms: "It is not to be lost

sight of that the basis for the declaration of martial law in the Philippines is not
mere necessity but an explicit

constitutional provision. On the other hand, Milligan, which furnished the


foundation for Sterling and Duncan had its

roots in the English common law. There is pertinence therefore in ascertaining


its significance under that system.

According to the noted English author, Dicey: 'Martial law,' in the proper sense
of that term, , in which - it means the

suspension of ordinary law and the temporary government of a country or


parts of it be military tribunals, is unknown

to the law of England. We have nothing equivalent to what is called in France


the "Declaration of the State of Siege,"

under which the authority ordinarily vested in the civil power for the
maintenance of order and police passes entirely

to the army (autorite militaire). This is an unmistakable proof of the permanent


supremacy of the law under our

constitution. There was this qualification: 'Martial law is sometimes employed


as a name for the common law right of

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

peace. Every subject, whether a civilian or a soldier, whether what is called a


servant of the government,' such for

example as a policeman, or a person in no way connected with the


administration, not only has the right, but is, as a

matter of legal duty, bound to assist in putting down breaches of the peace. No
doubt policemen or soldiers are the

persons who, as being specially employed in the maintenance of order, are

most generally called upon to suppress

a riot, but it is clear that all loyal subjects are bound to take their part in the
suppression of riots." 16

Commitment to such an approach results in my inability to subscribe to the


belief that martial law in terms of what is

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

law rests is that expressed by Justice Black in Duncan v. Kahanamoku:


"Legislatures and courts are not merely

cherished American institutions; they are indispensable to our government. 17


If there has been no observance of such

a cardinal concept at the present, it is due to the fact that before the former
Congress could meet in regular session anew,

the present Constitution was adopted, abolishing it and providing for an


interim National Assembly, which has not been

convened. 18 So I did view the matter.

2. Nor did I ignore Rossiter in my Aquino v. Ponce Enrile opinion. Reference was
made to the first chapter on his

work on Constitutional Dictatorship where he spoke of martial rule as "a device


designed for use in the crisis of

invasion or rebellion. It may be most precisely defined as an extension of


military government to the civilian

population, the substitution of the will of a military commander for the will of
the people's elected government." 19

Since, for me at least, the Rossiter characterization of martial law has in it


more of the common law connotation, less than

duly mindful of the jural effects of its inclusion in the Constitution itself as a
legitimate device for coping with emergency

conditions in times of grave danger, but always subject to attendant limitations


in accordance with the fundamental

postulate of a charter's supremacy, I felt justified in concluding: "Happily for


the Philippines, the declaration of martial law

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,

persuaded as I am likewise that the week- of Rossiter is opposed to the


fundamental concept of our polity, which puts a

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

Court in the aforecited Aquino v. Commission on Elections, penned by Justice


Makasiar, the proposition was

expressly affirmed "that as Commander-in-Chief and enforcer or administrator


of martial law, the incumbent

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

institution of reforms to prevent the resurgence of rebellion or insurrection or


secession or the threat thereof as well

as to meet the impact of a worldwide recession, inflation or economic crisis


which presently threatens all nations

including highly developed countries." 21 To that extent, Rossiter's view mainly


relied upon, now possesses Juristic

significant in this jurisdiction. What, for me at least, gives caused for concern is
that with the opinion of the Court this

intrusion of what I would consider an alien element in the limited concept of


martial law as set forth in the Constitution

would be allowed further incursion into the corpus of the law, with the
invocation of the view expressed in the last chapter

of his work approving tile "concentration of governmental power in a


democracy [as] a corrective to the crisis inefficiencies

inherent in the doctrine of the separation of powers." 22 It is to the credit of


the late Professor Rossiter as an objective

scholar that in the very same last chapter, just three pages later, he touched
explicitly on the undesirable aspect of a

constitutional dictatorship. Thus: "Constitutional Dictatorship is a dangerous


thing. A declaration of martial law or the

passage of an enabling act is a step which must always be feared and


sometimes bitterly resisted, for it is at once an

admission of the incapacity of democratic institutions to defend the order


within which they function and a too conscious

employment of powers and methods long ago outlawed as destructive of


constitutional government. Executive legislation,

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

oppressive. The reinstitution of any of these features is a perilous matter, a


step to be taken only when the dangers to a

free state will be greater if the dictatorial institution is not adopted." 23

4. It is by virtue of such considerations that I find myself unable to share the


view of those of my brethren who would

accord recognition to the Rossiter concept of concentration of governmental


power in the Executive during periods

of crisis. This is not to lose sight of the undeniable fact that in this country
through the zeal, vigor, and energy

lavished on projects conducive to the general welfare, considerable progress


has been achieved under martial rule.

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.

Since September 1972, when President


government, peace and order have been

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,

now travels the broad expressways of friendship and constructive interaction


with the whole world, these in a new spirit of

confidence and self-reliance. And finally, forced to work out our own salvation,

the Filipino has re-discovered the well-

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

present Constitution should not be further delayed. The full restoration of


civilian rule can thus be expected. That is more in accord with the imperatives
of a

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

associated with dictatorship, even if referred to as "constitutional."

For me likewise, that equally eminent scholar Corwin, also invoked in the
opinion of the Court, while no doubt a

partisan of d strong Presidency, was not averse to constitutional restraints


even during periods of crisis. So I would

interpret this excerpt from the fourth edition of his classic treatise on the
Presidency: "A regime of martial law may

be compendiously, if not altogether accurately, defined as one in which the

ordinary law, as administered by the

ordinary courts, is superseded for the time being by the will of a military
commander. It follows that, when martial law

is instituted under national authority, it rests ultimately on the will of the


President of the United States in his capacity

as Commander-in-Chief. It should be added at once, nevertheless, that the


subject is one in which the record of

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

as a kind of supplementary police, or posse comitatus on the other hand be


reason of the discretion that the civil

authorities themselves are apt to vest in the military in any emergency


requiring its assistance, the line between

such an employment of the military and a regime of martial law is frequently


any but a hard and fast one. And partly

because of these ambiguities the conception itself of martial law today


bifurcates into two conceptions, one of which

shades off into military government and the other into the situation just
described, in which the civil authority remains

theoretically in control although dependent on military aid. Finally, there is the


situation that obtained throughout the

North during the Civil War, when the privilege of the writ of habeas corpus was
suspended as to certain classes of

suspects, although other characteristics of martial law were generally absent."


26

It is by virtue of the above considerations that, with due respect to the opinion
of my brethren, I cannot yield assent

to the Rossiter view of concentration of governmental powers in the Executive


during martial law.

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

Constitution. There is the further qualification if the stand of respondents be


taken into account that the interim

National Assembly has not been convened and is not likely to be called into
session in deference to the wishes of

the people as expressed in three previous referenda. It is the ruling of the


majority that the answer be in the

affirmative, such authority being well within


competence. Again I find myself unable to join

the

area

of

presidential

readily in that conviction. It does seem to me that the metes and bounds of the
executive domain, while still

recognizable, do appear blurred. This is not to assert that there is absolutely


no basis for such a conclusion,

sustained as it is by a liberal construction of the principle that underlies Aquino


v. Commission on Elections as to the

validity of the exercise of the legislative prerogative by the President as long


as the interim National Assembly is not

For me, the stage of certitude has not been reached. I cannot simply ignore the
vigorous plea of petitioners that

there is a constitutional deficiency consisting in the absence of any constituent


power on the part of the President,

the express provision of the Constitution conferring it on the by team National


Assembly. 27 The learned advocacy

reflected in the pleadings as well as the oral discourse of Solicitor General


Estelito P. Mendoza 21 failed to erase the

grave doubts in my mind that the Aquino doctrine as to the possession of


legislative competence by the President during

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

between matters legislative and constituent. That is implicit in the treatise on


the 1935 Constitution by Justices

Malcolm and Laurel In their casebook published the same year, one of the four
decisions on the subject of

constitutional amendments is Ellingham


distinguished between constituent and

v.

Dye

31

which

categorically

legislative powers. Dean Sinco, a well-known authority on the subject, was


quite explicit. Thus: "If there had been no

express provision in the Constitution granting Congress the power to propose


amendments, it would be outside its

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

function inherent in the people. Congressional law- making authority is limited


to the power of approving the laws 'of

civil conduct relating to the details and particulars of the government


instituted,' the government established by the

people."12 If that distinction be preserved, then for me the aforecited Aquino


decision does not reach the heart of

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

devoid of legislative power during this

transition stage is supplied by implications from


provisions. 13 That is not the case with the power

explicit

constitutional

to propose amendments. It is solely the interim National Assembly that is


mentioned. That is the barrier that for me is well-

nigh insurmountable. If I limit myself to entertaining doubts rather than


registering a dissent on this point, it is solely

because of the consideration, possessed of weight and significance, that there


may be indeed in this far-from-quiescent

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

Teehankee and Munoz Palma in Aquino, as far as the legislative and


appropriately powers are concerned, is the

necessity that unless such authority be recognized, there may be paralyzation


of governmental activities, While not

squarely applicable, such an approach has, to my mind, a persuasive quality as


far as the power to propose amendments

is concerned.

Thus I would confine myself to the expression of serious doubts on the


question rather than a dissent.

6. The constitutional issue posed as thus viewed leaves me free to concur in


the result that the petitions be

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,

That is to make of the Constitution a pathway to rather than a barrier against a


desirable objective. -As shown by my

concurring and dissenting opinion in Tolentino Commission on Elections '34 a


pre-martial law decision, the

fundamental postulate that sovereignty resides in the people exerts a


compelling force requiring the judiciary to

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

conviction by the teaching of persuasive


reinforcement to such a conclusion from

American

decisions

There

is

retired Chief Justice Concepcion's concurring and dissenting opinion in Aytona


v. Castillo,17 Which I consider

applicable to the present situation. These are his words: "It is well settled that
the granting of writs of prohibition and

mandamus is ordinarily within the sound discretion of the courts, to be


exercised on equitable principles, and that

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

Gonzales v. Hechanova,19 an action for prohibition, while petitioner was


sustained in his stand, no injunction was

issued. This was evident in the dispositive portion where judgment was
rendered "declaring that respondent

Executive Secretary had and has no power to authorize the importation in


question; that he exceeded his jurisdiction

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,

is commendable. It attests to their belief in the rule of law. Even if their


contention as to lack of presidential power be

accepted in their entirety, however, there is still discretion that may be


exercised on the matter, prohibition being an

equitable remedy. There are, for me, potent considerations that argue against

acceding to the plea. With the prospect of

the interim National Assembly being convened being dim, if not non- existent,
if only because of the results in three

previous referenda, there would be no constitutional agency other than the


Executive who could propose amendments,

which, as noted. may urgently press for adoption. Of even greater weight, to
my mind, is the pronouncement by the

President that the plebiscite is intended not only to solve a constitutional


anomaly with the country devoid of a legislative

body but also to provide. the machinery be which the termination of martial
law could be hastened. That is a

consummation devoutly to be wished. That does militate strongly against the


stand of petitioners. The obstruction they

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

in the people. So I made clear in Tolentino v. Commission on Elections and


thereafter in my dissent in Javellana v. The

Executive Secretary" and my concurrence in Aquino v. Commission on Elections.


42 The destiny of the country lies in

their keeping. The role of leadership is not to be minimized. It is crucial it is of


the essence. Nonetheless, it is their will, if

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

regime truly democratic. Constitutional orthodoxy requires, however, that the


fundamental law be followed. So I would

interpret Laski, 43 Corwin, 44 Lerner, 45, Bryn-Jones, 46 and McIver.47

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

v. Commission on Election S. 48 It has since then been followed in Tolentino v.


Commission on Elections 49 Planas v.

Commission on Elections," and lastly, in Javellana v. The Executive Secretary


This Court did not heed the vigorous plea

of the Solicitor General to resurrect the political question doctrine announced


in Mabanag v. Lopez Vito. 52 This is not to

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

relatively recent State court decisions, supply


contention., 51 That may be the case in the United

ammunition

to

such

States, but certainly not in this jurisdiction. Philippine constitutional tradition


is to the contrary. It can trace its origin to

these words in the valedictory address before the 1934-35 Constitutional


Convention by the illustrious Claro M. Recto: "It

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

invariably been a judicial predisposition to activism rather than self-restraint.


The thinking all these years has been that it

goes to the heart of constitutionalism. It may be said that this Court has
shunned the role of a mere interpreter; it did

exercise at times creative power. It has to that extent participated in the


molding of policy, It has always recognized that in

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

momentous questions at each critical stage of this nation's life.

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

the temptation of allowing in the wasteland of meaningless abstractions. It


must face stubborn reality. It has to have

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

sovereign sway of the accomplished fact. It must be deaf to the dissonant


dialectic of what appears to be a

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

omniscience. I am comforted by the thought that immortality does not inhere in


judicial opinions. 8. 1 am thus led by

my studies on the subject of constitutional law and, much more so, by previous
judicial opinions to concur in the

dismissal of the petitions. If I gave expression to byes not currently


fashionable, it is solely due to deeply-ingrained

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

Administration. Again, to reiterate one of my cherished convictions, I certainly


approve of the adherence to the

fundamental principle of popular sovereignty which, to be meaningful however,


requires both freedom in its

manifestation and accuracy in ascertaining what it wills. Then, too, it is fitting


and proper that a distinction was made

between two aspects of the coming poll, the referendum and the plebiscite. It
is only the latter that is impressed with

authoritative force. So the Constitution requires. Lastly, there should be, as I


did mention in my concurrence in

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

expression of its views as anathema,

Dissent, it is fortunate to note, has been encouraged. It has not been Identified
with disloyalty. That ought to be the

case, and not solely due to presidential decrees. Constructive criticism is to be


welcomed not so much because of

the right to be heard but because there may be something worth hearing. That
is to ensure a true ferment of Ideas,

an interplay of knowledgeable minds. There are though well- defined limits,


One may not advocate disorder in the

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.

TEEHANKEE, J., dissenting:

1. On the merits: I dissent from the majority's dismissal of the petitions for lack
of merit and vote to grant the

petitions for the following reasons and considerations: 1. It is undisputed that


neither the 1935 Constitution nor the 1973

Constitution grants to the incumbent President the constituent power to


propose and approve amendments to the

Constitution to be submitted to the people for ratification in a plebiscite. The


1935 Constitution expressly vests the

constituent power in Congress, be a three-fourths vote of all its members, to


propose amendments or call a constitutional

convention for the purpose The 1973 Constitution expressly vests the
constituent power in the regular National Assembly

to propose amendments (by a three-fourths vote of all its members) or "call a


constitutional convention" (by a two-thirds

vote of all its members) or "submit the question of calling such convention to
the electorate in an election" (by a majority

vote of all its members ) .2

The transitory provisions of the 1973 Constitution expressing vest the


constituent power during the period of

transition in the interim National Assembly "upon special call be the Prime
Minister (the incumbent President 3)... by

a majority ore of all its members (to) propose amendments."

Since the Constitution provides for the


departments of government, defines and

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

questioned decrease proposing and submitting constitutional amendments


directly to the people (without the

intervention of the interim National Assembly in whom the power is expressly


vested) are devoid of constitutional

and legal basis.

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

provisions on amendments "dealing with the procedure or manner of amending


the fundamental law are binding

upon the Convention and the other departments of the government, (land) are
no less binding upon the people

As long as an amendment is formulated and submitted under the aegis of the


present

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

disregarded in favor of allowing the sovereign people to express their decision


on the proposed amendments, if only

because it is evident that the very Idea of departing from the fundamental law
is anachronistic in the realm of

constitutionalism and repugnant to the essence of the rule of law,"; 9 and

-Accordingly barred the plebiscite as improper and premature, since "the


provisional nature of the proposed

amendments and the manner of its submission to the people for ratification or
rejection" did not "conform with the

mandate of the people themselves in such regard, as expressed in the


Constitution itself', 10 i.e. the mandatory

requirements of the amending process as set forth in the Article on


Amendments.

3. Applying the above rulings of Tolentino to the case at bar, mutatis, mutandis,
it is clear that where the proposed

amendments are violative of the Constitutional mandate on the amending


process not merely for being a "partial

amendment" of a "temporary or provisional character" (as in Tolentino) but


more so for not being proposed and

approved by the department vested by the Constitution with the constituent


power to do so, and hence

transgressing the substantive provision that it is only the interim National


Assembly, upon special call of the interim

Prime Minister, bu a majority vote of all its members that may propose the
amendments, the Court must declare the

amendments proposals null and void.

4. This is so because the Constitution is a "superior paramount


unchangeable by ordinary means" 11 but only

law,

by the particular mode and manner prescribed therein by the people. As


stressed by Cooley, "by the Constitution

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

opposition to this fundamental law." 12

The vesting of the constituent power to propose amendments in the legislative


body (the regular National Assembly)

or the interim National Assembly during the transition period) or in a


constitutional convention called for the purpose

is in accordance with universal practice. "From the very necessity of the case"
Cooley points out "amendments to an

existing constitution, or entire revisions of it, must be prepared and matured


by some body of representatives

chosen for the purpose. It is obviously impossible for the whole people to meet,
prepare, and discuss the proposed

alterations, and there seems to be no feasible mode by which an expression of


their will can be obtained, except by

asking it upon the single point of assent or disapproval." This body of


representatives vested with the constituent -

power "submits the result of their deliberations" and "puts in proper form the
questions of amendment upon which

the people are to pass"-for ratification or rejection. 13

5. The Court in Tolentino thus rejected the argument "that the end sought to be
achieved is to be desired" and in

denying reconsideration in paraphrase of the late Claro M. Recto declared that


"let those who would put aside,

invoking grounds at best controversial, any mandate of the fundamental


purportedly in order to attain some laudable

objective bear in mind that someday somehow others with purportedly more
laudable objectives may take

advantage of the precedent and continue the destruction of the Constitution,


making those who laid down the

precedent of justifying deviations from the requirements of the Constitution


the victims of their own folly."

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

requirements prescribed in the 1935 Constitution, it can happen again in some


future time that some amendments to the

Constitution may be adopted, even in a manner contrary to the existing


Constitution and the law, and then said proposed

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

mustering the required majority vote to so overrule) to accept the proposed;


amendments as valid notwithstanding

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

the interim National Assembly, there is no reason why he cannot validly


discharge the functions."15

In the earlier leading case of Gonzales vs. Comelec 16, this Court speaking
through now retired Chief Justice Roberto

Concepcion, pointer out that "Indeed, the power to Congress" 17 or to the


National Assembly.18 Where it not for the express grant in

the Transitory Provisions of the constituent power to the interim National


Assembly, the interim National Assembly could not claim the power under the
general

grant of legislative power during the transition period.

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

stretched to encompass the constituent power as expressly vested in the


interim National Assembly in derogation of the

allotment of powers defined in the Constitution.

Paraphrasing Cooley on the non-delegation of legislative power as one of the


settled maxims of constitutional law, 20

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,

"(T)he Constitution sets forth in no uncertain language and restrictions and


limitations upon governmental powers and

agencies. If these restrictions and limitations are transcended it would be


inconceivable if the Constitution had not

provided for a mechanism by which to direct the course of government along


constitutional channels, for then the

distribution of powers sentiment, and the principles of good government mere


political apothegms. Certainly, the

limitations and restrictions embodied in our Constitution are real as they


should be in any living Constitution".

7. Neither is the justification of "constitutional impasses" tenable. The


sentiment of the people against the convening

of the interim National Assembly and to have no elections for "at least seven
(7) years" Concededly could not ament

the Constitution insofar as the interim National Assembly is concerned (since it


admittendly came into existence

"immediately" upon the proclamation of ratification of the 1973 Constitution),


much less remove the constituent

power from said interim National Assembly.

As stressed in the writer's separate opinion in the Referendum cases 22,


"(W)hile it has been advanced that the decision

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

referendums are merely consultative and cannot amend the Constitution or


Provisions which call for the 'immediate

existence' and 'initial convening of the interim National Assembly to 'give


priority to measures for the orderly transition

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

propose amendments likewise vested in it by the people's mandate in the


Constitution.

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

referendum was the convening of the interim National Assembly. 23

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

opinion of this matter " 24

8. If proposals for constitutional amendments are now deemed necessary to be


discussed and adopted for submittal

to the people, strict adherence with the mandatory requirements of the


amending process as provided in the

Constitution must be complied with. This means, under the teaching of


Tolentino that the proposed amendments

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

by the people. Hence, in continuing said section, We must read it as if the


people said, "The Constitution may be

amended, but it is our will that the amendment must be proposed and
submitted to Us for ratification only in the

manner herein provided'". 27

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

an ordinary legislation. Constitution making is the most valued power, second


to none, of the people in a

constitutional democracy such as the one our founding fathers have chosen for
this nation, and which we of the

succeeding generations generally cherish. And because the Constitution affects


the lives, fortunes, future and every

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

and study. It is obvious that correspondingly,


Constitution is of no less importance than the

any

amendment

of the

whole Constitution itself, and perforce must be conceived and prepared with as
much care and deliberation;" and

that "written constitutions are supposed to be designed so as to last for some


time, if not for ages, or for, at least, as

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

themselves, in regard to the process of their amendment." 28

9. The convening of the interim National Assembly to exercise the constituent


power to proposed amendments is

the only way to fulfill the express mandate of the Constitution.

As Mr. Justice Fernando emphasized for this Court in Mutuc vs. Comelec 29 in
the setting as in of a Comelec resolution

banning the use of political taped jingles by candidates for Constitutional


Convention delegates int he special 1970

elections, "the concept of the Constitution as the fundamental law, setting


forth the criterion for the validity of any public

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

heirarchy. The three departments of government in the discharge of the


functions with which it is entrusted have no choice

but to yield obedience to its commands. Whatever limits it imposes must be


observed. Congress in the enactment of

statutes must ever be on guart lest the restrictions on its authority, whether
substantive or formal, be transcended. The

Presidency in the execution of the laws cannot ignore of disregard what it


ordains. In its task of applying the law to 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

constituent power to propose amendments, upon special call therefor. This is


reinforced by the fact that the cited

section does not grant to the regular National Assembly of calling a


constitutional convention, thus expressing 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

constitutional convention could be call for the purpose.

As to the alleged costs involved in convening the interim National Assembly to


propose amendments, among them

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

Tolentino (in reflecting a similar argument on the costs of holding a plebiscite


separately from the general elections

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

high, it can never be as much as the dangers involved in disregarding clear


mandate of the Constitution, no matter how

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

opinion in the Referendum Cases,14 "is a verbatim reproduction of Article VII,


section 10 (2) of the 1935 Constitution and

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

martial rule is limited to such necessary measures as will safeguard the


Republic and suppress the rebellion (or

invasion)". 35

11. Article XVII, section 3 (2) of the 1973 Constitution which has been held by
the majority in the Referendum Cases

to be the recognition or warrant for the exercise of legislative power by the


President during the period of martial law

is but a transitory provision. Together with the martial law clause, they
constitute but two provisions which are not to

be considered in isolation from the Constitution but as mere integral parts


thereof which must be harmonized

consistently with the entire Constitution.

As Cooley restated the rule: "effect is to be given, if possible, to the whole


instrument, and to every section and

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

presumed to have expressed themselves in careful and measured terms,


corresponding with

the immense importance of the powers delegated, leaving as little as possible


to implication.

It is scarcelly conceivable that a case can arise where a court would bye
justified in declaring

any portion of a written constitution nugatory because of ambiguity. One part


may qualify

another so as to restrict its operation, or apply it otherwise than the natural


construction

would require if it stood by itself; but one part is not to be allowed to defeat
another, if by any

reasonable construction the two can be made to stand together. 36

The transcendental constituent power to propose and approve amendments to


the Constitution as well as set up the

machinery and prescribe the procedure for the ratification of his proposals has
been withheld from the President

(Prime Minister) as sole repository of the Executive Power, presumably in view


of the immense powers already

vested in him by the Constitution but just as importantly, because by the very
nature of the constituent power, such

amendments proposals have to be prepared, deliberated and matured by a


deliberative assembly of representatives

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

power (Congress or the Constitutional Convention) really determined the


amendments to the Constitution since the

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

will really be determined by the Convention; that, accordingly the people


should exercise the greatest possible degree of

circumspection in the election of delegates thereto ... " 38

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

Constitution. Its basic premise is to preserve and to maintain the Republic


against the dangers that threaten it. Such

premise imposes constraints and limitations. For the martial law regime fulfills
the constitutional purpose only if, by

reason of martial law measures, the Republic is preserved. If by reason of such


measures the Republic is so

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

we are expounding" and declared the Court's


constitutional obligation of judicial review and

"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

judiciary mediates to allocate constitutional boundaries, it does not assert any


superiority over the other departments

. . . 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

the instrument secures and guarantees to them".

At the same time, the Court likewise adhered to the constitutional tenet that
political questions, i.e. questions which

are intended by the Constitutional and relevant laws to be conclusively


determined by the "political", i.e. branches of

government (namely, the Executive and the Legislative) are outside the Court's
jurisdiction. 41

Thus, in Gonzales, 42 (by a unanimous Court) and in Tolentino 43 (by the


required constitutional majority), the Court has

since consistently ruled that when proposing and approving amendments to


the Constitution, the members of Congress.

acting as a constituent assembly or the members of the Constitutional


Convention elected directly for the purpose by not

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
gove