Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 97973 January 27, 1992

SPOUSES GAUVAIN and BERNARDITA BENZONAN, petitioners,
vs.
COURT OF APPEALS, BENITO SALVANI PE and DEVELOPMENT
BANK OF THE PHILIPPINES, respondents.
G.R. No. 97998 January 27, 1992
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner,
vs.
COURT OF APPEALS and BENITO SALVANI PE, respondents.
Ruben E. Agpalo for Sps. Gauvain and Bernardita Benzonan.
Vicente R. Acsay for Benito Salvani Pe.
Thomas T. Jacobo for DBP.

GUTIERREZ, JR., J.:

This is a petition to review the August 31, 1990 decision of the Court
of Appeals which sustained the right of respondent Benito Salvani Pe
to repurchase a parcel of land foreclosed by petitioner Development
Bank of the Philippines (DBP) and sold to petitioners Gauvain and
Bernardita Benzonan.
Respondent Pe is a businessman in General Santos City who owns
extensive commercial and agricultural properties. He is the proprietor
of the firm "Dadiangas B.P. Trading." One of the properties he
acquired through free patents and miscellaneous sales from the
Bureau of Lands is a 26,064 square meters parcel covered by Free
Patent No. 46128 issued on October 29, 1969. OCT No. P-2404 was
issued on November 24, 1969.
On February 24, 1970 or barely three months after he acquired the
land, the respondent mortgaged the lot in question, together with
another lot covered by TCT No. 3614 and some chattels to secure a

commercial loan of P978,920.00 from the DBP. The lot was developed
into a commercial-industrial complex with ricemill and warehouse
facilities, a solar drier, an office and residential building, roadway,
garden, depository, and dumping grounds for various materials.
When the private respondent failed to pay his loan after more than
seven years had passed, DBP foreclosed the mortgage on June 28,
1977. On that date, the total obligation amounted to P1,114,913.34.
DBP was the highest bidder. Certificates of sale were issued in its
favor; P452,995.00 was for the two lots and P108,450.00 for the
chattels. The certificate covering the disputed lot was registered with
the Registry of Deeds on January 24, 1978.
After the foreclosure sale, respondent Pe leased the lot and its
improvements from DBP for P1,500.00 a month. Part of the property
was also leased by DBP to the then National Grains Authority.
The respondent failed to redeem the property within the one year
period. On September 24, 1979 DBP sold the lot to the petitioner for
P1,650,000.00 payable in quarterly amortizations over a five year
period. The petitioners occupied the purchased lot and introduced
further improvements worth P970,000.00.
On July 12, 1983, claiming that he was acting within the legal period
given to him to repurchase, respondent Pe offered in writing to
repurchase the lot for P327,995.00. DBP countered, however, that
over the years a total of P3,056,739.52 had already been incurred in
the preservation, maintenance, and introduction of improvements.
On October 4, 1983, Pe filed a complaint for repurchase under
Section 119 of Commonwealth Act No. 141 with the Regional Trial
Court (RTC) of General Santos City.
On November 27, 1986, the trial court rendered judgment. The
dispositive portion reads:
WHEREFORE, in view of the foregoing, the defendant Development
Bank of the Philippines is ordered:
1) to reconvey unto the plaintiff the parcel of land in question (Lot No.
P-2404) for the repurchase price of P327,995.00 plus legal interest
from June 18, 1977 to June 19, 1978 only, and the expenses of
extrajudicial foreclosure of mortgage; expenses for registration and
ten percent (10%) attorneys fees;

2) ordering the defendants to vacate forever the premises of said

property in favor of the plaintiff upon payment of the total repurchase
price;
3) ordering the defendants, jointly and solidarily, to pay the plaintiff
attorney's fees in the amount of P25,000.00;
4) and to set an example to government banking and lending
institutions not to take borrowers for granted by making it hard for
them to repurchase by misleading them, the bank is hereby ordered
to pay the plaintiff by way of exemplary damages in the amount of
P50,000.00;
Ordering further the defendant DBP:
5) to reimburse the co-defendants spouses Benzonan the amount
they have paid or advanced the defendant DBP for the purchase of
Lot O.C.T. No. P-2404;
6) ordering the defendants to pay the cost of suit. (Rollo of G.R. No.
97973, pp. 74-75)
On appeal, the Court of Appeals affirmed the decision with
modifications as follows:
xxx xxx xxx
All the foregoing premises considered, judgment is hereby rendered
AFFIRMING the decision rendered by the court a quo with the
modification that the defendant DBP shall reimburse to its codefendant Benzonan spouses all amounts that the latter have paid for
the land, minus interest, and that the Benzonan spouses shall be
allowed to remove the improvement that they have made on the
property under litigation, without impairing or damaging the same.
(Rollo of G.R. No. 97973, p. 105)
A motion for reconsideration was denied on March 19, 1991.
The petitioners-spouses in G.R. No. 97973 raise the following "legal
issues, reasons, or errors" allegedly committed by the Court of
Appeals, to wit:
1. The Court of Appeals erred in holding that conversion and use of
the land in question to industrial or commercial purposes, as a result
of which it could no longer be used for cultivation, and the fact that
respondent Pe has vast holdings whose motive in seeking to
repurchase the property is to continue the business or for speculation

or greater profits did not deprive him of the right to repurchase under
Sec. 119 of CA 141, and, as a result, in ignoring or disregarding Pe's
admissions and undisputed facts establishing such circumstances,
contrary to what this Court held in Santana v.Marias, 94 SCRA 853
[1979], Vargas v. Court of Appeals, 91 SCRA 195 [1979] and Simeon
v.Pea, 36 SCRA 610 [1970].
2. Assuming, arguendo, that respondent Pe still had the right to
repurchase the land under Sec. 119 of CA 141, the Court of Appeals
erred in not counting the 5-year period from the date of foreclosure
sale on June 18, 1977 or at the very most from its registration on
January 24, 1978, in accordance with the prevailing doctrinal law at
the time as enunciated in Monge v. Angeles, 101 Phil. 561
[1957],Oliva v. Lamadrid, 21 SCRA 737 [1967] and Tupas
v. Damasco, 132 SCRA 593 [1984], pursuant to which Pe's right to
repurchase already expired.
3. The Court of Appeals erred in applying retroactively the ruling
in Belisario v. Intermediate Appellate Court, 165 SCRA 101 [1988],
which held that the 5-year period is counted from the date after the
one-year period to redeem foreclosed homestead expired, to the
foreclosure of the land in question in 1977, as its retroactive
application revived Pe's lost right of repurchase and defeated
petitioners' right of ownership that already accrued under the then
prevailing doctrinal law.
4. Assuming, arguendo, that respondent Pe had the right to
repurchase the land in question and assuming, further, that the 5year period is to be counted from the consolidation of ownership after
the expiration of the one-year period to redeem, the Court of Appeals
erred in not holding that the mere filing of an action for repurchase
without tendering or depositing the repurchase price did not satisfy
the requirements of repurchase, Pe's failure to make the tender or
deposit even up to the present being confirmatory of speculative
motive behind his attempt to repurchase.
5. Assuming, finally, that respondent Pe is entitled to repurchase the
property, the Court of Appeals erred in not holding that petitioners
are possessors in good faith, similar to a vendee a retro, entitled (a)
to reimbursement of necessary and useful expenses under Article
1616 of the Civil Code as held in Calagan v. CFI of Davao, 95 SCRA
498 [1980] and in Lee v. Court of Appeals, 68 SCRA 196 [1975]; and
(b) to refund of all amounts paid by them by reason of the sale of the
property in their favor, including interest payments, in both instances
with right of retention. (Rollo of G.R. No. 97973, pp. 14-16)

In G.R No. 97998, DBP limited its petition to the value of the
repurchase price and the nature of the contract between the parties.
It framed the issues as follows:
1. The Court of Appeals erred in not holding that Section 31 of
Commonwealth Act No. 459 as amended is not applicable in the
instant case to determine the repurchase price contrary to decisions
of the Honorable Supreme Court in the following cases: DBP
v. Jimenez, et al. (36 SCRA 426) andDBP v. Mirang (66 SCRA 141).
2. The Court of Appeals erred in not holding that the law between the
contracting parties are the terms and conditions embodied in the
contract signed by them. (Rollo of G.R. No. 97998, p. 12)
We find merit in the petitions.
The determination of the main issues raised by the petitioners calls
for the proper application of Section 119 of CA 141 as amended
which provides: "Every conveyance of land acquired under the free
patent or homestead provisions, when proper, shall be subject to
repurchase by the applicant, his widow, or legal heirs, within a period
of five years from the date of conveyance."
There is no dispute over the fact that the Government awarded the
land to respondent Pe so that he could earn a living by farming the
land. Did respondent Pe lose his right to repurchase the subject
agricultural lot under the aforequoted law considering its conversion
for industrial or commercial purposes? The evidence relating to the
conversion is sufficiently established and yet was not properly
appreciated by the respondent court.
Only three months after getting the free patent and the original
certificate of title over the subject lot, it was mortgaged by
respondent Pe to get a commercial loan of nearly P1 million from DBP.
Pe spent the proceeds of the loan to construct permanent
improvements on the lot for his rice-mill and other
businesses, i.e., two warehouse buildings; administration-residential
building; perimeter fence; solar and concrete drier; shed; machine
shop; dirty kitchen; and machineries and equipments such as ricemill
(TSN, August 13, 1984, pp. 173-174). The entire lot has been
converted to serve commercial and industrial purposes. The
testimony of petitioners Gauvain Benzonan on this score has not
been successfully challenged, viz:
Q. Out of this 2.6 hectares land area, how much of this is devoted to
the solar drier construction?

A. The solar drier is about one thousand (1,000) square meters . . . ah

no, about six thousand (6,000) square meters.
Q. What about the area occupied by the warehouse and the ricemill
complex?
A. The warehouse and ricemill complex is occupying about one and a
half (1 1/2) hectares.
Q. What about the area occupied by the residence as well as the
roadways?
A. It covers about another half of a hectare again, Sir.
Q. Is any part of this two point six hectares devoted to agricultural
production or production of agricultural crops?
A. None whatsoever because the other portion is occupied as a
dumping area for our waste materials. (TSN, PP. 361-362, Sept. 3,
1985).
The conversion of the lot for commercial purposes is understandable
considering that the heart of General Santos City developed in that
area.
The respondent does not deny that, he is using the land for purely
commercial and industrial purposes. His explanation is that the land
may be converted into agricultural land in the future. He applies
the Krivenko v.Register of Deeds of Manila (79 Phil. 461 [1947]) ruling
that lands not mineral or forest are agricultural in nature and may be
devoted to business purposes without losing their agricultural
classification.
Indeed, the records show that it was never the intention of
respondent Pe to utilize the land, given to him for free by the
Government, for agricultural purposes. He was not the kind of poor
farmer for whom homesteads and free patents were intended by the
law.
As stated by the petitioners:
1. Respondent Pe acquired by free patent the land in question with an
area of 2.6064 hectares, which was issued Original Certificate of Title
No. P-2404 on November 24, 1969. Instead of cultivating it for
agricultural purposes, Pe mortgaged the land, along with another
land, on February 24, 1970, or only three (3) months from issuance of
OCT No.

P-2404, with the DBP for P978,920.00. (par. 4, complaint, Annex "A").
Pe testified that his purpose was to construct in the land in question
"bodega", an administration-residential building, a perimeter fence, a
concrete drier, and for some machineries and equipment." (TSN, p.
95, June 22, 1984). He stated that the improvements and facilities in
the land included "the warehouse, the ricemill and a big warehouse
housing the palay of stocks of the National Grains Authority and an
administration-residential building, a solar drier and a perimeter
fence and some sheds or garage . . . a small piggery pen of several
compartments, a dirty kitchen . . . a machine shop." (TSN, pp. 173174, August 13, 1984). Pe used the property for such purposes and
operated the ricemill business for a period of about nine (9) years
until September, 1979 (pars. 7 and 8, complaint, Annex "A"), without
paying the DBP of his mortgage indebtedness, as a result of which
DBP foreclosed the properties. (Annex "F")
2. Respondent Pe testified that the land in question with its
improvements has an appraised value of P1,347,860.00 in 1974, and
P2,028,030.00 in 1976. (TSN, pp. 176, 177, August 13, 1984).
Petitioner Gauvain Benzonan claimed it has a fair market value, as of
1985, of P5,000,000.00. (p. 8, trial court decision, Annex "F"). As
against such value of the land and improvements, respondent Pe
insisted that the repurchase price should only be the principal sum of
P327,995.00. (par. 10, complaint, Annex "A")
3. Respondent Pe, when he testified in 1984, said he was 60 years
old; he is now therefore over 66 years old. He is a "businessman and
resident of Dadiangas, General Santos City" (TSN, p. 3, June 20,
1984), doing business under the style, "Dadiangas B.P. Trading" (TSN,
144, June 22, 1984). In his sworn declaration dated July 18, 1983,
filed with the assessor's office pursuant to P.D. No. 1612, he listed the
following real properties and their market value, all situated in
General Santos City, to wit (Exh. 11-Benzonan):
(a) 447 sq. m. residential P 28,720.00
(b) 11.9980 hectares of agri. lot P 23,880.00
(c) 2.000 hectares of agri. lot P 40,000.00
(d) 2.000 hectares of agri. lot P 40,000.00
(e) 6,064 sq. m. of industrial lot P303,200.00
(f) Industrial building P434,130.00
(g) Industrial machinery P 96,000.00
On June 22, 1984, when Pe testified, he said that "I own three (3)
residential lots," (TSN, p. 153, June 22, 1984) and that he and his wife
own in Antique Province "around twenty (20) hectares planted to

coconut and sugarcane" (ibid., p. 145); he used to have 30 hectares

of agricultural lands and 22 subdivision lots, which he sold to Norma
Salvani and Carlos Salvani. (TSN, pp. 166-169, June 22, 1984); Exhs.
1, 1-A, 1-B, 1-C, 3, 6, 6-A-Benzonan). (Rollo of G.R. No. 97973, pp. 1719)
In the light of the records of these cases, we rule that respondent Pe
cannot repurchase the disputed property without doing violence to
everything that CA No. 141 (as amended) stands for.
We ruled in Simeon v. Pea, 36 SCRA 610, 617 [1970] through Chief
Justice Claudio Teehankee, that:
xxx xxx xxx
These findings of fact of the Court of Appeals that "(E)vidently, the
reconveyance sought by the plaintiff (petitioner) is not in accordance
with the purpose of the law, that is, "to preserve and keep in the
family of the homesteader that portion of public land which the State
has gratuitously given to him"" and expressly found by it to "find
justification from the evidence of record. . . ."
Under the circumstances, the Court is constrained to agree with the
Court of Appeals that petitioners' proposed repurchase of the
property does not fall within the purpose, spirit and meaning of
section 119 of the Public Land Act, authorizing redemption of the
homestead from any vendee thereof.
We reiterated this ruling in Vargas v. Court of Tax Appeals, 91 SCRA
195, 200, [1979] viz:
As regards the case of Simeon v. Pea, petitioners ought to know that
petitioner therein was not allowed to repurchase because the lower
court found that his purpose was only speculative and for profit. In
the present case, the Court of Appeals found that herein petitioners'
purposes and motives are also speculative and for profit.
It might be well to note that the underlying principle of Section 119 of
Commonwealth Act No. 141 is to give the homesteader or patentee
every chance to preserve for himself and his family the land that the
State had gratuitously given to him as a reward for his labor in
cleaning and cultivating it. (Simeon v. Pea, 36 SCRA 617). As found
by the Court of Appeals, the motive of the petitioners in repurchasing
the lots in question being one for speculation and profit, the same
therefore does not fall within the purpose, spirit and meaning of said
section.

and in Santana et al. v. Marias, 94 SCRA 853, 861-862 [1979] to wit:

In Simeon v. Pea we analyzed the various cases previously decided,
and arrived at the conclusion that the plain intent, the raison d'
etre, of Section 119, C.A. No. 141 ". . . is to give the homesteader or
patentee every chance to preserve for himself and his family the land
that the state had gratuitously given to him as a reward for his labor
in cleaning and cultivating it." In the same breath, we agreed with the
trial court, in that case, that "it is in this sense that the provision of
law in question becomes unqualified and unconditional. And in
keeping with such reasons behind the passage of the law, its basic
objective is to promote public policy, that is, to provide home and
decent living for destitutes, aimed at promoting a class of
independent small landholders which is the bulwark of peace and
order.
As it was in Simeon v. Pea, respondent Marias' intention in
exercising the right of repurchase "is not for the purpose of
preserving the same within the family fold," but "to dispose of it
again for greater profit in violation of the law's policy and spirit." The
foregoing conclusions are supported by the trial court's findings of
fact already cited, culled from evidence adduced. Thus respondent
Marias was 71 years old and a widower at the time of the sale in
1956; that he was 78 when he testified on October 24, 1963 (or over
94 years old today if still alive); that . . . he was not living on the
property when he sold the same but was residing in the poblacion
attending to a hardware store, and that the property was no longer
agricultural at the time of the sale, but was a residential and
commercial lot in the midst of many subdivisions. The profit
motivation behind the effort to repurchase was conclusively shown
when the then plaintiff's counsel, in the case below, Atty. Loreto
Castillo, in his presence, suggested to herein petitioners' counsel,
Atty. Rafael Dinglasan ". . . to just add to the original price so the case
would be settled." Moreover, Atty. Castillo manifested in court that an
amicable settlement was possible, for which reason he asked for time
"within which to settle the terms thereof'" and that "the plaintiff . . .
Mr. Marias, has manifested to the Court that if the defendants would
be willing to pay the sum of One Peso and Fifty Centavos (P1.50) per
square meter, he would be willing to accept the offer and dismiss the
case."
Our decisions were disregarded by the respondent court which chose
to adopt a Court of Appeals ruling in Lim, et al. v. Cruz, et al., CA-G.R.
No. 67422, November 25, 1983 that the motives of the homesteader
in repurchasing the land are inconsequential" and that it does not

matter even "when the obvious purpose is for selfish gain or personal
aggrandizement."
The other major issue is when to count the five-year period for the
repurchase by respondent Pe whether from the date of the
foreclosure sale or from the expiration of the one year period to
redeem the foreclosed property.
The respondent court ruled that the period of repurchase should be
counted from the expiration of the one year period to redeem the
foreclosed property. Since the one year period to redeem expired on
January 24, 1979 and he filed Case No. 280 on October 4, 1983 to
enforce his right to repurchase the disputed property, the Court of
Appeals held that Pe exercised his right to repurchase within the fiveyear period provided by Section 119 of CA 141 as amended.
The respondent court cited Belisario, et al., v. Intermediate Appellate
Court, et al., 165 SCRA 101, 107 [1988] where we held:
. . . In addition, Section 119 of Commonwealth Act 141 provides that
every conveyance of land acquired under the free patent or
homestead patent provisions of the Public Land Act, when proper,
shall be subject to repurchase by the applicant, his widow or legal
heirs within the period of five years from the date of conveyance. The
five-year period of redemption fixed in Section 119 of the Public Land
Law of homestead sold at extrajudicial foreclosure begins to run from
the day after the expiration of the one-year period of repurchase
allowed in an extrajudicial foreclosure. (Manuel v. PNB, et al., 101
Phil. 968) Hence, petitioners still had five (5) years from July 22, 1972
(the expiration of the redemption period under Act 3135) within which
to exercise their right to repurchase under the Public Land Act.
As noted by the respondent court, the 1988 case of Belisario reversed
the previous rulings of this Court enunciated in Monge, et al.,
v. Angeles, et al., 101 Phil. 563 [1957] and Tupas v. Damasco, et
al., 132 SCRA 593 [1984] to the effect that the five year period of
repurchase should be counted from the date of conveyance or
foreclosure sale. The petitioners, however, urge that Belisario should
only be applied prospectively or after 1988 since it established a new
doctrine.
We sustain the petitioners' position. It is undisputed that the subject
lot was mortgaged to DBP on February 24, 1970. It was acquired by
DBP as the highest bidder at a foreclosure sale on June 18, 1977, and
then sold to the petitioners on September 29, 1979.

At that time, the prevailing jurisprudence interpreting section 119 of

R.A. 141 as amended was that enunciated inMonge and Tupas cited
above. The petitioners Benzonan and respondent Pe and the DBP are
bound by these decisions for pursuant to Article 8 of the Civil Code
"judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the Philippines."
But while our decisions form part of the law of the land, they are also
subject to Article 4 of the Civil Code which provides that "laws shall
have no retroactive effect unless the contrary is provided." This is
expressed in the familiar legal maxim lex prospicit, non respicit, the
law looks forward not backward. The rationale against retroactivity is
easy to perceive. The retroactive application of a law usually divests
rights that have already become vested or impairs the obligations of
contract and hence, is unconstitutional (Francisco v. Certeza, 3 SCRA
565 [1961]).
The same consideration underlies our rulings giving only prospective
effect to decisions enunciating new doctrines. Thus, we emphasized
in People v. Jabinal, 55 SCRA 607 [1974] ". . . when a doctrine of this
Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively and should not apply to parties who
had relied on the old doctrine and acted on the faith thereof."
There may be special cases where weighty considerations of equity
and social justice will warrant a retroactive application of doctrine to
temper the harshness of statutory law as it applies to poor farmers or
their widows and orphans. In the present petitions, however, we find
no such equitable considerations. Not only did the private respondent
apply for free agricultural land when he did not need it and he had no
intentions of applying it to the noble purposes behind the law, he
would now repurchase for only P327,995.00, the property purchased
by the petitioners in good faith for P1,650,000.00 in 1979 and which,
because of improvements and the appreciating value of land must be
worth more than that amount now.
The buyers in good faith from DBP had a right to rely on our rulings
in Monge and Tupas when they purchased the property from DBP in
1979 or thirteen (13) years ago. Under the rulings in these two cases,
the period to repurchase the disputed lot given to respondent Pe
expired on June 18, 1982. He failed to exercise his right. His lost right
cannot be revived by relying on the 1988 case of Belisario. The right
of petitioners over the subject lot had already become vested as of
that time and cannot be impaired by the retroactive application of
the Belisarioruling.

Considering our above findings, we find no need to resolve the other

issues raised by the petitioners in their petitions.
WHEREFORE, the questioned decision of the respondent court is
hereby REVERSED and SET ASIDE. The complaint for repurchase
under Section 119 of Commonwealth Act No. 141 as amended is
DISMISSED. No pronouncement as to costs.
Feliciano, Bidin, Davide, Jr. and Romero, JJ., concur.

All of a sudden, the bamboo cracked and slit open. Out came two human
beings; one was a male and the other was a female. Amihan named the
man "Malakas" (Strong) and the woman "Maganda" (Beautiful). (The
Legend of Malakas and Maganda)
When is a man a man and when is a woman a woman? In particular, does
the law recognize the changes made by a physician using scalpel, drugs
and counseling with regard to a persons sex? May a person successfully
petition for a change of name and sex appearing in the birth certificate to
reflect the result of a sex reassignment surgery?
On November 26, 2002, petitioner Rommel Jacinto Dantes Silverio filed a
petition for the change of his first name and sex in his birth certificate in
the Regional Trial Court of Manila, Branch 8. The petition, docketed as SP
Case No. 02-105207, impleaded the civil registrar of Manila as respondent.
Petitioner alleged in his petition that he was born in the City of Manila to
the spouses Melecio Petines Silverio and Anita Aquino Dantes on April 4,
1962. His name was registered as "Rommel Jacinto Dantes Silverio" in his
certificate of live birth (birth certificate). His sex was registered as "male."
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 174689

October 22, 2007

ROMMEL JACINTO DANTES SILVERIO, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES, respondent.
DECISION
CORONA, J.:
When God created man, He made him in the likeness of God; He created
them male and female. (Genesis 5:1-2)
Amihan gazed upon the bamboo reed planted by Bathala and she heard
voices coming from inside the bamboo. "Oh North Wind! North Wind!
Please let us out!," the voices said. She pecked the reed once, then twice.

He further alleged that he is a male transsexual, that is, "anatomically male

but feels, thinks and acts as a female" and that he had always identified
himself with girls since childhood.1 Feeling trapped in a mans body, he
consulted several doctors in the United States. He underwent psychological
examination, hormone treatment and breast augmentation. His attempts to
transform himself to a "woman" culminated on January 27, 2001 when he
underwent sex reassignment surgery2 in Bangkok, Thailand. He was
thereafter examined by Dr. Marcelino Reysio-Cruz, Jr., a plastic and
reconstruction surgeon in the Philippines, who issued a medical certificate
attesting that he (petitioner) had in fact undergone the procedure.
From then on, petitioner lived as a female and was in fact engaged to be
married. He then sought to have his name in his birth certificate changed
from "Rommel Jacinto" to "Mely," and his sex from "male" to "female."
An order setting the case for initial hearing was published in the Peoples
Journal Tonight, a newspaper of general circulation in Metro Manila, for
three consecutive weeks.3 Copies of the order were sent to the Office of the
Solicitor General (OSG) and the civil registrar of Manila.
On the scheduled initial hearing, jurisdictional requirements were
established. No opposition to the petition was made.

During trial, petitioner testified for himself. He also presented Dr. ReysioCruz, Jr. and his American fianc, Richard P. Edel, as witnesses.
On June 4, 2003, the trial court rendered a decision 4 in favor of petitioner.
Its relevant portions read:
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the purpose
of making his birth records compatible with his present sex.
The sole issue here is whether or not petitioner is entitled to the relief
asked for.
The [c]ourt rules in the affirmative.
Firstly, the [c]ourt is of the opinion that granting the petition would be more
in consonance with the principles of justice and equity. With his sexual [reassignment], petitioner, who has always felt, thought and acted like a
woman, now possesses the physique of a female. Petitioners misfortune to
be trapped in a mans body is not his own doing and should not be in any
way taken against him.
Likewise, the [c]ourt believes that no harm, injury [or] prejudice will be
caused to anybody or the community in granting the petition. On the
contrary, granting the petition would bring the much-awaited happiness on
the part of the petitioner and her [fianc] and the realization of their
dreams.
Finally, no evidence was presented to show any cause or ground to deny
the present petition despite due notice and publication thereof. Even the
State, through the [OSG] has not seen fit to interpose any [o]pposition.
WHEREFORE, judgment is hereby rendered GRANTING the petition and
ordering the Civil Registrar of Manila to change the entries appearing in the
Certificate of Birth of [p]etitioner, specifically for petitioners first name
from "Rommel Jacinto" to MELY and petitioners gender from "Male"
to FEMALE. 5
On August 18, 2003, the Republic of the Philippines (Republic), thru the
OSG, filed a petition for certiorari in the Court of Appeals. 6 It alleged that
there is no law allowing the change of entries in the birth certificate by
reason of sex alteration.

On February 23, 2006, the Court of Appeals7 rendered a decision8 in favor of

the Republic. It ruled that the trial courts decision lacked legal basis. There
is no law allowing the change of either name or sex in the certificate of
birth on the ground of sex reassignment through surgery. Thus, the Court of
Appeals granted the Republics petition, set aside the decision of the trial
court and ordered the dismissal of SP Case No. 02-105207. Petitioner
moved for reconsideration but it was denied.9 Hence, this petition.
Petitioner essentially claims that the change of his name and sex in his
birth certificate is allowed under Articles 407 to 413 of the Civil Code, Rules
103 and 108 of the Rules of Court and RA 9048.10
The petition lacks merit.
A Persons First Name Cannot Be Changed On the Ground of Sex
Reassignment
Petitioner invoked his sex reassignment as the ground for his petition for
change of name and sex. As found by the trial court:
Petitioner filed the present petition not to evade any law or judgment or
any infraction thereof or for any unlawful motive but solely for the
purpose of making his birth records compatible with his present
sex. (emphasis supplied)
Petitioner believes that after having acquired the physical features of a
female, he became entitled to the civil registry changes sought. We
disagree.
The State has an interest in the names borne by individuals and entities for
purposes of identification.11 A change of name is a privilege, not a
right.12 Petitions for change of name are controlled by statutes.13 In this
connection, Article 376 of the Civil Code provides:
ART. 376. No person can change his name or surname without judicial
authority.
This Civil Code provision was amended by RA 9048 (Clerical Error Law). In
particular, Section 1 of RA 9048 provides:
SECTION 1. Authority to Correct Clerical or Typographical Error and Change
of First Name or Nickname. No entry in a civil register shall be changed or
corrected without a judicial order, except for clerical or typographical errors
and change of first name or nickname which can be corrected or changed

by the concerned city or municipal civil registrar or consul general in

accordance with the provisions of this Act and its implementing rules and
regulations.
RA 9048 now governs the change of first name.14 It vests the power and
authority to entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned. Under the law,
therefore, jurisdiction over applications for change of first name is now
primarily lodged with the aforementioned administrative officers. The intent
and effect of the law is to exclude the change of first name from the
coverage of Rules 103 (Change of Name) and 108 (Cancellation or
Correction of Entries in the Civil Registry) of the Rules of Court, until and
unless an administrative petition for change of name is first filed and
subsequently denied.15 It likewise lays down the corresponding
venue,16 form17 and procedure. In sum, the remedy and the proceedings
regulating change of first name are primarily administrative in nature, not
judicial.

Before a person can legally change his given name, he must present proper
or reasonable cause or any compelling reason justifying such change. 19 In
addition, he must show that he will be prejudiced by the use of his true and
official name.20 In this case, he failed to show, or even allege, any prejudice
that he might suffer as a result of using his true and official name.
In sum, the petition in the trial court in so far as it prayed for the change of
petitioners first name was not within that courts primary jurisdiction as
the petition should have been filed with the local civil registrar concerned,
assuming it could be legally done. It was an improper remedy because the
proper remedy was administrative, that is, that provided under RA 9048. It
was also filed in the wrong venue as the proper venue was in the Office of
the Civil Registrar of Manila where his birth certificate is kept. More
importantly, it had no merit since the use of his true and official name does
not prejudice him at all. For all these reasons, the Court of Appeals correctly
dismissed petitioners petition in so far as the change of his first name was
concerned.

RA 9048 likewise provides the grounds for which change of first name may
be allowed:

No Law Allows The Change of Entry In The Birth Certificate As To

Sex On the Ground of Sex Reassignment

SECTION 4. Grounds for Change of First Name or Nickname. The petition

for change of first name or nickname may be allowed in any of the
following cases:

The determination of a persons sex appearing in his birth certificate is a

legal issue and the court must look to the statutes. 21 In this connection,
Article 412 of the Civil Code provides:

(1) The petitioner finds the first name or nickname to be ridiculous, tainted
with dishonor or extremely difficult to write or pronounce;

ART. 412. No entry in the civil register shall be changed or corrected

without a judicial order.

(2) The new first name or nickname has been habitually and continuously
used by the petitioner and he has been publicly known by that first name or
nickname in the community; or

Together with Article 376 of the Civil Code, this provision was amended by
RA 9048 in so far as clerical or typographical errors are involved. The
correction or change of such matters can now be made through
administrative proceedings and without the need for a judicial order. In
effect, RA 9048 removed from the ambit of Rule 108 of the Rules of Court
the correction of such errors.22 Rule 108 now applies only to substantial
changes and corrections in entries in the civil register. 23

(3) The change will avoid confusion.

Petitioners basis in praying for the change of his first name was his sex
reassignment. He intended to make his first name compatible with the sex
he thought he transformed himself into through surgery. However, a
change of name does not alter ones legal capacity or civil status. 18 RA
9048 does not sanction a change of first name on the ground of sex
reassignment. Rather than avoiding confusion, changing petitioners first
name for his declared purpose may only create grave complications in the
civil registry and the public interest.

Section 2(c) of RA 9048 defines what a "clerical or typographical error" is:

SECTION 2. Definition of Terms. As used in this Act, the following terms
shall mean:
xxx

xxx

xxx

(3) "Clerical or typographical error" refers to a mistake committed in the

performance of clerical work in writing, copying, transcribing or typing an
entry in the civil register that is harmless and innocuous, such as
misspelled name or misspelled place of birth or the like, which is visible to
the eyes or obvious to the understanding, and can be corrected or changed
only by reference to other existing record or records: Provided,
however, That no correction must involve the change of nationality,
age, status or sex of the petitioner. (emphasis supplied)
Under RA 9048, a correction in the civil registry involving the change of sex
is not a mere clerical or typographical error. It is a substantial change for
which the applicable procedure is Rule 108 of the Rules of Court.
The entries envisaged in Article 412 of the Civil Code and correctable under
Rule 108 of the Rules of Court are those provided in Articles 407 and 408 of
the Civil Code:24
ART. 407. Acts, events and judicial decrees concerning the civil status of
persons shall be recorded in the civil register.
ART. 408. The following shall be entered in the civil register:
(1) Births; (2) marriages; (3) deaths; (4) legal separations; (5) annulments
of marriage; (6) judgments declaring marriages void from the beginning;
(7) legitimations; (8) adoptions; (9) acknowledgments of natural children;
(10) naturalization; (11) loss, or (12) recovery of citizenship; (13) civil
interdiction; (14) judicial determination of filiation; (15) voluntary
emancipation of a minor; and (16) changes of name.
The acts, events or factual errors contemplated under Article 407 of the
Civil Code include even those that occur after birth. 25 However, no
reasonable interpretation of the provision can justify the conclusion that it
covers the correction on the ground of sex reassignment.

naturalization and deaths) and judicial decrees (such as legal separations,

annulments of marriage, declarations of nullity of marriages, adoptions,
naturalization, loss or recovery of citizenship, civil interdiction, judicial
determination of filiation and changes of name). These acts, events and
judicial decrees produce legal consequences that touch upon the legal
capacity, status and nationality of a person. Their effects are expressly
sanctioned by the laws. In contrast, sex reassignment is not among those
acts or events mentioned in Article 407. Neither is it recognized nor even
mentioned by any law, expressly or impliedly.
"Status" refers to the circumstances affecting the legal situation (that is,
the sum total of capacities and incapacities) of a person in view of his age,
nationality and his family membership. 27
The status of a person in law includes all his personal qualities and
relations, more or less permanent in nature, not ordinarily
terminable at his own will, such as his being legitimate or illegitimate, or
his being married or not. The comprehensive term status include such
matters as the beginning and end of legal personality, capacity to have
rights in general, family relations, and its various aspects, such as birth,
legitimation, adoption, emancipation, marriage, divorce, and sometimes
even succession.28 (emphasis supplied)
A persons sex is an essential factor in marriage and family relations. It is a
part of a persons legal capacity and civil status. In this connection, Article
413 of the Civil Code provides:
ART. 413. All other matters pertaining to the registration of civil status shall
be governed by special laws.
But there is no such special law in the Philippines governing sex
reassignment and its effects. This is fatal to petitioners cause.
Moreover, Section 5 of Act 3753 (the Civil Register Law) provides:

To correct simply means "to make or set aright; to remove the faults or
error from" while to change means "to replace something with something
else of the same kind or with something that serves as a substitute." 26 The
birth certificate of petitioner contained no error. All entries therein,
including those corresponding to his first name and sex, were all correct. No
correction is necessary.
Article 407 of the Civil Code authorizes the entry in the civil registry of
certain acts (such as legitimations, acknowledgments of illegitimate
children and naturalization), events (such as births, marriages,

SEC. 5. Registration and certification of births. The declaration of the

physician or midwife in attendance at the birth or, in default thereof, the
declaration of either parent of the newborn child, shall be sufficient for the
registration of a birth in the civil register. Such declaration shall be exempt
from documentary stamp tax and shall be sent to the local civil registrar
not later than thirty days after the birth, by the physician or midwife in
attendance at the birth or by either parent of the newborn child.

In such declaration, the person above mentioned shall certify to the

following facts: (a) date and hour of birth; (b) sex and nationality of infant;
(c) names, citizenship and religion of parents or, in case the father is not
known, of the mother alone; (d) civil status of parents; (e) place where the
infant was born; and (f) such other data as may be required in the
regulations to be issued.
xxx

xxx

xxx (emphasis supplied)

Under the Civil Register Law, a birth certificate is a historical record of the
facts as they existed at the time of birth.29 Thus, the sex of a person is
determined at birth, visually done by the birth attendant (the physician or
midwife) by examining the genitals of the infant. Considering that there is
no law legally recognizing sex reassignment, the determination of a
persons sex made at the time of his or her birth, if not attended by
error,30is immutable.31
When words are not defined in a statute they are to be given their common
and ordinary meaning in the absence of a contrary legislative intent. The
words "sex," "male" and "female" as used in the Civil Register Law and laws
concerning the civil registry (and even all other laws) should therefore be
understood in their common and ordinary usage, there being no legislative
intent to the contrary. In this connection, sex is defined as "the sum of
peculiarities of structure and function that distinguish a male from a
female"32 or "the distinction between male and female."33 Female is "the
sex that produces ova or bears young"34 and male is "the sex that has
organs to produce spermatozoa for fertilizing ova." 35 Thus, the words
"male" and "female" in everyday understanding do not include persons who
have undergone sex reassignment. Furthermore, "words that are employed
in a statute which had at the time a well-known meaning are presumed to
have been used in that sense unless the context compels to the
contrary."36 Since the statutory language of the Civil Register Law was
enacted in the early 1900s and remains unchanged, it cannot be argued
that the term "sex" as used then is something alterable through surgery or
something that allows a post-operative male-to-female transsexual to be
included in the category "female."

The trial court opined that its grant of the petition was in consonance with
the principles of justice and equity. It believed that allowing the petition
would cause no harm, injury or prejudice to anyone. This is wrong.
The changes sought by petitioner will have serious and wide-ranging legal
and public policy consequences. First, even the trial court itself found that
the petition was but petitioners first step towards his eventual marriage to
his male fianc. However, marriage, one of the most sacred social
institutions, is a special contract of permanent union between a man and a
woman.37 One of its essential requisites is the legal capacity of the
contracting parties who must be a male and a female.38 To grant the
changes sought by petitioner will substantially reconfigure and greatly alter
the laws on marriage and family relations. It will allow the union of a man
with another man who has undergone sex reassignment (a male-to-female
post-operative transsexual). Second, there are various laws which apply
particularly to women such as the provisions of the Labor Code on
employment of women,39 certain felonies under the Revised Penal
Code40 and the presumption of survivorship in case of calamities under Rule
131 of the Rules of Court,41 among others. These laws underscore the public
policy in relation to women which could be substantially affected if
petitioners petition were to be granted.
It is true that Article 9 of the Civil Code mandates that "[n]o judge or court
shall decline to render judgment by reason of the silence, obscurity or
insufficiency of the law." However, it is not a license for courts to engage in
judicial legislation. The duty of the courts is to apply or interpret the law,
not to make or amend it.
In our system of government, it is for the legislature, should it choose to do
so, to determine what guidelines should govern the recognition of the
effects of sex reassignment. The need for legislative guidelines becomes
particularly important in this case where the claims asserted are statutebased.

For these reasons, while petitioner may have succeeded in altering his body
and appearance through the intervention of modern surgery, no law
authorizes the change of entry as to sex in the civil registry for that reason.
Thus, there is no legal basis for his petition for the correction or change of
the entries in his birth certificate.

To reiterate, the statutes define who may file petitions for change of first
name and for correction or change of entries in the civil registry, where
they may be filed, what grounds may be invoked, what proof must be
presented and what procedures shall be observed. If the legislature intends
to confer on a person who has undergone sex reassignment the privilege to
change his name and sex to conform with his reassigned sex, it has to
enact legislation laying down the guidelines in turn governing the
conferment of that privilege.

Neither May Entries in the Birth Certificate As to First Name or Sex

Be Changed on the Ground of Equity

It might be theoretically possible for this Court to write a protocol on when

a person may be recognized as having successfully changed his sex.

However, this Court has no authority to fashion a law on that matter, or on

anything else. The Court cannot enact a law where no law exists. It can only
apply or interpret the written word of its co-equal branch of government,
Congress.
Petitioner pleads that "[t]he unfortunates are also entitled to a life of
happiness, contentment and [the] realization of their dreams." No
argument about that. The Court recognizes that there are people whose
preferences and orientation do not fit neatly into the commonly recognized
parameters of social convention and that, at least for them, life is indeed an
ordeal. However, the remedies petitioner seeks involve questions of public
policy to be addressed solely by the legislature, not by the courts.
WHEREFORE, the petition is hereby DENIED.
Costs against petitioner.

Docketed as CA-G.R. SP No. 78824.

Special Sixth Division.
Penned by Associate Justice Arcangelita M. Romilla-Lontok with Associate
Justices Marina L. Buzon and Aurora Santiago-Lagman concurring. Rollo, pp.
25-33.
Resolution dated September 14, 2006, id., pp. 45-46.
An Act Authorizing the City or Municipal Civil Registrar or the Consul
General to Correct a Clerical or Typographical Error in an Entry and/or
Change of First Name or Nickname in the Civil Register Without Need of a
Judicial Order, Amending for the Purpose Articles 376 and 412 of the Civil
Code of the Philippines.
10

SO ORDERED.

Wang v. Cebu City Civil Registrar, G.R. No. 159966, 30 March 2005, 454
SCRA 155.

Puno, C.J., Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, JJ., concur.

12

11

Id.

K v. Health Division, Department of Human Resources, 277 Or. 371, 560

P.2d 1070 (1977).
13

Footnotes
Petitioner went for his elementary and high school, as well as his Bachelor
of Science in Statistics and Master of Arts, in the University of the
Philippines. He took up Population Studies Program, Master of Arts in
Sociology and Doctor of Philosophy in Sociology at the University of Hawaii,
in Manoa, Hawaii, U.S.A. Rollo, p. 48.
1

This consisted of "penectomy [surgical removal of penis] bilateral

oschiectomy [or orchiectomy which is the surgical excision of the testes]
penile skin inversion vaginoplasty [plastic surgery of the vagina] clitoral
hood reconstruction and augmentation mammoplasty [surgical
enhancement of the size and shape of the breasts]." Id.
2

On January 23, 2003, January 30, 2003 and February 6, 2003.

Penned by Judge Felixberto T. Olalia, Jr. Rollo, pp. 51-53.

Id., pp. 52-53 (citations omitted).

Under Section 2 (6) of RA 9048, "first name" refers to a name or

nickname given to a person which may consist of one or more names in
addition to the middle names and last names. Thus, the term "first name"
will be used here to refer both to first name and nickname.
14

15

The last paragraph of Section 7 of RA 9048 provides:

SECTION 7. Duties and Powers of the Civil Registrar General. xxx xxx xxx
Where the petition is denied by the city or municipal civil registrar or the
consul general, the petitioner may either appeal the decision to the civil
registrar general or file the appropriate petition with the proper court.
SECTION 3. Who May File the Petition and Where. Any person having
direct and personal interest in the correction of a clerical or typographical
error in an entry and/or change of first name or nickname in the civil
register may file, in person, a verified petition with the local civil registry
office of the city or municipality where the record being sought to be
corrected or changed is kept.
16

In case the petitioner has already migrated to another place in the country
and it would not be practical for such party, in terms of transportation
expenses, time and effort to appear in person before the local civil registrar
keeping the documents to be corrected or changed, the petition may be
filed, in person, with the local civil registrar of the place where the
interested party is presently residing or domiciled. The two (2) local civil
registrars concerned will then communicate to facilitate the processing of
the petition.
Citizens of the Philippines who are presently residing or domiciled in foreign
countries may file their petition, in person, with the nearest Philippine
Consulates.
The petitions filed with the city or municipal civil registrar or the consul
general shall be processed in accordance with this Act and its implementing
rules and regulations.
All petitions for the clerical or typographical errors and/or change of first
names or nicknames may be availed of only once.

for two (2) consecutive weeks in a newspaper of general circulation.

Furthermore, the petitioner shall submit a certification from the appropriate
law enforcement agencies that he has no pending case or no criminal
record.
Republic v. Court of Appeals, G.R. No. 97906, 21 May 1992, 209 SCRA
189.
18

19

Supra note 11.

20

Id.

21

In re Ladrach, 32 Ohio Misc.2d 6, 513 N.E.2d 828 (1987).

22

Lee v. Court of Appeals, 419 Phil. 392 (2001).

23

Id.

Co v. Civil Register of Manila, G.R. No. 138496, 23 February 2004, 423

SCRA 420.
24

SECTION 5. Form and Contents of the Petition. The petition shall be in

the form of an affidavit, subscribed and sworn to before any person
authorized by the law to administer oaths. The affidavit shall set forth facts
necessary to establish the merits of the petition and shall show
affirmatively that the petitioner is competent to testify to the matters
stated. The petitioner shall state the particular erroneous entry or entries,
which are sought to be corrected and/or the change sought to be made.
17

25

Id.

26

Id.

27

Beduya v. Republic of the Philippines, 120 Phil. 114 (1964).

The petition shall be supported with the following documents:

Salonga, Jovito, Private International Law, 1995 Edition, Rex Bookstore, p.
238.
28

(1) A certified true machine copy of the certificate or of the page of the
registry book containing the entry or entries sought to be corrected or
changed;
(2) At least two (2) public or private documents showing the correct entry
or entries upon which the correction or change shall be based; and
(3) Other documents which the petitioner or the city or municipal civil
registrar or the consul general may consider relevant and necessary for the
approval of the petition.

This, of course, should be taken in conjunction with Articles 407 and 412
of the Civil Code which authorizes the recording of acts, events and judicial
decrees or the correction or change of errors including those that occur
after birth. Nonetheless, in such cases, the entries in the certificates of
birth are not be corrected or changed. The decision of the court granting
the petition shall be annotated in the certificates of birth and shall form
part of the civil register in the Office of the Local Civil Registrar. (Co v. Civil
Register of Manila, supra note 24)
29

The error pertains to one where the birth attendant writes "male" or
"female" but the genitals of the child are that of the opposite sex.
30

In case of change of first name or nickname, the petition shall likewise be

supported with the documents mentioned in the immediately preceding
paragraph. In addition, the petition shall be published at least once a week

Moreover, petitioners female anatomy is all man-made. The body that he

inhabits is a male body in all aspects other than what the physicians have
supplied.
31

32

Blacks Law Dictionary, 8th edition (2004), p.1406.

33

Words and Phrases, volume 39, Permanent Edition, p. 106.

In re Application for Marriage License for Nash, 2003-Ohio-7221 (No.

2002-T-0149, slip op., Not Reported in N.E.2d, 2003 WL 23097095 (Ohio
App. 11 Dist., December 31, 2003), citing Websters II New College
Dictionary (1999).
34

35

Id.

Standard Oil Co. v. United States, 221 U.S. 1 (1911), 31 S.Ct. 502, 55
L.Ed. 619.
36

37

38

Article 1, Family Code.

[A.M. No. 02-12-01-SC. November 24, 2004]

Article 2(1), Id.

These are Articles 130 to 138 of the Labor Code which include nightwork
prohibition, facilities for women, prohibition on discrimination and
stipulation against marriage, among others.
39

These include Article 333 on adultery, Articles 337 to 339 on qualified

seduction, simple seduction and acts of lasciviousness with the consent of
the offended party and Articles 342 and 343 on forcible and consented
abduction, among others.

RE: RESOLUTION GRANTING AUTOMATIC PERMANENT TOTAL

DISABILITY BENEFITS TO HEIRS OF JUSTICES AND
JUDGES WHO DIE IN ACTUAL SERVICE.

40

41

Section 3(jj)(4).

RESOLUTION
GARCIA, J.:
This administrative matter stemmed from the receipt by the
Honorable Chief Justice of two (2) letters from Undersecretary Mario
L. Relampagos of the Department of Budget and Management
(DBM), advising the Court of DBMs action to disallow the 5-year
lump sum gratuity separately claimed by the heirs of the late Judge
Melvyn U. Calvan and Judge Emmanuel R. Real under this
Courts Resolution dated 30 September 2003 in A.M. No. 0212-01-SC[1], which Resolution reads, inter alia, as follows:
NOW, THEREFORE, by virtue of and pursuant to its mandates of
fiscal autonomy under Section 3 and of administrative supervision
over all courts and personnel thereof under Section 6 of Article VIII of
the Constitution, the Court RESOLVED, as it hereby RESOLVES, to

grant lump sum Permanent Physical Disability benefits provided for in

Sections 2 and 3 of Republic Act No. 910, as amended, to the heirs of
Justices and Judges, including judiciary officials who have the rank,
salary and privileges of such Justices and Judges, who die while in the
service regardless of the cause of death, except suicide or when the
Justice or Judge himself is the proximate cause of the attack or
assault which resulted in or caused his death, subject to the following
conditions: xxx.
The material facts relative to the case of the late Judge Melvyn
U. Calvan, may be briefly stated, as follows:
Judge Calvan was the Presiding Judge of the Municipal Circuit
Trial Court in Bangui, Ilocos Norte when he died on 16 November
2003 due to cardio-respiratory arrest. At the time of his death, the
Judge had rendered a total government service of twenty-one (21)
years, two (2) months and one (1) day, of which sixteen (16) years,
three (3) months and six (6) days were spent in the Judiciary.
After his death, or more specifically on 12 February 2004, his
widow, Dr. Susana B. Calvan, addressed a letter to the Honorable
Presbitero J. Velasco, Jr., Court Administrator, requesting entitlement
to the benefits of Rep. Act No. 910, in conjunction with this
Courts Resolution of 30 September 2003, in A. M. No. 02-1201-SC.[2]
On March 17, 2004, the application was approved by this Court
through a Resolution in A.M. No. 11445-Ret.[3]
Thereafter, the Fiscal Management and Budget Office (FMBO) of
this Court sent DBM Secretary Emilia T. Boncodin a request for the
issuance of a Special Allotment Release Order (SARO) to cover the
payment of the terminal leave and retirement gratuity benefits of
Supreme Court and lower court officials and employees, including
those pertaining to the late Judge Calvan.

As regards the late Judge Emmanuel R. Real, the background

facts may be briefly stated, as follows:
Judge Emmanuel R. Real was the Presiding Judge of the Regional
Trial at Ligao, Albay, Branch II, when he died on 25 February 2002 of
cardiac arrest and multiple organ failure or the complications due to
multiple myeloma. At the time of his death, the Judge had rendered a
total government service of thirty-two (32) years, seven (7) months
and twenty-three (23) days, with ten (10) years and twenty-eight (28)
days thereof in the Judiciary.
On 11 March 2002, the Judges widow, Mrs. Elena N. Real and
their four (4) children filed a claim for permanent total disability
retirement benefits. The application was denied by this Court through
a Resolution dated 3 June 2002 in A.M. No. 10821-Ret. [5] The denial
was based on the failure of the late judge to submit the application
for permanent total disability retirement benefits during his
incumbency for the purpose of medical evaluation. In the same
Resolution, however, the Court treated and approved the application
as a claim for Retirement/Gratuity Benefits under Sec. 2 of R.A. 910,
as amended, effective February 25, 2002 (death), subject to the
availability of funds and the usual clearance requirements.
Mrs. Real then sought a reconsideration of the 03 June 2002
Resolution and claimed entitlement under this Courts Resolution of
30 September 2003 in A.M. No. 02-12-01-SC. In a Resolution
dated 22 March 2004, this Court approved the claim and accordingly
ordered the payment to Judge Reals heirs of the additional gratuity
benefits of 5-year lump sum to complete the 10-year lump sum
gratuity they are entitled under said resolution.
Conformably therewith, the FMBO then sent DBM a request for
the release of funds to cover the additional 5-year lump sum benefits
due the heirs of the late Judge.

Responding thereto, the DBM, through Undersecretary Mario L.

Relampagos, addressed a letter bearing date 15 July 2004 to the
Chief Justice, therein stating

Unfortunately, as in the earlier case of Judge Calvan, the DBM,

through Undersecretary Relampagos, virtually denied the request in
his letter dated 19 July 2004 to the Chief Justice, [6]the pertinent
portions of which read:

3. The amount of P2,611.50 pertaining to the additional 5 years lumpsum [gratuity of the late Judge Melvyn U. Calvan] per [SC] A.M. No.
02-12-01-SC is disallowed pursuant to Section 2 of R.A. 910 as
amended which treats death while in actual service and retirement
due to permanent physical disability as distinct and separate
circumstances.[4]

It is represented that Judge Real died while in actual service. Based

on Administrative Matter (A.M.) No. 02-12-01-SC dated 13 (sic)
September 2003, the Supreme Court granted an additional five-year
lump sum (or a total of ten-year lump sum) to the heirs of Justices
and Judges who, after having attained the prescribed length of
service for retirement, dies while in actual service.

However, Section 2 of Republic Act (R.A.) No. 910, as amended,

clearly provides that if a Judge or Justice dies while in actual service,
his or her heirs shall only be entitled to a five-year lump sum gratuity,
regardless of whether or not they attained the prescribed length of
service for retirement. Only those who retire due to permanent
disability are entitled to receive a ten-year lump gratuity if they
attained the prescribed length of service for retirement (Section 3 of
R.A. 910, as amended).
We therefore humbly opine that R.A. 910 treats death while
in actual service and retirement due to permanent physical
disability as distinct and separate circumstances. In treating
these two circumstances as one and the same, and extending
the benefits due to one to the other, A.M. No. 01-12-01-SC
may have expanded the clear intent of R.A. 910.
In view of the foregoing, and our mandate to ensure that
disbursements are made in accordance with law, we are thus
constrained to deny your request. (Emphasis supplied).
As we see it, the lone question which commends itself for our
resolution is: Was there basis for the DBM to disallow FMBOs request
for the release of funds in order to cover the additional 5-year lump
sum benefits of the late two (2) judges who both unquestionably died
while in actual service.
We rule and so hold that there is none.
Under our Constitution, each of the three (3) great branches of
government exercises specific powers. As far back as 1922, in United
States vs. Ang Tang Ho,[7] this Court had made it abundantly clear
that
[i]t is the duty of the Legislature to make the law; of the Executive to
execute the law; and of the Judiciary to construe the law. The
Legislature has no authority to execute or construe the law, the
Executive has no authority to make or construe the law, and the
Judiciary has no power to make or execute the law. Subject to the
Constitution only, the power of each branch is supreme within its own
jurisdiction, and it is for the Judiciary only to say when any Act of the
Legislature is or is not constitutional.
Being the highest court of the land and in the entire judicial
hierarchy, this Courts construction of a law is final. No other
government agency, much more the other two (2) branches, may

exercise the constitutionally mandated function of this Court to

interpret and construe the law.
In Re: Retirement Benefits of the late City Judge Alejandro
Galang, Jr.,[8] this Court has had the occasion to construe Republic Act
No. 910, particularly the phrase permanent physical disability found
in Section 2 thereof. There, this Court considered death while in
actual service to be encompassed by the phrase permanent physical
disability. For, as aptly pointed out by then Associate Justice Claudio
Teehankee in his concurring opinion in that case, there is no more
permanent or total physical disability than death.
Where the law has gaps which tend to get in the way of
achieving its purpose, thus resulting in an injustice, this Court is
allowed to fill the open spaces therein. So it is that in Floresca vs.
Philex Mining Corporation,[9] we stated
even the legislator himself, through Article 9 of the New Civil Code,
recognizes that in certain instances, the court, in the language of
Justice Holmes, do and must legislate to fill in the gaps in the law;
because the mind of the legislator, like all human beings, is finite and
therefore cannot envisage all possible cases to which the law may
apply. Nor has the human mind the infinite capacity to anticipate all
situations.
We take it as beyond any penumbra of doubt that this Court may
construe a law by issuing resolutions and/or guidelines in applying it.
And this is done not really to enlarge or restrict the law but to
delineate what it requires, including prudence and circumspection in
its enforcement,[10] or to assist a government agency in its
implementation.[11]
Under Republic Act No. 910, a situation whereby a Justice or
Judge dies while in actual service but without having attained the
twenty-year length of service requirement is not expressly provided
for. There is thus a gap in that law, which gap prompted this Court to
issue the Resolution dated 30 September 2003 in A.M. No. 0212-01-SC.
It bears stressing herein that once this Court has interpreted a
law, such interpretation becomes a part of the law itself. As we said
in People vs. Jabinal:[12]
[d]ecisions of this Court, although in themselves not laws, are
nevertheless evidence of what the laws mean, and this the reason
why under Article 8 of the New Civil Code, judicial decisions applying
or interpreting the laws or the Constitution shall form part of the legal

system x x x. The interpretation upon a law by this Court constitutes,

in a way, a part of the law as of the date the law was originally
passed, since this Courts construction merely establishes the
contemporaneous legislative intent that the law thus construed
intends to effectuate.
And as an interpretation of Republic Act No. 910, the Resolution
dated 30 September 2003 in A.M. No. 02-12-01-SC promulgated
by this Court pursuant to its mandates of fiscal autonomy under
Section 3 and of administrative supervision over all courts and
personnel thereof under Section 6, Article VIII of the Constitution,
became part of said statute. As such, the DBM is duty-bound to honor
and execute the same.
We take this occasion to remind DBM that it is an agency under
the executive branch of government. Hence, it is mandated to ensure
that all laws, not the least of which is this CourtsResolution dated
30 September 2003 in A.M. 02-12-01-SC, are faithfully executed.
In his letter of 19 July 2004 to the Chief Justice,
Undersecretary Relampagos speaks of DBMs mandate to ensure
that disbursements are made in accordance with law. It must be
emphasized, however, that such a mandate does not include
reviewing an issuance of this Court and substituting the same with
DBMs own interpretation of the law. Anything of that sort is nothing
less than a blatant usurpation of an exclusively judicial function and a
clear disregard of the boundary lines delineated by the Constitution.
[13]

We note that this is not the first time DBM has demonstrated its
uncomplimentary regard for issuances of this Court. In the Resolution
of August 3, 2004 in A.M. No. 11238-Ret, [14] this Court has once
cautioned DBM, thus:
The DBM should be reminded of its responsibilities to respect the law
and to act within the limits of its authority. The Administrative Code
of 1987 clothes it with the responsibility of seeing to the efficient and
sound utilization of government funds and revenues to effectively
achieve our countrys development objectives. That responsibility
does not include the review of issuances of the judicial branch of
government which it is only duty-bound to respect, record, and
implement. It should realize that the DBM has no power of judicial
review, as it should be well aware that [t]he power expressly vested
in any branch of the Government shall not be exercised by, nor
delegated to, any other branch of the Government, except to the
extent authorized by the Constitution.

Indeed, the DBM has the responsibility to ensure that disbursements

are made in accordance with law. However, in the exercise of such
responsibility, it should always be aware of the parameters of its
statutory functions. If it perceives a misapplication of budgetary laws,
it behooves the DBM, as the guardian of the governments budget, to
call the attention of the Court thereto before implementing its own
interpretation of an issuance of the Court; otherwise, it would
perilously tread on power and authority constitutionally assigned to
the Judiciary.
It is truly unfortunate that the admonition of this Court has
apparently fallen on deaf ears.
FOR ALL THE FOREGOING, the Court RESOLVES to DIRECT the
Department of Budget and Management (DBM) to: (a) release the
amounts corresponding to the permanent total disability benefits to
the heirs of the late Judges Melvyn U. Calvan and Emmanuel R. Real
within ten (10) days from notice of the requests for SARO and NCA of
the FMBO of this Court, and (b) implement the Resolution dated
September 30, 2003 in A.M. No. 02-12-01-SC in all cases of
death of Justices and Judges while in actual service.
SO ORDERED.
Puno, (Acting C.J.), Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo,
Sr., Azcuna, Tinga, and Chico-Nazario, JJ.,concur.
Davide, Jr., C.J., on official leave.
Corona, J., on leave.

[1]

Rollo, pp. 89-93.

[2]

Supra.

[3]

Application for retirement/gratuity benefits under R.A. 1910, as

amended by R.A 5090 and P.D. 1438, of Dr. Susana B. Calvan,
surviving spouse of the late Hon. Melvyn U. Calvan [former
Judge, Municipal Circuit Trial Court, Bangui, Ilocos Norte].

[4]

Rollo, pp. 108, et seq.

[5]

Application for Disability Retirement under R.A. 910, as amended,

filed by Mrs. Elena N. Real, surviving spouse of the late Judge
Emmanuel R. Real, Regional Trial Court, Ligao City, Albay,
Branch II.

[6]

Rollo, pp. 116 et seq.

[7]

43 Phil. 1, 6 [1922].

[8]

194 Phil. 14 [1981].

[9]

220 Phil. 533, 559 [ 1985].

[10]

People vs. Ferrer, 150-C Phil. 551, 581 [1972].

[11]

Ang Bagong Bayani-OFW Labor Party vs. COMELEC, 412 Phil. 308,
341 [2001].

[12]

154 Phil. 565 [1974].

[13]

Rollo, p. 116.

[14]

Re: Expiration of the Fixed Term of Office of Atty. Saaduddin A.

Alauya, Office of the Jurisconsult, Zamboanga City, p. 13.

BENJAMIN G. TING,
Petitioner,

G.R. No. 166562

Present:

- versus -

YNARES-SANTIAGO, J.,
Chairperson,
CARPIO MORALES,*
CHICO-NAZARIO,
NACHURA, and
PERALTA, JJ.

CARMEN M. VELEZTING,
Respondent.

Promulgated:

March 31, 2009

x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:

Before us is a petition for review on certiorari seeking to set

aside the November 17, 2003 Amended Decision [1] of the Court of
Appeals (CA), and its December 13, 2004 Resolution [2] in CA-G.R. CV
No. 59903. The appellate court, in its assailed decision and resolution,

affirmed the January 9, 1998 Decision [3] of the Regional Trial Court

Myles Vincent, born on July 19, 1988; and Marie Corinne, born on June

(RTC), Branch 23, Cebu City, declaring the marriage between

16, 1991.[12]

petitioner and respondent null and void ab initio pursuant to Article

36 of the Family Code.[4]

On October 21, 1993, after being married for more than 18

years to petitioner and while their youngest child was only two years

The facts follow.

old, Carmen filed a verified petition before the RTC of Cebu City
praying for the declaration of nullity of their marriage based on

Petitioner Benjamin Ting (Benjamin) and respondent Carmen

Article 36 of the Family Code. She claimed that Benjamin suffered

Velez-Ting (Carmen) first met in 1972 while they were classmates in

from psychological incapacity even at the time of the celebration of

medical school.[5] They fell in love, and they were wed on July 26,

their marriage, which, however, only became manifest thereafter. [13]

1975 in Cebu City when respondent was already pregnant with their
first child.

In her complaint, Carmen stated that prior to their marriage,

she was already aware that Benjamin used to drink and gamble

At

first,

they

Maguikay, Mandaue City.

resided

at

Benjamins

family

home

in

occasionally

with

his

friends.[14] But

after

they

were

married,

When their second child was born, the

petitioner continued to drink regularly and would go home at about

couple decided to move to Carmens family home inCebu City.[7] In

midnight or sometimes in the wee hours of the morning drunk and

September

board

violent. He would confront and insult respondent, physically assault

examinations[8] and thereafter proceeded to take a residency program

her and force her to have sex with him. There were also instances

to become a surgeon but shifted to anesthesiology after two years.

when Benjamin used his gun and shot the gate of their house.

By 1979, Benjamin completed the preceptorship program for the said

[15]

field

was affected to the point that he often had to refuse to answer the

[9]

1975,

[6]

Benjamin

passed

the

medical

and, in 1980, he began working for Velez Hospital, owned by

Because of his drinking habit, Benjamins job as anesthesiologist

Carmens family, as member of its active staff, [10] while Carmen

call

worked as the hospitals Treasurer.

anesthesiologists. Some surgeons even stopped calling him for his

[11]

of

services
The couple begot six (6) children, namely Dennis, born on
December 9, 1975; James Louis, born on August 25, 1977; Agnes
Irene, born on April 5, 1981; Charles Laurence, born on July 21, 1986;

his

fellow

because

doctors

they

and

perceived

to

pass

petitioner

the

to

task

be

to

other

unreliable.

Respondent tried to talk to her husband about the latters drinking

problem, but Benjamin refused to acknowledge the same. [16]

Carmen also complained that petitioner deliberately refused

3.

His compulsive gambling habit, as a result of

to give financial support to their family and would even get angry at

which Benjamin found it necessary to sell the family

her whenever she asked for money for their children. Instead of

car twice and the property he inherited from his

providing support, Benjamin would spend his money on drinking and

father in order to pay off his debts, because he no

gambling and would even buy expensive equipment for his hobby.

longer had money to pay the same; and

[17]

He rarely stayed home[18] and even neglected his obligation to his

children.

4.

Benjamins irresponsibility and immaturity as

shown by his failure and refusal to give regular

[19]

financial support to his family.[24]

Aside from this, Benjamin also engaged in compulsive
gambling.[20] He would gamble two or three times a week and would

In

his

answer,

Benjamin

denied

being

psychologically

borrow from his friends, brothers, or from loan sharks whenever he

incapacitated. He maintained that he is a respectable person, as his

had no money. Sometimes, Benjamin would pawn his wifes own

peers would confirm. He said that he is an active member of social

jewelry to finance his gambling.

There was also an instance when

and athletic clubs and would drink and gamble only for social reasons

the spouses had to sell their family car and even a portion of the lot

and for leisure. He also denied being a violent person, except when

Benjamin inherited from his father just to be able to pay off his

provoked by circumstances.[25] As for his alleged failure to support his

gambling debts.[22] Benjamin only stopped going to the casinos in

family financially, Benjamin claimed that it was Carmen herself who

1986 after he was banned therefrom for having caused trouble, an

would collect his professional fees from VelezHospital when he was

act which he said he purposely committed so that he would be

still serving there as practicing anesthesiologist. [26] In his testimony,

banned from the gambling establishments.[23]

Benjamin also insisted that he gave his family financial support within

In sum, Carmens allegations of Benjamins psychological incapacity

his means whenever he could and would only get angry at

consisted of the following manifestations:

respondent

[21]

for

lavishly

spending

his

hard-earned

money

on

unnecessary things.[27] He also pointed out that it was he who often

1.

Benjamins alcoholism, which adversely affected

his family relationship and his profession;

2.

comforted

and

took

care

of

their

children,

while

Carmen

played mahjong with her friends twice a week.[28]

Benjamins violent nature brought about by his

excessive and regular drinking;

During the trial, Carmens testimony regarding Benjamins

drinking and gambling habits and violent behavior was corroborated

by Susana Wasawas, who served as nanny to the spouses children

from 1987 to 1992.[29] Wasawas stated that she personally witnessed

On

January

9,

1998,

the

lower

court

rendered

its

instances when Benjamin maltreated Carmen even in front of their

Decision

children.[30]

null and void. The RTC gave credence to Dr. Oates findings and the

[36]

declaring the marriage between petitioner and respondent

admissions made by Benjamin in the course of his deposition, and

found him to be psychologically incapacitated to comply with the
Carmen also presented as witness Dr. Pureza Trinidad-Oate, a

essential obligations of marriage. Specifically, the trial court found

psychiatrist.[31] Instead of the usual personal interview, however, Dr.

Benjamin an excessive drinker, a compulsive gambler, someone who

Oates evaluation of Benjamin was limited to the transcript of

prefers his extra-curricular activities to his family, and a person with

stenographic notes taken during Benjamins deposition because the

violent tendencies, which character traits find root in a personality

latter had already gone to work as an anesthesiologist in a hospital

defect existing even before his marriage to Carmen. The decretal

in South Africa. After reading the transcript of stenographic notes, Dr.

portion of the decision reads:

Oate concluded that Benjamins compulsive drinking, compulsive

gambling and physical abuse of respondent are clear indications that
petitioner suffers from a personality disorder.[32]

To refute Dr. Oates opinion, petitioner presented Dr. Renato D.

Obra, a psychiatrist and a consultant at the Department of Psychiatry

WHEREFORE, all the foregoing considered,

judgment is hereby rendered declaring the marriage
between plaintiff and defendant null and void ab
initio pursuant to Art. 36 of the Family Code. x x x
xxxx
SO ORDERED.[37]

in Don Vicente Sotto MemorialMedical Center, as his expert witness.

Dr. Obra evaluated Benjamins psychological behavior based on the

Aggrieved, petitioner appealed to the CA. On October 19, 2000, the

transcript of stenographic notes, as well as the psychiatric evaluation

CA rendered a Decision[38] reversing the trial courts ruling. It faulted

report

from

the trial courts finding, stating that no proof was adduced to support

the University of Pretoria in South Africa, and his (Dr. Obras) interview

the conclusion that Benjamin was psychologically incapacitated at

with Benjamins brothers.[34]Contrary to Dr. Oates findings, Dr. Obra

the time he married Carmen since Dr. Oates conclusion was based

observed that there is nothing wrong with petitioners personality,

only on theories and not on established fact, [39] contrary to the

considering the latters good relationship with his fellow doctors and

guidelines set forth in Santos v. Court of Appeals[40] and in Rep. of the

his good track record as anesthesiologist.[35]

Phils. v. Court of Appeals and Molina.[41]

[33]

prepared

by

Dr.

A.J.L.

Pentz,

psychiatrist

II.

Whether the CA correctly ruled that the

requirement of proof of psychological
incapacity for the declaration of absolute
nullity of marriage based on Article 36 of the
Family Code has been liberalized; and

III.

Whether the CAs decision declaring the

marriage between petitioner and respondent
null and void [is] in accordance with law and
jurisprudence.

Because of this, Carmen filed a motion for reconsideration,

arguing that the Molina guidelines should not be applied to this case
since the Molina decision was promulgated only on February 13,
1997, or more than five years after she had filed her petition with the
RTC.[42] She claimed that the Molina ruling could not be made to apply
retroactively, as it would run counter to the principle of stare
decisis. Initially, the CA denied the motion for reconsideration for
having

been

filed

beyond

the

prescribed

period.

Respondent

We find merit in the petition.

thereafter filed a manifestation explaining compliance with the

prescriptive period but the same was likewise denied for lack of

I. On the issue of stare decisis.

merit. Undaunted, respondent filed a petition for certiorari[43] with this

Court. In a Resolution[44] dated March 5, 2003, this Court granted the
petition and directed the CA to resolve Carmens motion for
reconsideration.[45] On review, the CA decided to reconsider its
previous ruling. Thus, on November 17, 2003, it issued an Amended
Decision[46] reversing its first ruling and sustaining the trial courts

The principle of stare decisis enjoins adherence by lower

courts to doctrinal rules established by this Court in its final
decisions. It is based on the principle that once a question of law has
been examined and decided, it should be deemed settled and closed
to further argument.[49] Basically, it is a bar to any attempt to
relitigate the same issues,[50] necessary for two simple reasons:

decision.[47]

economy and stability. In our jurisdiction, the principle is entrenched

A motion for reconsideration was filed, this time by Benjamin, but the

in Article 8 of the Civil Code.[51]

same was denied by the CA in its December 13, 2004 Resolution. [48]
Hence, this petition.

This doctrine of adherence to precedents or stare decisis was

applied by the English courts and was later adopted by the United

For our resolution are the following issues:

States. Associate Justice (now Chief Justice) Reynato S. Punos

discussion on the historical development of this legal principle in his

I.

Whether the CA violated the rule

on stare decisis when it refused to follow the
guidelines
set
forth
under
the Santos and Molina cases;

dissenting opinion in Lambino v. Commission on Elections[52] is

enlightening:

The latin phrase stare decisis et non quieta

movere means stand by the thing and do not disturb
the calm. The doctrine started with the English
Courts. Blackstone observed that at the beginning of
the 18th century, it is an established rule to abide by
former precedents where the same points come again
in litigation. As the rule evolved, early limits to its
application were recognized: (1) it would not be
followed if it were plainly unreasonable; (2) where
courts of equal authority developed conflicting
decisions; and, (3) the binding force of the decision
was the actual principle or principles necessary for
the decision; not the words or reasoning used to
reach the decision.
The doctrine migrated to the United States. It
was recognized by the framers of the U.S.
Constitution. According to Hamilton, strict rules and
precedents are necessary to prevent arbitrary
discretion in the courts. Madison agreed but stressed
that x x x once the precedent ventures into the realm
of altering or repealing the law, it should be rejected.
Prof. Consovoy well noted that Hamilton and Madison
disagree
about
the
countervailing
policy
considerations that would allow a judge to abandon a
precedent. He added that their ideas reveal a deep
internal conflict between the concreteness required
by the rule of law and the flexibility demanded in
error correction. It is this internal conflict that the
Supreme Court has attempted to deal with for over
two centuries.
Indeed, two centuries of American case law
will
confirm
Prof.
Consovoy's
observation
although stare decisis developed its own life in
the United States. Two strains of stare decisishave
been isolated by legal scholars. The first, known
as vertical stare decisis deals with the duty of
lower courts to apply the decisions of the higher
courts to cases involving the same facts. The second,
known as horizontal stare decisis requires that
high courts must follow its own precedents. Prof.
Consovoy correctly observes that vertical stare
decisis has been viewed as an obligation, while
horizontal stare decisis, has been viewed as a policy,
imposing choice but not a command. Indeed, stare

decisis is not one of the precepts set in stone in our

Constitution.
It is also instructive to distinguish the two
kinds of horizontal stare decisis constitutional stare
decisis and
statutory stare
decisis. Constitutional stare
decisis involves
judicial
interpretations
of
the
Constitution
while statutory stare
decisis involves
interpretations of statutes. The distinction is
important for courts enjoy more flexibility in refusing
to apply stare decisisin constitutional litigations.
Justice Brandeis' view on the binding effect of the
doctrine in constitutional litigations still holds sway
today. In soothing prose, Brandeis stated: Stare
decisis is not . . . a universal and inexorable
command. The rule of stare decisis is not inflexible.
Whether it shall be followed or departed from, is a
question entirely within the discretion of the court,
which is again called upon to consider a question
once decided. In the same vein, the venerable Justice
Frankfurter opined: the ultimate touchstone of
constitutionality is the Constitution itself and not what
we have said about it. In contrast, the application
of stare decisis on judicial interpretation of statutes is
more inflexible. As Justice Stevens explains: after a
statute has been construed, either by this Court or by
a consistent course of decision by other federal
judges and agencies, it acquires a meaning that
should be as clear as if the judicial gloss had been
drafted by the Congress itself. This stance reflects
both respect for Congress' role and the need to
preserve the courts' limited resources.
In general, courts follow the stare decisis rule
for an ensemble of reasons, viz.: (1) it legitimizes
judicial institutions; (2) it promotes judicial economy;
and, (3) it allows for predictability. Contrariwise,
courts refuse to be bound by the stare decisis rule
where (1) its application perpetuates illegitimate and
unconstitutional holdings; (2) it cannot accommodate
changing social and political understandings; (3) it
leaves the power to overturn bad constitutional law
solely in the hands of Congress; and, (4) activist
judges can dictate the policy for future courts while
judges that respect stare decisis are stuck agreeing
with them.

In its 200-year history, the U.S. Supreme

Court has refused to follow the stare decisis rule and
reversed its decisions in 192 cases. The most famous
of
these
reversals
is Brown
v.
Board
of
Education which junked Plessy v. Ferguson's separate
but equal doctrine. Plessy upheld as constitutional a
state law requirement that races be segregated on
public transportation. In Brown, the U.S. Supreme
Court, unanimously held that separate . . . is
inherently unequal. Thus, by freeing itself from the
shackles of stare decisis, the U.S. Supreme Court
freed the colored Americans from the chains of
inequality. In the Philippine setting, this Court has
likewise refused to be straitjacketed by the stare
decisis rule in order to promote public welfare. In La
Bugal-B'laan Tribal Association, Inc. v. Ramos, we
reversed our original ruling that certain provisions of
the Mining Law are unconstitutional. Similarly,
in Secretary of Justice v. Lantion, we overturned our
first ruling and held, on motion for reconsideration,
that a private respondent is bereft of the right to
notice and hearing during the evaluation stage of the
extradition process.
An examination of decisions on stare
decisis in major countries will show that courts are
agreed on the factors that should be considered
before
overturning
prior
rulings.
These
are
workability, reliance, intervening developments in the
law and changes in fact. In addition, courts put in the
balance the following determinants: closeness of the
voting, age of the prior decision and its merits.
The leading case in deciding whether a court
should follow the stare decisis rule in constitutional
litigations is Planned Parenthood v. Casey. It
established a 4-pronged test. The court should (1)
determine whether the rule has proved to be
intolerable simply in defying practical workability; (2)
consider whether the rule is subject to a kind of
reliance that would lend a special hardship to the
consequences of overruling and add inequity to the
cost of repudiation; (3) determine whether related
principles of law have so far developed as to have the
old rule no more than a remnant of an abandoned
doctrine; and, (4) find out whether facts have so

changed or come to be seen differently, as to have

robbed the old rule of significant application or
justification.[53]

To be forthright, respondents argument that the doctrinal guidelines

prescribed in Santos and Molina should not be applied retroactively
for being contrary to the principle ofstare decisis is no longer new.
The same argument was also raised but was struck down in Pesca v.
Pesca,[54] and again in Antonio v. Reyes.[55] In these cases, we
explained that the interpretation or construction of a law by courts
constitutes a part of the law as of the date the statute is enacted. It is
only when a prior ruling of this Court is overruled, and a different
view is adopted, that the new doctrine may have to be applied
prospectively in favor of parties who have relied on the old doctrine
and have acted in good faith, in accordance therewith under the
familiar rule of lex prospicit, non respicit.

II. On liberalizing the required proof for the declaration of

nullity of marriage under Article 36.

Now,

petitioner

wants

to

know

if

we

have

abandoned

the Molina doctrine.

We have not.

In Edward Kenneth Ngo Te v. Rowena Ong Gutierrez Yu-Te,

[56]

we declared that, in hindsight, it may have been inappropriate for

the Court to impose a rigid set of rules, as the one in Molina, in

resolving all cases of psychological incapacity. We said that instead of

priori assumptions, predilections or generalizations but according to

serving

its own attendant facts. Courts should interpret the provision on a

straightjacket, forcing all cases involving psychological incapacity to

case-to-case basis, guided by experience, the findings of experts and

fit into and be bound by it, which is not only contrary to the intention

researchers in psychological disciplines, and by decisions of church

of the law but unrealistic as well because, with respect to

tribunals.

as

guideline, Molina unintentionally

became

psychological incapacity, no case can be considered as on all fours

with another.[57]

Far from

abandoning Molina,

we simply suggested the

By the very nature of cases involving the application of Article 36, it is

relaxation of the stringent requirements set forth therein, cognizant

logical and understandable to give weight to the expert opinions

of the explanation given by the Committee on the Revision of the

furnished by psychologists regarding the psychological temperament

Rules on the rationale of the Rule on Declaration of Absolute Nullity of

of parties in order to determine the root cause, juridical antecedence,

Void Marriages and Annulment of Voidable Marriages (A.M. No. 02-11-

gravity and incurability of the psychological incapacity. However,

10-SC), viz.:

such opinions, while highly advisable, are not conditions sine qua
non in granting petitions for declaration of nullity of marriage. [58] At
best,

courts

must

treat

such

opinions

as

decisive

but

not

indispensable evidence in determining the merits of a given case. In

fact, if the totality of evidence presented is enough to sustain a
finding

of

psychological

incapacity,

then

actual

medical

or

psychological examination of the person concerned need not be

resorted to.[59] The trial court, as in any other given case presented
before it, must always base its decision not solely on the expert
opinions furnished by the parties but also on the totality of evidence

To require the petitioner to allege in the

petition the particular root cause of the psychological
incapacity and to attach thereto the verified written
report of an accredited psychologist or psychiatrist
have proved to be too expensive for the parties. They
adversely affect access to justice o poor litigants. It is
also a fact that there are provinces where these
experts are not available. Thus, the Committee
deemed it necessary to relax this stringent
requirement enunciated in the Molina Case. The need
for the examination of a party or parties by a
psychiatrist or clinical psychologist and the
presentation of psychiatric experts shall now be
determined by the court during the pre-trial
conference.[60]

adduced in the course of the proceedings.

But where, as in this case, the parties had the full opportunity to
It was for this reason that we found it necessary to emphasize

present professional and expert opinions of psychiatrists tracing the

in Ngo Te that each case involving the application of Article 36 must

root cause, gravity and incurability of a partys alleged psychological

be

incapacity, then such expert opinion should be presented and,

treated

distinctly

and

judged

not

on

the

basis

of a

accordingly, be weighed by the court in deciding whether to grant a

psychological defect on the part of her husband. Neither did the

petition for nullity of marriage.

evidence adduced prove such defects to be incurable.

III. On petitioners psychological incapacity.

The evaluation of the two psychiatrists should have been the

decisive evidence in determining whether to declare the marriage

Coming now to the main issue, we find the totality of

between the parties null and void. Sadly, however, we are not

evidence adduced by respondent insufficient to prove that petitioner

convinced that the opinions provided by these experts strengthened

is psychologically unfit to discharge the duties expected of him as a

respondents allegation of psychological incapacity. The two experts

husband,

such

provided diametrically contradicting psychological evaluations: Dr.

psychological incapacity as of the date of the marriage eighteen (18)

Oate testified that petitioners behavior is a positive indication of a

years ago. Accordingly, we reverse the trial courts and the appellate

personality disorder,[63] while Dr. Obra maintained that there is

courts rulings declaring the marriage between petitioner and

nothing wrong with petitioners personality. Moreover, there appears

respondent null and void ab initio.

to be greater weight in Dr. Obras opinion because, aside from

and

more

particularly,

that

he

suffered

from

The intendment of the law has been to confine the

analyzing the transcript of Benjamins deposition similar to what Dr.

application of Article 36 to the most serious cases of personality

Oate did, Dr. Obra also took into consideration the psychological

disorders clearly demonstrative of an utter insensitivity or inability to

evaluation report furnished by another psychiatrist in South Africawho

give meaning and significance to the marriage.

The psychological

personally examined Benjamin, as well as his (Dr. Obras) personal

illness that must have afflicted a party at the inception of the

interview with Benjamins brothers.[64] Logically, therefore, the balance

marriage should be a malady so grave and permanent as to deprive

tilts in favor of Dr. Obras findings.

[61]

one of awareness of the duties and responsibilities of the matrimonial

bond he or she is about to assume.[62]

Lest it be misunderstood, we are not condoning petitioners

drinking and gambling problems, or his violent outbursts against his

In this case, respondent failed to prove that petitioners

wife. There is no valid excuse to justify such a behavior. Petitioner

defects were present at the time of the celebration of their marriage.

must remember that he owes love, respect, and fidelity to his spouse

She merely cited that prior to their marriage, she already knew that

as much as the latter owes the same to him. Unfortunately, this court

petitioner would occasionally drink and gamble with his friends; but

finds respondents testimony, as well as the totality of evidence

such statement, by itself, is insufficient to prove any pre-existing

presented by the respondent, to be too inadequate to declare him

psychologically unfit pursuant to Article 36.

It should be remembered that the presumption is always in

favor

of

the

validity

of

marriage. Semper

praesumitur

ATTESTATION
I attest that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion
of the Courts Division.

pro

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

matrimonio.[65] In this case, the presumption has not been amply

rebutted and must, perforce, prevail.

CERTIFICATION
WHEREFORE, premises considered, the petition for review
on certiorari is GRANTED.

The

November

17,

2003

Amended

Decision and the December 13, 2004 Resolution of the Court of

Appeals

in CA-G.R.

CV

No.

59903

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairperson's Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

are

accordingly REVERSED and SET ASIDE.

REYNATO S. PUNO
Chief Justice
SO ORDERED.

ANTONIO EDUARDO B. NACHURA

Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
CONCHITA CARPIO MORALES
Associate Justice
DIOSDADO M. PERALTA
Associate Justice

Additional member in lieu of Associate Justice Ma. Alicia AustriaMartinez per Special Order No. 602 dated March 20, 2009.
[1]
Penned by Associate Justice Bienvenido L. Reyes, with Associate
Justices Rodrigo V. Cosico and Sergio L. Pestao, concurring; rollo, pp.
78-89.
[2]
Rollo, pp. 110-111.
[3]
Id. at 35-45.
[4]
Art. 36 of the Family Code provides in full:
Article 36. A marriage contracted by any party who, at the time of the
celebration, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even if
such incapacity becomes manifest only after its solemnization. [as
MINITA V. CHICO-NAZARIO
amended by Executive Order No. 227 dated July 17, 1987]
Associate Justice
[5]
TSN, December 7, 1994, morning, p. 4.
[6]
Id. at 12.
[7]
Id. at 17.
[8]
Id. at 14; Exhibit 3.
[9]
Id. at 13, 15.
*

[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27]
[28]
[29]
[30]

Id. at 21-23.
Id. at 10.
Rollo, p. 48.
Id. at 35.
TSN, January 6, 1995, pp. 3, 8-9.
Rollo, p. 36.
Id. at 37.
Id.
Id. at 40.
Id. at 44.
Id. at 40.
Id.
Id. at 36.
Id. at 40.
Id. at 48-49.
Id. at 42, 49.
Id. at 49.
TSN, December 7, 1994, morning, pp. 23-25.
Id. at 26.
TSN, August 31, 1995, pp. 5-26.
Id. at 7-9.

Rollo, p. 38.
Id. at 39.
[33]
Id. at 41.
[34]
Id. at 54-55.
[35]
Id. at 42.
[36]
Id. at 35-45.
[37]
Id. at 45.
[38]
Id. at 47-65.
[39]
Id. at 64.
[40]
G.R. No. 112019, January 4, 1995, 240 SCRA 20.
[41]
335 Phil. 664 (1997).
[42]
Rollo, pp. 80-81.
[43]
Docketed as G.R. No. 150479.
[44]
CA rollo, pp. 199-202.
[45]
Rollo, pp. 78-79.
[46]
Supra note 1.
[47]
Pertinent portion of the CAs Amended Decision dated November
17, 2003 reads:
The foregoing considered and taking a cue on the adoption x x x of
the Honorable Justices of the Supreme Court of the new Rule On
Declaration of Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages (A.M. No. 02-11-10-SC) which took effect on March
15, 2003, this Court hereby RECONSIDERS itself and GRANTS the
motion for reconsideration filed by the herein petitioner-appellee on
November 29, 2000. Consequently, respondent-appellants appeal is
[31]
[32]

hereby DISMISSED and the DECISION of the court below declaring the
marriage between CARMEN M. VELEZ-TING and BENJAMIN G. TING null
and void ab initio under Article 36 of the Family Code of
the Philippines is hereby AFFIRMED.
WHEREFORE, in view thereof, we can not do any less but sustain the
decision dated 29 August 2002 of the court below in Civil Case No.
CEB-14826 declaring the marriage between petitioner-appellee
Carmen Velez-Ting and respondent-appellant Benjamin G. Ting void
from the beginning under Article 36, Family Code (as amended by
E.O. No. 227 dated 17 July 1987).
Consequently, the Decision of this Court promulgated on October 19,
2000 is hereby SET ASIDE and a new one rendered AFFIRMING the
appealed Decision of the Court a quo.
SO ORDERED. (Id. at 88-89.)
[48]
Rollo, pp. 110-111.
[49]
De Mesa v. Pepsi Cola Products Phils., Inc., G.R. Nos. 153063-70,
August 19, 2005, 467 SCRA 433, 440.
[50]
Id. at 438.
[51]
Art. 8 of the Civil Code provides in full:
Article 8. Judicial decisions applying or interpreting the laws or the
Constitution shall form part of the legal system of the Philippines.
[52]
G.R. Nos. 174153 and 174299, October 25, 2006, 505 SCRA 160.
[53]
Id. at 308-312. (Citations and emphasis omitted.)
[54]
408 Phil. 713 (2001).
[55]
G.R. No. 155800, March 10, 2006, 484 SCRA 353.
[56]
G.R. No. 161793, February 13, 2009.
[57]
Supra note 41, at 680.
[58]
Marcos v. Marcos, 397 Phil. 840 (2000).
[59]
Id. at 850.
Rationale for the New Rules as submitted by the Committee on the
Revision of Rules to the Supreme Court, November 11, 2002, p. 3, as
cited in Sta. Maria, Jr., Court Procedures in Family Law Cases, 2007
ed., pp. 10-11.
[60]

Supra note 40, at 34.

Marcos v. Marcos, supra note 58, at 850-851.
[63]
Rollo, p. 39.
[64]
Id. at 54-55.
[65]
Carating-Siayngco v. Siayngco, G.R. No. 158896, October 27, 2004,
441 SCRA 422, 437.
[61]
[62]

Dionisio Quinto, Andres Baxa (who all signed the sale as Directors of
Philippine Farming Corporation, Ltd. [Hawaii]); Manuel Ramos,
Dominador Llanos, Juliana P. Andrada (the buyers); and the Register
of Deeds of Rizal.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-21014

August 14, 1965

PHILIPPINE FARMING CORPORATION, LTD., represented in this

action by FLOR R. RAMIRO, president,plaintiff-appellant,
vs.
ALEJANDRO LLANOS, ET AL., defendants-appellees.
R. P. Sarandi and Eustaquio Bumanglag for plaintiff-appellant.
Angel Sison for defendants-appellees.
BENGZON, J.P., J.:
Philippine Farming Corporation, Ltd. (Hawaii) executed on July 11,
1950, an indenture of sale purporting to transfer ownership of a 4,706
square meter parcel of land situated in Tinajeros Malabon, Rizal,
covered by Transfer Certificate of Title No. 1584, to Manuel Ramos,
Dominador Llanos and Juliana Andrada, for P30,000.00. As a result
thereof the aforesaid buyers were subsequently issued by the
Register of Deeds of Rizal Transfer Certificate of Title No. 19248
covering said parcel of land.
Philippine Farming Corporation, Ltd. (Philippines), a distinct
corporation from its aforementioned namesake, filed in August 1950
in the Court of First Instance of Rizal a suit docketed as Civil Case No.
1209 to annul and declare null and void the indenture of sale
aforestated as well as to cancel TCT No. 19248 in the buyers' name
and reinstate TCT 1584, allegedly in plaintiff's name. The partiesdefendants were: Alejandro Llanos, Aquilino Galiza, Antonio Bacilio,

On September 29, 1950, however, Philippine Farming Corporation,

Ltd. (Philippines) moved to dismiss its complaint in said Civil Case No.
1209 stating as reason therefor the settlement of the case.
Defendants concurred to said motion and the court dismissed the
complaint.
Philippine Farming Corporation, Ltd. (Philippines) later sought to
withdraw its motion to dismiss and to annul the order of dismissal,
alleging deceit on the part of the defendants. Still later, however, it
moved that its motion for withdrawal be itself considered withdrawn,
and the court granted said last motion on November 20, 1950.
On May 8, 1951, Philippine Farming Corporation, Ltd. (Philippines)
filed an action in the Court of First Instance of Rizal, docketed as Civil
Case No. 1439, against the same defendants as in Civil Case No.
1209, likewise to declare the same indenture of sale null and void and
to cancel Transfer Certificate of Title No. 19248. The court dismissed
this second suit on November 27, 1951 for being res judicata. A
motion for reconsideration was denied on February 19, 1952.
Sometime in 1960 Philippine Farming Corporation, Ltd. (Philippines)
filed the present suit in the Court of First Instance of Rizal, docketed
therein as Civil Case No. 6322, to declare the same indenture of sale
null and void, to cancel Transfer Certificate of Title No. 19248 in the
buyers' name, and to declare null and void a certain mortgage
executed by the buyers on November 1, 1950, as well as the
subsequent foreclosure sale on said mortgage. Alejandro Llanos,
Manuel Ramos, Dominador Llanos, Juliana Andrada assisted by her
husband Honofre Andrada, the Register of Deeds of Rizal all of
whom were defendants in the previous suits were again impleaded
as defendants. Furthermore, the following were also included as
defendants: Estate of Florentino P. Buan, Philippine Rabbit Bus Lines,
Inc. (as purchasers of the right to redeem in the foreclosure sale) and
Philippine Surety and Insurance Co., Inc. (as mortgagee).
Defendants filed separate motions to dismiss raising the ground
of res judicata. On January 30, 1962, the court dismissed the
complaint on the ground of res judicata. Plaintiff appealed to this

Court on the sole issue of whether its present complaint is barred

by res judicata.
The requisites for res judicata are: (1) court of competent jurisdiction;
(2) final judgment or order on the merits; and (3) identities of parties,
subject matter, and cause of action (San Diego v. Calderon, 70 Phil.
281, 283).
The Court of First Instance of Rizal clearly had competent jurisdiction
in Civil Case No. 1209. The subject matter thereof was annulment or
declaration of nullity of sale. And the parties came within the court's
jurisdiction by the filing of the complaint and service of summons.
The dismissal in said Civil Case No. 1209 was by a final order since
thereafter nothing was left to be disposed of. The dismissal was with
prejudice, hence, on the merits. It was with prejudice because the
dismissal was by order of the court upon the instance of both plaintiff
and defendants, on the allegation of a settlement (Exh. 14-B, Offer of
Additional Documentary Evidence, Rec. on App., 89-92). Not being,
therefore, a dismissal by plaintiff's mere filing of a notice (Sec. 1, Rule
30, Old Rules of Court), nor a dismissal by order of the court upon
plaintiff's instance alone (Sec. 2, Rule 30, Old Rules of Court), it falls
under "dismissal on other grounds" covered by Section 4 of Rule 30 of
the Old Rules of Court, in which case the dismissal, unless otherwise
specified (and here it was not), is with prejudice.
As to the identities required, the parties here were defendants in Civil
Case No. 1209. The newly added defendants mortgagee and
purchasers of right of redemption are only successors-in-interest
and purchasers by title subsequent to the filing of the first action.
Such parties are considered the same as their predecessors-ininterest for purposes of res judicata. Since their predecessors-ininterest were parties to the first case, the principle of res
judicata applies even with their inclusion, since they are after all
bound by the first judgment as the parties thereto.*
As regards the subject matter, the identity is undisputed, namely, the
parcel of land now covered by TCT No. 19248 of the Registry of Deeds
of Rizal and the annulment or declaration of nullity of the sale
thereof, with cancellation of its Transfer Certificate of Title.
Similarly, the cause of action is identical. As stated in Pealosa v.
Tuazon, 22 Phil. 303, the test is: "Would the same evidence support

and establish both the present and former causes of action?" In the
instant case, the same evidence, namely, plaintiff's ownership of the
parcel of land and that the sale thereof was fictitious, would support
and establish the present and former causes of action. It is therefore
identical.
All requisites for res judicata being attendant, we find no error in the
order of dismissal appealed from.
WHEREFORE, the order appealed from is hereby affirmed, with costs
against appellant. So ordered.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L. Paredes,
Dizon, Regala, Makalintal and Zaldivar, JJ., concur.
Footnotes
Baguinguito v. Rivera, 56 Phil. 423; Barreto v. Cabangis, 37
Phil. 98; Fetalino v. Sanz, 44 Philippines 691; 1 Moran
Comments on the Rules of Court 613 (1957 ed.).
*

JAIME N. SORIANO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191057
PHILIPPINE CONSTITUTION ASSOCIATION
(PHILCONSA), Petitioner,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
A.M. No. 10-2-5-SC
IN RE APPLICABILITY OF SECTION 15, ARTICLE VII OF THE
CONSTITUTION TO APPOINTMENTS TO THE JUDICIARY,
ESTELITO P. MENDOZA, Petitioner,
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191149
Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 191002

April 20, 2010

ARTURO M. DE CASTRO, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC) and PRESIDENT GLORIA
MACAPAGAL - ARROYO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191032

JOHN G. PERALTA, Petitioner,

vs.
JUDICIAL AND BAR COUNCIL (JBC). Respondent.
PETER IRVING CORVERA; CHRISTIAN ROBERT S. LIM; ALFONSO
V. TAN, JR.; NATIONAL UNION OF PEOPLES LAWYERS;
MARLOU B. UBANO; INTEGRATED BAR OF THE PHILIPPINESDAVAO DEL SUR CHAPTER, represented by its Immediate Past
President, ATTY. ISRAELITO P. TORREON, and the latter in his
own personal capacity as a MEMBER of the PHILIPPINE BAR;
MITCHELL JOHN L. BOISER; BAGONG ALYANSANG BAYAN
(BAYAN) CHAIRMAN DR. CAROLINA P. ARAULLO; BAYAN
SECRETARY GENERAL RENATO M. REYES, JR.; CONFEDERATION
FOR UNITY, RECOGNITION AND ADVANCE-MENT OF
GOVERNMENT EMPLOYEES (COURAGE) CHAIRMAN FERDINAND
GAITE; KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY)
SECRETARY GENERAL GLORIA ARELLANO; ALYANSA NG
NAGKAKAISANG KABATAAN NG SAMBAYANAN PARA SA
KAUNLARAN (ANAKBAYAN) CHAIRMAN KEN LEONARD RAMOS;
TAYO ANG PAG-ASA CONVENOR ALVIN PETERS; LEAGUE OF

FILIPINO STUDENTS (LFS) CHAIRMAN JAMES MARK TERRY

LACUANAN RIDON; NATIONAL UNION OF STUDENTS OF THE
PHILIPPINES (NUSP) CHAIRMAN EINSTEIN RECEDES; COLLEGE
EDITORS GUILD OF THE PHILIPPINES (CEGP) CHAIRMAN VIJAE
ALQUISOLA; and STUDENT CHRISTIAN MOVEMENT OF THE
PHILIPPINES (SCMP) CHAIRMAN MA. CRISTINA ANGELA
GUEVARRA; WALDEN F. BELLO and LORETTA ANN P. ROSALES;
WOMEN TRIAL LAWYERS ORGANIZATION OF THE PHILIPPINES,
represented by YOLANDA QUISUMBING-JAVELLANA; BELLEZA
ALOJADO DEMAISIP; TERESITA GANDIONCO-OLEDAN; MA.
VERENA KASILAG-VILLANUEVA; MARILYN STA. ROMANA;
LEONILA DE JESUS; and GUINEVERE DE LEON; AQUILINO Q.
PIMENTEL, JR.;Intervenors.

1. Dismisses the petitions for certiorari and mandamus in G.R.

No. 191002 and G.R. No. 191149, and the petition for
mandamus in G.R. No. 191057 for being premature;
2. Dismisses the petitions for prohibition in G.R. No. 191032
and G.R. No. 191342 for lack of merit; and
3. Grants the petition in A.M. No. 10-2-5-SC and, accordingly,
directs the Judicial and Bar Council:
(a) To resume its proceedings for the nomination of
candidates to fill the vacancy to be created by the
compulsory retirement of Chief Justice Reynato S.
Puno by May 17, 2010;

x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191342

(b) To prepare the short list of nominees for the

position of Chief Justice;

ATTY. AMADOR Z. TOLENTINO, JR., (IBP Governor-Southern

Luzon), and ATTY. ROLAND B. INTING (IBPGovernor-Eastern
Visayas), Petitioners,
vs.
JUDICIAL AND BAR COUNCIL (JBC), Respondent.

(c) To submit to the incumbent President the short list

of nominees for the position of Chief Justice on or
before May 17, 2010; and
(d) To continue its proceedings for the nomination of
candidates to fill other vacancies in the Judiciary and
submit to the President the short list of nominees
corresponding thereto in accordance with this
decision.

x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 191420
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
JUDICIAL AND BAR COUNCIL and HER EXCELLENCY GLORIA
MACAPAGAL-ARROYO, Respondents.
RESOLUTION
BERSAMIN, J.:
On March 17, 2010, the Court promulgated its decision, holding:
WHEREFORE, the Court:

SO ORDERED.
Motions for Reconsideration
Petitioners Jaime N. Soriano (G.R. No. 191032), Amador Z. Tolentino
and Roland B. Inting (G.R. No. 191342), and Philippine Bar Association
(G.R. No. 191420), as well as intervenors Integrated Bar of the
Philippines-Davao del Sur (IBP-Davao del Sur, et al.); Christian Robert
S. Lim; Peter Irving Corvera; Bagong Alyansang Bayan and others
(BAYAN, et al.); Alfonso V. Tan, Jr.; the Women Trial Lawyers
Organization of the Philippines (WTLOP); Marlou B. Ubano; Mitchell
John L. Boiser; and Walden F. Bello and Loretta Ann P. Rosales (Bello,
et al.), filed their respective motions for reconsideration. Also filing a
motion for reconsideration was Senator Aquilino Q. Pimentel, Jr.,
whose belated intervention was allowed.

We summarize the arguments and submissions of the various

motions for reconsideration, in the aforegiven order:
Soriano
1. The Court has not squarely ruled upon or addressed the
issue of whether or not the power to designate the Chief
Justice belonged to the Supreme Court en banc.
2. The Mendoza petition should have been dismissed,
because it sought a mere declaratory judgment and did not
involve a justiciable controversy.
3. All Justices of the Court should participate in the next
deliberations. The mere fact that the Chief Justice sits as ex
officio head of the JBC should not prevail over the more
compelling state interest for him to participate as a Member
of the Court.
Tolentino and Inting
1. A plain reading of Section 15, Article VII does not lead to an
interpretation that exempts judicial appointments from the
express ban on midnight appointments.
2. In excluding the Judiciary from the ban, the Court has
made distinctions and has created exemptions when none
exists.
3. The ban on midnight appointments is placed in Article VII,
not in Article VIII, because it limits an executive, not a judicial,
power.
4. Resort to the deliberations of the Constitutional
Commission is superfluous, and is powerless to vary the
terms of the clear prohibition.
5. The Court has given too much credit to the position taken
by Justice Regalado. Thereby, the Court has raised the
Constitution to the level of a venerated text whose intent can
only be divined by its framers as to be outside the realm of
understanding by the sovereign people that ratified it.

6. Valenzuela should not be reversed.

7. The petitioners, as taxpayers and lawyers, have the clear
legal standing to question the illegal composition of the JBC.
Philippine Bar Association
1. The Courts strained interpretation of the Constitution
violates the basic principle that the Court should not
formulate a rule of constitutional law broader than what is
required by the precise facts of the case.
2. Considering that Section 15, Article VII is clear and
straightforward, the only duty of the Court is to apply it. The
provision expressly and clearly provides a general limitation
on the appointing power of the President in prohibiting the
appointment of any person to any position in the Government
without any qualification and distinction.
3. The Court gravely erred in unilaterally ignoring the
constitutional safeguard against midnight appointments.
4. The Constitution has installed two constitutional
safeguards:- the prohibition against midnight appointments,
and the creation of the JBC. It is not within the authority of
the Court to prefer one over the other, for the Courts duty is
to apply the safeguards as they are, not as the Court likes
them to be.
5. The Court has erred in failing to apply the basic principles
of statutory construction in interpreting the Constitution.
6. The Court has erred in relying heavily on the title, chapter
or section headings, despite precedents on statutory
construction holding that such headings carried very little
weight.
7. The Constitution has provided a general rule on midnight
appointments, and the only exception is that on temporary
appointments to executive positions.
8. The Court has erred in directing the JBC to resume the
proceedings for the nomination of the candidates to fill the
vacancy to be created by the compulsory retirement of Chief

Justice Puno with a view to submitting the list of nominees for

Chief Justice to President Arroyo on or before May 17, 2010.
The Constitution grants the Court only the power of
supervision over the JBC; hence, the Court cannot tell the JBC
what to do, how to do it, or when to do it, especially in the
absence of a real and justiciable case assailing any specific
action or inaction of the JBC.
9. The Court has engaged in rendering an advisory opinion
and has indulged in speculations.
10. The constitutional ban on appointments being already in
effect, the Courts directing the JBC to comply with the
decision constitutes a culpable violation of the Constitution
and the commission of an election offense.
11. The Court cannot reverse on the basis of a secondary
authority a doctrine unanimously formulated by the Court en
banc.
12. The practice has been for the most senior Justice to act as
Chief Justice whenever the incumbent is indisposed. Thus, the
appointment of the successor Chief Justice is not urgently
necessary.
13. The principal purpose for the ban on midnight
appointments is to arrest any attempt to prolong the outgoing
Presidents powers by means of proxies. The attempt of the
incumbent President to appoint the next Chief Justice is
undeniably intended to perpetuate her power beyond her
term of office.
IBP-Davao del Sur, et al.
1. Its language being unambiguous, Section 15, Article VII of
the Constitution applies to appointments to the Judiciary.
Hence, no cogent reason exists to warrant the reversal of the
Valenzuela pronouncement.
2. Section 16, Article VII of the Constitution provides for
presidential appointments to the Constitutional Commissions
and the JBC with the consent of the Commission on
Appointments. Its phrase "other officers whose appointments
are vested in him in this Constitution" is enough proof that

the limitation on the appointing power of the President

extends to appointments to the Judiciary. Thus, Section 14,
Section 15, and Section 16 of Article VII apply to all
presidential appointments in the Executive and Judicial
Branches of the Government.
3. There is no evidence that the framers of the Constitution
abhorred the idea of an Acting Chief Justice in all cases.
Lim
1. There is no justiciable controversy that warrants the
Courts exercise of judicial review.
2. The election ban under Section 15, Article VII applies to
appointments to fill a vacancy in the Court and to other
appointments to the Judiciary.
3. The creation of the JBC does not justify the removal of the
safeguard under Section 15 of Article VII against midnight
appointments in the Judiciary.
Corvera
1. The Courts exclusion of appointments to the Judiciary from
the Constitutional ban on midnight appointments is based on
an interpretation beyond the plain and unequivocal language
of the Constitution.
2. The intent of the ban on midnight appointments is to cover
appointments in both the Executive and Judicial Departments.
The application of the principle of verba legis (ordinary
meaning) would have obviated dwelling on the organization
and arrangement of the provisions of the Constitution. If there
is any ambiguity in Section 15, Article VII, the intent behind
the provision, which is to prevent political partisanship in all
branches of the Government, should have controlled.
3. A plain reading is preferred to a contorted and strained
interpretation based on compartmentalization and physical
arrangement, especially considering that the Constitution
must be interpreted as a whole.

4. Resort to the deliberations or to the personal interpretation

of the framers of the Constitution should yield to the plain
and unequivocal language of the Constitution.
5. There is no sufficient reason for reversing Valenzuela, a
ruling that is reasonable and in accord with the Constitution.
BAYAN, et al.
1. The Court erred in granting the petition in A.M. No. 10-2-5SC, because the petition did not present a justiciable
controversy. The issues it raised were not yet ripe for
adjudication, considering that the office of the Chief Justice
was not yet vacant and that the JBC itself has yet to decide
whether or not to submit a list of nominees to the President.
2. The collective wisdom of Valenzuela Court is more
important and compelling than the opinion of Justice
Regalado.
3. In ruling that Section 15, Article VII is in conflict with
Section 4(1), Article VIII, the Court has violated the principle
of ut magis valeat quam pereat (which mandates that the
Constitution should be interpreted as a whole, such that any
conflicting provisions are to be harmonized as to fully give
effect to all). There is no conflict between the provisions; they
complement each other.
4. The form and structure of the Constitutions titles,
chapters, sections, and draftsmanship carry little weight in
statutory construction. The clear and plain language of
Section 15, Article VII precludes interpretation.
Tan, Jr.
1. The factual antecedents do not present an actual case or
controversy. The clash of legal rights and interests in the
present case are merely anticipated. Even if it is anticipated
with certainty, no actual vacancy in the position of the Chief
Justice has yet occurred.
2. The ruling that Section 15, Article VII does not apply to a
vacancy in the Court and the Judiciary runs in conflict with
long standing principles and doctrines of statutory

construction. The provision admits only one exception,

temporary appointments in the Executive Department. Thus,
the Court should not distinguish, because the law itself makes
no distinction.
3. Valenzuela was erroneously reversed. The framers of the
Constitution clearly intended the ban on midnight
appointments to cover the members of the Judiciary. Hence,
giving more weight to the opinion of Justice Regalado to
reverse the en banc decision in Valenzuela was unwarranted.
4. Section 15, Article VII is not incompatible with Section 4(1),
Article VIII. The 90-day mandate to fill any vacancy lasts until
August 15, 2010, or a month and a half after the end of the
ban. The next President has roughly the same time of 45 days
as the incumbent President (i.e., 44 days) within which to
scrutinize and study the qualifications of the next Chief
Justice. Thus, the JBC has more than enough opportunity to
examine the nominees without haste and political
uncertainty.1avvphi1
5. When the constitutional ban is in place, the 90-day period
under Section 4(1), Article VIII is suspended.
6. There is no basis to direct the JBC to submit the list of
nominees on or before May 17, 2010. The directive to the JBC
sanctions a culpable violation of the Constitution and
constitutes an election offense.
7. There is no pressing necessity for the appointment of a
Chief Justice, because the Court sits en banc, even when it
acts as the sole judge of all contests relative to the election,
returns and qualifications of the President and Vice-President.
Fourteen other Members of the Court can validly comprise
the Presidential Electoral Tribunal.
WTLOP
1. The Court exceeded its jurisdiction in ordering the JBC to
submit the list of nominees for Chief Justice to the President
on or before May 17, 2010, and to continue its proceedings
for the nomination of the candidates, because it granted a
relief not prayed for; imposed on the JBC a deadline not
provided by law or the Constitution; exercised control instead

of mere supervision over the JBC; and lacked sufficient votes

to reverse Valenzuela.

the independence of the Chief Justice by having the outgoing

President be continually influential.

2. In interpreting Section 15, Article VII, the Court has ignored

the basic principle of statutory construction to the effect that
the literal meaning of the law must be applied when it is clear
and unambiguous; and that we should not distinguish where
the law does not distinguish.

3. The Courts reversal of Valenzuela without stating the

sufficient reason violates the principle of stare decisis.

3. There is no urgency to appoint the next Chief Justice,

considering that the Judiciary Act of 1948 already provides
that the power and duties of the office devolve on the most
senior Associate Justice in case of a vacancy in the office of
the Chief Justice.
Ubano
1. The language of Section 15, Article VII, being clear and
unequivocal, needs no interpretation
2. The Constitution must be construed in its entirety, not by
resort to the organization and arrangement of its provisions.
3. The opinion of Justice Regalado is irrelevant, because
Section 15, Article VII and the pertinent records of the
Constitutional Commission are clear and unambiguous.
4. The Court has erred in ordering the JBC to submit the list of
nominees to the President by May 17, 2010 at the latest,
because no specific law requires the JBC to submit the list of
nominees even before the vacancy has occurred.
Boiser
1. Under Section 15, Article VII, the only exemption from the
ban on midnight appointments is the temporary appointment
to an executive position. The limitation is in keeping with the
clear intent of the framers of the Constitution to place a
restriction on the power of the outgoing Chief Executive to
make appointments.

Bello, et al.
1. Section 15, Article VII does not distinguish as to the type of
appointments an outgoing President is prohibited from
making within the prescribed period. Plain textual reading
and the records of the Constitutional Commission support the
view that the ban on midnight appointments extends to
judicial appointments.
2. Supervision of the JBC by the Court involves oversight. The
subordinate subject to oversight must first act not in accord
with prescribed rules before the act can be redone to conform
to the prescribed rules.
3. The Court erred in granting the petition in A.M. No. 10-2-5SC, because the petition did not present a justiciable
controversy.
Pimentel
1. Any constitutional interpretative changes must be
reasonable, rational, and conformable to the general intent of
the Constitution as a limitation to the powers of Government
and as a bastion for the protection of the rights of the people.
Thus, in harmonizing seemingly conflicting provisions of the
Constitution, the interpretation should always be one that
protects the citizenry from an ever expanding grant of
authority to its representatives.
2. The decision expands the constitutional powers of the
President in a manner totally repugnant to republican
constitutional democracy, and is tantamount to a judicial
amendment of the Constitution without proper authority.
Comments

2. To exempt the appointment of the next Chief Justice from

the ban on midnight appointments makes the appointee
beholden to the outgoing Chief Executive, and compromises

The Office of the Solicitor General (OSG) and the JBC separately
represent in their respective comments, thus:

OSG
1. The JBC may be compelled to submit to the President a
short list of its nominees for the position of Chief Justice.
2. The incumbent President has the power to appoint the next
Chief Justice.
3. Section 15, Article VII does not apply to the Judiciary.
4. The principles of constitutional construction favor the
exemption of the Judiciary from the ban on midnight
appointments.1awph!1
5. The Court has the duty to consider and resolve all issues
raised by the parties as well as other related matters.
JBC
1. The consolidated petitions should have been dismissed for
prematurity, because the JBC has not yet decided at the time
the petitions were filed whether the incumbent President has
the power to appoint the new Chief Justice, and because the
JBC, having yet to interview the candidates, has not
submitted a short list to the President.
2. The statement in the decision that there is a doubt on
whether a JBC short list is necessary for the President to
appoint a Chief Justice should be struck down as bereft of
constitutional and legal basis. The statement undermines the
independence of the JBC.
3. The JBC will abide by the final decision of the Court, but in
accord with its constitutional mandate and its implementing
rules and regulations.
For his part, petitioner Estelito P. Mendoza (A.M. No. 10-2-5-SC)
submits his comment even if the OSG and the JBC were the only ones
the Court has required to do so. He states that the motions for
reconsideration were directed at the administrative matter he
initiated and which the Court resolved. His comment asserts:

1. The grounds of the motions for reconsideration were

already resolved by the decision and the separate opinion.
2. The administrative matter he brought invoked the Courts
power of supervision over the JBC as provided by Section
8(1), Article VIII of the Constitution, as distinguished from the
Courts adjudicatory power under Section 1, Article VIII. In the
former, the requisites for judicial review are not required,
which was whyValenzuela was docketed as an administrative
matter. Considering that the JBC itself has yet to take a
position on when to submit the short list to the proper
appointing authority, it has effectively solicited the exercise
by the Court of its power of supervision over the JBC.
3. To apply Section 15, Article VII to Section 4(1) and Section
9, Article VIII is to amend the Constitution.
4. The portions of the deliberations of the Constitutional
Commission quoted in the dissent of Justice Carpio Morales,
as well as in some of the motions for reconsideration do not
refer to either Section 15, Article VII or Section 4(1), Article
VIII, but to Section 13, Article VII (on nepotism).
Ruling
We deny the motions for reconsideration for lack of merit, for all the
matters being thereby raised and argued, not being new, have all
been resolved by the decision of March 17, 2010.
Nonetheless, the Court opts to dwell on some matters only for the
purpose of clarification and emphasis.
First: Most of the movants contend that the principle of stare decisis
is controlling, and accordingly insist that the Court has erred in
disobeying or abandoning Valenzuela. 1
The contention has no basis.
Stare decisis derives its name from the Latin maxim stare decisis et
non quieta movere, i.e., to adhere to precedent and not to unsettle
things that are settled. It simply means that a principle underlying
the decision in one case is deemed of imperative authority,
controlling the decisions of like cases in the same court and in lower
courts within the same jurisdiction, unless and until the decision in

question is reversed or overruled by a court of competent authority.

The decisions relied upon as precedents are commonly those of
appellate courts, because the decisions of the trial courts may be
appealed to higher courts and for that reason are probably not the
best evidence of the rules of law laid down. 2
Judicial decisions assume the same authority as a statute itself and,
until authoritatively abandoned, necessarily become, to the extent
that they are applicable, the criteria that must control the actuations,
not only of those called upon to abide by them, but also of those
duty-bound to enforce obedience to them.3 In a hierarchical judicial
system like ours, the decisions of the higher courts bind the lower
courts, but the courts of co-ordinate authority do not bind each other.
The one highest court does not bind itself, being invested with the
innate authority to rule according to its best lights. 4
The Court, as the highest court of the land, may be guided but is not
controlled by precedent. Thus, the Court, especially with a new
membership, is not obliged to follow blindly a particular decision that
it determines, after re-examination, to call for a rectification. 5 The
adherence to precedents is strict and rigid in a common-law setting
like the United Kingdom, where judges make law as binding as an Act
of Parliament.6 But ours is not a common-law system; hence, judicial
precedents are not always strictly and rigidly followed. A judicial
pronouncement in an earlier decision may be followed as a precedent
in a subsequent case only when its reasoning and justification are
relevant, and the court in the latter case accepts such reasoning and
justification to be applicable to the case. The application of the
precedent is for the sake of convenience and stability.
For the intervenors to insist that Valenzuela ought not to be
disobeyed, or abandoned, or reversed, and that its wisdom should
guide, if not control, the Court in this case is, therefore, devoid of
rationality and foundation. They seem to conveniently forget that the
Constitution itself recognizes the innate authority of the Court en
banc to modify or reverse a doctrine or principle of law laid down in
any decision rendered en banc or in division.7
Second: Some intervenors are grossly misleading the public by their
insistence that the Constitutional Commission extended to the
Judiciary the ban on presidential appointments during the period
stated in Section 15, Article VII.
The deliberations that the dissent of Justice Carpio Morales quoted
from the records of the Constitutional Commission did not concern

either Section 15, Article VII or Section 4(1), Article VIII, but only
Section 13, Article VII, a provision on nepotism. The records of the
Constitutional Commission show that Commissioner Hilario G. Davide,
Jr. had proposed to include judges and justices related to the
President within the fourth civil degree of consanguinity or affinity
among the persons whom the President might not appoint during his
or her tenure. In the end, however, Commissioner Davide, Jr.
withdrew the proposal to include the Judiciary in Section 13, Article
VII "(t)o avoid any further complication,"8 such that the final version
of the second paragraph of Section 13, Article VII even completely
omits any reference to the Judiciary, to wit:
Section 13. xxx
The spouse and relatives by consanguinity or affinity within the fourth
civil degree of the President shall not during his tenure be appointed
as Members of the Constitutional Commissions, or the Office of the
Ombudsman, or as Secretaries, Undersecretaries, chairmen or heads
of bureaus or offices, including government-owned or controlled
corporations and their subsidiaries.
Last: The movants take the majority to task for holding that Section
15, Article VII does not apply to appointments in the Judiciary. They
aver that the Court either ignored or refused to apply many principles
of statutory construction.
The movants gravely err in their posture, and are themselves
apparently contravening their avowed reliance on the principles of
statutory construction.
For one, the movants, disregarding the absence from Section 15,
Article VII of the express extension of the ban on appointments to the
Judiciary, insist that the ban applied to the Judiciary under the
principle of verba legis. That is self-contradiction at its worst.
Another instance is the movants unhesitating willingness to read into
Section 4(1) and Section 9, both of Article VIII, the express
applicability of the ban under Section 15, Article VII during the period
provided therein, despite the silence of said provisions thereon. Yet,
construction cannot supply the omission, for doing so would generally
constitute an encroachment upon the field of the Constitutional
Commission. Rather, Section 4(1) and Section 9 should be left as they
are, given that their meaning is clear and explicit, and no words can
be interpolated in them.9 Interpolation of words is unnecessary,
because the law is more than likely to fail to express the legislative

intent with the interpolation. In other words, the addition of new

words may alter the thought intended to be conveyed. And, even
where the meaning of the law is clear and sensible, either with or
without the omitted word or words, interpolation is improper, because
the primary source of the legislative intent is in the language of the
law itself.10

days from their occurrence. Her official duty she must comply with.
So must we ours who are tasked by the Constitution to settle the
controversy.

Thus, the decision of March 17, 2010 has fittingly observed:

SO ORDERED.

Had the framers intended to extend the prohibition contained in

Section 15, Article VII to the appointment of Members of the Supreme
Court, they could have explicitly done so. They could not have
ignored the meticulous ordering of the provisions. They would have
easily and surely written the prohibition made explicit in Section 15,
Article VII as being equally applicable to the appointment of Members
of the Supreme Court in Article VIII itself, most likely in Section 4 (1),
Article VIII. That such specification was not done only reveals that the
prohibition against the President or Acting President making
appointments within two months before the next presidential
elections and up to the end of the Presidents or Acting Presidents
term does not refer to the Members of the Supreme Court.

LUCAS P. BERSAMIN
Associate Justice

We cannot permit the meaning of the Constitution to be stretched to

any unintended point in order to suit the purposes of any quarter.

ACCORDINGLY, the motions for reconsideration are denied with

finality.

WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO
Associate Justice

RENATO C. CORONA
Associate Justice

CONCHITA CARPIO
MORALES
Associate Justice

PRESBITERO J. VELASCO,
JR.
Associate Justice

ANTONIO EDUARDO B.
NACHURA
Associate Justice

TERESITA J. LEONARDODE CASTRO

Associate Justice

ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

MARIANO C. DEL
CASTILLO
Associate Justice

ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA,
JR.
Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

Final Word
It has been insinuated as part of the polemics attendant to the
controversy we are resolving that because all the Members of the
present Court were appointed by the incumbent President, a majority
of them are now granting to her the authority to appoint the
successor of the retiring Chief Justice.
The insinuation is misguided and utterly unfair.
The Members of the Court vote on the sole basis of their conscience
and the merits of the issues. Any claim to the contrary proceeds from
malice and condescension. Neither the outgoing President nor the
present Members of the Court had arranged the current situation to
happen and to evolve as it has. None of the Members of the Court
could have prevented the Members composing the Court when she
assumed the Presidency about a decade ago from retiring during her
prolonged term and tenure, for their retirements were mandatory. Yet,
she is now left with an imperative duty under the Constitution to fill
up the vacancies created by such inexorable retirements within 90

JOSE CATRAL MENDOZA

Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby
certified that the conclusions in the above Resolution had been
reached in consultation before the case was assigned to the writer of
the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
In Re Appointments Dated March 30, 1998 of Hon. Mateo A.
Valenzuela and Hon. Placido B. Vallarta as Judges of the
Regional Trial Court of Branch 62, Bago City and of Branch 24,
Cabanatuan City, respectively, A.M. No. 98-5-01-SC,
November 9, 1998, 298 SCRA 408.
1

Parliament, for to do otherwise would mean that the courts

would usurp legislative function; he mentions that in 1966,
Lord Chancellor Gardiner announced in a Practice Statement
a kind of general memorandum from the court that while:
"Their Lordships regard the use of precedent as an
indispensable foundation upon which to decide what is the
law," they "nevertheless recognize that too rigid adherence to
precedent may lead to injustice in a particular case and also
unduly restrict the proper development of the law. They
propose, therefore, to modify their present practice and, while
treating former decisions of this House as normally binding,
to depart from a previous decision when it appears right to do
so." (Calabresi cites Leach, Revisionism in the House of Lords:
The Bastion of Rigid Stare Decisis Falls, 80 Harvard Law
Review, 797 (1967).
7

Section 4 (2), Article VIII, provides:

xxx
(3) Cases or matters heard by a division shall be
decided or resolved with the concurrence of a
majority of the Members who actually took part in the
deliberations on the issues in the case and voted
thereon, and in no case, without the concurrence of
at least three of such Members. When the required
number is not obtained, the case shall be decided en
banc; Provided, that no doctrine or principle of law
laid down by the court in a decision rendered en banc
or in division may be modified or reversed except by
the court sitting en banc.

Price & Bitner, Effective Legal Research, Little, Brown & Co.,
New York (1962), 9.7.
2

Caltex (Phil.), Inc. v. Palomar, No. L-19650, September 29,

1966, 18 SCRA 247
3

E.g., Dias, Jurisprudence, Butterworths, London, 1985, Fifth

Edition, p. 127.
4

Limketkai Sons Milling, Inc. v. Court of Appeals, G.R. No.

118509, September 5, 1996, 261 SCRA 464.

See Calabresi, A Common Law for the Age of Statutes,

Harvard University Press, p. 4 (1982) and endnote 12 of the
page, which essentially recounts that the strict application of
the doctrine of stare decisis is true only in a common-law
jurisdiction like England (citing Wise, The Doctrine of Stare
Decisis, 21 Wayne Law Review, 1043, 1046-1047 (1975).
Calabresi recalls that the English House of Lords decided in
1898 (London Tramways Co. v. London County Council, A.C.
375) that they could not alter precedents laid down by the
House of Lords acting as the supreme court in previous cases,
but that such precedents could only be altered by an Act of

Record of the 1986 Constitutional Commission, Vol. 2, July

31, 1986, RCC No. 44. pp. 542-543.
Smith v. State, 66 Md. 215, 7 Atl. 49.

10

State ex rel Everding v. Simon, 20 Ore. 365, 26 Pac. 170.

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION
CARPIO MORALES, J.:
No compelling reason exists for the Court to deny a reconsideration of
the assailed Decision. The various motions for reconsideration raise
hollering substantial arguments and legitimately nagging questions
which the Court must meet head on.
If this Court is to deserve or preserve its revered place not just in the
hierarchy but also in history, passion for reason demands the
issuance of an extended and extensive resolution that confronts the
ramifications and repercussions of its assailed Decision. Only then
can it offer an illumination that any self-respecting student of the law
clamors and any adherent of the law deserves. Otherwise, it takes the
risk of reeking of an objectionable air of supreme judicial arrogance.
It is thus imperative to settle the following issues and concerns:
Whether the incumbent President is constitutionally
proscribed from appointing the successor of Chief Justice
Reynato S. Puno upon his retirement on May 17, 2010 until
the ban ends at 12:00 noon of June 30, 2010

my Dissenting Opinion) is to consider the appointments ban

or other substantial obstacle as a temporary impossibility
which excuses or releases the constitutional obligation of the
Office of the President for the duration of the ban or obstacle.
In view of the temporary nature of the circumstance causing the
impossibility of performance, the outgoing President is released from
non-fulfillment of the obligation to appoint, and the duty devolves
upon the new President. The delay in the fulfillment of the obligation
becomes excusable, since the law cannot exact compliance with what
is impossible. The 90-day period within which to appoint a member of
the Court is thus suspended and the period could only start or
resume to run when the temporary obstacle disappears (i.e., after the
period of the appointments ban; when there is already a quorum in
the JBC; or when there is already at least three applicants).
Whether the Judicial and Bar Council is obliged to submit to
the President the shortlist of nominees for the position of
Chief Justice (or Justice of this Court) on or before the
occurrence of the vacancy.

1. In interpreting the subject constitutional provisions, the

Decision disregarded established canons of statutory
construction. Without explaining the inapplicability of each of
the relevant rules, the Decision immediately placed premium
on the arrangement and ordering of provisions, one of the
weakest tools of construction, to arrive at its conclusion.

1. The ruling in the Decision that obligates the JBC to submit

the shortlist to the President on or before the occurrence of
the vacancy in the Court runs counter to the Concom
deliberations which explain that the 90-day period is allotted
for both the nomination by the JBC and the appointment by
the President. In the move to increase the period to 90 days,
Commissioner Romulo stated that "[t]he sense of the
Committee is that 60 days is awfully short and that the
[Judicial and Bar] Council, as well as the President, may have
difficulties with that."

2. In reversing Valenzuela, the Decision held that

the Valenzuela dictum did not firmly rest on ConCom
deliberations, yet it did not offer to cite a material ConCom
deliberation. It instead opted to rely on the memory of Justice
Florenz Regalado which incidentally mentioned only the
"Court of Appeals." The Decisions conclusion must rest on
the strength of its own favorable Concom deliberation, none
of which to date has been cited.

2. To require the JBC to submit to the President a shortlist of

nominees on or before the occurrence of vacancy in the
Court leads to preposterous results. It bears reiterating that
the requirement is absurd when,inter alia, the vacancy is
occasioned by the death of a member of the Court, in which
case the JBC could never anticipate the death of a Justice,
and could never submit a list to the President on or before the
occurrence of vacancy.

3. Instead of choosing which constitutional provision carves

out an exception from the other provision, the most legally
feasible interpretation (in the limited cases of temporary
physical or legal impossibility of compliance, as expounded in

3. The express allowance in the Constitution of a 90-day

period of vacancy in the membership of the Courtrebuts any
public policy argument on avoiding a vacuum of even a single
day without a duly appointed Chief Justice. Moreover, as

pointed out in my Dissenting Opinion, the practice of having

an acting Chief Justice in the interregnum is provided for by
law, confirmed by tradition, and settled by jurisprudence to
be an internal matter.
The Resolution of the majority, in denying the present Motions for
Reconsideration, failed to rebut the foregoing crucial matters.
I, therefore, maintain my dissent and vote to GRANT the Motions for
Reconsideration of the Decision of March 17, 2010 insofar as it holds
that the incumbent President is not constitutionally proscribed from
appointing the successor of Chief Justice Reynato S. Puno upon his
retirement on May 17, 2010 until the ban ends at 12:00 noon of June
30, 2010 and that the Judicial and Bar Council is obliged to submit to
the President the shortlist of nominees for the position of Chief Justice
on or before May 17, 2010.
CONCHITA CARPIO MORALES
Associate Justice

CONCURRING AND DISSENTING OPINION

BRION, J.:
The Motions for Reconsideration
After sifting through the motions for reconsideration, I found that the
arguments are largely the same arguments that we have passed
upon, in one form or another, in the various petitions. Essentially, the
issues boil down to justiciability; the conflict of constitutional
provisions; the merits of the cited constitutional deliberations; and
the status and effect of the Valenzuela1 ruling. Even the motion for
reconsideration of the Philippine Bar Association (G.R. No. 191420),
whose petition I did not expressly touch upon in my Separate
Opinion, basically dwells on these issues.

I have addressed most, if not all, of these issues and I submit my

Separate Opinion2 as my basic response to the motions for
reconsideration, supplemented by the discussions below.
As I reflected in my Separate Opinion (which three other Justices
joined),3 the election appointment ban under Article VII, Section 15 of
the Constitution should not apply to the appointment of Members of
the Supreme Court whose period for appointment is separately
provided for under Article VIII, Section 4(1). I shared this conclusion
with the Courts Decision although our reasons differed on some
points.
I diverged fully from the Decision on the question of whether we
should maintain or reverse our ruling in Valenzuela. I maintained that
it is still good law; no reason exists to touch the ruling as its main
focus the application of the election ban on the appointment of
lower court judges under Article VIII, Section 9 of the Constitution is
not even an issue in the present case and was discussed only
because the petitions incorrectly cited the ruling as authority on the
issue of the Chief Justices appointment. The Decision proposed to
reverse Valenzuela but only secured the support of five (5) votes,
while my Separate Opinion in support of Valenzuela had four (4)
votes. Thus, on the whole, the Decision did not prevail in reversing
Valenzuela, as it only had five (5) votes in a field of 12 participating
Members of the Court. Valenzuela should therefore remain, as of the
filing of this Opinion, as a valid precedent.
Acting on the present motions for reconsideration, I join the majority
in denying the motions with respect to the Chief Justice issue,
although we differ in some respects on the reasons supporting the
denial. I dissent from the conclusion that the Valenzuela ruling should
be reversed. My divergence from the majoritys reasons and
conclusions compels me to write this Concurring and Dissenting
Opinion.
The Basic Requisites / Justiciability
One marked difference between the Decision and my Separate
Opinion is our approach on the basic requisites/justiciability issues.
The Decision apparently glossed over this aspect of the case, while I
fully explained why the De Castro4 and Peralta5 petitions should be
dismissed outright. In my view, these petitions violated the most
basic requirements of their chosen medium for review a petition for
certiorari and mandamus under Rule 65 of the Rules of Court.

The petitions commonly failed to allege that the Judicial and Bar
Council (JBC) performs judicial or quasi-judicial functions, an
allegation that the petitions could not really make, since the JBC does
not really undertake these functions and, for this reason, cannot be
the subject of a petition for certiorari; hence, the petitions should be
dismissed outright. They likewise failed to facially show any failure or
refusal by the JBC to undertake a constitutional duty to justify the
issuance of a writ of mandamus; they invoked judicial notice that we
could not give because there was, and is, no JBC refusal to act. 6 Thus,
the mandamus aspects of these petitions should have also been
dismissed outright. The ponencia, unfortunately, failed to fully
discuss these legal infirmities.
The motions for reconsideration lay major emphasis on the alleged
lack of an actual case or controversy that made the Chief Justices
appointment a justiciable issue. They claim that the Court cannot
exercise the power of judicial review where there is no clash of legal
rights and interests or where this clash is merely anticipated,
although the anticipated event shall come with certainty. 7
What the movants apparently forgot, focused as they were on their
respective petitions, is that the present case is not a single-petition
case that rises or falls on the strength of that single petition. The
present case involves various petitions and interventions, 8 not
necessarily pulling towards the same direction, although each one is
focused on the issue of whether the election appointment ban under
Article VII, Section 15 of the Constitution should apply to the
appointment of the next Chief Justice of the Supreme Court.
Among the petitions filed were those of Tolentino (G.R. No. 191342),
Soriano (G.R. No. 191032) and Mendoza (A.M. No. 10-2-5-SC). The
first two are petitions for prohibition under Section 2 of Rule 65 of the
Rules of Court.9While they commonly share this medium of review,
they differ in their supporting reasons. The Mendoza petition, on the
other hand, is totally different it is a petition presented as an
administrative matter (A.M.) in the manner that the Valenzuela case
was an A.M. case. As I pointed out in the Separate Opinion, the Court
uses the A.M. docket designation on matters relating to its exercise of
supervision over all courts and their personnel.10 I failed to note then,
but I make of record now, that court rules and regulations the
outputs in the Courts rulemaking function are also docketed as A.M.
cases.
That an actual case or controversy involving a clash of rights and
interests exists is immediately and patently obvious in the Tolentino
and Soriano petitions. At the time the petitions were filed, the JBC had

started its six-phase nomination process that would culminate in the

submission of a list of nominees to the President of the Philippines for
appointive action. Tolentino and Soriano lawyers and citizens with
interest in the strict observance of the election ban sought to
prohibit the JBC from continuing with this process. The JBC had
started to act, without any prodding from the Court, because of its
duty to start the nomination process but was hampered by the
petitions filed and the legal questions raised that only the Supreme
Court can settle with finality.11 Thus, a clash of interests based on law
existed between the petitioners and the JBC. To state the obvious, a
decision in favor of Tolentino or Soriano would result in a writ of
prohibition that would direct the JBC not to proceed with the
nomination process.
The Mendoza petition cited the effect of a complete election ban on
judicial appointments (in view of the already high level of vacancies
and the backlog of cases) as basis, and submitted the question as an
administrative matter that the Court, in the exercise of its supervisory
authority over the Judiciary and the JBC itself, should act upon. At the
same time, it cited the "public discourse and controversy" now taking
place because of the application of the election ban on the
appointment of the Chief Justice, pointing in this regard to the very
same reasons mentioned in Valenzuela about the need to resolve the
issue and avoid the recurrence of conflict between the Executive and
the Judiciary, and the need to "avoid polemics concerning the
matter."12
I recognized in the Separate Opinion that, unlike in Valenzuela where
an outright defiance of the election ban took place, no such obvious
triggering event transpired in the Mendoza petition.13 Rather, the
Mendoza petition looked to the supervisory power of the Court over
judicial personnel and over the JBC as basis to secure a resolution of
the election ban issue. The JBC, at that time, had indicated its intent
to look up to the Courts supervisory power and role as the final
interpreter of the Constitution to guide it in responding to the
challenges it confronts.14 To me, this was "a point no less critical, from
the point of view of supervision, than the appointment of the two
judges during the election ban period in Valenzuela." 15
In making this conclusion, I pointed out in my Separate Opinion the
unavoidable surrounding realities evident from the confluence of
events, namely: (1) an election to be held on May 10, 2010; (2) the
retirement of the Chief Justice on May 17, 2010; (3) the lapse of the
terms of the elective officials from the President to the congressmen
on June 30, 2010; (4) the delay before the Congress can organize and
send its JBC representatives; and (5) the expiration of the term of a

non-elective JBC member in July 2010.16 All these juxtaposed with

the Courts supervision over the JBC, the latters need for guidance,
and the existence of an actual controversy on the same issues
bedeviling the JBC in my view, were sufficient to save the Mendoza
petition from being a mere request for opinion or a petition for
declaratory relief that falls under the jurisdiction of the lower court.
This recognition is beyond the level of what this Court can do in
handling a moot and academic case usually, one that no longer
presents a judiciable controversy but one that can still be ruled upon
at the discretion of the court when the constitutional issue is of
paramount public interest and controlling principles are needed to
guide the bench, the bar and the public.17
To be sure, this approach in recognizing when a petition is actionable
is novel. An overriding reason for this approach can be traced to the
nature of the petition, as it rests on the Courts supervisory authority
and relates to the exercise of the Courts administrative rather than
its judicial functions (other than these two functions, the Court also
has its rulemaking function under Article VIII, Section 5(5) of the
Constitution). Strictly speaking, the Mendoza petition calls for
directions from the Court in the exercise of its power of supervision
over the JBC,18 not on the basis of the power of judicial review.19 In
this sense, it does not need the actual clash of interests of the type
that a judicial adjudication requires. All that must be shown is the
active need for supervision to justify the Courts intervention as
supervising authority.
Under these circumstances, the Courts recognition of the Mendoza
petition was not an undue stretch of its constitutional powers. If the
recognition is unusual at all, it is so only because of its novelty; to my
knowledge, this is the first time ever in Philippine jurisprudence that
the supervisory authority of the Court over an attached agency has
been highlighted in this manner. Novelty, per se, however, is not a
ground for objection nor a mark of infirmity for as long as the novel
move is founded in law. In this case, as in the case of the writ of
amparo and habeas data that were then novel and avowedly activist
in character, sufficient legal basis exists to actively invoke the Courts
supervisory authority granted under the Constitution, no less as
basis for action.
To partly quote the wording of the Constitution, Article VIII, Section
8(1) and (5) provide that "A Judicial and Bar Council is hereby created
under the supervision of the Supreme Court It may exercise such
other functions and duties as the Supreme Court may assign to it."
Supervision, as a legal concept, more often than not, is defined in

relation with the concept of control.20 In Social Justice Society v.

Atienza,21 we defined "supervision" as follows:
[Supervision] means overseeing or the power or authority of an
officer to see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them, the former may take such action
or step as prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to alter or
modify or nullify or set aside what a subordinate officer ha[s] done in
the performance of his duties and to substitute the judgment of the
former for that of the latter.
Under this definition, the Court cannot dictate on the JBC the results
of its assigned task, i.e., who to recommend or what standards to use
to determine who to recommend. It cannot even direct the JBC on
how and when to do its duty, but it can, under its power of
supervision, direct the JBC to "take such action or step as prescribed
by law to make them perform their duties," if the duties are not being
performed because of JBCs fault or inaction, or because of
extraneous factors affecting performance. Note in this regard that,
constitutionally, the Court can also assign the JBC other functions and
duties a power that suggests authority beyond what is purely
supervisory.
Where the JBC itself is at a loss on how to proceed in light of disputed
constitutional provisions that require interpretation,22 the Court is not
legally out of line as the final authority on the interpretation of the
Constitution and as the entity constitutionally-tasked to supervise the
JBC in exercising its oversight function by clarifying the
interpretation of the disputed constitutional provision to guide the
JBC. In doing this, the Court is not simply rendering a general legal
advisory; it is providing concrete and specific legal guidance to the
JBC in the exercise of its supervisory authority, after the latter has
asked for assistance in this regard. That the Court does this while
concretely resolving actual controversies (the Tolentino and Soriano
petitions) on the same issue immeasurably strengthens the intrinsic
correctness of the Courts action.
It may be asked: why does the Court have to recognize the Mendoza
petition when it can resolve the conflict between Article VII, Section
15 and Article VIII, Section 4(1) through the Tolentino and Soriano
petitions?
The answer is fairly simple and can be read between the lines of the
above explanation on the relationship between the Court and the JBC.

First, administrative is different from judicial function and providing

guidance to the JBC can only be appropriate in the discharge of the
Courts administrative function. Second, the resolution of the
Tolentino and Soriano petitions will lead to rulings directly related to
the underlying facts of these petitions, without clear guidelines to the
JBC on the proper parameters to observe vis--vis the constitutional
dispute along the lines the JBC needs. In fact, concrete guidelines
addressed to the JBC in the resolution of the Tolentino/Soriano
petitions may even lead to accusations that the Courts resolution is
broader than is required by the facts of the petitions. The Mendoza
petition, because it pertains directly to the performance of the JBCs
duty and the Courts supervisory authority, allows the issuance of
precise guidelines that will enable the JBC to fully and seasonably
comply with its constitutional mandate.
I hasten to add that the JBCs constitutional task is not as simple as
some people think it to be. The process of preparing and submitting a
list of nominees is an arduous and time-consuming task that cannot
be done overnight. It is a six-step process lined with standards
requiring the JBC to attract the best available candidates, to examine
and investigate them, to exhibit transparency in all its actions while
ensuring that these actions conform to constitutional and statutory
standards (such as the election ban on appointments), to submit the
required list of nominees on time, and to ensure as well that all these
acts are politically neutral. On the time element, the JBC list for the
Supreme Court has to be submitted on or before the vacancy occurs
given the 90-day deadline that the appointing President is given in
making the appointment. The list will be submitted, not to the
President as an outgoing President, nor to the election winner as an
incoming President, but to the President of the Philippines whoever
he or she may be. If the incumbent President does not act on the JBC
list within the time left in her term, the same list shall be available to
the new President for him to act upon. In all these, the Supreme Court
bears the burden of overseeing that the JBCs duty is done, unerringly
and with utmost dispatch; the Court cannot undertake this
supervision in a manner consistent with the Constitutions
expectation from the JBC unless it adopts a pro-active stance within
the limits of its supervisory authority.
The Disputed Provisions
The movants present their arguments on the main issue at several
levels. Some argue that the disputed constitutional provisions
Article VII, Section 15 and Article VIII, Section 4(1) are clear and
speak for themselves on what the Constitution covers in banning
appointments during the election period.23 One even posits that there

is no conflict because both provisions can be given effect without one

detracting against the full effectiveness of the other,24 although the
effect is to deny the sitting President the option to appoint in favor of
a deferment for the incoming Presidents action. Still others,
repeating their original arguments, appeal to the principles of
interpretation and latin maxims to prove their point.25
In my discussions in the Separate Opinion, I stated upfront my views
on how the disputed provisions interact with each other. Read singly
and in isolation, they appear clear (this reading applies the "plain
meaning rule" that Tolentino advocates in his motion for
reconsideration, as explained below). Arrayed side by side with each
other and considered in relation with the other provisions of the
Constitution, particularly its structure and underlying intents, the
conflict however becomes obvious and unavoidable.
Section 15 on its face disallows any appointment in clear negative
terms ("shall not make") without specifying the appointments
covered by the prohibition.26 From this literal and isolated reading
springs the argument that no exception is provided (except that
found in Section 15 itself) so that even the Judiciary is covered by the
ban on appointments.
On the other hand, Section 4(1) is likewise very clear and categorical
in its terms: any vacancy in the Court shall be filled within 90 days
from its occurrence.27 In the way of Section 15, Section 4(1) is also
clear and categorical and provides no exception; the appointment
refers solely to the Members of the Supreme Court and does not
mention any period that would interrupt, hold or postpone the 90-day
requirement.
From this perspective, the view that no conflict exists cannot be
seriously made, unless with the mindset that one provision controls
and the other should yield. Many of the petitions in fact advocate this
kind of reading, some of them openly stating that the power of
appointment should be reserved for the incoming President. 28 The
question, however, is whether from the viewpoint of strict law and
devoid of the emotionalism and political partisanship that permeate
the present Philippine political environment this kind of mindset can
really be adopted in reading and applying the Constitution.
In my view, this kind of mindset and the conclusion it inevitably leads
to cannot be adopted; the provisions of the Constitution cannot be
read in isolation from what the whole contains. To be exact, the
Constitution must be read and understood as a whole, reconciling and

harmonizing apparently conflicting provisions so that all of them can

be given full force and effect,29 unless the Constitution itself expressly
states otherwise.30
Not to be forgotten in reading and understanding the Constitution are
the many established underlying constitutional principles that we
have to observe and respect if we are to be true to the Constitution.
These principles among them the principles of checks and balances
and separation of powers are not always expressly stated in the
Constitution, but no one who believes in and who has studied the
Constitution can deny that they are there and deserve utmost
attention, respect, and even priority consideration.
In establishing the structures of government, the ideal that the
Constitution seeks to achieve is one of balance among the three
great departments of government the Executive, the Legislative and
the Judiciary, with each department undertaking its constitutionallyassigned task as a check against the exercise of power by the others,
while all three departments move forward in working for the progress
of the nation. Thus, the Legislature makes the laws and is supreme in
this regard, in the way that the Executive is supreme in enforcing and
administering the law, while the Judiciary interprets both the
Constitution and the law. Any provision in each of the Articles on
these three departments31 that intrudes into the other must be
closely examined if the provision affects and upsets the desired
balance.
Under the division of powers, the President as Chief Executive is
given the prerogative of making appointments, subject only to the
legal qualification standards, to the checks provided by the
Legislatures Commission on Appointments (when applicable) and by
the JBC for appointments in the Judiciary, and to the Constitutions
own limitations. Conflict comes in when the Constitution laid down
Article VII, Section 15 limiting the Presidents appointing power during
the election period. This limitation of power would have been allencompassing and would, thus, have extended to all government
positions the President can fill, had the Constitution not inserted a
provision, also on appointments, in the Article on the Judiciary with
respect to appointments to the Supreme Court. This conflict gives rise
to the questions: which provision should prevail, or should both be
given effect? Or should both provisions yield to a higher concern the
need to maintain the integrity of our elections?
A holistic reading of the Constitution a must in constitutional
interpretation dictates as a general rule that the tasks assigned to
each department and their limitations should be given full effect to

fulfill the constitutional purposes under the check and balance

principle, unless the Constitution itself expressly indicates its
preference for one task, concern or standard over the others, 32 or
unless this Court, in its role as interpreter of the Constitution, has
spoken on the appropriate interpretation that should be made. 33
In considering the interests of the Executive and the Judiciary, a
holistic approach starts from the premise that the constitutional
scheme is to grant the President the power of appointment, subject
to the limitation provided under Article VII, Section 15. At the same
time, the Judiciary is assured, without qualifications under Article VIII,
Section 4(1), of the immediate appointment of Members of the
Supreme Court, i.e., within 90 days from the occurrence of the
vacancy. If both provisions would be allowed to take effect, as I
believe they should, the limitation on the appointment power of the
President under Article VII, Section 15 should itself be limited by the
appointment of Members of the Court pursuant to Article VIII, Section
4(1), so that the provision applicable to the Judiciary can be given full
effect without detriment to the Presidents appointing authority. This
harmonization will result in restoring to the President the full
authority to appoint Members of the Supreme Court pursuant to the
combined operation of Article VII, Section 15 and Article VIII, Section
4(1).
Viewed in this light, there is essentially no conflict, in terms of the
authority to appoint, between the Executive and Judiciary; the
President would effectively be allowed to exercise the Executives
traditional presidential power of appointment while respecting the
Judiciarys own prerogative. In other words, the President retains full
powers to appoint Members of the Court during the election period,
and the Judiciary is assured of a full membership within the time
frame given.
Interestingly, the objection to the full application of Article VIII,
Section 4(1) comes, not from the current President, but mainly from
petitioners echoing the present presidential candidates, one of whom
shall soon be the incoming President. They do not, of course, cite
reasons of power and the loss of the opportunity to appoint the Chief
Justice; many of the petitioners/intervenors oppose the full
application of Article VIII, Section 4(1) based on the need to maintain
the integrity of the elections through the avoidance of a "midnight
appointment."
This "integrity" reason is a given in a democracy and can hardly be
opposed on the theoretical plane, as the integrity of the elections
must indeed prevail in a true democracy. The statement, however,

begs a lot of questions, among them the question of whether the

appointment of a full Court under the terms of Article VIII, Section
4(1) will adversely affect or enhance the integrity of the elections.
In my Separate Opinion, I concluded that the appointment of a
Member of the Court even during the election period per se implies
no adverse effect on the integrity of the election; a full Court is ideal
during this period in light of the Courts unique role during elections. I
maintain this view and fully concur in this regard with the majority.
During the election period, the court is not only the interpreter of the
Constitution and the election laws; other than the Commission on
Elections and the lower courts to a limited extent, the Court is
likewise the highest impartial recourse available to decisively address
any problem or dispute arising from the election. It is the leader and
the highest court in the Judiciary, the only one of the three
departments of government directly unaffected by the election. The
Court is likewise the entity entrusted by the Constitution, no less,
with the gravest election-related responsibilities. In particular, it is the
sole judge of all contests in the election of the President and the VicePresident, with leadership and participation as well in the election
tribunals that directly address Senate and House of Representatives
electoral disputes. With this grant of responsibilities, the Constitution
itself has spoken on the trust it reposes on the Court on election
matters. This reposed trust, to my mind, renders academic any
question of whether an appointment during the election period will
adversely affect the integrity of the elections it will not, as the
maintenance of a full Court in fact contributes to the enforcement of
the constitutional scheme to foster a free and orderly election.
In reading the motions for reconsideration against the backdrop of
the partisan political noise of the coming elections, one cannot avoid
hearing echoes from some of the arguments that the objection is
related, more than anything else, to their lack of trust in an
appointment to be made by the incumbent President who will soon be
bowing out of office. They label the incumbent Presidents act as a
"midnight appointment" a term that has acquired a pejorative
meaning in contemporary society.
As I intimated in my Separate Opinion, the imputation of distrust can
be made against any appointing authority, whether outgoing or
incoming. The incoming President himself will be before this Court if
an election contest arises; any President, past or future, would also
naturally wish favorable outcomes in legal problems that the Court
would resolve. These possibilities and the potential for continuing
influence in the Court, however, cannot be active considerations in

resolving the election ban issue as they are, in their present form and
presentation, all speculative. If past record is to be the measure, the
record of past Chief Justices and of this Court speaks for itself with
respect to the Justices relationship with, and deferral to, the
appointing authority in their decisions.
What should not be forgotten in examining the records of the Court,
from the prism of problems an electoral exercise may bring, is the
Courts unique and proven capacity to intervene and diffuse
situations that are potentially explosive for the nation. EDSA II
particularly comes to mind in this regard (although it was an event
that was not rooted in election problems) as it is a perfect example of
the potential for damage to the nation that the Court can address and
has addressed. When acting in this role, a vacancy in the Court is not
only a vote less, but a significant contribution less in the Courts
deliberations and capacity for action, especially if the missing voice is
the voice of the Chief Justice.
Be it remembered that if any EDSA-type situation arises in the
coming elections, it will be compounded by the lack of leaders
because of the lapse of the Presidents term by June 30, 2010; by a
possible failure of succession if for some reason the election of the
new leadership becomes problematic; and by the similar absence of
congressional leadership because Congress has not yet convened to
organize itself.34 In this scenario, only the Judiciary of the three great
departments of government stands unaffected by the election and
should at least therefore be complete to enable it to discharge its
constitutional role to its fullest potential and capacity. To state the
obvious, leaving the Judiciary without any permanent leader in this
scenario may immeasurably complicate the problem, as all three
departments of government will then be leaderless.
To stress what I mentioned on this point in my Separate Opinion, the
absence of a Chief Justice will make a lot of difference in the
effectiveness of the Court as he or she heads the Judiciary, sits as
Chair of the JBC and of the Presidential Electoral Tribunal, presides
over impeachment proceedings, and provides the moral suasion and
leadership that only the permanent mantle of the Chief Justice can
bestow. EDSA II is just one of the many lessons from the past when
the weightiest of issues were tackled and promptly resolved by the
Court. Unseen by the general public in all these was the leadership
that was there to ensure that the Court would act as one, in the spirit
of harmony and stability although divergent in their individual views,
as the Justices individually make their contributions to the collegial
result. To some, this leadership may only be symbolic, as the Court
has fully functioned in the past even with an incomplete membership

or under an Acting Chief Justice. But as I said before, an incomplete

Court "is not a whole Supreme Court; it will only be a Court with 14
members who would act and vote on all matters before it." To fully
recall what I have said on this matter:
The importance of the presence of one Member of the Court can and
should never be underestimated, particularly on issues that may
gravely affect the nation. Many a case has been won or lost on the
basis of one vote. On an issue of the constitutionality of a law, treaty
or statute, a tie vote which is possible in a 14 member court
means that the constitutionality is upheld. This was our lesson in
Isagani Cruz v. DENR Secretary.
More than the vote, Court deliberation is the core of the decisionmaking process and one voice is less is not only a vote less but a
contributed opinion, an observation, or a cautionary word less for the
Court. One voice can be a big difference if the missing voice is that of
the Chief Justice.
Without meaning to demean the capability of an Acting Chief Justice,
the ascendancy in the Court of a permanent sitting Chief Justice
cannot be equaled. He is the first among equals a primus inter
pares who sets the tone for the Court and the Judiciary, and who is
looked up to on all matters, whether administrative or judicial. To the
world outside the Judiciary, he is the personification of the Court and
the whole Judiciary. And this is not surprising since, as Chief Justice,
he not only chairs the Court en banc, but chairs as well the
Presidential Electoral Tribunal that sits in judgment over election
disputes affecting the President and the Vice-President. Outside of his
immediate Court duties, he sits as Chair of the Judicial and Bar
Council, the Philippine Judicial Academy and, by constitutional
command, presides over the impeachment of the President. To be
sure, the Acting Chief Justice may be the ablest, but he is not the
Chief Justice without the mantle and permanent title of the Office,
and even his presence as Acting Chief Justice leaves the Court with
one member less. Sadly, this member is the Chief Justice; even with
an Acting Chief Justice, the Judiciary and the Court remains
headless. 35
Given these views, I see no point in re-discussing the finer points of
technical interpretation and their supporting latin maxims that I have
addressed in my Separate Opinion and now feel need no further
elaboration; maxims can be found to serve a pleaders every need
and in any case are the last interpretative tools in constitutional
interpretation. Nor do I see any point in discussing arguments based
on the intent of the framers of the Constitution now cited by the

parties in the contexts that would serve their own ends. As may be
evident in these discussions, other than the texts of the disputed
provisions, I prefer to examine their purposes and the consequences
of their application, understood within the context of democratic
values. Past precedents are equally invaluable for the lead, order, and
stability they contribute, but only if they are in point, certain, and still
alive to current realities, while the history of provisions, including the
intents behind them, are primarily important to ascertain the
purposes the provisions serve.
From these perspectives and without denigrating the framers
historical contributions, I say that it is the Constitution that now
primarily speaks to us in this case and what we hear are its direct
words, not merely the recorded isolated debates reflecting the
personal intents of the constitutional commissioners as cited by the
parties to fit their respective theories. The voice speaking the words
of the Constitution is our best guide, as these words will unalterably
be there for us to read in the context of their purposes and the
nations needs and circumstances. This Concurring and Dissenting
Opinion hears and listens to that voice.
The Valenzuela Decision
The ponencias ruling reversing Valenzuela, in my view, is out of place
in the present case, since at issue here is the appointment of the
Chief Justice during the period of the election ban, not the
appointment of lower court judges that Valenzuela resolved. To be
perfectly clear, the conflict in the constitutional provisions is not
confined to Article VII, Section 15 and Article VIII, Section 4(1) with
respect to the appointment of Members of the Supreme Court; even
before the Valenzuela ruling, the conflict already existed between
Article VII, Section 15 and Article VIII, Section 9 the provision on the
appointment of the justices and judges of courts lower than the
Supreme Court. After this Courts ruling in Valenzuela, no amount of
hairsplitting can result in the conclusion that Article VII, Section 15
applied the election ban over the whole Judiciary, including the
Supreme Court, as the facts and the fallo of Valenzuela plainly spoke
of the objectionable appointment of two Regional Trial Court judges.
To reiterate, Valenzuela only resolved the conflict between Article VII,
Section 15 and appointments to the Judiciary under Article VIII,
Section 9.
If Valenzuela did prominently figure at all in the present case, the
prominence can be attributed to the petitioners mistaken reading
that this case is primary authority for the dictum that Article VII,
Section 15 completely bans all appointments to the Judiciary,

including appointments to the Supreme Court, during the election

period up to the end of the incumbent Presidents term.
In reality, this mistaken reading is an obiter dictum in Valenzuela, and
hence, cannot be cited for its primary precedential value. This legal
situation still holds true as Valenzuela was not doctrinally reversed as
its proposed reversal was supported only by five (5) out of the 12
participating Members of the Court. In other words, this ruling on how
Article VII, Section 15 is to be interpreted in relation with Article VIII,
Section 9, should continue to stand unless otherwise expressly
reversed by this Court.
But separately from the mistaken use of an obiter ruling as primary
authority, I believe that I should sound the alarm bell about the
Valenzuela ruling in light of a recent vacancy in the position of
Presiding Justice of the Sandiganbayan resulting from Presiding
Justice Norberto Geraldezs death soon after we issued the decision in
the present case. Reversing the Valenzuela ruling now, in the absence
of a properly filed case addressing an appointment at this time to the
Sandiganbayan or to any other vacancy in the lower courts, will be an
irregular ruling of the first magnitude by this Court, as it will
effectively be a shortcut that lifts the election ban on appointments to
the lower courts without the benefit of a case whose facts and
arguments would directly confront the continued validity of the
Valenzuela ruling. This is especially so after we have placed the Court
on notice that a reversal of Valenzuela is uncalled for because its
ruling is not the litigated issue in this case.
In any case, let me repeat what I stressed in my Separate Opinion
about Valenzuela which rests on the reasoning that the evils Section
15 seeks to remedy vote buying, midnight appointments and
partisan reasons to influence the elections exist, thus justifying an
election appointment ban. In particular, the "midnight appointment"
justification, while fully applicable to the more numerous vacancies at
the lower echelons of the Judiciary (with an alleged current lower
court vacancy level of 537 or a 24.5% vacancy rate), should not apply
to the Supreme Court which has only a total of 15 positions that are
not even vacated at the same time. The most number of vacancies
for any one year occurred only last year (2009) when seven (7)
positions were vacated by retirement, but this vacancy rate is not
expected to be replicated at any time within the next decade. Thus
"midnight appointments" to the extent that they were understood in
Aytona36 will not occur in the vacancies of this Court as nominations
to its vacancies are all processed through the JBC under the publics
close scrutiny. As already discussed above, the institutional integrity
of the Court is hardly an issue. If at all, only objections personal to the

individual Members of the Court or against the individual applicants

can be made, but these are matters addressed in the first place by
the JBC before nominees are submitted. There, too, are specific
reasons, likewise discussed above, explaining why the election ban
should not apply to the Supreme Court. These exempting reasons, of
course, have yet to be shown to apply to the lower courts. Thus, on
the whole, the reasons justifying the election ban in Valenzuela still
obtain in so far as the lower courts are concerned, and have yet to be
proven otherwise in a properly filed case. Until then, Valenzuela,
except to the extent that it mentioned Section 4(1), should remain an
authoritative ruling of this Court.
CONCLUSION
In light of these considerations, a writ of prohibition cannot issue to
prevent the JBC from performing its principal function, under the
Constitution, of recommending nominees for the position of Chief
Justice. Thus, I vote to deny with finality the Tolentino and Soriano
motions for reconsideration.
The other motions for reconsideration in so far as they challenge the
conclusion that the President can appoint the Chief Justice even
during the election period are likewise denied with finality for lack of
merit, but are granted in so far as they support the continued validity
of the ruling of this Court in In Re: Valenzuela and Vallarta, A.M. No.
98-5-01-SC, November 9, 1998.
My opinion on the Mendoza petition stands.
ARTURO D. BRION
Associate Justice

Footnotes
A.M. No. 98-5-01-SC, November 9, 1998, 298 SCRA 408. This
A.M. involves the constitutional validity of the appointment of
two (2) RTC Judges on March 30, 1998 a date that falls
within the supposed ban under Section 15, Article VII of the
Constitution. We nullified the appointments.
1

G.R. No. 191002 and companion cases, promulgated on

March 17, 2010.

his term" and Section 261(g), Article XXIII of the

Omnibus Election Code of the Philippines.

Justices Diosdado M. Peralta, Mariano C. Del Castillo and

Jose Catral Mendoza.

12. Since the Honorable Supreme Court is the final

interpreter of the Constitution, the JBC will be guided
by its decision in these consolidated Petitions and
Administrative Matter. [Emphasis supplied.]

G.R. No. 191002, Petition for Certiorari and Mandamus.

G.R. No. 191149, Petition for Certiorari and Mandamus.

The JBC reiterates its position in its Comment (dated April

12, 2010) on the motions for reconsideration that it is still
acting on the preparation of the list of nominees and is set to
interview the nominees.
6

See, for instance, the motion for reconsideration of

intervenor Alfonso Tan, Jr.

12

Mendoza Petition, pp. 5-6.

13

Separate Opinion, pp. 16-17.

14

Supra note 11.

15

Id. at 17.

16

Separate Opinion, pp. 19-22:

The docketed petitions were seven; the petitions-inintervention were ten.

8

A prohibition petition seeks to stop the proceedings of a

tribunal, corporation, board, officer or person exercising
judicial, quasi-judicial or ministerial functions if any of its act
is without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack or excess of jurisdiction.
9

10

Separate Opinion, p. 16.

11

The JBC position states:

xxxx
Likewise, the JBC has yet to take a position on when
to submit the shortlist to the proper appointing
authority, in light of Section 4(1), Article VIII of the
Constitution, which provides that vacancy in the
Supreme Court shall be filled within ninety (90) days
from the occurrence thereof, Section 15, Article VII of
the Constitution concerning the ban on Presidential
appointments "two (2) months immediately before
the next presidential elections and up to the end of

A first reality is that the JBC cannot, on its own due

to lack of the proper authority, determine the
appropriate course of action to take under the
Constitution. Its principal function is to recommend
appointees to the Judiciary and it has no authority to
interpret constitutional provisions, even those
affecting its principal function; the authority to
undertake constitutional interpretation belongs to the
courts alone.
A second reality is that the disputed constitutional
provisions do not stand alone and cannot be read
independently of one another; the Constitution and
its various provisions have to be read and interpreted
as one seamless whole, giving sufficient emphasis to
every aspect in accordance with the hierarchy of our
constitutional values. The disputed provisions should
be read together and, as reflections of the will of the
people, should be given effect to the extent that they
should be reconciled.
The third reality, closely related to the second, is
that in resolving the coverage of the election ban vis-vis the appointment of the Chief Justice and the
Members of the Court, provisions of the Constitution
other than the disputed provisions must be taken into

account. In considering when and how to act, the JBC

has to consider that:
1. The President has a term of six years
which begins at noon of June 30 following
the election, which implies that the outgoing
President remains President up to that time.
(Section 4, Article VII). The President assumes
office at the beginning of his or her term, with
provision for the situations where the
President fails to qualify or is unavailable at
the beginning of his term (Section 7, Article
VII).
2. The Senators and the Congressmen begin
their respective terms also at midday of
June 30 (Sections 4 and 7, Article VI). The
Congress convenes on the 4th Monday of
July for its regular session, but the President
may call a special session at any time.
(Section 15, Article VI)
3. The Valenzuela case cited as authority for
the position that the election ban provision
applies to the whole Judiciary, only decided
the issue with respect to lower court judges,
specifically, those covered by Section 9,
Article VIII of the Constitution. Any reference
to the filling up of vacancies in the Supreme
Court pursuant to Section 4(1), Article VIII
constitutes obiter dictum as this issue was
not directly in issue and was not ruled upon.
These provisions and interpretation of the Valenzuela
ruling when read together with disputed provisions,
related with one another, and considered with the
May 17, 2010 retirement of the current Chief Justice
bring into focus certain unavoidable realities, as
follows:
1. If the election ban would apply fully to the
Supreme Court, the incumbent President
cannot appoint a Member of the Court
beginning March 10, 2010, all the way up to
June 30, 2010.

2. The retirement of the incumbent Chief

Justice May 17, 2010 falls within the period
of the election ban. (In an extreme example
where the retirement of a Member of the
Court falls on or very close to the day the
election ban starts, the Office of the Solicitor
General calculates in its Comment that the
whole 90 days given to the President to make
appointment would be covered by the
election ban.)
3. Beginning May 17, 2010, the Chief Justice
position would be vacant, giving rise to the
question of whether an Acting Chief Justice
can act in his place. While this is essentially a
Supreme Court concern, the Chief Justice is
the ex officio Chair of the JBC; hence it must
be concerned and be properly guided.
4. The appointment of the new Chief Justice
has to be made within 90 days from the time
the vacancy occurs, which translates to a
deadline of August 15, 2010.
5. The deadline for the appointment is fixed
(as it is not reckoned from the date of
submission of the JBC list, as in the lower
courts) which means that the JBC ideally will
have to make its list available at the start of
the 90-day period so that its process will not
eat up the 90-day period granted the
President.
6. After noon of June 30, 2010, the JBC
representation from Congress would be
vacant; the current representatives
mandates to act for their principals extend
only to the end of their present terms; thus,
the JBC shall be operating at that point at less
than its full membership.
7. Congress will not convene until the 4th
Monday of July, 2010, but would still need to
organize before the two Houses of Congress

can send their representatives to the JBC a

process may extend well into August, 2010.
8. By July 5, 2010, one regular member of the
JBC would vacate his post. Filling up this
vacancy requires a presidential appointment
and the concurrence of the Commission on
Appointments.
9. Last but not the least, the prohibition in
Section 15, Article VII is that "a President or
Acting President shall not make
appointments." This prohibition is expressly
addressed to the President and covers the act
of appointment; the prohibition is not against
the JBC in the performance of its function of
"recommending appointees to the Judiciary"
an act that is one step away from the act of
making appointments.
The Province of North Cotabato v. Government of the
Republic of the Philippines Peace Panel Ancestral Domain,
G.R. Nos. 183591, 183791, 183752, 183893, 183951 and
183962, October 14, 2008.
17

By virtue of its power of administrative supervision, the

Supreme Court oversees the judges and court personnels
compliance with the laws, rules and regulations. It may take
the proper administrative action against them if they commit
any violation. See Ampong v. CSC, G.R. No. 107910, August
26, 2008, 563 SCRA 293. The Constitution separately
provides for the Supreme Courts supervision over the JBC.
See Article VIII, Section 8 of the CONSTITUTION.

perform their duties, and if the latter fail or neglect to fulfill

them, then the former may take such action or steps as
prescribed by law to make them perform these duties.
Nachura, J., Outline Reviewer in Political Law, 2006 ed., p.
276.
21

G.R. No. 156052, February 13, 2008, 545 SCRA 92.

22

Supra notes 11 and 14.

Philippine Bar Association (PBA), Women Trial Lawyers

Organization of the Philippines (WTLOP), Atty. Amador Z.
Tolentino, Atty. Roland B. Inting, Peter Irving Corvera and
Alfonso V. Tan, Jr.
23

24

See the Motions for Reconsideration for PBA, WTLOP, Atty.

Amador Z. Tolentino, Atty. Roland B. Inting, Peter Irving
Corvera and Alfonso V. Tan, Jr.
25

26

CONSTITUTION, Article VII, Section 15:

Two months immediately before the next presidential
elections and up to the end of his term, a President or
Acting President shall not make appointments, except
temporary appointments to executive positions when
continued vacancies therein will prejudice public
service or endanger public safety.

18

27

CONSTITUTION, Article VIII, Section 4(1):

(1) The Supreme Court shall be composed of a Chief
Justice and fourteen Associate Justices. It may sit en
banc or, in its discretion, in divisions of three, five, or
seven Members. Any vacancy shall be filled within
ninety days from the occurrence thereof.

Judicial Review is the power of the courts to test the validity

of executive and legislative acts for their conformity with the
Constitution, Garcia v. Executive Secretary, G.R. No. 157584,
April 2, 2009.
19

Control is the power of an officer to alter or modify or nullify

or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of
the former for that of the latter. It is distinguished from
supervision in that the latter means overseeing, or the power
or authority of an officer to see that subordinate officers

See PBAs Motion for Reconsideration.

20

xxxx
See Petition on Intervention of WTLOP, as cited in the
decision in the above-captioned cases; see also: PBAs motion
for reconsideration.
28

Francisco v. House of Representatives, G.R. No. 160261,

November 10, 2003, 415 SCRA 44, citing Civil Liberties Union
v. Executive Secretary, 194 SCRA 317 (1994); Peralta v.
Commission on Elections, G.R. No. 47771, March 11, 1978, 82
SCRA 30 (1978); Ang-Angco v. Castillo, G.R. No. 17169,
November 30, 1963, 9 SCRA 619 (1963).
29

Macalintal v. Commission on Elections, G.R. No. 157013,

July 10, 2003, 310 SCRA 614, citing Chiongbian v. De Leon, 82
Phil 771 (1949).
30

Article VI for the Legislature, Article VII for the Executive,

and Article VIII for the Judiciary.
31

See Matibag v. Benipayo, G.R. No. 149036, April 2, 2002,

380 SCRA 49; where the court resolved the clash between the
power of the President to extend ad interim appointments
and the power of the Commission on Appointments to confirm
presidential appointments.
32

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

33

Ibid.

34

Supra note 13.

35

Separate Opinion, p. 32.

Aytona v. Castillo, G.R. No. 19315, January 19, 1962, 4

SCRA 1.
36

RESURRECCION OBRA, G.R. No. 149125

Petitioner,
Present:
QUISUMBING, J., Chairperson,
- versus - CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
SPS. VICTORIANO BADUA &
MYRNA BADUA, SPS. JUANITO
BALTORES & FLORDELIZA
BALTORES, SPS. ISABELO Promulgated:
BADUA & PRESCILA BADUA,
SPS. JOSE BALANON &
SHIRLEY BALANON, SPS. August 9, 2007
ORLANDO BADUA & MARITA
BADUA and SPS. LEONCIO
BADUA & JUVY BADUA,
Respondents.
x-----------------------------------------------------------------------------------------x
DECISION
VELASCO, JR., J.:

Bucasases, and Baduas.Their only access to the national highway was

An order of execution must conform to the terms of the

a pathway traversing the northern portion of petitioners property and

dispositive portion of the decision. A court that issues an order of

the southern portion of the properties of the Bucasases and

execution

Baduas. The pathway was more than one meter wide and sixteen

in

contravention

of

its

final

judgment

exceeds

its

jurisdiction and renders its order invalid.

meters long. They claimed that this pathway had been established as
early as 1955. In 1995, however, petitioner Obra constructed a fence

The Case

on

the

northern

boundary

of

their

property;

thus,

blocking

respondents access to the national highway. Respondents demanded

The present Petition for Review on Certiorari under Rule 45 seeks the
annulment of the March 20, 2001[1] and June 20, 2001[2] Orders of the

the demolition of the fence, but petitioner refused.

In her Answer, petitioner averred that respondents had not

San Fernando City, La Union Regional Trial Court (RTC), Branch 29 in

established

any

easement

of

right-of-way

either

by

law

or

Civil Case No. 5033, directing petitioner Obra to demolish the fence

agreement. She claimed that respondents failed to satisfy the

she constructed on the southern portion of her property which

requisites provided in Articles 649 and 650 of the Civil Code in order

blocked a portion of respondents right-of-way.

to establish an easement of right-of-way on the northern portion of

her property. Moreover, she alleged that respondents had another

The Facts

access as ingress and egress to the public road other than the one
traversing her property.

The case arose from a Complaint for Easement of Right-ofWay filed by respondents against Anacleto and Resurreccion Obra,
Donato and Lucena Bucasas, and Paulino and Crisanta Badua in Civil

The spouses Badua and Bucasas failed to file an answer;

consequently, they were declared in default.

Case No. 5033 entitled Sps. Victoriano Badua and Myrna Badua, et al.
v. Sps. Anacleto Obra and Resurreccion Obra, et al. before the

On July 7, 2000, after trial, the RTC rendered a Decision [3] dismissing

RTC.Defendant

of

the complaint. It held that respondents were not able to satisfy all the

petitioner. Respondents alleged that their residential houses, erected

requisites needed for their claim of an easement of right of way. [4] It

on a lot commonly owned by them and covered by Tax Declaration

observed that when petitioner fenced the northern portion of her

No. 93-01900281 under Cadastral Lot No. 5518 situated in Galongen,

property, respondents were able to use another pathway as ingress

Bacnotan, La Union, were located west of the properties of the Obras,

and egress to the highway. It stated further that the new pathway is

Anacleto

Obra

was

the

husband

more

than

adequate[5] for

respondents

use. Thus,

the

applied

easement of right-of-way on the northern portion of petitioners

Hence, we have this petition.

property was not allowed. The said Decision became final and

The Issue

executory.
Petitioner assigns a lone issue for the consideration of the Court:
It must be noted that the new pathway used by respondents,
however,

traversed

the

southern

portion

of

petitioners

property. Sometime in 2001, petitioner constructed a fence on this

Whether
or
not
the
Court
can motu
proprio declare a compulsory right of way on a
property not the subject of a pending case
(particularly Civil Case No. 5033).[8]

portion of her lot, which again restricted the use of respondents new
pathway. Aggrieved and prejudiced by petitioners action, respondents
filed on March 6, 2001 a Motion to Enforce[6] the July 7, 2000 Decision
of the RTC. They alleged that the Decision of the RTC dismissing the
case was based on the existence of a new pathway which they had
been using since 1995. Thus, they asserted that petitioner was
prohibited from closing said passage.

Essentially, petitioner questions the propriety of the trial

courts issuance of an order clarifying its final and executory decision
and effectively establishing an easement on petitioners property
without proper adjudication.
The Courts Ruling
The petition is impressed with merit.

On March 20, 2001, the RTC granted the said motion. Petitioner filed a
Motion for Reconsideration, but it was rejected in the trial courts June

Dispositive Portion of a Decision Controlling

20, 2001 Order.

The controversy of this petition stemmed from the alleged
Clarifying its July 7, 2000 Decision, the trial court, in its March 20,
2001 Order, held that the dismissal of the complaint depended on
petitioners representation that she was allowing respondents to use
the southern portion of her property as an alternative pathway. Since
the southern portion was an agreed pathway, [7] petitioner could not
reduce its width; thus, the trial court ordered petitioner to remove the
fence blocking the passage.

conflict between the body of the trial courts July 7, 2000 Decision and
its dispositive portion. Respondents aver that notwithstanding the
dismissal of Civil Case No. 5033, the body of the Decision evidently
established an easement on the southern portion of petitioners
property. On the other hand, petitioner maintains that the trial courts
reference to the new pathway was merely a declaration of its

existence and not necessarily a creation of an easement of right-of-

Resurreccion Obra.[12] As prayer, respondents asked for the demolition

way.

of the concrete fence constructed by petitioner and her spouse,

We agree with petitioners postulation.

Anacleto, that closed the pathway on the northern portion of Obras

lot; the declaration of right-of-way over said area in favor of

The resolution of the court in a given issue embodied in

respondents; and the payment of damages and attorneys fees. When

the fallo or dispositive part of a decision or order is the controlling

the RTC dismissed the case in its July 7, 2000 Decision, it ruled that

factor as to settlement of rights of the parties. Thus, where there is a

respondents had no cause of action against petitioner and her

conflict between the fallo and the ratio decidendi or body of the

husband, Anacleto, because they failed to satisfy one of the four

decision,

that

requisites for the entitlement of a right-of-way, namelythat the

the fallo is the final order while the opinion in the body is merely a

dominant estate is surrounded by other immovables and is without

statement ordering nothing.

The rule applies when the dispositive

adequate outlet to a public highway. The trial court took note of the

part of a final decision or order is definite, clear, and unequivocal,

fact that the new pathway which incidentally traversed the southern

and can wholly be given effect without need of interpretation or

portion of petitioners lot is an adequate outlet to a public

construction.[11]

highway. While its body mentioned the existence of an alternative

[9]

the fallo controls. This

[10]

rule

rests

on

the

theory

pathway located south of petitioners lot, such was made only to

In the case at bench, the decretal portion of the July 7, 2000
Decision is plain and clear[w]herefore, in view of the foregoing, this

emphasize that respondents failed to satisfy the requirements for an

easement of right-of-way. As held by the trial court:

case is hereby dismissed. When a court rules that the case or

complaint is dismissed, then it is concluded that the cause of action
embodied in the allegations of the initiatory pleading has no merit or
basis, and the prayer is consequently denied.

The amended complaint filed by respondents in Civil Case No.

5033 revealed that their cause of action was the recognition of their
easement of right-of-way of more than one (1) meter wide and more
than sixteen (16) meters in length [which] traversed the northern
portion of the property of defendants spouses Anacleto Obra and

The insistence of the plaintiffs to open up the

old pathway is therefore without basis
considering that there is another outlet
adequate enough as an access route for them
in their passage to the public highway and the
alleged inconvenience cannot be a ground for
the opening of said old pathway.
xxxx
In fine, plaintiffs were not able to satisfy all the
requisites needed for their claim of an
easement of right of way; failing to prove that
there is no adequate outlet from their
respective properties to a public highway. [13]

Apparently, no pronouncement was ever made regarding the nature

Moreover, the construction of the fence on the southern portion was

and legality of this new pathway; therefore, no easement was

done by petitioner after the rendition and finality of the July 7,

established by the Court on petitioners property in Civil Case No.

2000 Decision dismissing the case. It is plain to see that such act of

5033. Thus, their claim for a right-of-way on the southern portion had

constructing the fence was subsequent to the Decision and could not

no basis.

have been covered by said judgment. The dispute that arose from the
blockade of the pathway on the southern portion could be the subject

The parties and even the trial court were confined to the averments

matter of another complaint but definitely was not an issue in Civil

of the complaint, and the answer and the issues joined by the major

Case No. 5033. In the new case, respondents are obliged to prove all

pleadings. It could not be disputed by respondents that there was no

the essential elements of the easement of right-of-waya requirement

mention at all of any right-of-way on the southern portion of

which they failed to satisfy in Civil Case No. 5033.

petitioners lot in the complaint nor any claim or prayer for the
declaration of respondents entitlement to a right-of-way over the said

Lastly, the assailed March 20, 2001 Order directing the demolition of

area. Thus, there was no joinder of issue on this matter and,

the concrete fence was in the nature of an execution of a final

therefore, the dismissal of the case cannot, by any stretch of

judgment. It is settled that what can be enforced by a writ of

imagination, be construed to encompass any grant of right-of-way to

execution under Rule 39 are the dispositions in the decretal portion of

respondents relating to the southern portion owned by petitioner.

the decision or the fallo. Since the case was dismissed, there was
nothing to enforce or implement.

More importantly, the case was dismissed by the RTC, meaning no

relief

was

granted

by

the

court

respondents. Granting arguendo that the issue on the entitlement to

respondents of a right-of-way over the southern portion was likewise
raised

and

was

implicit

from

the

pleadings;

No Voluntary Easement of Right-of-Way

to

nevertheless,

respondents, by the dismissal of the case, were not granted any

affirmative relief by the trial court. As such, the trial court clearly

The trial court, seemingly aware that it did not determine the
legality of an easement of right-of-way over the pathway located
south of petitioners property, nevertheless, concluded that the said
passage was an agreed or voluntary easement of right-of-way which
petitioner should respect.

erred in issuing the March 20, 2001 Order which granted a relief not
found in the fallo of the decision.

The trial court was in error.

agreed upon by the parties, more particularly, the payment of the

It is a settled doctrine that a decision, after it becomes final,
becomes

immutable

and

unalterable.

[14]

Thus,

the

court

loses

jurisdiction to amend, modify, or alter a final judgment and is left only

proper indemnity. The evidence is not ample enough to support the

conclusion that there was a verbal agreement on the right-of-way
over the southern portion.

with the jurisdiction to execute and enforce it. Any amendment or

alteration which substantially affects a final and executory judgment

More so, since a right-of-way is an interest in the land, any agreement

is null and void for lack of jurisdiction, including the entire

creating it should be drawn and executed with the same formalities

proceedings held for that purpose.[15]

as a deed to a real estate, and ordinarily must be in writing. [16] No

written instrument on this agreement was adduced by respondents.

To recapitulate, the dismissal of Civil Case No. 5033 meant that no

easement was ever established on petitioners property. However, the

In the light of the foregoing considerations, the assailed March 20,

trial court, by issuing its March 20, 2001 Order directing petitioner to

2001 and June 20, 2001 Orders are null, void, and without any legal

remove the fence that limited respondents passage, effectively

effect.

created a right-of-way on petitioners property in favor of respondents

allegedly on the basis of a voluntary agreement between the parties.

WHEREFORE,

the

petition

is GRANTED. The June

20,

This directive was in contravention of its July 7, 2000 Decision; thus, it

2001 and March 20, 2001 Orders of the San Fernando City, La Union

was null and void for having been issued outside of the courts

RTC, Branch 29 in Civil Case No. 5033 are hereby ANNULLED AND

jurisdiction.

SET ASIDE.

Granting for the sake of argument that the issue of voluntary

No costs.

easement of right-of-way, subject of the assailed March 20, 2001

Order, was proper, relevant, and material to the issue of right-of-way

SO ORDERED.

as averred in the complaint in Civil Case No. 5033, still, the

conclusion that there was an agreed or voluntary easement of rightof-way had no basis. The records of Civil Case No. 5033 do not reveal

PRESBITERO J. VELASCO, JR.

Associate Justice

any agreement executed by the parties on the claimed right-ofway. Glaring is the fact that the terms of the arrangement were not

WE CONCUR:

Rollo, p. 16; issued by Judge Robert T. Cawed.

Id. at 17.
[3]
Id. at 23-31.
[4]
Id. at 31.
[5]
Id.
[6]
Id. at 32.
[7]
Id. at 16.
[8]
Id. at 65; original in capital letters.
[9]
Velarde v. Social Justice Society, G.R. No. 159357, April 28,
2004, 428 SCRA 283, 308; citations omitted.
[10]
Asian Center For Career and Employment System And
Services, Inc. v. NLRC, 358 Phil. 380, 386 (1998).
[11]
Suntay v. Suntay, G.R. No. 132524, December 29, 1998,
300 SCRA 760, 772.
[12]
Rollo, p. 23.
[13]
Supra note 3, at 31.
[14]
Equitable Banking Corp. v. Sadac, G.R. No. 164772, June 8,
2006, 490 SCRA 380, 416.
[15]
Torres v. Sison, G.R. No. 119811, August 30, 2001, 364
SCRA 37, 43.
[16]
25 Am. Jur. 2d 20, pp. 431-432.
[1]

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

[2]

ANTONIO T. CARPIO CONCHITA CARPIO MORALES

Associate Justice Associate Justice

DANTE O. TINGA
Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached
in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the
Division Chairpersons Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.

REYNATO S.
PUNO
Chief Justice

OFFICE OF THE OMBUDSMAN, Petitioner,

vs.
COURT OF APPEALS (Sixteenth Division) and NICOMEDES
ARMILLA, DELIA BATASIN-IN, JAMES FUENTES, OSCAR GADOR,
SANTOS GUIGAYOMA, JR., CLARITO MIOZA, ERNESTO
NARAJA, NELSON OBESO,* SENEN SERIO, and MARTIN
YASE, Respondents.
DECISION
CALLEJO, SR., J.:
The Office of the Ombudsman filed the instant petition for review on
certiorari assailing the Decision1 dated October 30, 2003 of the Court
of Appeals (CA) in CA-G.R. SP No. 69313, which had declared that the
Office of the Ombudsman has no power to impose the penalty of
suspension. According to the appellate court, its power is limited only
to the recommendation of the penalty of removal, suspension,
demotion, fine, censure, or prosecution of a public officer or
employee found to be at fault.
Factual and Procedural Antecedents

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 160675

June 16, 2006

Joan and Thomas Corominas, and Maria Constancia Corominas-Lim

filed with the Office of the Ombudsman (Visayas) a criminal complaint
for violation of Article 281 (Other Forms of Trespass) of the Revised
Penal Code against herein Edmondo Arregadas, Nicomedes Armilla,
Delia Batasin-in, James Fuentes, Oscar Gador, Santos Guigayoma, Jr.,
Clarito Mioza, Nelson Obeso, Senen Serio, Ernesto Naraja, and
Martin Yase, all employees of the Department of Environment and
Natural Resources (DENR), Regional Office No. VII, Banilad, Mandaue
City. The case was docketed as OMB-VIS-CRIM-99-1227. The same
criminal complaint was also treated by the Office of the Ombudsman
as an administrative complaint for abuse of authority and
misconduct. The administrative case was docketed as OMB-VIS-ADM99-1044.
It was alleged that the above-named DENR employees conspired to
enter the parcel of land owned by the Corominas family without
seeking permission from the latter or their representative and despite
the big "NO TRESPASSING" sign attached to the perimeter fences
enclosing the said property.
Except for Arregadas, who executed his own affidavit, Armilla, et al.
executed a joint counter-affidavit decrying the charge against them
as malicious, unfounded and untrue. By way of refutation, they

alleged that they entered the Corominas landholding pursuant to the

Order dated September 14, 1999 of the Regional Trial Court (RTC) of
Cebu City, Branch 9 thereof, in connection with Civil Case No. CEB17639 (entitled Republic of the Philippines v. Larrazabal, et al.),
involving a complaint for annulment and cancellation of title.
The said Order stated:
WHEREFORE, the Court hereby Grants the Motion. The Court hereby
orders the relocation survey of the questioned lots and the Sudlon
National Park based on the technical description of the official
government cadastral survey duly approved by the Republic of the
Philippines, Bureau of Lands. Expenses for the relocation survey shall
be shouldered jointly by plaintiff and plaintiff-intervenors. Reasonable
notice of the date/dates of relocation survey should be furnished the
defendants through their counsels and to this Court.
SO ORDERED.2
In compliance with the foregoing order, the DENR Regional Executive
Director issued Travel Order Nos. 99-10-19, 11-01, and 99-11-11
authorizing Armilla, et al. to "conduct relocation survey of the corners
of Proclamation No. 56, S-36 and Lot No. 18454, Cad. 12
Ext."3 Consequently, on October 25, 1999, Armilla, et al., as the
designated DENR Survey Team, together with two members of the
Philippine National Police (PNP), Cebu City Police Office, paid a
courtesy call to the barangay captain of Sudlon II to inform him that
they would conduct a relocation survey of the Sudlon National Park.
However, the barangay captain was not around so the team
requested the barangay secretary to relay the message to him.
The following day, the DENR Survey Team, the members of the PNP
and two barangay tanods of Sudlon II, Cebu City, commenced the
relocation survey. The team initially identified the Municipal Boundary
Movement (MBM) No. 8, similar to City Boundary Movement (CBM)
15, Cad. 12 Extension Cebu Cadastre, as the tie point reference.
Thereafter, with the use of the Electronic Distance Measuring (EDM)
and Theodolite, it was able to relocate the boundary of the Sudlon
National Park in accordance with the RTC Order in Civil Case No. CEB17639, and to establish corners 17, 18, 19, and 20 within 15 days.
To establish and monument corners 20 and 21, the DENR Survey
Team asked permission from a person inside Lot No. 18466 to be
allowed to put a stake inside the said lot to serve as a traverse
station. On November 12, 1999, the team was able to establish and
monument corner 20 inside Lot No. 18466. On the other hand, it had

difficulty in establishing corner 21 because it fell on a very steep

slope.
The DENR Survey Team then submitted its Report4 dated November
25, 1999 together with the Sketch Plan and notified the RTC in Civil
Case No. CEB-17639 that the relocation survey of the lot subject
thereof and the Sudlon National Park had been completed and
terminated.
Armilla, et al. concluded their joint counter-affidavit by vehemently
denying the charge that they, conspiring with each other, trespassed
on the Corominas property. They maintained that they were merely
acting in the performance of their official functions and complying
with a court order. Moreover, they could not defy the said court order
and the travel orders, lest they be punished for contempt of court or
subjected to disciplinary action. They intimated that the sole reason
that complainants filed the charge against them was to prevent the
DENR from filing a reversion case against the owners of Lot No.
18466, a portion of which was ascertained to be within the Sudlon
National Park.5
For his part, Arregadas averred in his counter-affidavit that he was
not part of the DENR Survey Team tasked to relocate and monument
the western boundary corners of the Sudlon National Park. He met
with the group briefly on October 25, 1999 but since then, he had not
returned nor had been physically present inside the said park or area
that he had allegedly trespassed on. Hence, the charge against him
was baseless and malicious.6
In the Resolution7 dated August 31, 2001, Charina Navarro-Quijano,
Graft Investigation Officer (GIO) I of the Office of the Ombudsman,
dismissed the criminal complaint in OMB-VIS-CRIM-99-1227 for lack of
probable cause. The said resolution was recommended for approval
by Virginia Palanca-Santiago, GIO III, and approved by the Primo C.
Miro, Deputy Ombudsman for the Visayas.
However, in the administrative case (OMB-VIS-ADM-99-1044), the
Office of the Ombudsman rendered the Decision8 dated October 24,
2001, finding that, except for Arregadas, the other named DENR
employees are guilty of simple misconduct and imposed on them the
penalty of suspension for one month. The decretal portion of the
decision reads:
WHEREFORE, premises considered, it is hereby deemed that
respondents, namely: Nicomedes Rivera Ar[m]illa; Delia Batasin-in;
James Magalona Fuentes; Oscar Tatongoy Gador; Santos Guigayoma,

Jr.; Clarito Umerez Minoza; Ernesto Subingsubing Naraja; Nelson

Obeso; Senen Calaurian Sereno; and, Martin Yococa Yase are guilty of
Simple Misconduct, and are hereby meted the penalty of suspension
for one month.

SO ORDERED.13

The complaint against Edmondo Ar[r]egadas is hereby dismissed for

insufficiency of evidence.9

The Petitioners Arguments

A motion for reconsideration thereof was filed by Armilla, et al. but

the same was denied by the Office of the Ombudsman in the
Order10 dated January 10, 2002.
Armilla, et al. thus filed with the CA a petition for certiorari alleging
grave abuse of discretion on the part of the Office of the Ombudsman
in finding them guilty of simple misconduct and imposing on them
the penalty of one month suspension. They alleged that they could
not be guilty of simple misconduct considering that they simply
complied with a court order and directive of their superiors for them
to conduct a relocation survey of the Sudlon National Park. In
addition, they pointed out that the ownership of the Corominas family
over a parcel of land within the said park was still in issue; hence, no
right of the said family had been violated in conducting the courtordered survey. Armilla, et al. also assailed the denial of their motion
for reconsideration on the ground that under Republic Act No. 6770
(RA 6770)11 a decision imposing the penalty of not more than one
month is final and unappealable.
In its Decision dated October 30, 2003, the appellate court granted
the petition of Armilla, et al. It affirmed the finding of the Office of the
Ombudsman that Armilla, et al. were guilty of simple misconduct.
However, it ruled that the Office of the Ombudsman committed grave
abuse of discretion in imposing on them the penalty of suspension for
one month. Citing the case of Tapiador v. Office of the
Ombudsman,12 the appellate court declared that the Office of the
Ombudsmans power is limited only to the recommendation of the
penalty of removal, suspension, demotion, fine, censure, or
prosecution of a public officer or employee found to be at fault.
Accordingly, it has no power to impose the penalty of suspension on
Armilla, et al.
The dispositive portion of the assailed CA decision reads:
WHEREFORE, the Petition for Certiorari is hereby GRANTED. The
decision of the Office of the Ombudsman dated October 24, 2001, as
well as the Order dated January 10, 2002 in OMB-VIS-ADM-99-1044 is
hereby SET ASIDE.

Aggrieved, the Office of the Ombudsman forthwith sought recourse to

this Court.

In support of its petition, the Office of the Ombudsman (the

petitioner) alleges as follows:
WITH DUE RESPECT, THE COURT OF APPEALS (SIXTEENTH DIVISION)
SERIOUSLY ERRED IN ITS DECISION DATED OCTOBER 30, 200[3] IN
CA-G.R. SP NO. 69313 WHEN IT AGREED IN THE FINDINGS OF THE
OFFICE OF THE OMBUDSMAN IN THE ADMINISTRATIVE DISCIPLINARY
CASE OMB-VIS-ADM-99-1044, BUT NONETHELESS PROCEEDED TO
REVERSE AND SET ASIDE THE OMBUDSMAN DECISION THEREIN
CITING ONLY THE OBITER DICTUM IN THE CASE OF TAPIADOR V.
OFFICE OF THE OMBUDSMAN, G.R. NO. 129124, 15 MARCH 2002
(SECOND DIVISION) TO THE EFFECT THAT THE OFFICE OF THE
OMBUDSMAN HAS NO AUTHORITY TO DIRECTLY DISMISS AN ERRING
PUBLIC OFFICIAL OR EMPLOYEE FROM GOVERNMENT SERVICE,
CONSIDERING THE FOLLOWING:
(I) THE PASSING STATEMENT IN TAPIADOR V. OFFICE OF THE
OMBUDSMAN, G.R. NO. 129124, 15 MARCH 2002 HAS REMAINED AN
OBITER DICTUM WHICH DOES NOT HAVE THE STATUS OF A BINDING
PRECEDENT;
(II) SEC. 13, ART. XI OF THE 1987 CONSTITUTION VESTS THE OFFICE
OF THE OMBUDSMAN NOT ONLY WITH THE AUTHORITY TO
"RECOMMEND" ADMINISTRATIVE SANCTIONS ON ERRING PUBLIC
SERVANTS BUT ALSO WITH THE POWER TO ENSURE COMPLIANCE
WITH ITS "RECOMMENDATION"; FURTHER, IT IS THE CONSTITUTIONAL
INTENDMENT TO LEAVE TO THE LEGISLATURE THE PREROGATIVE TO
FURTHER DEFINE OR REINFORCE SUCH ADMINISTRATIVE
DISCIPLINARY AUTHORITY;
(III) SECS. 13, 15(1) AND (3), 16, 19, 21, AND 25 OF REPUBLIC ACT
NO. 6770 (THE OMBUDSMAN ACT OF 1989) CLOTHE THE OFFICE OF
THE OMBUDSMAN WITH ALL THE CONCOMITANT PREROGATIVES OF A
POWER TO DISCIPLINE, INCLUDING THE POWER TO ASSESS
PENALTIES AND TO CAUSE THE SAME TO BE MINISTERIALLY
IMPLEMENTED BY THE CONCERNED AGENCY, AND WHICH FULL
ADMINISTRATIVE DISCIPLINARY POWER HAS TIME AND TIME AGAIN
BEEN VALIDATED AND AFFIRMED BY THE HONORABLE COURT;

(IV) THE GENERAL ADMINISTRATIVE DISCIPLINARY AUTHORITY OF THE

OFFICE OF THE OMBUDSMAN, WHICH IS SIMILAR TO ITS PLENARY
AND UNQUALIFIED CRIMINAL INVESTIGATORY POWER, INCLUDES THE
LESSER POWER OF IMPLEMENTATION OF DULY-ISSUED JUDGMENTS;
AND
(V) A GENERAL APPLICATION OF THE TAPIADOR OBITER DICTUM
LEADS TO PARALYZING CONFUSION, LEGAL CHAOS AND
UNREASONABLE ABSURDITIES, AS WELL AS TO THE ACCELERATION
OF THE CRIPPLING AND DEBILITATING EFFECTS OF INEFFICIENCY AND
GRAFT AND CORRUPTION.14
Petitioner assails the appellate courts reliance on Tapiador in
declaring that the power of the Office of the Ombudsman is limited
only to the recommendation of the penalty of removal, suspension,
demotion, fine, censure or prosecution of a public officer or employee
found to be at fault. According to petitioner, the statement made by
the Court in Tapiador relating to the Office of the Ombudsmans lack
of authority to impose a penalty is mere obiter dictum.
Petitioner submits that apart from the powers and functions of the
Office of the Ombudsman enumerated in the Constitution, it
expressly authorized Congress to grant the Office of the Ombudsman
additional powers. Pursuant to this constitutional fiat, Congress
enacted Republic Act No. 6770 vesting in the Ombudsman full
administrative disciplinary powers. Citing the pertinent
provisions15 in Republic Act No. 6770, petitioner posits that it
possesses the following powers: "(1) [it] can, on its own, investigate
any apparent illegality, irregularity, impropriety, or inefficiency
committed by any public officer or employee not excepted from its
disciplinary authority; (2) it can and must act on administrative
complaints against them; (3) it can conduct administrative
adjudication proceedings; (4) it can determine their guilt; (5) at its
discretion, it can fix the penalty in case of guilt; (6) it can order the
head of the office or agency to which the guilty public officer belongs
to implement the penalty imposed; and (7) it can ensure compliance
with the implementation of the penalty it fixed."16
By declaring that the Office of the Ombudsman can only recommend,
but cannot directly impose, the penalty in administrative cases, the
appellate court allegedly, in effect, nullified and invalidated the
provisions of Republic Act No. 6770 relating to its administrative
disciplinary powers. Stated in another manner, the appellate court
has allegedly deemed that the Office of the Ombudsman cannot
make a determination of guilt for an administrative offense; it cannot

assess a penalty; and it cannot cause its decisions to be

implemented.
Petitioner stresses that the grant of administrative disciplinary
authority to the Office of the Ombudsman is not prohibited by, or
inconsistent with, the Constitution. It invokes the legislative history of
Republic Act No. 6770 to buttress its claim that it was the intention of
the lawmakers to provide for an independent constitutional body that
would serve as "the protector of the people" with "real powers."17
Petitioner opines that the statutory grant of disciplinary powers to the
Office of the Ombudsman complete in all its components including
the determination of guilt, assessment of commensurate penalty and
compulsion on the head of agency concerned to implement the same
under pain of administrative sanctions was encouraged and ushered
in by the Constitution.18 Further, its framers intended the Office of
the Ombudsman to exercise disciplinary authority as an
indispensable and major rampart in its operational effectiveness.
In this connection, petitioner reiterates that this disciplinary authority
necessarily includes the authority to determine the penalty in an
administrative proceeding and cause its implementation. Specifically,
Section 1319 of Republic Act No. 6770 states that the Ombudsman
has the authority to enforce administrative liability where the
evidence warrants. Section 1520 provides, in the alternative, that the
Ombudsman may proceed administratively against an erring public
officer and threatens with administrative sanction the refusal of any
officer, without just cause, to implement the order of the Ombudsman
imposing administrative penalties. Section 2521 prescribes the range
of penalties that the Ombudsman may enforce against public officers
it finds administratively guilty. Finally, Section 2722 pronounces as
not susceptible to review on appeal administrative penalties not
higher than suspension for thirty (30) days or fine not exceeding the
salary for the same period.
Section 13(3), Article XI of the Constitution is also cited by petitioner.
The said provision reads that the Ombudsman has the authority "to
direct the officer concerned to take appropriate action against a
public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith." According to petitioner, the clause "ensure
compliance therewith" taken together with the term "recommend"
connotes an element of compulsion such that the latter does not
merely signify "to advise" or "to prescribe." Rather, the clause
"ensure compliance therewith" prescribes that the Ombudsman

procedurally pass on to the head of office concerned the imposition of

the penalty on the public officer at fault, and then compels said head
to enforce the same penalty. This element of compulsion, petitioner
theorizes, was provided by the framers of the Constitution in order to
keep the Ombudsman from becoming a "toothless tiger," a "eunuch"
or a "scarecrow."23
It is petitioners submission that a contrary ruling, i.e., to limit its
power only to recommend the penalty in administrative disciplinary
cases, would lead to legal and practical absurdities. Among them, it
would allegedly run counter to the fact that the Office of the
Ombudsman is an independent constitutional body. Likewise, heads
of office, e.g., a municipal mayor, would have the authority to adopt
or reject the Ombudsmans decision, as if in review, when no such
recourse is provided by law. The problem of how the various
administrative penalties that have already been enforced by the
Office of the Ombudsman would be treated was also raised.
In fine, petitioner maintains that it meted a just and commensurate
disciplinary penalty of one-month suspension on Armilla, et al. upon
its finding that they were guilty of simple misconduct. Such finding
was arrived at by petitioner in the exercise of its administrative
disciplinary authority and only after proper adjudication proceedings.
The appellate court, in reversing this judgment on the sole ground
that petitioner has no authority to impose the penalty but merely to
recommend it citing the obiter dictum in Tapiador, allegedly
committed reversible error. Petitioner thus urges this Court to reverse
and set aside the assailed appellate courts decision and to affirm the
Office of the Ombudsmans authority to impose the penalty in OMBVIS-ADM-99-1044.
The Respondents Counter-Arguments
Armilla, et al. (the respondents) maintain that the Office of the
Ombudsman has no authority to impose administrative sanctions on
erring public officials. It is their position that subparagraph (8) of
Section 13, Article XI of the Constitution which states that the
Ombudsman shall "perform such other functions or duties as may be
provided by law" is circumscribed by subparagraph (3) thereof which
enjoins the Ombudsman to recommend the removal, suspension,
demotion, fine, censure, or prosecution of public officials found to be
at fault.
According to respondents, subparagraph (8) of Section 13, Article XI
is a catch-all phrase intended to bestow on the Office of the
Ombudsman such other powers necessary to discharge its function as

the constitutional watchdog of the government. However, the said

provision does not include powers inconsistent with those already
enumerated. Hence, its recommendatory power to impose penalties
in subparagraph (3) of the same section necessarily forecloses the
grant of the power to actually impose the said penalties.
Refuting petitioners assertion that the framers of the 1987
Constitution intended the Office of the Ombudsman to be more than
a recommendatory institution, respondents aver that the clear intent
was to deny the Ombudsman punitive powers. In support of this
averment, respondents refer to the deliberations of the Constitutional
Commission where some members thereof said that the Ombudsman
was to have neither prosecutory nor punitive powers.
Respondents further submit that Republic Act No. 6770 withheld
punitive powers from the Office of the Ombudsman and merely
authorized it to recommend or suggest sanctions. They cite Section
15 thereof particularly subparagraph (3) thus:
SEC. 15. Powers, Functions and Duties. The Office of the
Ombudsman shall have the following powers, functions and duties:
xxxx
(3) Direct the officer concerned to take appropriate action against a
public officer or employee at fault or who neglects to perform an act
or discharge a duty required by law, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith; or enforce its disciplinary authority as provided
in Section 21 of this Act; Provided, That the refusal by any officer
without just cause to comply with an order of the Ombudsman to
remove, suspend, demote, fine, censure, or prosecute an officer or
employee who is at fault or who neglects to perform an act or
discharge a duty required by law shall be ground for disciplinary
action against said officer;
Again refuting petitioners argument that the term "recommend"
construed together with the clause "ensure compliance therewith"
imports an element of compulsion and warrants direct imposition by
the Office of the Ombudsman of the penalties, respondents contend
that to recommend necessarily excludes the power to directly impose
the penalty. Echoing the appellate courts ruling, respondents invoke
Tapiador in arguing that the Office of the Ombudsman has no
authority to directly impose on them the penalty of suspension for
one month, but only to recommend the said penalty. Accordingly,
they pray that the petition be denied for utter lack of merit.

The Courts Ruling

The petition is meritorious.
In declaring that the Office of the Ombudsman only has the power to
recommend, but not to impose, the penalty of removal, suspension,
demotion, fine, censure, or prosecution of a public officer or
employee found to be at fault, the appellate court mainly relied on
the following statement made by the Court in Tapiador, thus:
x x x Besides, assuming arguendo, that petitioner were
administratively liable, the Ombudsman has no authority to directly
dismiss the petitioner from the government service, more particularly
from his position in the BID. Under Section 13, subparagraph 3, of
Article XI of the 1987 Constitution, the Ombudsman can only
"recommend" the removal of the public official or employee found to
be at fault, to the public official concerned.24
Reliance by the appellate court on the foregoing statement is
misplaced. As correctly pointed out by petitioner, the foregoing
statement is mere obiter dictum. In fact, in Ledesma v. Court of
Appeals,25 the Court categorically pronounced that the statement in
Tapiador on the Ombudsmans power "is, at best, merely an obiter
dictum" and, as such, "cannot be cited as a doctrinal declaration of
the Supreme Court:"
x x x [A] cursory reading of Tapiador reveals that the main point of
the case was the failure of the complainant therein to present
substantial evidence to prove the charges of the administrative case.
The statement that made reference to the power of the Ombudsman
is, at best, merely an obiter dictum and, as it is unsupported by
sufficient explanation, is susceptible to varying interpretations, as
what precisely is before us in this case. Hence, it cannot be cited as a
doctrinal declaration of this Court nor is it safe from judicial
examination.26
Likewise in Ledesma, the Court rejected the argument that the power
of the Office of the Ombudsman is only advisory or recommendatory
in nature. It cautioned against the literal interpretation of Section
13(3), Article XI of the Constitution which directs the Office of the
Ombudsman to "recommend" to the officer concerned the removal,
suspension demotion, fine, censure, or prosecution of any public
official or employee at fault. Notwithstanding the term "recommend,"
according to the Court, the said provision, construed together with
the pertinent provisions in Republic Act No. 6770, is not only advisory
in nature but is actually mandatory within the bounds of law.

The Court further explained in Ledesma that the mandatory character

of the Ombudsmans order imposing a sanction should not be
interpreted as usurpation of the authority of the head of office or any
officer concerned. This is because the power of the Ombudsman to
investigate and prosecute any illegal act or omission of any public
official is not an exclusive authority but a shared or concurrent
authority in respect of the offense charged. By stating therefore that
the Ombudsman "recommends" the action to be taken against an
erring officer or employee, the provisions in the Constitution and in
Republic Act No. 6770 intended that the implementation of the order
be coursed through the proper officer.
Consequently in Ledesma, the Court affirmed the appellate courts
decision which had, in turn, affirmed an order of the Office of the
Ombudsman imposing the penalty of suspension on the erring public
official.
In the present case, the Court similarly upholds the Office of the
Ombudsmans power to impose the penalty of removal, suspension,
demotion, fine, censure, or prosecution of a public officer or
employee found to be at fault, in the exercise of its administrative
disciplinary authority. The exercise of such power is well founded in
the Constitution and Republic Act No. 6770.
The mandate of the Office of the Ombudsman is expressed in Section
12, Article XI of the Constitution in this wise:
Sec. 12. The Ombudsman and his Deputies, as protectors of the
people, shall act promptly on complaints filed in any form or manner
against public officials or employees of the Government, or any
subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations, and shall, in
appropriate cases, notify the complainants of the action taken and
the result thereof.
Section 13 thereof vests in the Office of the Ombudsman the
following powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act or
omission of any public official, employee, office or agency, when such
act or omission appears to be illegal, unjust, improper, or inefficient;
(2) Direct, upon complaint or at its own instance, any public official or
employee of the Government, or any subdivision, agency or
instrumentality thereof, as well as of any government-owned and
controlled corporation with original charter, to perform and expedite

any act or duty required by law, or to stop, prevent and correct any
abuse or impropriety in the performance of duties;
(3) Direct the officer concerned to take appropriate action against a
public official or employee at fault, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith;
(4) Direct the officer concerned, in any appropriate case, and subject
to such limitations as may be provided by law to furnish it with copies
of documents relating to contracts or transactions entered into by his
office involving the disbursement or use of public funds or properties,
and report any irregularity to the Commission on Audit for
appropriate action;
(5) Request any government agency for assistance and information
necessary in the discharge of its responsibilities, and to examine, if
necessary, pertinent records and documents;
(6) Publicize matters covered by its investigation when circumstances
so warrant and with due prudence;
(7) Determine the causes of inefficiency, red tape, mismanagement,
fraud and corruption in the Government and make recommendations
for their elimination and the observance of high standards of ethics
and efficiency; and
(8) Promulgate its rules of procedure and exercise such other powers
or perform such functions or duties as may be provided by law.
In Acop v. Office of the Ombudsman,27 the Court recognized that the
foregoing enumeration is not exclusive and that the framers of the
Constitution had given Congress the leeway to prescribe, by
subsequent legislation, additional powers to the Ombudsman. The
observation of Commissioner Christian Monsod, quoted in Acop, is
apropos:
MR. MONSOD (reacting to statements of Commissioner Blas Ople):
May we just state that perhaps the honorable Commissioner has
looked at it in too much of an absolutist position. The Ombudsman is
seen as a civil advocate or a champion of the citizens against the
bureaucracy, not against the President. On one hand, we are told he
has no teeth and he lacks other things. On the other hand, there is
the interpretation that he is a competitor to the President, as if he is
being brought up to the same level as the President.

With respect to the argument that he is a toothless animal, we would

like to say that we are promoting the concept in its form at the
present, but we are also saying that he can exercise such powers and
functions as may be provided by law in accordance with the direction
of the thinking of Commissioner Rodrigo. We do not think that at this
time we should prescribe this, but we leave it up to Congress at some
future time if it feels that it may need to designate what powers the
Ombudsman need in order that he be more effective. This is not
foreclosed.
So, this is a reversible disability, unlike that of a eunuch; it is not an
irreversible disability.28
Congress thus enacted Republic Act No. 6770 to provide for the
functional and structural organization of the Office of the
Ombudsman. It substantially reiterates the constitutional provisions
relating to the Office of the Ombudsman. Further, Section 13 thereof
restates the mandate of the Office of the Ombudsman in this wise:
Sec. 13. Mandate. The Ombudsman and his Deputies, as protectors
of the people, shall act promptly on complaints filed in any form or
manner against officers or employees of the Government, or of any
subdivision, agency or instrumentality thereof, including governmentowned or controlled corporations, and enforce their administrative,
civil and criminal liability in every case where the evidence warrants
in order to promote efficient service by the Government to the
people.
Section 15 thereof substantially reiterates Section 13, Article XI of the
Constitution. In particular, subparagraph (3) of Section 15 of Republic
Act No. 6770 restates Section 13(3), Article XI of the Constitution,
quoted anew below:
Sec. 15. Powers, Functions and Duties. The Office of the
Ombudsman shall have the following powers, functions and duties:
xxxx
(3) Direct the officer concerned to take appropriate action against a
public officer or employee at fault or who neglects to perform an act
or discharge a duty required by law, and recommend his removal,
suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith; or enforce its disciplinary authority as provided
in Section 21 of this Act: Provided, That the refusal by any officer
without just cause to comply with an order of the Ombudsman to
remove, suspend, demote, fine, censure or prosecute an officer or

employee who is at fault or who neglects to perform an act or

discharge a duty required by law shall be a ground for disciplinary
action against said officer.
The authority of the Ombudsman to conduct administrative
investigations is beyond cavil. It is mandated by no less than Section
13(1), Article XI of the Constitution.29 In conjunction therewith,
Section 19 of Republic Act No. 6770 grants to the Ombudsman the
authority to act on all administrative complaints:
Sec. 19. Administrative Complaints. The Ombudsman shall act on all
complaints relating, but not limited, to acts or omissions which:
(1) Are contrary to law or regulation;
(2) Are unreasonable, unfair, oppressive or discriminatory;
(3) Are inconsistent with the general course of an agencys functions,
though in accordance with law;
(4) Proceed from a mistake of law or an arbitrary ascertainment of
facts;
(5) Are in the exercise of discretionary powers but for an improper
purpose; or
(6) Are otherwise irregular, immoral or devoid of justification.
Other provisions in Republic Act No. 6770, likewise, pertain to the
exercise by the Office of the Ombudsman of its administrative
disciplinary authority. For example, Section 19 states that Republic
Act No. 6770 shall apply "to all kinds of malfeasance, misfeasance,
and non-feasance that have been committed by any officer or
employee x x x, during his tenure of office." Section 21 defines the
jurisdiction of its disciplinary authority to include "all elective and
appointive officials of the Government and its subdivisions,
instrumentalities and agencies, including members of the Cabinet,
local government, government-owned, or controlled corporations and
their subsidiaries, except over officials who may be removed only by
impeachment or over Members of Congress, and the Judiciary."
Section 2230 thereof vests in the Office of the Ombudsman the power
to investigate any serious misconduct in the office allegedly
committed by officials removable by impeachment, for the purpose of
filing a verified complaint for impeachment, if warranted. Such power,
likewise, includes the investigation of private persons who conspire
with public officers and employees. Section 2331 requires that the

administrative investigations conducted by the Office of the

Ombudsman shall be in accordance with its rules of procedure and
consistent with due process. The Office of the Ombudsman is,
however, given the option to refer certain complaints to the proper
disciplinary authority for the institution of appropriate administrative
proceedings against erring public officers or employees.
Still in connection with their administrative disciplinary authority, the
Ombudsman and his deputies are expressly given the power to
preventively suspend public officials and employees facing
administrative charges in accordance with Section 24 of Republic Act
No. 6770:
Sec. 24. Preventive Suspension. The Ombudsman and his Deputy
may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment the evidence of
guilt is strong, and (a) the charge against such officer or employee
involves dishonesty, oppression or grave misconduct, or neglect in
the performance of duty; (b) the charges would warrant removal from
the service; or (c) the respondents continued stay in office may
prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated
by the Office of the Ombudsman but not more than six months,
without pay, except when the delay in the disposition of the case by
the Office of the Ombudsman is due to the fault, negligence or
petition of the respondent, in which case the period of such delay
shall not be counted in computing the period of suspension herein
provided.
Section 25 thereof sets forth the penalties as follows:
Sec. 25. Penalties. (1) In administrative proceedings under
Presidential Decree No. 807, the penalties and rules provided therein
shall be applied.
(2) In other administrative proceedings, the penalty ranging from
suspension without pay for one year to dismissal with forfeiture of
benefits or a fine ranging from five thousand pesos (P5,000.00) to
twice the amount malversed, illegally taken or lost, or both at the
discretion of the Ombudsman, taking into consideration
circumstances that mitigate or aggravate the liability of the officer or
employee found guilty of the complaint or charges.
As referred to in the above provision, under Presidential Decree No.
807,32 the penalties that may be imposed by the disciplining

authority in administrative disciplinary cases are removal from the

service, transfer, demotion in rank, suspension for not more than one
year without pay, fine in an amount not exceeding six months salary,
or reprimand.33
Section 27 of Republic Act No. 6770 provides for the period of
effectivity and finality of the decisions of the Office of the
Ombudsman:
Sec. 27. Effectivity and Finality of Decisions. (1) All provisionary
orders of the Office of the Ombudsman are immediately effective and
executory.
A motion for reconsideration of any order, directive or decision of the
Office of the Ombudsman must be filed within five (5) days after
receipt of written notice and shall be entertained only on any of the
following grounds:
(1) New evidence has been discovered which materially affects the
order, directive or decision;
(2) Errors of law or irregularities have been committed prejudicial to
the interest of the movant. The motion for reconsideration shall be
resolved within three (3) days from filing: Provided, That only one
motion for reconsideration shall be entertained.
Findings of facts by the Office of the Ombudsman when supported by
substantial evidence are conclusive. Any order, directive or decision
imposing the penalty of public censure or reprimand, suspension of
not more than one months salary shall be final and unappealable.
[In all administrative disciplinary cases, orders, directives or decisions
of the Office of the Ombudsman may be appealed to the Supreme
Court by filing a petition for certiorari within ten (10) days from
receipt of the written notice of the order, directive or decision or
denial of the motion for reconsideration in accordance with Rule 45 of
the Rules of Court.]34
The above rules may be amended or modified by the Office of the
Ombudsman as the interest of justice may require.
All these provisions in Republic Act No. 6770 taken together reveal
the manifest intent of the lawmakers to bestow on the Office of the
Ombudsman full administrative disciplinary authority. These
provisions cover the entire gamut of administrative adjudication
which entails the authority to, inter alia, receive complaints, conduct
investigations, hold hearings in accordance with its rules of

procedure, summon witnesses and require the production of

documents, place under preventive suspension public officers and
employees pending an investigation, determine the appropriate
penalty imposable on erring public officers or employees as
warranted by the evidence, and, necessarily, impose the said penalty.
The explanation of Senator Edgardo Angara, one of the sponsors of
Senate Bill No. 534 which, as consolidated with House Bill No. 13646,
became RA 6770, is instructive:
Senator Laurel. Because, Mr. President, in the light of another section
of the bill, with respect to Section 13, disciplinary authority, first, the
Ombudsman here is granted the power of disciplining public officers
and employees, while other bodies may not be so authorized; second,
the Constitution itself empowers the Office of the Ombudsman merely
to investigate and review; but the bill here authorizes the
Ombudsman, and grants the power of disciplining public officers and
employees. It goes beyond the constitutional provision.
Senator Angara. Well, if the Gentleman is through with his
statement
Senator Laurel. Well, yes.
Senator Angara. I do not agree that this bill is going beyond what the
Constitution has prescribed for the Ombudsman; because, as I
understand it, the constitutional provision was construed in the
proceedings of the Constitutional Commission and in fact, left it to the
Legislature to determine the powers and functions to be allocated to
the Ombudsman. It did not say or it did not prohibit the Legislature
from granting disciplinary power that we are now granting to the
Ombudsman. But over and beyond that interpretation, Mr. President,
is the question that one must always ask, if he wants this institution
of the Ombudsman to be effective, rather than simply be like the
other watchdogs the past administrations created. Then we believe,
the Committee believes, that we must give the Ombudsman the
necessary teeth in order to implement its own decision. We believe
that this is fully in accord with the Filipino custom and tradition, and
based on our historical experience. Short of not giving the
Ombudsman the disciplining authority, I think we might as well kiss
the system goodbye, because it will be like the same watchdogs
created in the past-toothless and inutile.35
Senator Angara, by way of reply to the queries of Senator Neptali
Gonzales, further explained:

Senator Gonzales. All right. There are certain admissions and,

however reluctantly given, at least, let us go further because the
Gentleman is invoking the whole of Section 13. I might really be
wrong, and I want to be corrected this early.
Now, under paragraph (2), it says:
Direct, upon complaint or at its own instance, any public official or
employee of the Government, or any subdivision thereof to perform
and expedite
probably a ministerial act because it says:
any act or duty required by law or to stop, prevent and correct any
abuse or impropriety in the performance of duties.
There is neither a grant of disciplining authority, nor can we imply
one from this specific provision; only from this specific provision.
Senator Angara. My answer, again, Mr. President, is that one cannot
derive that broad, sweeping conclusion solely on the basis of this
provision.
Senator Gonzales. There is none solely on this provision. Let us go to
(3):
Direct the officer concerned to take appropriate action against a
public official or employee at fault - There is a determination, that is, at fault, and this is very important,
-recommend his removal, suspension, demotion, fine, censure, or
prosecution, and ensure compliance therewith.
Mr. President, the power here, even after a determination of fault, is
merely to recommend to the appropriate office or agency the
imposition of administrative sanctions, which, under this law, instead
are to be imposed by the Ombudsman himself or directly. Could not
the Gentleman see a conflict between these two provisions, Mr.
President?

Senator Angara. Again, the question is: Is it necessary to grant the

Ombudsman such a power in order to make it effective? That is a
means necessary to the end, to the objective.
Senator Gonzales. Is it, therefore, now another power?
Senator Angara. I submit that the means, that is, the disciplinary
power, is necessary to achieving that objective of making an effective
Ombudsman.36
The legislative history of Republic Act No. 6770 thus bears out the
conclusion that the Office of the Ombudsman was intended to
possess full administrative disciplinary authority, including the power
to impose the penalty of removal, suspension, demotion, fine,
censure, or prosecution of a public officer or employee found to be at
fault. The lawmakers envisioned the Office of the Ombudsman to be
"an activist watchman," not merely a passive one.37 And this intent
was given validation by the Court in Uy v. Sandiganbayan,38 where it
stated that:
Clearly, the Philippine Ombudsman departs from the classical
Ombudsman model whose function is merely to receive and process
the peoples complaints against corrupt and abusive government
personnel. The Philippine Ombudsman, as protector of the people, is
armed with the power to prosecute erring public officers and
employees, giving him an active role in the enforcement of laws on
anti-graft and corrupt practices and such other offenses that may be
committed by such officers and employees. The legislature has
vested him with broad powers to enable him to implement his own
actions. x x x
At this point, it is noted that the Office of the Ombudsman and the
appellate court invariably found respondents guilty of simple
misconduct. The Court affirms this finding following the salutary rule
that factual findings of administrative bodies are accorded great
respect by this Court.39

Senator Angara. I do not see any conflict, Mr. President. As I said, the
grant of disciplinary power is something that the Constitution does
not forbid.

WHEREFORE, premises considered, the petition is GRANTED. The

Decision dated October 30, 2003 of the Court of Appeals in CA-G.R.
SP No. 69313 is REVERSED AND SET ASIDE. The Decision dated
October 24, 2001 of the Office of the Ombudsman in OMB-VIS-ADM99-1044 is REINSTATED.

Senator Gonzales. Well, we will take it differently.

SO ORDERED.

ROMEO J. CALLEJO, SR.

Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
Asscociate Justice

8 Penned by GIO I Quijano, with GIO III Santiago recommending

approval. The same was approved by Deputy Ombudsman Miro on
October 31, 2001; id. at 258-261.
9 Id. at 261.
10 Id. at 262-263.
11 Otherwise known as The Ombudsman Act of 1989.
12 429 Phil. 47, 58 (2002).

MINITA V. CHICO-NAZARIO
Associate Justice

13 Rollo, p. 86.

CERTIFICATION

15 Among others, Sections 13, 15, 19, 20, 21, 22, 23, 24, and 25.
Infra.

Pursuant to Section 13, Article VIII of the Constitution, it is hereby

certified that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion
of the Courts Division.
ARTEMIO V. PANGANIBAN
Chief Justice

14 Id. at 29-30.

16 Rollo, p. 298.
17 Id. at 308.
18 Id. at 315-316.
19 Infra.
20 Infra.

Footnotes
* Also Neilson Obiso in some pleadings.
1 Penned by Associate Justice Eloy R. Bello, Jr. (now retired), with
Associate Justices Amelita G. Tolentino and Arturo D. Brion,
concurring; rollo, pp. 79-86.
2 Records, p. 24.
3 Id. at 27-29.
4 Id. at 53-54.
5 Id. at 20-21.
6 Id. at 17.
7 Id. at 227-231.

21 Infra.
22 Infra.
23 Rollo, pp. 322-323.
24 Supra note 12, at 58.
25 G.R. No. 161629, July 29, 2005, 465 SCRA 437, 449.
26 Id. at 448-449.
27 G.R. Nos. 120422 and 120428, September 27, 1995, 248 SCRA
566.
28 II RECORD OF THE CONSTITUTIONAL COMMISSION 295. Also cited
in Acop, id. at 579.
29 Mayor Garcia v. Hon. Mojica, 372 Phil. 892, 903 (1999).
30 The provision reads:

Sec. 22. Investigatory Power. The Office of the Ombudsman shall

have the power to investigate any serious misconduct in office
allegedly committed by officials removable by impeachment, for the
purpose of filing a verified complaint for impeachment, if warranted.

administrative disciplinary cases, has been struck down as

unconstitutional in Fabian v. Desierto, 356 Phil. 787 (1998).

In all cases of conspiracy between an officer or employee of the

government and a private person, the Ombudsman and his Deputies
shall have jurisdiction to include such private person in the
investigation and proceed against such private person as the
evidence may warrant. The officer or employee and the private
person shall be tried jointly and shall be subject to the same penalties
and liabilities.

36 RECORD OF THE SENATE, Vol. II, No. 6, August 2, 1988, pp. 178179.

31 The provision reads:

Sec. 23. Formal Investigation. (1) Administrative investigations
conducted by the Office of the Ombudsman shall be in accordance
with its rules of procedure and consistent with due process.
(2) At its option, the Office of the Ombudsman may refer certain
complaints to the proper disciplinary authority for the institution of
appropriate administrative proceedings against erring public officers
or employees, which shall be terminated within the period prescribed
in the Civil Service Law. Any delay without just cause in acting on any
referral made by the Office of the Ombudsman shall be a ground for
administrative action against the officers or employees to whom such
referrals are addressed and shall constitute a graft offense punishable
by a fine of not exceeding five thousand pesos (P5,000.00).
(3) In any investigation under this Act, the Ombudsman may (a) enter
and inspect the premises of any office, agency, commission or
tribunal; (b) examine and have access to any book, record, file,
document or paper; and (c) hold private hearings with both the
complaining individual and the official concerned.
32 Entitled Providing for the Organization of the Civil Service
Commission in accordance with Provisions of the Constitution,
Prescribing its Powers and Functions and For Other Purposes.
33 Id., Section 36(d).
34 This specific paragraph, insofar as it prescribes direct appeal to
the Supreme Court of decisions of the Office of the Ombudsman in

35 RECORD OF THE SENATE, Vol. II, No. 5, August 1, 1988, p. 141.

37 Id. at 181.
38 G.R. Nos. 105965-70, March 20, 2001, 354 SCRA 651, 666.
39 Office of the Ombudsman v. Florentina Santos, G.R. No. 166116,
March 31, 2006, p. 9. Pertinently, in this fairly recent case, the Court
reversed the decision of the appellate court and reinstated with
modification the decision of the Office of the Ombudsman in an
administrative case finding the respondent guilty of dishonesty and
grave misconduct. The Office of the Ombudsman imposed upon the
respondent the penalty of dismissal from service with forfeiture of
benefits equivalent to twelve months salary and temporary
disqualification for re-employment in the government for one year
from finality of the decision. The Court affirmed the decision of the
Office of the Ombudsman with the modification that, in addition to
the penalty imposed, respondent shall likewise pay a fine of five
thousand pesos.