1

xxx

EN BANC
[G.R. No. 68635. March 12, 1987.]
IN THE MATTER OF PROCEEDINGS FOR DISCIPLINARY ACTION
AGAINST ATTY. WENCESLAO LAURETA, AND OF CONTEMPT
PROCEEDINGS AGAINST EVA MARAVILLA-ILUSTRE in G.R. NO.
68635,
entitled
"EVA
MARAVILLA-ILUSTRE,
vs.
HON.
INTERMEDIATE APPELLATE COURT, ET AL."
RESOLUTION
PER CURIAM p:
In almost identical letters dated 20 October 1986, personally sent to
Justices Andres R. Narvasa, Ameurfina M. Herrera, and Isagani A.
Cruz, and a fourth letter, dated 22 October 1986 addressed to Justice
Florentino P. Feliciano, all members of the First Division of this Court,
(incorporated herein by reference), and in feigned ignorance of the
Constitutional requirement that the Court's Divisions are composed of,
and must act through, at least five (5) members, and in a stance of
dangling threats to effect a change of the Court's adverse resolution,
petitioner Eva Maravilla Ilustre wrote in part:
"Please forgive us for taking the liberty of addressing you this letter
which we do hope you will read very carefully.
"It is important to call your attention to the dismissal of Case No. G.R.
68635 entitled 'Eva Maravilla Ilustre vs. Hon. Intermediate Appellate
Court, et al.,' by an untenable minute-resolution although an extended
one, dated 14 May 1986 which we consider as an unjust resolution
deliberately and knowingly promulgated by the First Division of the
Supreme Court of which you are a member.
xxx

xxx

xxx

"We consider the three minute-resolution: the first dated 14 May 1986;
the second, dated 9 July 1986; and the third, 3 September 1986,
railroaded with such hurry/promptitude unequalled in the entire history
of the Supreme Court under circumstances that have gone beyond
the limits of legal and judicial ethics.

xxx

xxx

"Your attention is called to minute-resolution of 9 July 1986 which

writes finish to our case before the Supreme Court (. . . THIS IS
FINAL') There is nothing final in this world. We assure you that this
case is far from finished by a long shot. For at the proper time we
shall so act and bring this case before another forum where the
members of the Court can no longer deny our action with minute
resolutions that are not only unjust but are knowingly and deliberately
promulgated. The people deserve to know how the members of the
highest tribunal of the land perform in the task of decision making by
affixing their respective signatures on judgments that they render on
petitions that they themselves give due course.
"Please understand that we are pursuing further remedies in our
quest for justice under the law. We intend to hold responsible
members of the First Division who participated in the promulgation of
these three minute-resolutions in question. For the members thereof
cannot claim immunity when their action runs afoul with penal
sanctions, even in the performance of official functions; like others,
none of the division members are above the law.
"In our quest for justice, we wish to avoid doing injustice to anyone,
particularly the members of the First Division, providing that they had
no hand in the promulgation of the resolution in question. That is why
we are requesting you to inform us your participation in the
promulgation of these resolutions in question. Even we who are poor
are also capable of playing fair even to those who take advantage of
our poverty by sheer power and influence. We shall then wait for your
reply. If, however, we do not hear from you after a week, then we will
consider your silence that you supported the dismissal of our petition.
We will then be guided accordingly. (Emphasis supplied).
The letter also attacked the participation in the case of Justice Pedro
L. Yap, Chairman of the First Division in this wise:
"As Division Chairman, Associate Justice Pedro Yap, as a copy of
Resolution dated 14 May 1986 we received indicate, did not even
have the elementary courtesy of putting on record that he voluntarily
inhibited himself from participating in the promulgation of this minuteresolution, although an extended one, which he should have done
consistent with judicial decorum and the Canons of Judicial Ethics.
After all he is the law partner of 'Atty. Sedfrey A. Ordoez, counsel for

2
respondents, now the distinguished Solicitor General . . . indicative
that even at this stage of the proceeding in point of time, the Supreme
Court still recognizes Atty. Sedfrey A. Ordoez as counsel for
respondents, even as he is already the Solicitor General. For not
withdrawing from the case formally Atty. Ordoez has manifested his
unmitigated arrogance that he does not respect the Canons of
Professional Ethics, similar to the actuation of his law partner,
Associate Justice Pedro Yap, Chairman of the First Division of the
Supreme Court, an act that further aggravates the growing wrinkles in
the domain of judicial statesmanship, impressed as it is, with very
serious and dangerous implications.
"(9)
By 11 April 1986, date of the reorganization of the First
Division, Atty. Sedfrey A. Ordoez already became the Solicitor
General. With such amazingly magical coincidence, Dr. Pedro Yap,
law partner of Atty. Sedfrey A. Ordoez in the law firm Salonga,
Ordoez, Yap, Padlan became the Chairman of the Division.
xxx

xxx

xxx

"(11) So we see that on 11 August 1986 to 14 May 1986 when some

members of the Division were still busy putting their respective offices
in order and had possibly have no idea about the Maravilla case.
Was it possible for Chairman Yap to have convinced the Division
members that Maravilla petition is without merit, and since the
members the new ones knew nothing about the case, readily
agreed to the dismissal of the petition by a minute-resolution
extended one. After all this was the case of the Solicitor General. If
this is what happened, then we are sorry to say that you were
deliberately 'had.'
After all, the 14 May 1986 untenable minute resolution although an
extended one, does not bear the signatures of the Division members.
The members should have signed the resolution, after all, the
Supreme Court had given the petition due course, indicating whether
they concur, dissent or otherwise abstain from voting."
The letter to Justice Herrera went on to state.
"We assume, of course, that you had studied the case thoroughly
since you were with the original 7-man First Division under the
chairmanship of then Justice Claudio Teehankee. We assure you that
we will bring this case before another forum to hold responsible the

members of the Division who participated in the dismissal of the case

by the unjust minute-resolutions, knowingly rendered for intended
objective that your conscience you are aware.
xxx

xxx

xxx

"We leave the next move to you by informing us your participation in

the promulgation of the minute-resolutions in question. Please do not
take this matter lightly for we know justice in the end will prevail. For if
we do not hear from you within a week, we will consider your silence
as your admission that you supported the dismissal of the petition. In
this way, we shall then be guided accordingly. The moment we take
action in the plans we are completing, we will then call a press
conference with TV and radio coverage Arrangements in this regard
are being done. The people should or ought to know why we were
thwarted in our quest for plain justice.
xxx

xxx

xxx

"Finally, in view of action that we are prepared to take in this case,

that will no doubt cause nationwide attention, and there should be
anyone that will cause me harm personally, may we request you to
show this letter to the authorities concerned so that they will know
where to look, when it becomes necessary." (Emphasis supplied)
The aforesaid letters were included in the Agenda of the First Division
of 22 October 1986, were "Noted," and referred en consulta to the
Court en banc.
On 28 October 1986, the Court en banc took up the background and
history of the case, found no reason to take any further action, and
referred the case back to the First Division "as set forth in the latter's
resolution of October 27, 1986." In this Resolution, the First Division
traced the history of the case, clarified that Justice Yap assumed his
position in this Court only on 2 May 1986; that when the resolution of
dismissal was issued on 14 May 1986, Justice Abad Santos was the
incumbent Chairman of the First Division, and that Justice Yap was
unaware that Atty. Ordoez was private respondents' counsel; that
upon realization thereof, Justice Yap inhibited himself from further
participation in the case; and that Justice Yap was designated
Chairman of the First Division only on 14 July 1986, after the
compulsory retirement of Justice Vicente Abad Santos on 12 July

3
1986. The Resolution of the First Division (incorporated herein by
reference) concluded thus:
"The dispositions in this case were arrived at after careful study.
Because a case is resolved against the interests of a party, does not
mean that it is an 'unjust decision' or that it has been 'railroaded.'
"This Division declares without hesitation that it has consistently
rendered justice without fear or favor. YAP, J., took no part."
On 3 November 1986, petitioner again addressed similar letters to
Justices Narvasa, Herrera, and Cruz, (incorporated herein by
reference), excerpts from which follow:
"It is rather amazing that when we wrote you our previous letter, we
never dreamed that you would rush, as you did rush for assistance en
consulta with the Honorable Court en banc. The unfortunate part of it
all is the fact that the Court en banc had to promulgate its resolution
dated 28 October 1986 which to us when considered in its entirety, is
just as untenable as the First Division extended and unsigned minuteresolution of 14 May 1986.
"Evidently you misunderstood our point of inquiry, to wit: 'Did you or
did you not approve the dismissal of our petition under
"1)

The 14 May 1986 minute resolution? Yes or No.

"2)

The 9 July 1986 minute resolution? Yes or No.

"3)

The 3 Sept. 1986 minute resolution? Yes or No.

"That was all we asked. The other matters contained in our letter were
intended merely to give you the highlights of our case. This is what we
wanted to know to properly guide us when we finally bring our case to
the other forum of justice.
"Did it ever occur to you that when you and the other members of the
First Division referred our letters to the Honorable Court en banc en
consulta it was all your fault that the Court en banc had to promulgate
its unsigned extended minute-resolution that unfortunately exposed
the distinguished members of the newly reorganized Supreme Court
and, at the same time, convicted themselves as guilty of distorting
facts involved in our petition?
"This, we are sure, will come as a shock to you. We will show you why

xxx

xxx

xxx

"This is just a sample of what we will expose to the nation before the
other forum of justice where we will soon bring this case beyond the
reach of the newly reorganized Supreme Court. We are prepared to
expose many more of this kind of judicial performance readily
constituting travesty of justice. Ponder upon this well because it is our
very firm conviction that the people deserve to know how the
distinguished members of the highest tribunal of the land perform their
duties in this most sensitive area of decision making.
"Anyhow, whether you referred our letter to the Court en banc (en
consulta) or not, the situation remains the same. At the proper time,
as we said, we will bring this case before another forum of justice
where the members of the First Division, in fact the Honorable Court
en banc may no longer deny our action by mere untenable and unjust
minute resolutions. Better believe it that we intend to hold responsible
members of the First Division who took part in the promulgation of the
untenable and unjust extended minute-resolution that is not even
signed by any of those who promulgated it; therefore, to us, is clearly
bereft of judicial integrity from its very inception on 14 May 1986.
xxx

xxx

xxx

"Thus, we will bring this case before another forum of justice as Eva
Maravilla Ilustre against the distinguished members of the First
Division, in fact against the entire membership of the newly organized
Supreme Court (because of its en banc unsigned extended minuteresolution that is without judicial integrity, dated 28 October 1986). But
do not be mislead (sic) for we are not alone in this fight. Other
lawyers, not just by their mere sympathy for me personally and my
case, but by their firm conviction that judicial statesmanship must be
maintained at all times in the highest tribunal of justice in the land, that
they have offered their free legal services when the legal confrontation
begins.
xxx

xxx

xxx

"Paragraph 4, found on page 3 of the en banc resolution projects the

most fantastic, most unbelievable picture of Division Chairman Justice
Yap. It states

4
"'. . . When the resolution of dismissal on May 14, 1986, Justice Yap
was unaware that Atty. Sedfrey A. Ordoez was private respondent's
counsel.
"The Honorable Court en banc must think everybody stupid to
swallow this statement hook, line and sinker. For Justice Yap we say:
Tell that to the marines. But more than this, we leave this matter to the
conscience of Justice Yap.
"Ignoramus that we are, unschooled in the domain of law and
procedure, but we are learning a few as we prosecute our case within
legitimate limits, we state here that both resolutions that
promulgated by the Court en banc of 28 October 1986 and that
promulgated by the First Division dated 27 October 1986, are nothing
but a desperate attempt, when both are considered in their respective
entirety, to maneuver without success, some semblance of
justification on the untenable and unjust 14 May 1986 extended and
unsigned minute-resolution that is bereft of judicial integrity.
xxx

xxx

xxx

"Thus, if the members of the First Division and those of the Honorable
Court en banc think for one minute that because of their respective 4page minute but extended resolutions apparently impressive for their
lack of merit, deliberately unsigned that exposed their lack of judicial
integrity, that we will now give up the fight, just forget it. Ignoramus
that we are, better believe it when we say we are prepared to carry
the fight before another forum of justice. When we do, we shall call for
a press conference with TV and radio coverage, so that we can
present to the entire nation our quest for justice against the steamroller of power and influence and, at the same time, to call the
attention of the people to the manner in which the members of the
highest tribunal of the land perform their respective individual and
collective functions in the domain of this most sensitive area of
decision making.
"Allow us to restate our previous and now, our present inquiry, to wit:.
"Did you or did you not approve the dismissal of our petition under
"a)

The 14 May 1986 minute resolution? Yes or No.

b)

The 9 July 1986 minute resolution? Yes or No.

c)
The 3 Sept. 1986 minute resolution? Yes or No.'" (Emphasis
supplied).
True to her threats, after having lost her case before this Court,
petitioner filed on 16 December 1986 an Affidavit-Complaint before
the Tanodbayan, totally disregarding the facts and circumstances and
legal considerations set forth in this Court's aforecited Resolutions of
the First Division and en banc. Some Members of this Court were
maliciously charged with having knowingly and deliberately rendered,
with bad faith, an unjust, extended Minute Resolution "making" her
opponents the "illegal owners" of vast estates. Some Justices of the
Court of Appeals were similarly maliciously charged with knowingly
rendering their "unjust resolution" of 20 January 1984 "through
manifest and evident bad faith," when their Resolution had in fact and
law been upheld by this Court. Additionally, Solicitor General Sedfrey
A. Ordoez and Justice Pedro Yap of this Court were also maliciously
charged with having used their power and influence in persuading and
inducing the members of the First Division of this Court into
promulgating their "unjust extended Minute Resolution of 14 May
1986."
All the foregoing, in complete disregard of the Resolutions of this
Court, as the tribunal of last resort, 1) upholding the challenged
judgment of the Court of Appeals; 2) dismissing the Petition on the
ground that the doctrine of res judicata was clearly applicable not only
as to the probate of the Will of the decedent but also as to the heirship
of petitioner, among others, and their right to intervene and participate
in the proceedings; and 3) finding that there was no attempt
whatsoever on the part of Justice Yap nor Solicitor General Ordoez
to unduly influence the members of the First Division.
The Complaint before the Tanodbayan (incorporated herein by
reference) was allegedly filed "in my quest for justice, something that
has been closed to me by the Supreme Court forever" and specifically
charged:.
"CHARGE NO ONE
Atty. Sedfrey A. Ordoez and Justice Pedro Yap of 1) 'persuading,
inducing, influencing the members of the newly organized First
Division . . . into promulgating their unjust, extended minute
RESOLUTION of 14 May 1986, knowingly with deliberate intent with
such unusual hurry/promptitude unequalled in the entire history of the

5
Supreme Court based on insignificant issues and deliberately
evading/prevaricating the more important substantial ones raised in
my petition, in violation of Section 3, sub-letter (a) of Republic Act No.
3019, as amended, . . .; and.
"(2)
Under the same Section 3, subletter (e) of the same Republic
Act . . . for causing me and the other heirs of Ponciano Maravilla
undue injury by using their power and influence as Solicitor General
and Associate Justice, respectively. . . .
"CHARGE NO. TWO
"Associate Justices Luis Javellana, Vicente Mendoza and Serafin
Cuevas, members of the then FOURTH SPECIAL CASES DIVISION,
Intermediate Appellate Court
1)
For knowingly rendering their unjust RESOLUTION dated 20
January 1984 in the exercise of their functions through manifest and
evident bad faith in CA-G.R. No. SP-13680, entitled 'Francisco Q.
Maravilla, et al. v. Hon. Antonia Corpus Macandog, et al. 'in violation
of Article 204 of the Revised Penal Code;"
2)
For causing me and the other heirs such 'undue injury' by
deliberately, knowingly rendering their unjust RESOLUTION dated 20
January 1984 . . . in violation of Republic Act No. 3019, as amended,
Section 3 (e) thereof.
"CHARGE NO. THREE
"Associate Justice Vicente Abad Santos (retired) then Chairman of the
First Division of the Supreme Court as of 14 May 1986, and Associate
Justice Isagani Cruz, Andres Narvasa, Ameurfina M. Herrera and
Pedro Yap, . . .
1)
For knowingly and deliberately rendering their unjust,
extended MINUTE RESOLUTION of 14 May 1986 dismissing my
petition in G.R. No. 68635, . . . with manifest and evident bad faith to
make the clients of Atty. Sedfrey A. Ordoez, now the distinguished
Solicitor General, the 'illegal owners' of the vast estates of my aunt
Digna Maravilla . . .;
"2)
Under Section 3, sub-letter (e) Republic Act No. 3019, as
amended, . . . for deliberately causing us heirs of Ponciano Maravilla
undue injury by depriving us of our rights over my aunt's vast estates
because of their manifest and evident bad faith in knowingly

promulgating their unjust, extended minute RESOLUTION of 14 May

1986, deliberately intended to make the clients of Atty. Sedfrey A.
Ordoez, now the Solicitor General, the 'illegal owners' of my aunt
Digna Maravilla's estates when, under the law, these Ordoez clients
are not entitled to own these vast properties whether under testate or
intestate succession or mixed succession." (Emphasis supplied).
Atty. Laureta himself reportedly circulated copies of the Complaint to
the press, which was widely publicized in almost all dailies on 23
December 1986, without any copy furnished this Court nor the
members who were charged. The issue of the Daily Express of 23
December 1986 published a banner headline reading:
"ORDONEZ, 8 JUSTICES FACE GRAFT CHARGES"
thereby making it unjustly appear that the Justices of this Court and
the other respondents were charged with "graft and corruption" when
the Complaint was actually filed by a disgruntled litigant and her
counsel after having lost her case thrice in this Court.
On 26 December 1986, the Tanodbayan (Ombudsman) dismissed
petitioner's Complaint and decreed in the dispositive portion of his
Resolution (herein incorporated by reference) that:
"WHEREFORE, all the premises considered, this Office resolves to
dismiss the complaint against Justices Pedro Yap, Isagani Cruz,
Andres Narvasa, Ameurfina Melencio-Herrera, Vicente Abad Santos,
and will continue evaluating the complaint against Justices Serafin
Cuevas, Luis Javellana and Vicente Mendoza, Solicitor General
Sedfrey Ordoez, and the private respondents."
The aforestated Resolution indicated at the bottom of the last page:
"Copy Furnished:
DEAN WENCESLAO LAURETA
Counsel for the Complainant
919 Prudencio Street
Sampaloc, Manila.
In the Resolution of this Court en banc, dated January 29, 1986, it
required:

6
"(1)
Petitioner Eva Maravilla Ilustre to show cause, within ten (10)
days from notice, why she should not be held in contempt for her
aforecited statements, conduct, acts and charges against the
Supreme Court and/or official actions of the Justices concerned,
which statements, unless satisfactorily explained, transcend the
permissible bounds of propriety and undermine and degrade the
administration of justice; and
"(2)
Atty. Wenceslao Laureta, as an officer of the Court, to show
cause, within ten (10) days from notice, why no disciplinary action
should be taken against him for the aforecited statements, conduct,
acts and charges against the Supreme Court and the official actions
of the Justices concerned, and for hiding therefrom in anonymity
behind his client's name, in an alleged quest for justice but with the
manifest intent to bring the Justices into disrepute and to subvert
public confidence in the Courts and the orderly administration of
justice." (pp. 383-384, Rollo).
(1)
In her Compliance-Answer filed on February 9, 1987, wherein Eva
Maravilla Ilustre prays that the contempt proceedings against her be
dismissed, she contends, in essence, that: (1) "there was no intention
to affront the honor and dignity" of the Court; (2) the letters addressed
to the individual Justices were private in character and were never
meant for anybody, much less the Supreme Court en banc, "there
(being) a constitutional mandate affording protection to privacy of
communications;" (3) if her statements in those letters were really
contemptuous, the Court "should have immediately taken disciplinary
proceedings" against her, and not having done so, the Court has
"forfeited" that right and is now "estopped" from doing so; this citation
for contempt is a "vindictive reprisal" for her having filed the complaint
before the Tanodbayan, "an action that lacks sincerity, taken not in the
spirit of judicial statemanship;" (4) she instituted the complaint before
the Tanodbayan "in my honest belief that I lost my case before the
Supreme Court not because of lack of merit or of its own merits,
assisted by attorneys who offered their services in the prosecution of
my case;" (5) the newspaper publicity of this case "was no fault of
mine; neither is it the fault of my former counsel Dean Wenceslao
Laureta," who prevailed upon her to call off the press conference with
TV and radio coverage; that she is not a "disgruntled litigant" who
thrice lost before the Court, rather, she has challenged the validity of

the resolutions of the Court "containing distortion of facts, conjectures

and mistaken inferences" particularly, in that (a) there is no res
judicata (b) the Court of Appeals in its decision declared that the
judgment of the trial Court had long attained finality, so that it can no
longer be set aside, (c) her "opponents," clients of Atty. Ordoez, are
not entitled to own her aunt's "vast properties" whether under the law
of testate or intestate succession or mixed succession," (d) that the
statement in this Court's Resolution that the Court of Appeals had
denied intervention is an "unadulterated distortion of the facts;" (b) the
statement in the en banc Resolution that some Justices of the Court
of Appeals were similarly maliciously charged with knowingly
rendering their "unjust resolution" of 20 January 1984 is a bit
"premature, a prejudgment over a case over which this Court does not
have jurisdiction;" (7) Atty. Laureta is not her counsel in the case
before the Tanodbayan; (8) before the latter body, she has
"established not only probable cause but has also proved the
collective culpability (of the Justices concerned) as charged;" (9) and
that her 53-page Motion for Reconsideration before the Tanodbayan is
made an integral part of her Answer.
(2)
In his own Answer, Atty. Laureta maintains substantially that: (1) he is
not respondent Ilustre's counsel before the Tanodbayan and that she
has consulted and/or engaged the services of other attorneys in the
course of the prosecution of her case, like Atty. Edgardo M.
Salandanan and Atty. Vedastro B. Gesmundo; that he just learned
from other sources that respondent Ilustre was planning to bring her
case to the Tanodbayan with the assistance of other lawyers who
offered her their legal services; (2) it was he who dissuaded her from
calling her intended press conference and from circulating copies of
her complaint "not only in the performance of duty as an officer of the
court, but also as a former president of Manila III Chapter of the
Integrated Bar of the Philippines and as a professional lecturer in
Legal and Judicial Ethics in some Manila law schools in his desire to
protect and uphold the honor and dignity of the Supreme Court as the
highest tribunal of the land." He should, therefore, be given "a little bit
of credit for what he did" instead of taking this disciplinary proceeding
against him; that Ms. Ilustre is not a "disgruntled litigant" who "lost her
case thrice in this Court;" (3) he did not prepare respondent Ilustre's
letters to the individual Justices, "appearances to the contrary

7
notwithstanding;" that these letters were "never, at any time,
considered as constituting contempt of court" in the resolutions of this
Court, otherwise, "it would have taken immediate disciplinary action
as it is doing now;" the Court has lost its right to consider the
statements in the letters as constituting contempt and it is now
"estopped" from proceeding with this disciplinary action; (4) by doing
so, this Court has "unmistakably revealed the intent and character
that underlie its present action as a vindictive judicial vengeance,
inconsistent with the spirit of judicial statesmanship by hiding behind
the well-recognized fact that the Supreme Court is supreme in the
domain of the administration of justice;" (5) "there was no disregard
intended to the Resolution of the Honorable Court, as the tribunal of
last resort, relative to its upholding the judgment of the Court of
Appeals;" he is just doing "his duty as an officer of the court to put the
records in this regard in their proper light;" particularly (a) that the
judgment of the trial court had attained its finality long ago, (b) the
doctrine of res judicata is inapplicable, otherwise, this Court would not
have remanded the case to the Court of Appeals for review, (c) the
observation in the First Division's extended Resolution of 14 July 1986
that Justice Yap was unaware that Atty. Ordoez was private
respondents' counsel "defies every vestige of human understanding;"
that Justice Yap had forthwith inhibited himself from participating in
the case is not borne out by the record of this case. Justice Yap had
"never voluntarily entered on the record his inhibition" when he should
have done so when respondent Ilustre's petition was taken up; Justice
Yap's partner, Atty. Ordoez, continued to be recognized by this Court
as counsel for private respondents even as he was already the
Solicitor General; (b) finally, "appearances to the contrary
notwithstanding, he has not committed acts unworthy of his
profession. The truth of the matter is, he should at least be credited in
whatever small way for his acts and efforts taken by him to protect
and uphold the honor and dignity of the Honorable Court."
We find the explanations of both Ms. Ilustre and Atty. Laureta
unsatisfactory. Their claims that they had done nothing that could
constitute an affront to the honor and dignity of this Court dissipate in
the face of attendant facts and circumstances and "defy every vestige
of human understanding," to use their own language. Indeed, they
should not "think that they will win a hearing by the sheer
multiplication of words." (Mathew 6:7).

Respondents' reliance on the "privacy of communication" is

misplaced. Letters addressed to individual Justices, in connection with
the performance of their judicial functions become part of the judicial
record and are a matter of concern for the entire Court. The
contumacious character of those letters constrained the First Division
to refer the same to the Court en banc, en consulta and so that the
Court en banc could pass upon the judicial acts of the Division. It was
only in the exercise of forbearance by the Court that it refrained from
issuing immediately a show cause order in the expectancy that after
having read the Resolution of the Court en banc of October 28, 1986,
respondents would realize the unjustness and unfairness of their
accusations.
The Court is far from "estopped" in initiating these proceedings. The
Chief Justice had promptly announced his Statement, dated
December 23, 1986, that "the Supreme Court will take appropriate
steps on the matter upon its resumption of sessions on the first
working day of the year."
There is no vindictive reprisal involved. The Court's authority and duty
under the premises is unmistakable. It must act to preserve its honor
and dignity from the scurrilous attacks of an irate lawyer, mouthed by
his client, and to safeguard the morals and ethics of the legal
profession.
We are not convinced that Atty. Laureta had nothing to do with
respondent Ilustre's letters to the individual Justices, nor with the
complaint filed before the Tanodbayan. In the Motion for
Reconsideration, dated June 11, 1986, filed by Atty. Laureta in the
main petition, he stressed:
"10.
The composition of the First Division was reduced to five
members. Strangely enough, about one month later, the Honorable
Court promulgated its extended resolution with such promptitude in
the entire history of the Supreme Court unequalled in a manner of
speaking. . . ."
In the Manifestation and Motion, dated June 25, 1986, filed by Atty.
Laureta (p. 311, Rollo), the same phrases were incarnated:
"the promptitude with which the Resolution of 14 May 1986 was
promulgated (par. 9, Motion for Reconsideration, p. 5) unequalled in

8
the entire history of the Supreme Court in so far as petitions given due
course is concerned . . ." (Emphasis given).
Those same terms are reproduced verbatim in the letters ostensibly
authored by respondent Ilustre addressed to the individual Justices
whom respondents have charged. Thus:
"We consider the three minute resolutions . . . railroaded with such
hurry/promptitude unequalled in the entire history of the Supreme
Court under circumstances that have gone beyond the limits of legal
and judicial ethics" (Ltr. to Justice Narvasa, p. 2; ltr. to Justice Herrera,
p. 2; ltr. to Justice Cruz, p. 2).
xxx

xxx

xxx

"with such unusual hurry/promptitude unequalled in the entire history

of the Supreme Court" (Ltr. to Justice Narvasa, p. 5; ltr. to Justice
Herrera, p. 5; ltr. to Justice Cruz, p. 5)."
The same terminologies are reiterated in the Complaint and in the
Motion for Reconsideration filed before the Tanodbayan (p. 2).
Further, in his Manifestation & Motion, dated June 25, 1986, Atty.
Laureta stated:
"counsel for petitioner personally inquired from Division Clerk of Court
Corazon Serevo the following:
(1)
When was the above-entitled case deliberated by the First
Division?
(2)

Are there recorded minutes of such deliberation?

(3)
Who among the members of the Division voted for dismissal of
the petition to be promulgated by resolution and who did not, if any?
(4)

Who prepared the Resolution?" (p. 312, Rollo).

Atty. Laureta's obsession to receive the answer to his queries

surfaces again in the second letters dated November 3, 1986 to the
individual Justices under the supposed signatures of respondent
Ilustre, thus:
"Evidently you misunderstood our point of inquiry in our first letter. It is
a very simple inquiry, to wit Did you or did you not approve the
dismissal of our petition under.

1)

The 14 May 1986 minute resolution? Yes or No

2)

The 9 July 1986 minute resolution? Yes or No

3)

The 3 Sept. 1986 minute resolution? Yes or No."

(Emphasis original) (Ltr. to Justice Narvasa, p. 1; to Justice Herrera,

p. 1; to Justice Cruz, p. 1).
Additionally, the disparaging remarks like: exertion of "undue" and
"powerful influence" by Atty. Ordoez and Justice Yap; "distortion of
facts, conjectures and mistaken references"; "untenable minute
resolution although extended"; "unjust minute resolution" repeated by
Atty. Laureta in his several pleadings, echoed and re-echoed in the
individual letters to the Justices, as well as in the Complaint and the
Motion for Reconsideration before the Tanodbayan, reveal the nottoo-hidden hand of Atty. Laureta.
The foregoing is bolstered by the reports received by the members of
the Court that copies of the complaint filed with the Tanodbayan were
distributed to the editors of the metropolitan newspapers in envelopes
bearing the name of respondent Laureta, who was heard over the
radio speaking on the same complaint, and that he was following up
the complaint and the motion for reconsideration of the order of
dismissal of the Tanodbayan.
Furthermore, respondent Laureta as his co-respondent Ilustre's
lawyer had control of the proceedings. As stressed by this Court in an
early case, as such lawyer, "Whatever steps his client takes should be
within his knowledge and responsibility. Indeed, Canon 16 of the
Canons of Legal Ethics should be reminded him that '(a) lawyer
should use his best efforts to restrain and to prevent his clients from
doing those things which the lawyer himself ought not to do,
particularly with reference to their conduct towards courts, judicial
officers, jurors, witnesses and suitors. If a client persists in such
wrongdoing the lawyer should terminate their relation.'" (In Re:
Contempt Proceedings in Surigao Mineral Reservation Board vs.
Cloribel, 31 SCRA 1, 23) Respondent Laureta manifestly failed to
discharge such responsibility. For all intents and purposes, he
appears to have encouraged and abetted his client in denigrating the
members of the First Division of this Court, by baselessly charging
them with rendering an "unjust" resolution with "deliberate bad faith,"
because of his stubborn insistence on his untenable arguments which

9
had been rejected as without merit by the Court's First Division,
whose Resolution was upheld by the Court en banc. Worse, the
dissemination in the print and broadcast media in bold captions falsely
depicting the Justices as "FAC(ING) GRAFT CHARGES" instead of
the baseless rantings of a disgruntled litigant appear to have been
timed to place them in a bad light at the height of the Christmas
season.
We come now to the specific accusations of respondents.
They charge Associate Justices Vicente Abad Santos (retired) then
Chairman of the First Division of the Supreme Court as of May 14,
1986, Andres Narvasa, Ameurfina M. Herrera, and Pedro Yap for
knowingly and deliberately rendering their "unjust, extended
Resolution of May 14, 1986" dismissing their petition in this case with
manifest and evident bad faith to make the clients of Atty. Sedfrey A.
Ordoez (now the Solicitor General) the "illegal owners" of the estates
of Digna Maravilla, thereby causing the heirs of Ponciano Maravilla
(Digna's eldest brother) undue injury by depriving them of their rights
over the estates of Digna Maravilla (Charge No. Three before the
Tanodbayan). They further charge Justice Yap (and Atty. Sedfrey
Ordoez) of having "persuad(ed), induc(ed) and influenc(ed) the
members of the newly organized First Division into promulgating their
"unjust, extended minute Resolution of 14 May 1986" (Charge No.
One before the Tanodbayan), which Resolution, (the "Division
Resolution," for short) is herewith attached as Annex "A".
Preliminarily, respondents deny that respondent Ilustre lost three
times in this Court. It cannot be denied, however, that, as stated in the
Resolution of October 28, 1986 of the Court en banc, this is the third
time (in fact, the fourth, if we include Fernandez, et al. vs. Maravilla, L18799, 10 SCRA 589 [1964]) that a controversy involving the estate of
the late Digna Maravilla is elevated to this Court. The first was in G.R.
No. L-23225 (37 SCRA 672 [1971], where this Court ruled:
"IN VIEW OF THE FOREGOING, the decree of the court below
denying probate of the 1944 will of Digna Maravilla (Exhibit 'A') is
reversed and the said testament is hereby ordered probated. Let the
records be returned to the Court of origin for further proceedings
conformable to law. . . ."
As stated in the en banc Resolution of October 28, 1986 (hereto
attached as Annex "B", and hereinafter referred to as the "Banc

Decision") while respondent Ilustre was not a party in that case, upon
remand of the case to the probate Court, she and other children of the
deceased brothers and sisters of the testatrix filed two Motions for
Intervention. Respondent Ilustre's participation in the estate involved,
therefore, harks back to that first case.
The Court of Appeals resolved the issue of intervention in CA-G.R.
No. 05394, entitled "Heirs of Pastor Maravilla, et al. vs. Hon. Ernesto
S. Tengco, et al." in a Decision penned by Justice Venicio Escolin
(hereinafter referred to as the "Escolin Decision") wherein it was
categorically ruled that there was no point to allowing intervention on
the part of respondent Ilustre, et als., "for failure to show any right or
interest in the estate in question." Thus:
"(2)
As heretofore stated, private respondents, in their counterpetition for mandamus, seek this Court's resolution on the petitioners'
motion for intervention in Sp. Proc. No. 4977. In their respective
pleadings and memoranda, the parties have lengthily discussed the
issue of whether or not petitioners may be allowed to intervene; and
the same may as well be determined in the present case, if only 'to
avoid or, at least, minimize further protracted controversy' between
the parties (PCIB vs. Hon. Escolin, 56 SCRA 2661. A resolution of this
issue should render moot and academic the question anent the
disqualification of respondent Judge.
We agree with private respondents that petitioners' motions for
intervention are devoid of merit, for failure on their part to show any
right or interest in the estate in question. There is no dispute that the
last will and testament of the late Digna Maravilla had already been
admitted to probate in a final judgment which the Supreme Court
promulgated on March 2, 1971 (G.R. No. L-23225). In the said will,
Digna instituted her husband Herminio Maravilla as
xxx

xxx

xxx

The above testamentary provision for the universal heirship of

Herminio Maravilla over the residue of the decedent's present and
future property legally and completely excluded the petitioners, as
collateral relatives of the testatrix, from inheriting any part of the
latter's estate through intestate succession or mixed succession.
Having no forced or compulsory heirs, except her husband, the
testatrix had the absolute freedom to institute the latter as her sole,

10
universal heir, and such freedom is recognized by Article 842 of the
Civil Code, which provides:
'ART. 842.
One who has no compulsory heirs may dispose by will
of all his estate or any part of it in favor of any person having capacity
to succeed.
One who has compulsory heirs may dispose of his estate provided he
does not contravene the provisions of this Code with regard to the
legitime of said heirs."
There is therefore no point in allowing the petitioners, who clearly
appear to have no interest in the estate, to intervene in the
proceedings involving the settlement thereof.
xxx

xxx

xxx"

The aforesaid Decision was affirmed by this Court in G.R. No. L46155 on November 9, 1977 and has become final. That was the
second case involving the estate filed before this Court.
Respondents' contention, therefore, that the statement in the Banc
Resolution "that the Court of Appeals had denied intervention" is an
"unadulterated distortion of the facts" is obviously erroneous and
intended to mislead.
The "Escolin Decision" (in CA-G.R. No. 05394-R), which had become
final, also finally foreclosed any claim that respondent Ilustre, and
those who sought to intervene with her, may have had on the estate of
Digna Maravilla. In unmistakable terms, what the Court of Appeals
held in that Decision, affirmed by this Court, bears repeating:
"The above testamentary provision for the universal heirship of
Herminio Maravilla over the residue of the decedent's present and
future property legally and completely excluded the petitioners, as
collateral relatives of the testatrix, from inheriting any part of the
latter's estate through intestate succession or mixed succession. . . ."
To circumvent that judgment, however, two years later, or on February
29, 1979, respondent Ilustre, with respondent Laureta as counsel,
filed a complaint for partition of Digna Maravilla's estate and for
damages against the heirs of Digna Maravilla's husband, who had
then passed away (docketed as Civil Case No. X-404), before the
Court of First Instance of Negros Occidental, San Carlos City, Branch
X, presided over by Judge Antonia Corpuz Macandog. That Court,

after declaring defendants therein (private respondents in the petition

under review) in default, ordered "all properties of Digna Maravilla
mentioned in this case to go back to their trunk of origin, the plaintiffs
herein who are represented by Eva Maravilla Ilustre and Eva Maravilla
Ilustre herself" (hereinafter referred to as the "Macandog Decision").
In addition, the judgment awarded damages to the respondent Ilustre,
et als., (the plaintiffs therein), and the sum of P100,000.00 to their
counsel, respondent Laureta.
A special civil action for certiorari was filed by the defeated parties
(private respondents in the petition under review) before this Court,
docketed as G.R. No. L-58014, praying that the lower Court's
declaration of default in Civil Case No. X-404 and all other actions or
decisions taken thereafter be declared null and void and that the
dismissal of the complaint be ordered. on January 21, 1982, this Court
resolved to refer the case to the Court of Appeals in aid of its
appellate jurisdiction, questions of fact being involved.
In a Decision dated January 14, 1983, the Court of Appeals (Fourth
Division), 1 in AC-G.R. SP No. 13680 (hereafter called the "Busran
Decision"), dismissed the petition and denied certiorari slating in one
breath that "the judgment subject of assail had long become final" (at
p. 13), and in another "for all we know, the judgment below had
already attained finality long ago." The reason relied upon was that
petitioners therein had the remedy of appeal but instead availed of
Certiorari, which is not a substitute therefor.
On motion for reconsideration, however, filed by petitioners (private
respondents in the petition under review), in that appealed case (ACG.R. SP No. 13680), the same Court of Appeals (Fourth Special
Cases Division) 2 in its Resolution of January 20, 1984 (the
"Javellana Resolution"), reconsidered and set aside the "Busran
Decision" and entered another one:
"1.
Annulling the order of default of the Hon. respondent Court
dated 29 April 1980 and its decision dated 11 August 1981; and
2.
Dismissing private respondents' complaint in Civil Case No. X404 and ordering the Hon. respondent Court not to take further action
therein."
Respondent Ilustre challenged that reversal in the present Petition for
Review filed on October 22, 1984. This is the third case brought

11
before this Court involving the same estate. Review was denied in an
extended minute Resolution by the First Division of this Court in the
challenged Resolution of May 14, 1986, for the following reasons:
"The appealed Decision stands on firm legal grounds.
(1)
The Order of Default of the Trial Court was issued in grave
abuse of discretion. The Answer was filed only one day late besides
the fact that when so filed, the Order of default had not yet been
issued by the Trial Court.
(2)
While appeal is, indeed, the remedy from a judgment by
default, Certiorari may be resorted to when a party has been illegally
declared in default (Omico Mining & Industrial Corporation vs.
Vallejos, 63 SCRA 300-301 [1975]),or where it is necessary to restore
order to proceedings in the Court below (Lim Tanhu vs. Ramolete, 66
SCRA 462-463 [1975]).
(3)
More importantly, the judgment of the Trial Court, in Civil Case
No. X-404 declaring that the Testatrix's collateral relatives have a
rightful claim to her estate to the exclusion of the husband who was
designated her sole and universal heir, nullifies the Will already
probated by final judgment and overturns the pronouncements of both
the Appellate Court and this Court on the case.
There being former judgments on the issues which have become final,
rendered by Courts having jurisdiction of the subject matter and the
parties, the said judgments having been rendered on the merits, and
there being between the prior and subsequent action identity of
parties, subject matter and substantial identity of cause of action, it is
clear that the complaint below in Civil Case X-404 is barred by the
principle of res adjudicata, and whatever transpired therein are null
and void ab initio and without any legal effect.
To rule otherwise would upset the fundamental issue on which res
judicata rests that parties ought not to be permitted to litigate the
same issue more than once, that when a right or fact has been
judicially determined, the judgment of the Court, so long as it remains
unreversed, should be conclusive upon the parties and those in privity
with them in law or estate (Sarabia vs. Sec. of Agriculture and Natural
Resources, 2 SCRA 54 [1961]).
ACCORDINGLY, the review sought for is denied and respondent
Court's judgment in CA-G.R. SP No. 13080 is hereby affirmed.

SO ORDERED."
Respondents decry the fact that the First Division set aside the due
course Order and denied review in an extended Minute Resolution
instead of in a signed Decision. They allege that said Resolution was
"railroaded with such hurry/promptitude unequalled in the entire
history of the Supreme Court under circumstances that have gone
beyond the limits of legal and judicial ethics," unduly "persuaded,
induced and influenced" by Solicitor General Ordoez and Justice
Pedro Yap.
Nothing is farthest from the truth. As explained in the "Banc
Resolution".
"The petition for review was assigned to the then First Division of
seven Justices, which initially gave it due course because the
resolution of the Intermediate Appellate Court had reversed a decision
originally rendered by the then Court of Appeals, and in order to have
more time for further study.
Pleadings were submitted, the last being on May 3, 1985, which can
be considered as the date when this case was submitted for
resolution.
The First Division of seven (7) was not able to act on the case up to
the February, 1986 political upheaval. The last incident in the case
was a motion for the early release of decision filed by petitioner on
November 19, 1985.
When this Court was reorganized in April of 1986, the membership of
the First Division was reduced to five (5) Justices. Taking account of
the motion of petitioner for early release of decision, the new First
Division, then chairmanned by Justice Abad Santos, realizing that the
doctrine of res judicata was clearly applicable not only as to the
probate of the will but also as to the heirship of petitioner, among
others, and their right to intervene and participate in the proceedings
resolved, on May 14, 1986 to dismiss the petition through an
extended resolution which at the same time recalled the due course
order. The new Division of 5 acted unanimously."
The recall of a due course Order after a review of the records of the
case is a common occurrence in the Court. Respondents speak as if it
were only their petition which has been subjected to such recall. They

12
have lost all objectivity in this regard. They are hardly qualified, and
cannot presume to speak of the "entire history" of the Supreme Court.
As to the participation of Justice Yap in the case, the "Banc
Resolution" stated:
"Justice Yap clarified that he was on official mission to Switzerland for
the Presidential Commission on Good Government after his
appointment to the Supreme Court on April 11, 1986 and did not
assume his position in the Supreme Court until his return on May 2,
1986. When the resolution of dismissal on May 14, 1986 was issued,
Justice Yap was unaware that Atty. Sedfrey Ordoez was private
respondent's counsel.
On June 11, 1986, petitioner filed a motion for reconsideration, which
was taken up by the First Division on July 9, 1986 with Justice Abad
Santos still the Chairman. This time, Justice Yap, realizing that his
former partner, Atty. Ordoez, had submitted the pleadings for
petitioner, inhibited himself and Justice Edgardo L. Paras was
designated under Special Order No. 21, dated July 9, 1986, to sit in
the Division in his place. The motion for reconsideration was denied
with finality on July 9, 1986.
Justice Yap was designated Chairman of the First Division on July 14,
1986.
On August 7, 1986, petitioner asked leave to file a second motion for
reconsideration, which was denied on September 3, 1986, entry of
judgment of the May 14, 1986 resolution having been made on July
28, 1986. Justice Yap again took no part in the deliberation of the
case."
But respondents continue to claim derisively that Justice Yap could
not have been "unaware" of the appearance of Atty. Sedfrey Ordoez.
They reacted by saying "tell it to the marines" (Letters of November 3,
1986 to Justices Narvasa, Herrera, and Cruz, at p. 8, respectively).
But that was the true and untarnished fact. With so many cases being
handled by the Court, the appearances of lawyers during deliberative
sessions very often escape attention, concentration being centered on
the issues to be resolved.

Respondents also fault the Court for "still recogniz(ing) Atty. Ordoez
as counsel" for their opponents in the case. In the same "Banc
Resolution," it was clarified:
"A copy of the resolution, dated May 14, 1986, was sent by the
Releasing Clerks to Atty. Sedfrey A. Ordoez as his name still
appears on the cover page of the Rollo. It was not necessarily
because the Supreme Court 'still recognizes him as counsel for
respondents'" (at p. 4).
The fact of the matter is that even Atty. Laureta continued to recognize
Atty. Ordoez as counsel as shown by his pleadings filed before the
Court, which inevitably contained the notation "copy furnished Atty.
Sedfrey Ordoez." No withdrawal of appearance having been
presented by Atty. Ordoez in the main petition, his name continues to
be in the Rollo of the case and the personnel concerned continue to
furnish him with copies of Resolutions of this Court.
In respect of the charge that the Resolutions of the First Division of
May 14, 1986, July 9, 1986 denying the Motion for Reconsideration
with finality, and September 3, 1986 denying leave to file a second
motion for reconsideration since entry of judgment of the May 14,
1986 Resolution had been made on July 28, 1986, were "unjust" and
were "railroaded," the Banc Resolution, adopting the Division
Resolution, explained:
"The aforesaid resolutions were by no means 'railroaded.' The
pleadings filed by the parties, as in any other case, were included in
the Agenda of the First Division as soon as feasible. The Division acts
promptly on all Agenda items, and the minutes of its deliberations are
released as soon as possible after Agenda day.
xxx

xxx

xxx

"The dispositions in this case were arrived at after careful study.

Because a case is resolved against the interests of a party, does not
mean that it is an 'unjust decision;' or that it has been 'railroaded.'
This Division declares without hesitation that it has consistently
rendered justice without fear or favor." (at p. 4)
Respondents insist that the doctrine of "res judicata" is inapplicable. In
their own words "the ordered probate of the 1944 Will of Digna
Maravilla by judgment of the Supreme Court in G.R. No. L-23225 is

13
conclusive only as to the genuineness and due execution of said will,
but not upon the validity of testamentary provision, particularly with
the invalid designation of Herminio Maravilla as sole and universal
heir of Digna Maravilla."

or hearing provided for in section 753 is to settle and determine those

questions, and until they are settled and determined in that
proceeding and under that section no action such as the present one
can be maintained."

On this point, the "Javellana Resolution," in reversing the "Busran

Decision" (AC-G.R. SP No. 13680), aptly held:

Considering that the "Escolin Decision," as affirmed by this Court on

November 9, 1977 in G.R. No. L-46155, had become final, the
"Javellana Resolution" aptly observed:

"The then Court of Appeals held that the questioned decision does not
run counter to the decision of the Hon. Supreme Court in G.R. No. L23225 admitting the will of Digna Maravilla to probate because the
latter refers to the extrinsic validity of the will, while the former
concerns its intrinsic validity. We cannot agree with this observation
because it is quite clear from the questioned decision that the will was
in effect declared not to have been freely and voluntarily executed by
the deceased Digna Maravilla but was the result of the evil and
fraudulent machinations of her husband, Herminio Maravilla, and sets
aside said will. The declaration that private respondents, as collateral
relatives of the deceased Digna Maravilla, are entitled to her estate, is
an indication that the Hon. respondent Court has nullified the will.
Private respondents are not compulsory heirs and, in the absence of
their being named legatees or devisees in the will, they could only lay
claim to the estate of Digna Maravilla if the latter died without a will,
pursuant to Art. 1003 of the New Civil Code, to wit:
'Art. 1003.
If there are no descendants, ascendants, illegitimate
children or a surviving spouse, the collateral relatives shall succeed to
the entire estate of the deceased in accordance with the following
articles.'
"However, assuming arguendo, that the matter complained of by
private respondents referred only to the intrinsic validity of the will,
still, it was improper for them to have instituted a separate action in a
court other than that in which the probate proceeding was pending.
xxx

xxx

xxx

'It seems clear from these provisions of the law that while the estate is
being settled in the Court of First Instance in a special proceeding, no
ordinary action can be maintained in that court, or in any other court,
by a person claiming to be the heir, against the executor or against
other persons claiming to be heirs, for the purpose of having the rights
of the plaintiffs in the estate determined. The very purpose of the trial

"3.
The questioned decision of the Hon. respondent Court dated
12 August 1981 (referring to the 'Macandog Decision') unsettles and
reviews issues which had long been laid to rest by the Hon. Supreme
Court and the then Court of Appeals."
But respondents ask: if res judicata were applicable, why did this
Court, in G.R. No. L-50814, refer the case to the Court of Appeals?
The answer is simple. The issue of whether the remedy of petitioners
in that case was appeal and not certiorari had to be resolved. If
certiorari were proper, then the "Macandog Decision" had not become
final. If appeal, its finality would be the consequence. The "Javellana
Resolution;" which reversed the "Busran Decision," held that Certiorari
was proper when a party has been illegally declared in default. It
follows that the "Macandog Decision" had not attained finality.
Still undaunted, respondents claim that the Court of Appeals
"deliberately evaded/divaricated" two important issues: (1) that the
judgment of the Trial Court (in CC No. X-404) had attained finality as
in fact the Court of Appeals had held that the "judgment of assail had
long become final," and (2) that Digna Maravilla's husband could not
be instituted as the sole and universal heir of the wife on indestructible
ground of moral impossibility and could not inherit wife's vast estate
on the ground of utter unworthiness."
The penchant of respondents for making misleading statements is
again obvious. It was not in the "Javellana Resolution" that the Court
of Appeals held that "the judgment of assail (referring to the
'Macandog Decision') had long become final." That was in the "Busran
Decision," which was precisely reversed by the "Javellana
Resolution."
As to the alleged unworthiness of the husband to inherit from his wife,
the "Javellana Resolution" pointedly observed:

14
"The last will and testament of Digna Maravilla which instituted her
husband, Herminio Maravilla, as her sole and universal heir, was
admitted to probate, pursuant to a final judgment of the Hon. Supreme
Court in G.R. No. L-23225, 27 February 1971. This probate foreclosed
all questions as to the age and mental capacity of the testator, the
signing of the document by the testator, or by someone in his behalf,
and the acknowledgment of the instrument by him in the presence of
the required member of witnesses who affix their signatures to the will
to attest the act. In re Estate of Johnson, 39 Phil. 156, 168). Yet, more
than ten years later, the Hon. respondent Court would nullify the
effects of the probate by declaring that Digna Maravilla did not
voluntarily and sanely execute the probated last will and testament,
nullifying the institution of Herminio Maravilla as her sole and
universal heir, and ordering the return of the properties of Digna
Maravilla to the trunk of origin."
The soundness of the legal conclusions arrived at in the "Escolin
Decision" and "Javellana Resolution" commends itself. Only a
disgruntled litigant and a defeated lawyer would claim that those
judgments were accepted "hook, line and sinker" by this Court. The
doctrine of res judicata is inescapably applicable. Thus it was that the
First Division, in its challenged Resolution of May 14, 1986, found it
unnecessary, after further study, to have a signed Decision and,
instead, recalled the due course Order, which it had previously issued
to give it "more time for further study" (p. 2, Banc Resolution, October
28, 1986). Contrary to respondents' claim, the Court is not "duty
bound" to render signed Decisions all the time. It has ample discretion
to formulate Decisions and/or minute Resolutions, provided a legal
basis is given, depending on its evaluation of a case.
But obdurately enough, respondents have seen fit to take their case to
the Tanodbayan charging the members of the First Division of this
Court collectively with having knowingly and deliberately rendered an
"unjust extended minute Resolution" with deliberate bad faith in
violation of Article 204 of the Revised Penal Code 3 and for
deliberately causing "undue injury" to respondent Ilustre and her coheirs because of the "unjust Resolution" promulgated, in violation of
the Anti-Graft and Corrupt Practices Act. 4
Respondents' action is brazenly unjustifiable. Nor can they plead
ignorance. As aptly declared in the Chief Justice's Statement of
December 24, 1986, which the Court hereby adopts in toto, "(I)t is

elementary that the Supreme Court is supreme the third great

department of government entrusted exclusively with the judicial
power to adjudicate with finality all justiciable disputes, public and
private. No other department or agency may pass upon its judgments
or declare them 'unjust.'" It is elementary that "(A)s has ever been
stressed since the early case of Arnedo vs. Llorente (18 Phil. 257, 263
[1911]) 'controlling and irresistible reasons of public policy and of
sound practice in the courts demand that at the risk of occasional
error, judgments of courts determining controversies submitted to
them should become final at some definite time fixed by law, or by a
rule of practice recognized by law, so as to be thereafter beyond the
control even of the court which rendered them for the purpose of
correcting errors of fact or of law, into which, in the opinion of the court
it may have fallen. The very purpose for which the courts are
organized is to put an end to controversy, to decide the questions
submitted to the litigants, and to determine the respective rights of the
parties.'" (Luzon Brokerage Co., Inc. vs. Maritime Bldg., Co., Inc., 86
SCRA 305, 316-317)
Respondents should know that the provisions of Article 204 of the
Revised Penal Code as to "rendering knowingly unjust judgment"
refer to an individual judge who does so "in any case submitted to him
for decision" and even then, it is not the prosecutor who would pass
judgment on the "unjustness" of the decision rendered by him but the
proper appellate court with jurisdiction to review the same, either the
Court of Appeals and/or the Supreme Court. Respondents should
likewise know that said penal article has no application to the
members of a collegiate court such as this Court or its Divisions who
reach their conclusions in consultation and accordingly render their
collective judgment after due deliberation. It also follows,
consequently, that a charge of violation of the Anti-Graft and Corrupt
Practices Act on the ground that such a collective decision is "unjust"
cannot prosper.
The Chief Justice's Statement of the supremacy of the Supreme
Court's judicial power is by no means a "display of arrogance" as per
respondents' puerile contention, but a restatement of the fundamental
principle of separation of powers and checks and balances under a
republican form of government such as ours, viz. that the three coequal branches of government, the executive, legislative and judicial,
are each supreme and independent within the limits of its own sphere.

15
Neither one can interfere with the performance of the duties of the
other. (Forbes vs. Chuoco, 16 Phil. 534 [1910]). As restated by the
late Justice Jose P. Laurel in the 1936 landmark case of Angara vs.
Electoral Commission (63 Phil. 134), our Constitution "as 'a definition
of the powers of government' placed upon the judiciary the great
burden of 'determining the nature, scope and extent of such powers'
and 'when the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other departments .. but
only asserts the solemn and sacred obligation entrusted to it by the
Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy
the rights which the instrument secures and guarantees to them.'"
As an officer of the Court, respondent Laureta, should realize that the
cardinal principle he would grossly impair and violate is that of the
independence of the judiciary, which the members of the bar are
called upon to defend and preserve. The independence of the
judiciary is the indispensable means for enforcing the supremacy of
the Constitution and the rule of law.
To subject to the threat and ordeal of investigation and prosecution, a
judge, more so a member of the Supreme Court for official acts done
by him in good faith and in the regular exercise of official duty and
judicial functions is to subvert and undermine that very independence
of the judiciary, and subordinate the judiciary to the executive. "For it
is a general principle of the highest importance to the proper
administration of justice that a judicial officer in exercising the
authority vested in him, shall be free to act upon his own convictions,
without apprehension of personal consequences to himself. Liability to
answer to everyone who might feel himself aggrieved by the action of
the judge would be inconsistent with the possession of this freedom,
and would destroy that independence without which no judiciary can
be either respectable or useful." (Bradley vs. Fisher, 80 U.S. 335).
Indeed, resolutions of the Supreme Court as a collegiate court,
whether en banc or division, speak for themselves and are entitled to
full faith and credence and are beyond investigation or inquiry under
the same principle of conclusiveness of enrolled bills of the
legislature. (U.S. vs. Pons, 34 Phil. 729; Gardiner, et al. vs. Paredes,
et al., 61 Phil. 118; Mabanag vs. Lopez Vito, 78 Phil. 1) The Supreme
Court's pronouncement of the doctrine that "(I)t is well settled that the
enrolled bill . . . is conclusive upon the courts as regards the tenor of

the measure passed by Congress and approved by the President. If

there has been any mistake in the printing of the bill before it was
certified by the officers of Congress and approved by the Executive
[as claimed by petitioner-importer who unsuccessfully sought refund
of margin fees] on which we cannot speculate, without jeopardizing
the principle of separation of powers and undermining one of the
cornerstones of our democratic system the remedy is by
amendment or curative legislation, not by judicial decree" is fully and
reciprocally applicable to Supreme Court orders, resolutions and
decisions, mutatis mutandis. (Casco Phil. Chemical Co., Inc. vs.
Gimenez, 7 SCRA 347, 350. (Citing Primicias vs. Paredes, 61 Phil.
118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comelec, 3
SCRA 1).
The Court has consistently stressed that "the doctrine of separation of
powers calls for the executive, legislative and judicial departments
being left alone to discharge their duties as they see fit" (Tan vs.
Macapagal, 43 SCRA 677). It has thus maintained in the same way
that the judiciary has a right to expect that neither the President nor
Congress would cast doubt on the mainspring of its orders or
decisions, it should refrain from speculating as to alleged hidden
forces at work that could have impelled either coordinate branch into
acting the way it did. The concept of separation of powers
presupposes mutual respect by and between the three departments of
the government. (Tecson vs. Salas, 34 SCRA 275, 286-287).
To allow litigants to go beyond the Court's resolution and claim that
the members acted "with deliberate bad faith" and rendered and
"unjust resolution" in disregard or violation of the duty of their high
office to act upon their own independent consideration and judgment
of the matter at hand would be to destroy the authenticity, integrity
and conclusiveness of such collegiate acts and resolutions and to
disregard utterly the presumption of regular performance of official
duty. To allow such collateral attack would destroy the separation of
powers and undermine the role of the Supreme Court as the final
arbiter of all justiciable disputes.
Dissatisfied litigants and/or their counsels cannot without violating the
separation of powers mandated by the Constitution relitigate in
another forum the final judgment of this Court on legal issues
submitted by them and their adversaries for final determination to and
by the Supreme Court and which fall within the judicial power to

16
determine and adjudicate exclusively vested by the Constitution in the
Supreme Court and in such inferior courts as may be established by
law.

the Courts concerned, all with the manifest intent to bring the Justices
of this Court and of the Court of Appeals into disrepute and to subvert
public confidence in the Courts.

In resume, we find that respondent Ilustre has transcended the

permissible bounds of fair comment and criticism to the detriment of
the orderly administration of justice in her letters addressed to the
individual Justices quoted in the show-cause Resolution of this Court
en banc, particularly the underlined portions thereof; in the language
of the charges she filed before the Tanodbayan quoted and
underscored in the same Resolution; in her statements, conduct, acts
and charges against the Supreme Court and/or the official actions of
the Justices concerned and her ascription of improper motives to
them; and in her unjustified outburst that she can no longer expect
justice from this Court. The fact that said letters are not technically
considered pleadings, nor the fact that they were submitted after the
main petition had been finally resolved does not detract from the
gravity of the contempt committed. The constitutional right of freedom
of speech or right to privacy cannot be used as a shield for
contemptuous acts against the Court.

Atty. Laureta should be reminded that his first duty is not to his client
but to the administration of justice; to that end, his client's success is
wholly subordinate; and his conduct ought to and must always be
scrupulously observant of law and ethics. For like the Court itself, "a
lawyer is an instrument or agency to advance the ends of justice."
(Surigao Mineral Conservation Board vs. Cloribel, 31 SCRA 1 [1970];
Castaeda vs. Ago, 65 SCRA 505 [1975]).

We likewise find that Atty. Laureta has committed acts unbecoming an

officer of the Court for his stance of dangling threats of bringing the
matter to the "proper forum" to effect a change of the Court's adverse
Resolution; for his lack of respect for and exposing to public ridicule,
the two highest Courts of the land by challenging in bad faith their
integrity and claiming that they knowingly rendered unjust judgments
(Montecillo vs. Gica, 60 SCRA 234 [1974]); for authoring, or at the
very least, assisting and/or abetting and/or not preventing the
contemptuous statements, conduct, acts and malicious charges of his
client, respondent Ilustre, notwithstanding his disclaimer that he had
absolutely nothing to do with them, which we find disputed by the
facts and circumstances of record as above stated; for totally
disregarding the facts and circumstances and legal considerations set
forth in this Court's Resolutions of the First Division and en banc, as
the Tribunal of last resort; for making it appear that the Justices of this
Court and other respondents before the Tanodbayan are charged with
"graft and corruption" when the complaint before the Tanodbayan, in
essence, is a tirade from a disgruntled litigant and a defeated counsel
in a case that has been brought thrice before this Court, and who
would readily accept anything but the soundness of the judgments of

In assessing the penalty on respondent Laureta, the Court notes that

"disciplinary proceedings against lawyers are sui generis. Neither
purely civil nor purely criminal, they do not involve a trial of an action
or a suit, but are rather investigations by the Court into the conduct of
one of its officers. Not being intended to inflict punishment, it is in no
sense a criminal prosecution. Accordingly, there is neither a plaint nor
a prosecutor therein. It may be initiated by the Court motu proprio.
Public interest is its primary objective, and the real question for
determination is whether or not the attorney is still a fit person to be
allowed the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar
to account for his actions as an officer of the Court with the end in
view of preserving the purity of the legal profession and the proper
and honest administration of justice by purging the profession of
members who by their misconduct have proved themselves no longer
worthy to be entrusted with the duties and responsibilities pertaining
to the office of an attorney." Viewed in the light of the demonstrated
persistence of grave misconduct and undermining public confidence
in the honor and integrity of the Court and its members (at a time
when the Court is exerting every effort to regain public confidence in
our courts after the trauma and debacle undergone by them in the
past regime), the Court shall impose upon him an indefinite
suspension, leaving it to him to prove at some future and opportune
time, that he shall have once again regained the fitness to be allowed
to resume the practice of law as an officer of the Courts. (In re:
Almacen, 31 SCRA 562).
ACCORDINGLY, (1) respondent Eva Maravilla Ilustre is hereby held in
contempt, and is hereby fined in the amount of P1,000.00 only,

17
mindful that the power of contempt should be exercised on the
preservative and not on the vindictive principle of punishment; and.
(2)
Atty. Wenceslao Laureta is found guilty of grave professional
misconduct, rendering him unfit to continue to be entrusted with the
duties and responsibilities belonging to the office of an attorney, and is
hereby suspended from the practice of law until further Orders, the
suspension to take effect immediately.
Let copies of this Resolution be circulated to all Courts of the country
for their information and guidance, and spread in the personal record
of Atty. Wenceslao Laureta.
SO ORDERED.
Teehankee, C.J., Fernan, Narvasa, Melencio-Herrera, Alampay,
Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento and Cortes, JJ., concur.
Yap, J., no part.
Footnotes
1.
Composed of Justices Busran (ponente), Coquia and Zosa, as
members.
2.
Composed of Justices Cuevas, Mendoza and Javellana
(ponente).
3.
"ART. 204. Knowingly rendering unjust judgment. Any judge
who shall knowingly render an unjust judgment in any case submitted
to him for decision, shall be punished by prision mayor and perpetual
absolute disqualification.
4.
xxx

"SEC. 3. Corrupt practices of public officers.

xxx

xxx

(e)
Causing any undue injury to any party, including
the Government, or any private party any unwarranted benefits,
advantage or preference in the discharge of his official administrative
or judicial functions through manifest partiality, evident bad faith or
gross inexcusable negligence. . . ."

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a,
I n c.

18
EN BANC
[G.R. No. 71977. February 27, 1987.]
DEMETRIO G. DEMETRIA, M.P., AUGUSTO S. SANCHEZ, M.P.,
ORLANDO S. MERCADO, M.P., HONORATO Y. AQUINO, M.P.,
ZAFIRO L. RESPICIO, M.P., DOUGLAS R. CAGAS, M.P., OSCAR F.
SANTOS, M.P., ALBERTO G. ROMULO, M.P., CIRIACO R.
ALFELOR, M.P., ISIDORO E. REAL, M.P., EMIGDIO L. LINGAD,
M.P., ROLANDO C. MARCIAL, M.P., PEDRO M. MARCELLANA,
M.P., VICTOR S. ZIGA, M.P., and ROGELIO V. GARCIA, M.P.,
petitioners, vs. HON. MANUEL ALBA in his capacity as the MINISTER
OF THE BUDGET and VICTOR MACALINGCAG in his capacity as
the TREASURER OF THE PHILIPPINES, respondents.
DECISION
FERNAN, J p:
Assailed in this petition for prohibition with prayer for a writ of
preliminary injunction is the constitutionality of the first paragraph of
Section 44 of Presidential Decree No. 1177, otherwise known as the
"Budget Reform Decree of 1977."
Petitioners, who filed the instant petition as concerned citizens of this
country, as members of the National Assembly/Batasan Pambansa
representing their millions of constituents, as parties with general
interest common to all the people of the Philippines, and as taxpayers
whose vital interests may be affected by the outcome of the reliefs
prayed for" 1 listed the grounds relied upon in this petition as follows:
LLpr
"A.
SECTION 44 OF THE 'BUDGET REFORM DECREE OF 1977'
INFRINGES UPON THE FUNDAMENTAL LAW BY AUTHORIZING
THE ILLEGAL TRANSFER OF PUBLIC MONEYS.
"B.
SECTION 44 OF PRESIDENTIAL DECREE NO. 1177 IS
REPUGNANT TO THE CONSTITUTION AS IT FAILS TO SPECIFY
THE OBJECTIVES AND PURPOSES FOR WHICH THE PROPOSED
TRANSFER OF FUNDS ARE TO BE MADE.

"C.
SECTION 44 OF PRESIDENTIAL DECREE NO. 1177
ALLOWS THE PRESIDENT TO OVERRIDE THE SAFEGUARDS,
FORM AND PROCEDURE PRESCRIBED BY THE CONSTITUTION
IN APPROVING APPROPRIATIONS.
"D.
SECTION 44 OF THE SAME DECREE AMOUNTS TO AN
UNDUE DELEGATION OF LEGISLATIVE POWERS TO THE
EXECUTIVE.
"E.
THE THREATENED AND CONTINUING TRANSFER OF
FUNDS BY THE PRESIDENT AND THE IMPLEMENTATION
THEREOF BY THE BUDGET MINISTER AND THE TREASURER OF
THE PHILIPPINES ARE WITHOUT OR IN EXCESS OF THEIR
AUTHORITY AND JURISDICTION." 2
Commenting on the petition in compliance with the Court resolution
dated September 19, 1985, the Solicitor General, for the public
respondents, questioned the legal standing of petitioners, who were
allegedly merely begging an advisory opinion from the Court, there
being no justiciable controversy fit for resolution or determination. He
further contended that the provision under consideration was enacted
pursuant to Section 16[5], Article VIII of the 1973 Constitution; and
that at any rate, prohibition will not lie from one branch of the
government to a coordinate branch to enjoin the performance of
duties within the latter's sphere of responsibility.
On February 27, 1986, the Court required the petitioners to file a
Reply to the Comment. This, they did, stating, among others, that as a
result of the change in the administration, there is a need to hold the
resolution of the present case in abeyance "until developments arise
to enable the parties to concretize their respective stands." 3
Thereafter, We required public respondents to file a rejoinder. The
Solicitor General filed a rejoinder with a motion to dismiss, setting
forth as grounds therefor the abrogation of Section 16[5], Article VIII of
the 1973 Constitution by the Freedom Constitution of March 25, 1986,
which has allegedly rendered the instant petition moot and academic.
He likewise cited the "seven pillars" enunciated by Justice Brandeis in
Ashwander v. TVA, 297 U.S. 288 (1936) 4 as basis for the petition's
dismissal. LexLib

19
In the case of Evelio B. Javier v. The Commission on Elections and
Arturo F. Pacificador, G.R. Nos. 68379-81, September 22, 1986, We
stated that:
"The abolition of the Batasang Pambansa and the disappearance of
the office in dispute between the petitioner and the private
respondents both of whom have gone their separate ways-could be
a convenient justification for dismissing the case. But there are larger
issues involved that must be resolved now, once and for all, not only
to dispel the legal ambiguities here raised. The more important
purpose is to manifest in the clearest possible terms that this Court
will not disregard and in effect condone wrong on the simplistic and
tolerant pretext that the case has become moot and academic.
"The Supreme Court is not only the highest arbiter of legal questions
but also the conscience of the government. The citizen comes to us in
quest of law but we must also give him justice. The two are not always
the same. There are times when we cannot grant the latter because
the issue has been settled and decision is no longer possible
according to the law. But there are also times when although the
dispute has disappeared, as in this case, it nevertheless cries out to
be resolved. Justice demands that we act then, not only for the
vindication of the outraged right, though gone, but also for the
guidance of and as a restraint upon the future."
It is in the discharge of our role in society, as above-quoted, as well as
to avoid great disservice to national interest that We take cognizance
of this petition and thus deny public respondents' motion to dismiss.
Likewise noteworthy is the fact that the new Constitution, ratified by
the Filipino people in the plebiscite held on February 2, 1987, carries
verbatim section 16[5], Article VIII of the 1973 Constitution under
Section 24[5], Article VI. And while Congress has not officially
reconvened, We see no cogent reason for further delaying the
resolution of the case at bar.
The exception taken to petitioners' legal standing deserves scant
consideration. The case of Pascual v. Secretary of Public Works, et
al., 110 Phil. 331, is authority in support of petitioners' locus standi.
Thus:
"Again, it is well-settled that the validity of a statute may be contested
only by one who will sustain a direct injury in consequence of its
enforcement. Yet, there are many decisions nullifying at the instance

of taxpayers, laws providing for the disbursement of public funds,

upon the theory that 'the expenditure of public funds by an officer of
the state for the purpose of administering an unconstitutional act
constitutes a misapplication of such funds which may be enjoined at
the request of a taxpayer. Although there are some decisions to the
contrary, the prevailing view in the United States is stated in the
American Jurisprudence as follows:
'In the determination of the degree of interest essential to give the
requisite standing to attack the constitutionality of a statute, the
general rule is that not only persons individually affected, but also
taxpayers have sufficient interest in preventing the illegal expenditures
of moneys raised by taxation and may therefore question the
constitutionality of statutes requiring expenditure of public moneys. [11
Am. Jur. 761, Emphasis supplied.]'"
Moreover, in Tan v. Macapagal, 43 SCRA 677 and Sanidad v.
Comelec, 73 SCRA 333. We said that as regards taxpayers' suits, this
Court enjoys that open discretion to entertain the same or not. LLphil
The conflict between paragraph 1 of Section 44 of PresidentialDecree No. 1177 and Section 16[5], Article VIII of the 1973
Constitution is readily perceivable from a mere cursory reading
thereof. Said paragraph 1 of Section 44 provides:
"The President shall have the authority to transfer any fund,
appropriated for the different departments, bureaus, offices and
agencies of the Executive Department, which are included in the
General Appropriations Act, to any program, project or activity of any
department, bureau, or office included in the General Appropriations
Act or approved after its enactment."
On the other hand, the constitutional provision under consideration
reads as follows:
"Sec. 16[5]. No law shall be passed authorizing any transfer of
appropriations, however, the President, the Prime Minister, the
Speaker, the Chief Justice of the Supreme Court, and the heads of
constitutional commissions may by law be authorized to augment any
item in the general appropriations law for their respective offices from
savings in other items of their respective appropriations."
The prohibition to transfer an appropriation for one item to another
was explicit and categorical under the 1973 Constitution. However, to

20
afford the heads of the different branches of the government and
those of the constitutional commissions considerable flexibility in the
use of public funds and resources, the constitution allowed the
enactment of a law authorizing the transfer of funds for the purpose of
augmenting an item from savings in another item in the appropriation
of the government branch or constitutional body concerned. The
leeway granted was thus limited. The purpose and conditions for
which funds may be transferred were specified, i.e. transfer may be
allowed for the purpose of augmenting an item and such transfer may
be made only if there are savings from another item in the
appropriation of the government branch or constitutional body.
Paragraph 1 of Section 44 of P.D. No. 1177 unduly overextends the
privilege granted under said Section 16[5]. It empowers the President
to indiscriminately transfer funds from one department, bureau, office
or agency of the Executive Department to any program, project or
activity of any department, bureau or office included in the General
Appropriations Act or approved after its enactment, without regard as
to whether or not the funds to be transferred are actually savings in
the item from which the same are to be taken, or whether or not the
transfer is for the purpose of augmenting the item to which said
transfer is to be made. It does not only completely disregard the
standards set in the fundamental law, thereby amounting to an undue
delegation of legislative powers, but likewise goes beyond the tenor
thereof. Indeed, such constitutional infirmities render the provision in
question null and void.
"For the love of money is the root of all evil: . . ." and money belonging
to no one in particular, i.e. public funds, provide an even greater
temptation for misappropriation and embezzlement. This, evidently,
was foremost in the minds of the framers of the constitution in
meticulously prescribing the rules regarding the appropriation and
disposition of public funds as embodied in Sections 16 and 18 of
Article VIII of the 1973 Constitution. Hence, the conditions on the
release of money from the treasury [Sec. 18(1)]; the restrictions on the
use of public funds for public purpose [Sec. 18(2)]; the prohibition to
transfer an appropriation for an item to another [Sec. 16(5) and the
requirement of specifications [Sec. 16(2)], among others, were all
safeguards designed to forestall abuses in the expenditure of public
funds. Paragraph 1 of Section 44 puts all these safeguards to naught.
For, as correctly observed by petitioners, in view of the unlimited

authority bestowed upon the President, ". . . Pres. Decree No. 1177
opens the floodgates for the enactment of unfounded appropriations,
results in uncontrolled executive expenditures, diffuses accountability
for budgetary performance and entrenches the pork barrel system as
the ruling party may well expand [sic] public money not on the basis of
development priorities but on political and personal expediency." 5
The contention of public respondents that paragraph 1 of Section 44
of P.D. 1177 was enacted pursuant to Section 16(5) of Article VIII of
the 1973 Constitution must perforce fall flat on its face. cdphil
Another theory advanced by public respondents is that prohibition will
not lie from one branch of the government against a coordinate
branch to enjoin the performance of duties within the latter's sphere of
responsibility.
Thomas M. Cooley in his "A Treatise on the Constitutional
Limitations," Vol. I, Eight Edition, Little, Brown and Company, Boston,
explained:
". . . The legislative and judicial are coordinate departments of the
government, of equal dignity; each is alike supreme in the exercise of
its proper functions, and cannot directly or indirectly, while acting
within the limits of its authority, be subjected to the control or
supervision of the other, without an unwarrantable assumption by that
other of power which, by the Constitution, is not conferred upon it. The
Constitution apportions the powers of government, but it does not
make any one of the three departments subordinate to another, when
exercising the trust committed to it. The courts may declare legislative
enactments unconstitutional and void in some cases, but not because
the judicial power is superior in degree or dignity to the legislative.
Being required to declare what the law is in the cases which come
before them, they must enforce the Constitution, as the paramount
law, whenever a legislative enactment comes in conflict with it. But the
courts sit, not to review or revise the legislative action, but to enforce
the legislative will, and it is only where they find that the legislature
has failed to keep within its constitutional limits, that they are at liberty
to disregard its action; and in doing so, they only do what every
private citizen may do in respect to the mandates of the courts when
the judges assume to act and to render judgments or decrees without
jurisdiction. 'In exercising this high authority, the judges claim no
judicial supremacy; they are only the administrators of the public will.
If an act of the legislature is held void, it is not because the judges

21
have any control over the legislative power, but because the act is
forbidden by the Constitution, and because the will of the people,
which is therein declared, is paramount to that of their representatives
expressed in any law.' [Lindsay v. Commissioners, & c., 2 Bay, 38, 61;
People v. Rucker, 5 Col. 5; Russ v. Com., 210 Pa. St. 544; 60 Atl. 169,
1 L.R.A. [N.S.] 409, 105 Am. St. Rep. 825]" (pp. 332-334).
Indeed, where the legislature or the executive branch is acting within
the limits of its authority, the judiciary cannot and ought not to interfere
with the former. But where the legislature or the executive acts
beyond the scope of its constitutional powers, it becomes the duty of
the judiciary to declare what the other branches of the government
had assumed to do as void. This is the essence of judicial power
conferred by the Constitution "in one Supreme Court and in such
lower courts as may be established by law" [Art. VIII, Section 1 of the
1935 Constitution; Art. X, Section 1 of the 1973 Constitution and
which was adopted as part of the Freedom Constitution, and Art. VIII,
Section 1 of the 1987 Constitutional and which power this Court has
exercised in many instances. **
Public respondents are being enjoined from acting under a provision
of law which We have earlier mentioned to be constitutionally infirm.
The general principle relied upon cannot therefore accord them the
protection sought as they are not acting within their "sphere of
responsibility" but without it.
The nation has not recovered from the shock, and worst, the
economic destitution brought about by the plundering of the Treasury
by the deposed dictator and his cohorts. A provision which allows
even the slightest possibility of a repetition of this sad experience
cannot remain written in our statute books.
WHEREFORE, the instant petition is granted. Paragraph 1 of Section
44 of Presidential Decree No. 1177 is hereby declared null and void
for being unconstitutional. Cdpr
SO ORDERED.

22
"RESOLUTION CONFIRMANDO LAS ACTAS DE AQUELLOS
DIPUTADOS CONTRAQUIENES NO SE HA PRESENTADO
PROTESTA.

EN BANC
[G.R. No. 45081. July 15, 1936.]
JOSE A. ANGARA, petitioner, vs. THE ELECTORAL COMMISSION,
PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C. MAYOR,
respondents.
DECISION
LAUREL, J p:
This is an original action instituted in this court by the petitioner, Jose
A. Angara, for the issuance of a writ of prohibition to restrain and
prohibit the Electoral Commission, one of the respondents, from
taking further cognizance of the protest filed by Pedro Ynsua, another
respondent, against the election of said petitioner as member of the
National Assembly for the first assembly district of the Province of
Tayabas.
The facts of this case as they appear in the petition and as admitted
by the respondents are as follows:
(1)
That in the elections of September 17, 1935, the petitioner,
Jose A. Angara, and the respondents, Pedro Ynsua, Miguel Castillo
and Dionisio Mayor, were candidates voted for the position of member
of the National Assembly for the first district of the Province of
Tayabas;
(2)
That on October 7, 1935, the provincial board of canvassers,
proclaimed the petitioner as member-elect of the National Assembly
for the said district, for having received the most number of votes;
(3)
That on November 15, 1935, the petitioner took his oath of
office;
(4)
That on December 3, 1935, the National Assembly in session
assembled, passed the following resolution:
"[No. 8]

"Se resuelve: Que las actas de eleccion de los Diputados contra

quienes no se hubiere presentado debidamente una protesta antes
de la adopcion de la presente resolucion sean, como por la presente,
son aprobadas y confirmadas.
"Adoptada, 3 de diciembre, 1935."
(5)
That on December 8, 1935, the herein respondent Pedro
Ynsua, filed before the Electoral Commission a "Motion of Protest"
against the election of the herein petitioner, Jose A. Angara, being the
only protest filed after the passage of Resolution No. 8 aforequoted,
and praying, among other-things, that said respondent be declared
elected member of the National Assembly for the first district of
Tayabas, or that the election of said position be nullified;
(6)
That on December 9, 1935, the Electoral Commission adopted
a resolution, paragraph 6 of which provides:
"6.
La Comision no considerara ninguna protesta que no se haya
presentado en o antes de este dia."
(7)
That on December 20, 1935, the herein petitioner, Jose A.
Angara, one of the respondents in the aforesaid protest, filed before
the Electoral Commission a "Motion to Dismiss the Protest", alleging
(a) that Resolution No. 8 of the National Assembly was adopted in the
legitimate exercise of its constitutional prerogative to prescribe the
period during which protests against the election of its members
should be presented; (b) that the aforesaid resolution has for its
object, and is the accepted formula for, the limitation of said period;
and (c) that the protest in question was filed out of the prescribed
period;
(8)
That on December 27, 1935, the herein respondent, Pedro
Ynsua, filed an "Answer to the Motion of Dismissal" alleging that there
is no legal or constitutional provision barring the presentation of a
protest against the election of a member of the National Assembly,
after confirmation;

23
(9)
That on December 31, 1935, the herein petitioner, Jose A.
Angara, filed a "Reply" to the aforesaid "Answer to the Motion of
Dismissal";
(10) That the case being submitted for decision, the Electoral
Commission promulgated a resolution on January 23, 1936, denying
herein petitioner's "Motion to Dismiss the Protest."
The application of the petitioner sets forth the following grounds for
the issuance of the writ prayed for:
(a)
That the Constitution confers exclusive jurisdiction upon the
Electoral Commission solely as regards the merits of contested
elections to the National Assembly;
(b)
That the Constitution excludes from said jurisdiction the power
to regulate the proceedings of said election contests, which power has
been reserved to the Legislative Department of the Government or the
National Assembly;
(c)
That like the Supreme Court and other courts created in
pursuance of the Constitution, whose exclusive jurisdiction relates
solely to deciding the merits of controversies submitted to hem for
decision and to matters involving their internal organization, the
Electoral Commission can regulate its proceedings only if the National
Assembly has not availed of its primary power to so regulate such
proceedings;
(d)
That Resolution No. 8 of the National Assembly is, therefore,
valid and should be respected and obeyed;
(e)
That under paragraph 13 of section 1 of the Ordinance
appended to the Constitution and paragraph 6 of article 7 of the
Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United
States) as well as under sections 1 and 3 (should be sections 1 and 2)
of article VIII of the Constitution, the Supreme Court has jurisdiction to
pass upon the fundamental question herein raised because it involves
an interpretation of the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared and filed an
answer in behalf of the respondent Electoral Commission interposing
the following special defenses:
(a)
That the Electoral Commission has been created by the
Constitution as an instrumentality of the Legislative Department

invested with the jurisdiction to decide "all contests relating to the

election, returns, and qualifications of the members of the National
Assembly"; that in adopting its resolution of December 9, 1935, fixing
this date as the last day for the presentation of protests against the
election of any member of the National Assembly, it acted within its
jurisdiction and in the legitimate exercise of the implied powers
granted it by the Constitution to adopt the rules and regulations
essential to carry out the powers and functions conferred upon the
same by the fundamental law; that in adopting its resolution of
January 23, 1936, overruling the motion of the petitioner to dismiss
the election protest in question, and declaring itself with jurisdiction to
take cognizance of said protest, it acted in the legitimate exercise of
its quasi-judicial functions as an instrumentality of the Legislative
Department of the Commonwealth Government, and hence said act is
beyond the judicial cognizance or control of the Supreme Court;
(b)
That the resolution of the National Assembly of December 3,
1935, confirming the election of the members of the National
Assembly against whom no protest had thus far been filed, could not
and did not deprive the Electoral Commission of its jurisdiction to take
cognizance of election protests filed within the time that might be set
by its own rules;
(c)
That the Electoral Commission is a body invested with quasijudicial functions, created by the Constitution as an instrumentality of
the Legislative Department, and is not an "inferior tribunal, or
corporation, or board, or person" within the purview of sections 226
and 516 of the Code of Civil Procedure, against which prohibition
would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an
answer in his own behalf on March 2, 1936, setting forth following as
his special defense:
(a)
That at the time of the approval of the rules of the Electoral
Commission on December 9, 1935, there was no existing Law fixing
the period within which protests against the election of members of
the National Assembly, the Electoral Commission was exercising a
power impliedly conferred upon it by the Constitution, by reason of its
quasi-judicial attributes;

24
(b)
That said respondent presented his motion of protest before
the Electoral Commission on December 9, 1935, the last day fixed by
paragraph 6 of the rules of the said Electoral Commission;

1.
Has the Supreme Court jurisdiction over the Electoral
Commission and the subject matter of the controversy upon the
foregoing related facts, and in the affirmative,

(c)
That therefore the Electoral Commission acquired jurisdiction
over the protest filed by said respondent and over the parties thereto,
and the resolution of the Electoral Commission of January 23, 1936,
denying petitioner's motion to dismiss said protest was an act within
the jurisdiction of the said commission, and is not reviewable by
means of a writ of prohibition;

2.
Has the said Electoral Commission acted without or in excess
of its jurisdiction in assuming to take cognizance of the protest filed
against the election of the herein petitioner notwithstanding the
previous confirmation of such election by resolution of the National
Assembly?

(d)
That neither the law nor the Constitution requires confirmation
by the National Assembly of the election of its members, and that
such confirmation does not operate to limit the period within which
protests should be filed as to deprive the Electoral Commission of
jurisdiction over protests filed subsequent thereto;
(e)
That the Electoral Commission is an independent entity
created by the Constitution, endowed with quasi-judicial functions,
whose decisions are final and unappeallable;
(f)
That the Electoral Commission, as a constitutional creation, is
not an inferior tribunal, corporation, board or person, within the terms
of sections 226 and 516 of the Code of Civil Procedure; and that
neither under the provisions of sections 1 and 2 of Article II (should be
article VIII) of the Constitution and paragraph 13 of section 1 of the
Ordinance appended thereto could it be subject in the exercise of its
quasi-judicial functions to a writ of prohibition from the Supreme
Court;
(g)
That paragraph 6 of article 7 of the Tydings-McDuffie Law (No.
127 of the 73rd Congress of the United States) has no application to
the case at bar.
The case was argued before us on March 13, 1936. Before it was
submitted for decision, the petitioner prayed for the issuance of a
preliminary writ of injunction against the respondent Electoral
Commission which petition was denied "without passing upon the
merits of the case" by resolution of this court of March 21, 1936.
There was no appearance for the other respondents. The issues to be
decided in the case at bar may be reduced to the following two
principal propositions:

We could perhaps dispose of this case by passing directly upon the

merits of the controversy. However, the question of jurisdiction having
been presented, we do not feel justified in evading the issue. Being a
case prim impressionis, it would hardly be consistent with our sense
of duty to overlook the broader aspect of the question and leave it
undecided. Neither would we be doing justice to the industry and
vehemence of counsel were we not to pass upon the question of
jurisdiction squarely presented to our consideration.
The separation of powers is a fundamental principle in our system of
government. It obtains not through express provision but by actual
division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction, and is supreme
within its own sphere. But it does not follow from the fact that the three
powers are to be kept separate and distinct that the Constitution
intended them to be absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate system of
checks and balances to secure coordination in the workings of the
various departments of the government. For example, the Chief
Executive under our Constitution is so far made a check on the
legislative power that this assent is required in the enactment of laws.
This, however, is subject to the further check that a bill may become a
law notwithstanding the refusal of the President to approve it, by a
vote of two-thirds or three-fourths, as the case may be, of the National
Assembly. The President has also the right to convene the Assembly
in special session whenever he chooses. On the other hand, the
National Assembly operates as a check on the Executive in the sense
that its consent through its Commission on Appointments is necessary
in the appointment of certain officers; and the concurrence of a
majority of all its members is essential to the conclusion of treaties.
Furthermore, in its power to determine what courts other than the
Supreme Court shall be established, to define their jurisdiction and to

25
appropriate funds for their support, the National Assembly controls the
judicial department to a certain extent. The Assembly also exercises
the judicial power of trying impeachments. And the judiciary in turn,
with the Supreme Court as the final arbiter, effectively checks the
other departments in the exercise of its power to determine the law,
and hence to declare executive and legislative acts void if violative of
the Constitution.
But in the main, the Constitution has blocked out with deft strokes and
in bold lines, allotment of power to the executive, the legislative and
the judicial departments of the government. The overlapping and
interlacing of functions and duties between the several departments,
however, sometimes makes it hard to say just where the one leaves
off and the other begins. In times of social disquietude or political
excitement, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases of conflict, the
judicial department is the only constitutional organ which can be
called upon to determine the proper allocation of powers between the
several departments and among the integral or constituent units
thereof.
As any human production, our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the power of
our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however
limited, has established a republican government intended to operate
and function as a harmonious whole, under a system of checks and
balances, and subject to specific limitations and restrictions provided
in the said instrument. The Constitution sets forth in no uncertain
language the restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are transcended it
would be inconceivable if the Constitution had not provided for a
mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be
mere verbiage, the bill of rights mere expressions of sentiment, and
the principles of good government mere political apothegms.
Certainly, the limitations and restrictions embodied in our Constitution
are real as they should be in any living constitution. In the United
States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the courts,
not to speak of its historical origin and development there, has been

set at rest by popular acquiescence for a period of more than one and
a half centuries. In our case, this moderating power is granted, if not
expressly, by clear implication from section 2 of article VIII of our
Constitution.
The Constitution is a definition of the powers of government. Who is to
determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the judiciary
as the rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and
guarantees to them. This is in truth all that is involved in what is
termed "judicial supremacy" which properly is the power of judicial
review under the Constitution. Even then, this power of judicial review
is limited to actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any
attempt at abstraction could only lead to dialectics and barren legal
questions and to sterile conclusions of wisdom, justice or expediency
of legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also because
the judiciary in the determination of actual cases and controversies
must reflect the wisdom and justice of the people as expressed
through their representatives in the executive and legislative
departments of the government.
But much as we might postulate on the internal checks of power
provided in our Constitution, it ought not the less to be remembered
that, in the language of James Madison, the system itself is not "the
chief palladium of constitutional liberty . . . the people who are authors
of this blessing must also be its guardians . . . their eyes must be ever
ready to mark, their voice to pronounce . . . aggression on the
authority of their constitution." In the last and ultimate analysis, then,
must the success of our government in the unfolding years to come
be tested in the crucible of Filipino minds and hearts than in
consultation rooms and court chambers.

26
In the case at bar, the National Assembly has by resolution (No. 8) of
December 3, 1935, confirmed the election of the herein petitioner to
the said body. On the other hand, the Electoral Commission has by
resolution adopted on December 9, 1935, fixed said date as the last
day for the filing of protests against the election, returns and
qualifications of members of the National Assembly, notwithstanding
the previous confirmation made by the National Assembly as
aforesaid. If, as contended by the petitioner, the resolution of the
National Assembly has the effect of cutting off the power of the
Electoral Commission to entertain protests against the election,
returns and qualifications of members of the National Assembly,
submitted after December 3, 1935, then the resolution of the Electoral
Commission of December 9, 1935, is mere surplusage and had no
effect. But, if as contended by the respondents, the Electoral
Commission has the sole power of regulating its proceedings to the
exclusion of the National Assembly, then the resolution of December
9, 1935, by which the Electoral Commission fixed said date as the last
day for filing protests against the election, returns and qualifications of
members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does a
conflict of a grave constitutional nature between the National
Assembly on the one hand, and the Electoral Commission on the
other. From the very nature of the republican government established
in our country in the light of American experience and of our own,
upon the judicial department is thrown the solemn and inescapable
obligation of interpreting the Constitution and defining constitutional
boundaries. The Electoral Commission, as we shall have occasion to
refer hereafter, is a constitutional organ, created for a specific
purpose, namely to determine all contests relating to the election,
returns and qualifications of the members of the National Assembly.
Although the Electoral Commission may not be interfered with, when
the while acting within the limits of its authority, it does not follow that
it is beyond the reach of the constitutional mechanism adopted by the
people and that it is not subject to constitutional restrictions. The
Electoral Commission is not a separate department of the
government, and even if it were, conflicting claims of authority under
the fundamental law between departmental powers and agencies of
the government are necessarily determined by the judiciary in
justiciable and appropriate cases. Discarding the English type and
other European types of constitutional government, the framers of our

Constitution adopted the American type where the written constitution

is interpreted and given effect by the judicial department. In some
countries which have declined to follow the American example,
provisions have been inserted in their constitutions prohibiting the
courts from exercising the power to interpret the fundamental law.
This is taken as a recognition of what otherwise would be the rule that
in the absence of direct prohibition courts are bound to assume what
is logically their function. For instance, the Constitution of Poland of
1921, expressly provides that courts shall have no power to examine
the validity of statutes (art. 81, chap. IV). The former Austrian
Constitution contained a similar declaration. In countries whose
constitutions are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa.
Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to
Constitutional Charter of the Czechoslovak Republic, February 29,
1920) and Spain (arts. 121-123, Title IX, Constitution of the Republic
of 1931) especial constitutional courts are established to pass upon
the validity of ordinary laws. In our case, the nature of the present
controversy shows the necessity of a final constitutional arbiter to
determine the conflict of authority between two agencies created by
the Constitution. Were we to decline to take cognizance of the
controversy, who will determine the conflict? And if the conflict were
left undecided and undetermined, would not a void be thus created in
our constitutional system which may in the long run prove destructive
of the entire framework? To ask these questions is to answer them.
Natura vacuum abhorret, so must we avoid exhaustion in our
constitutional system. Upon principle, reason and authority, we are
clearly of the opinion that upon the admitted facts of the present case,
this court has jurisdiction over the Electoral Commission and the
subject matter of the present controversy for the purpose of
determining the character, scope and extent of the constitutional grant
to the Electoral Commission as "the sole judge of all contests relating
to the election, returns and qualifications of the members of the
National Assembly."
Having disposed of the question of jurisdiction, we shall now proceed
to pass upon the second proposition and determine whether the
Electoral Commission has acted without or in excess of its jurisdiction
in adopting its resolution of December 9, 1935, and in assuming to
take cognizance of the protest filed against the election of the herein
petitioner notwithstanding the previous confirmation thereof by the

27
National Assembly on December 3, 1935. As able counsel for the
petitioner has pointed out, the issue hinges on the interpretation of
section 4 of Article VI of the Constitution which provides:
"SEC. 4.
There shall be an Electoral Commission composed of
three Justices of the Supreme Court designated by the Chief Justice,
and of six Members chosen by the National Assembly, three of whom
shall be nominated by the party having the largest number of votes,
and three by the party having the second largest number of votes
herein. The senior Justice in the Commission shall be its Chairman.
The Electoral Commission shall be the sole judge of all contests
relating to the election, returns and qualifications of the members of
the National Assembly." It is imperative, therefore, that we delve into
the origin and history of this constitutional provision and inquire into
the intention of its framers and the people who adopted it so that we
may properly appreciate its full meaning, import and significance.
The original provision regarding this subject in the Act of Congress of
July 1, 1902 (sec. 7, par. 5) laying down the rule that "the assembly
shall be the judge of the elections, returns, and qualifications of its
members", was taken from clause 1 of section 5, Article I of the
Constitution of the United States providing that "Each House shall be
the Judge of the Elections, Returns, and Qualifications of its own
Members, . . .." The Act of Congress of August 29, 1916 (sec. 18, par.
1) modified this provision by the insertion of the word "sole" as
follows: "That the Senate and House of Representatives, respectively,
shall be the sole judges of the elections, returns, and qualifications of
their elective members, . . ." apparently in order to emphasize the
exclusive character of the jurisdiction conferred upon each House of
the Legislature over the particular cases therein specified. This court
has had occasion to characterize this grant of power to the Philippine
Senate and House of Representatives, respectively, as "full, clear and
complete" (Veloso vs. Boards of Canvassers of Leyte and Samar
[1919], 39 Phil., 886, 888.).
The first step towards the creation of an independent tribunal for the
purpose of deciding contested elections to the legislature was taken
by the sub-committee of five appointed by the Committee on
Constitutional Guarantees of the Constitutional Convention, which
sub- committee submitted a report on August 30, 1934,
recommending the creation of a Tribunal of Constitutional Security
empowered to hear protests not only against the election of members

of the legislature but also against the election of executive officers for
whose election the vote of the whole nation is required, as well as to
initiate impeachment proceedings against specified executive and
judicial officers. For the purpose of hearing legislative protests, the
tribunal was to be composed of three justices designated by the
Supreme Court and six members of the house of the legislature to
which the contest corresponds, three members to be designated by
the majority party and three by the minority, to be presided over by the
Senior Justice unless the Chief Justice is also a member in which
case the latter shall preside. The foregoing proposal was submitted by
the Committee on Constitutional Guarantees to the Convention on
September 15, 1934, with slight modifications consisting in the
reduction of the legislative representation to four members, that is,
two senators to be designated one each from the two major parties in
the Senate and two representatives to be designated one each from
the two major parties in the House of Representatives, and in
awarding representation to the executive department in the persons of
two representatives to be designated by the President.
Meanwhile, the Committee on Legislative Power was also preparing
its report. As submitted to the Convention on September 24, 1934,
subsection 5, section 5, of the proposed Article on the Legislative
Department, reads as follows:
"The elections, returns and qualifications of the members of either
House and all cases contesting the election of any of their members
shall be judged by an Electoral Commission, constituted, as to each
House, by three members elected by the members of the party having
the largest number of votes therein, three elected by the members of
the party having the second largest number of votes, and as to its
Chairman, one Justice of the Supreme Court designated by the Chief
Justice."
The idea of creating a Tribunal of Constitutional Security with
comprehensive jurisdiction as proposed by the Committee on
Constitutional Guarantees which was probably inspired by the
Spanish plan (art. 121, Constitution of the Spanish Republic of 1931),
was soon abandoned in favor of the proposition of the Committee on
Legislative Power to create a similar body with reduced powers and
with specific and limited jurisdiction, to be designated as an Electoral
Commission. The Sponsorship Committee modified the proposal of
the Committee on Legislative Power with respect to the composition

28
of the Electoral Commission and made further changes in
phraseology to suit the project of adopting a unicameral instead of a
bicameral legislature. The draft as finally submitted to the Convention
on October 26, 1934, reads as follows:
"(6)
The elections, returns and qualifications of the Members of the
National Assembly and all cases contesting the election of any of its
Members shall be judged by an Electoral Commission, composed of
three members elected by the party having the largest number of
votes in the National Assembly, three elected by the members of the
party having the second largest number of votes, and three justices of
the Supreme Court designated by the Chief Justice, the Commission
to be presided over by one of said justices."
During the discussion of the amendment introduced by Delegates
Labrador, Abordo, and others, proposing to strike out the whole
subsection of the foregoing draft and inserting in lieu thereof the
following: "The National Assembly shall be the sole and exclusive
judge of the elections, returns, and qualifications of the Members", the
following illuminating remarks were made on the floor of the
Convention in its session of December 4, 1934, as to the scope of the
said draft:
xxx

xxx

xxx

"Mr. VENTURA.
Mr. President, we have a doubt here as to the
scope of the meaning of the first four lines, paragraph 6, page 11 of
the draft, reading: 'The elections, returns and qualifications of the
Members of the National Assembly and all cases contesting the
election of any of its Members shall be judged by an Electoral
Commission, . . ..' I should like to ask from the gentleman from Capiz
whether the election and qualification of the member whose election is
not contested shall also be judged by the Electoral Commission.
"Mr. ROXAS. If there is no question about the election of the
members, there is nothing to be judged; that is why the word 'judge' is
used to indicate a controversy. If there is no question about the
election of a member, there is nothing to be submitted to the Electoral
Commission and there is nothing to be determined.
"Mr. VENTURA.
But does that carry the idea also that the
Electoral Commission shall confirm also the election of those who
election is not contested?.

"Mr. ROXAS. There is no need of confirmation. As the gentleman

knows, the action of the House of Representatives confirming the
election of its members is just a matter of the rules of the assembly. It
is not constitutional. It is not necessary. After a man files his
credentials that be has been elected, that is sufficient, unless his
election is contested.
"Mr. VENTURA.
But I do not believe that that is sufficient, as we
have observed that for purposes of the auditor, in the matter of
election of a member to a legislative body, because he will not
authorize his pay.
"Mr. ROXAS. Well, what is the case with regards to the municipal
president who is elected? What happens with regards to the
councilors of a municipality? Does anybody confirm their election?
The municipal council does this: it makes a canvass and proclaims-in
this case the municipal council proclaims who has been elected, and it
ends there, unless there is a contest. It is the same case; there is no
need on the part of the Electoral Commission unless there is a
contest. The first clause refers to the case referred to by the
gentleman from Cavite where one person tries to be elected in place
of another who was declared elected. For example, in a case when
the residence of the man who has been elected is in question, or in
case the citizenship of the man who has been elected is in question.
"However, if the assembly desires to annul the power of the
commission, it may do so by certain maneuvers upon its first meeting
when the returns are submitted to the assembly. The purpose is to
give to the Electoral Commission all the powers exercised by the
assembly referring to the elections, returns and qualifications of the
members. When there is no contest, there is nothing to be judged.
"Mr. VENTURA.

Then it should be eliminated.

"Mr. ROXAS. But that is a different matter, I think Mr. Delegate.

"Mr. CINCO. Mr. President, I have a similar question as that
propounded by the gentleman from Ilocos Norte when I arose a while
ago. However I want to ask more questions from the delegate from
Capiz. This paragraph 6 on page 11 of the draft cites cases contesting
the election as separate from the first part of the section which refers
to elections, returns and qualifications.

29
"Mr. ROXAS. That is merely for the sake of clarity. In fact the cases
of contested elections are already included in the phrase 'the
elections, returns and qualifications.' This phrase 'and contested
elections' was inserted merely for the sake of clarity.

"Mr. ROXAS. Yes, sir: that is the purpose.

"Mr. CINCO. Under this paragraph, may not the Electoral

Commission, at its own instance, refuse to confirm the election of the
members?.

"Mr. ROXAS. I have just said that they have no power, because they
can only judge."

"Mr. ROXAS. I do not think so, unless there is a protest.

"Mr. LABRADOR.

Mr. President, will the gentleman yield? .

"THE PRESIDENT.

The gentleman may yield, if he so desires.

"Mr. ROXAS. Willingly.

"Mr. LABRADOR.
Does not the gentleman from Capiz believe that
unless this power is granted to the assembly, the assembly on its own
motion does not have the right to contest the election and qualification
of its members?
"Mr. ROXAS. I have no doubt but that the gentleman is right. If this
draft is retained as it is, even if two-thirds of the assembly believe that
a member has not the qualifications provided by law, they cannot
remove him for that reason.
Mr. LABRADOR.
So that the right to remove shall only be
retained by the Electoral Commission.
"Mr. ROXAS. By the assembly for misconduct.
"Mr. LABRADOR.
members.

I mean with respect to the qualification of the

"Mr. ROXAS. Yes, by the Electoral Commission.

"Mr. LABRADOR.
So that under this draft, no member of the
assembly has the right to question the eligibility of its members?.
"Mr. ROXAS. Before a member can question the eligibility, he must
go to the Electoral Commission and make the question before the
Electoral Commission.
"Mr. LABRADOR.
So that the Electoral Commission shall decide
whether the election is contested or not contested.

"Mr. PELAYO. Mr. President, I would like to be informed if the

Electoral Commission has power and authority to pass upon the
qualifications of the members of the National Assembly even though
that question has not been raised.

In the same session, the first clause of the aforesaid draft reading
"The election, returns and qualifications of the members of the
National Assembly and" was eliminated by the Sponsorship
Committee in response to an amendment introduced by Delegates
Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and others. In
explaining the difference between the original draft and the draft as
amended, Delegate Roxas speaking for the Sponsorship Committee
said:
xxx

xxx

xxx

"Sr. ROXAS. La diferencia, seor Presidente, consiste solamente en

obviar la objecion apuntada por varios Delegados al efecto to que la
primera clausula del draft que dice: 'The election, returns and
qualifications of the members of the National Assembly' parece que
da a la Comision Electoral la facultad de determinar tambin la
eleccion de los miembros que no han sido protestados y para obviar
esa dificultad, creemos que la enmienda tiene razon en ese sentido,
si enmendamos el draft, de tal modo que se lea como sigue: 'All
cases contesting the election', de modo que los jueces de la Comision
Electoral se limitaran solamente a los casos en que haya habido
protesta contra las actas." Before the amendment of Delegate
Labrador was voted upon the following interpellation also took place:
"El Sr. CONEJERO. Antes de votarse la enmienda, quisiera pedir
informacion del Subcomit de Siete.
"El Sr. PRESIDENTE. Qu dice el Comit?.
"El Sr. ROXAS.

Con mucho gusto.

"El Sr. CONEJERO. Tal como esta el draft, dando tres miembros a
la mayoria, y otros tres a la minoria y tres a la Corte Suprema, no
cre Su Seoria que esto equivale practicamente a dejar el asunto a
los miembros del Tribunal Supremo?.

30
"El Sr. ROXAS.
Si y no. Cremos que si el tribunal o la Comision
esta constituido en esa forma, tanto los miembros de la mayoria como
los de la minoria asi como los miembros de la Corte Suprema
consideraran la cuestion sobre la base de sus mritos, sabiendo que
el partidismo no es suficiente para dar el triunfo.
"El Sr. CONEJERO. Cree Su Seoria que en un caso como ese,
podriamos hacer que tanto los de la mayoria como los de la minoria
prescindieran del partidismo?.
"El Sr. ROXAS.
triunfo."
xxx

Creo que si, porque el partidismo no les daria el

xxx

xxx

The amendment introduced by Delegates Labrador, Abordo and

others seeking to restore the power to decide contests relating to the
election, returns and qualifications of members of the National
Assembly to the National Assembly itself, was defeated by a vote of
ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.) sought
to amend the draft by reducing the representation of the minority party
and the Supreme Court in the Electoral Commission to two members
each, so as to accord more representation to the majority party. The
Convention rejected this amendment by a vote of seventy-six (76)
against forty-six (46), thus maintaining the non-partisan character of
the commission.
As approved on January 31, 1935, the draft was made to read as
follows:
"(6)
All cases contesting the elections, returns and qualifications of
the Members of the National Assembly shall be judged by an Electoral
Commission, composed of three members elected by the party having
the largest number of votes in the National Assembly, three elected by
the members of the party having the second largest number of votes,
and three justices of the Supreme Court designated by the Chief
Justice, the Commission to be presided over by one of said justices."
The Style Committee to which the draft was submitted revised it as
follows:
"SEC. 4.
There shall be an Electoral Commission composed of
three Justices of the Supreme Court designated by the Chief Justice,

and of six Members chosen by the National Assembly, three of whom

shall be nominated by the party having the largest number of votes,
and three by the party having the second largest number of votes
therein. The senior Justice in the Commission shall be its chairman.
The Electoral Commission shall be the sole judge of the election,
returns, and qualifications of the Members of the National Assembly."
When the foregoing draft was submitted for approval on February 8,
1935, the Style Committee, through President Recto, to effectuate the
original intention of the Convention, agreed to insert the phrase "All
contests relating to" between the phrase "judge of" and the words "the
election", which was accordingly accepted by the Convention.
The transfer of the power of determining the election, returns and
qualifications of the members of the legislature long lodged in the
legislative body, to an independent, impartial and non-partisan
tribunal, is by no means a mere experiment in the science of
government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth
edition, chapter VI, pages 57, 58), gives a vivid account of the
"scandalously notorious" canvassing of votes by political parties in the
disposition of contests by the House of Commons in the following
passages which are partly quoted by the petitioner in his printed
memorandum of March 14, 1936:
"153. From the time when the commons established their right to be
the exclusive judges of the elections, returns, and qualifications of
their members, until the year 1770, two modes of proceeding
prevailed, in the determination of controverted elections, and rights of
membership. One of the standing committee appointed at the
commencement of each session, was denominated the committee of
privileges and elections, whose function was to hear and investigate
all questions of this description which might be referred to them, and
to report their proceedings, with their opinion thereupon, to the house,
from time to time. When an election petition was referred to this
committee, they heard the parties and their witnesses and other
evidence, and made a report of all the evidence, together with their
opinion thereupon, in the form of resolutions, which were considered
and agreed or disagreed to by the house. The other mode of
proceeding was by a hearing at the bar of the house itself. When this
court was adopted, the case was heard and decided by the house, in

31
substantially the same manner as by a committee. The committee of
privileges and elections although a select committee was usually what
is called an open one; that is to say, in order to constitute the
committee, a quorum of the members named was required to be
present, but all the members of the house were at liberty to attend the
committee and vote if they pleased.
"154. With the growth of political parties in parliament questions
relating to the right of membership gradually assumed a political
character; so that for many years previous to the year 1770,
controverted elections had been tried and determined by the house of
commons, as mere party questions, upon which the strength of
contending factions might be tested. Thus, for example, in 1741, Sir
Robert Walpole, after repeated attacks upon his government,
resigned his office in consequence of an adverse vote upon the
Chippenham election. Mr. Hatsell remarks, of the trial of election,
cases, as conducted under this system, that 'Every principle of
decency and justice were notoriously and openly prostituted, from
whence the younger part of the house were insensibly, but too
successfully, induced to adopt the same licentious conduct in more
serious matters, and in questions of higher importance to the public
welfare.' Mr. George Grenville, a distinguished member of the house
of commons, undertook to propose a remedy for the evil, and, on the
7th of March 1770, obtained the unanimous leave of the house to
bring in a bill, 'to regulate the trial of controverted elections, or returns
of members to serve in parliament.' In his speech to explain his plan,
on the motion for leave, Mr. Grenville alluded to the existing practice
in the following terms: 'Instead of trusting to the merits of their
respective causes, the principal dependence of both parties is their
private interest among us; and it is scandalously notorious that we are
an earnestly canvassed to attend in favor of the opposite sides, as if
we were wholly self-elective, and not bound to act by the principles of
justice, but by the discretionary impulse of our own inclinations; nay, it
is well known, that in every contested election, many members of this
house, who are ultimately to judge in a kind of judicial capacity
between the competitors, enlist themselves as parties in the
contention, and take upon themselves the partial management of the
very business, upon which they should determine with the strictest
impartiality.'

"155. It was to put an end to the practices thus described, that Mr.
Grenville brought in a bill which met with the approbation of both
houses, and received the royal assent on the 12th of April, 1770. This
was the celebrated law since known by the name of the Grenville Act;
of which Mr. Hatsell declares, that it 'was one of the noblest works, for
the honor of the house of commons, and the security of the
constitution, that was ever devised by any minister or statesman.' It is
probable, that the magnitude of the evil, or the apparent success of
the remedy, may have led many of the contemporaries of the measure
to the information of a judgment, which was not acquiesced in by
some of the leading statesmen of the day, and has not been entirely
confirmed by subsequent experience. The bill was objected to by Lord
North, Mr. De Grey, afterwards chief justice of the common pleas, Mr.
Ellis, Mr. Dyson, who had been clerk of the house, and Mr. Charles
James Fox, chiefly on the ground, that the introduction of the new
system was an essential alteration of the constitution of parliament,
and a total abrogation of one of the most important rights and
jurisdictions of the house of commons."
As early as 1868, the House of Commons in England solved the
problem of insuring the non-partisan settlement of the controverted
elections of its members by abdicating its prerogative to two judges of
the King's Bench of the High Court of Justice selected from a rota in
accordance with rules of court made for the purpose. Having proved
successful, the practice has become imbedded in English
jurisprudence (Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125]
as amended by Parliamentary Elections and Corrupt Practices Act,
1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices
Prevention Act, 1883 [46 & 47 Vict. c. 51], s. 70; Expiring Laws
Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII,
p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests
which were originally heard by the Committee of the House of
Commons, are since 1922 tried in the courts. Likewise, in the
Commonwealth of Australia, election contests which were originally
determined by each house, are since 1922 tried in the High Court. In
Hungary, the organic law provides that all protests against the election
of members of the Upper House of the Diet are to be resolved by the
Supreme Administrative Court (Law 22 of 1916, chap. 2, art. 37, par.
6). The Constitution of Poland of March 17, 1921 (art. 19) and the
Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest
the authority to decide contested elections to the Diet or National

32
Assembly in the Supreme Court. For the purpose of deciding
legislative contests, the Constitution of the German Reich of July 1,
1919 (art. 31), the Constitution of the Czechoslovak Republic of
February 29, 1920 (art. 19) and the Constitution of the Grecian
Republic of June 2, 1927 (art. 43), all provide for an Electoral
Commission.
The creation of an Electoral Commission whose membership is
recruited both from the legislature and the judiciary is by no means
unknown in the United States. In the presidential elections of 1876
there was a dispute as to the number of electoral votes received by
each of the two opposing candidates. As the Constitution made no
adequate provision for such a contingency, Congress passed a law on
January 29, 1877 (United States Statutes at Large, vol. 19, chap. 37,
pp. 227-229), creating a special Electoral Commission composed of
five members elected by the Senate, five members elected by the
House of Representatives, and five justices of the Supreme Court, the
fifth justice to be selected by the four designated in the Act. The
decision of the commission was to be binding unless rejected by the
two houses voting separately. Although there is not much of a moral
lesson to be derived from the experience of America in this regard,
judging from the observations of Justice Field, who was a member of
that body on the part of the Supreme Court (Countryman, the
Supreme Court of the United States and its Appellate Power under the
Constitution [Albany, 1913]-Relentless Partisanship of Electoral
Commission, p. 25 et seq.), the experiment has at least abiding
historical interest.
The members of the Constitutional Convention who framed our
fundamental law were in their majority men mature in years and
experience. To be sure, many of them were familiar with the history
and political development of other countries of the world. When,
therefore, they deemed it wise to create an Electoral Commission as a
constitutional organ and invested it with the exclusive function of
passing upon and determining the election, returns and qualifications
of the members of the National Assembly, they must have done so not
only in the light of their own experience but also having in view the
experience of other enlightened peoples of the world. The creation of
the Electoral Commission was designed to remedy certain evils of
which the framers of our Constitution were cognizant. Notwithstanding
the vigorous opposition of some members of the Convention to its

creation, the plan, as hereinabove stated, was approved by that body

by a vote of 98 against 58. All that can be said now is that, upon the
approval of the Constitution, the creation of the Electoral Commission
is the expression of the wisdom and "ultimate justice of the people".
(Abraham Lincoln, First Inaugural Address, March 4, 1861.).
From the deliberations of our Constitutional Convention it is evident
that the purpose was to transfer in its totality all the powers previously
exercised by the legislature in matters pertaining to contested
elections of its members, to an independent and impartial tribunal. It
was not so much the knowledge and appreciation of contemporary
constitutional precedents, however, as the long-felt need of
determining legislative contests devoid of partisan considerations
which prompted the people, acting through their delegates to the
Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which both
the majority and minority parties are equally represented to off-set
partisan influence in its deliberations was created, and further
endowed with judicial temper by including in its membership three
justices of the Supreme Court.
The Electoral Commission is a constitutional creation, invested with
the necessary authority in the performance and execution of the
limited and specific function assigned to it by the Constitution.
Although it is not a power in our tripartite scheme of government, it is,
to all intents and purposes, when acting within the limits of its
authority, an independent organ. It is, to be sure, closer to the
legislative department than to any other. The location of the provision
(section 4) creating the Electoral Commission under Article VI entitled
"Legislative Department" of our Constitution is very indicative. Its
composition is also significant in that it is constituted by a majority of
members of the legislature. But it is a body separate from and
independent of the legislature.
The grant of power to the Electoral Commission to judge all contests
relating to the election, returns and qualifications of members of the
National Assembly, is intended to be as complete and unimpaired as if
it had remained originally in the legislature. The express lodging of
that power in the Electoral Commission is an implied denial of the
exercise of that power by the National Assembly. And this is as
effective a restriction upon the legislative power as an express
prohibition in the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1;

33
State vs. Whisman, 36 S. D., 260; L. R. A., 1917B, 1). If we concede
the power claimed in behalf of the National Assembly that said body
may regulate the proceedings of the Electoral Commission and cut off
the power of the commission to lay down the period within which
protests should be filed, the grant of power to the commission would
be ineffective. The Electoral Commission in such case would be
invested with the power to determine contested cases involving the
election, returns and qualifications of the members of the National
Assembly but subject at all times to the regulative power of the
National Assembly. Not only would the purpose of the framers of our
Constitution of totally transferring this authority from the legislative
body be frustrated, but a dual authority would be created with the
resultant inevitable clash of powers from time to time. A sad spectacle
would then be presented of the Electoral Commission retaining the
bare authority of taking cognizance of cases referred to, but in reality
without the necessary means to render that authority effective
whenever and wherever the National Assembly has chosen to act, a
situation worse than that intended to be remedied by the framers of
our Constitution. The power to regulate on the part of the National
Assembly in procedural matters will inevitably lead to the ultimate
control by the Assembly of the entire proceedings of the Electoral
Commission, and, by indirection, to the entire abrogation of the
constitutional grant. It is obvious that this result should not be
permitted.
We are not insensible to the impassioned argument of the learned
counsel for the petitioner regarding the importance and necessity of
respecting the dignity and independence of the National Assembly as
a coordinate department of the government and of according validity
to its acts, to avoid what he characterized would be practically an
unlimited power of the commission in the admission of protests
against members of the National Assembly. But as we have pointed
out hereinabove, the creation of the Electoral Commission carried with
it ex necesitate rei the power regulative in character to limit the time
within which protests intrusted to its cognizance should be filed. It is a
settled rule of construction that where a general power is conferred or
duty enjoined, every particular power necessary for the exercise of the
one or the performance of the other is also conferred (Cooley,
Constitutional Limitations, eighth ed., vol. I, pp. 138, 139). In the
absence of any further constitutional provision relating to the
procedure to be followed in filing protests before the Electoral

Commission, therefore, the incidental power to promulgate such rules

necessary for the proper exercise of its exclusive power to judge all
contests relating to the election, returns and qualifications of members
of the National Assembly, must be deemed by necessary implication
to have been lodged also in the Electoral Commission.
It is, indeed, possible that, as suggested by counsel for the petitioner,
the Electoral Commission may abuse its regulative authority by
admitting protests beyond any reasonable time, to the disturbance of
the tranquillity and peace of mind of the members of the National
Assembly. But the possibility of abuse is not an argument against the
concession of the power as there is no power that is not susceptible of
abuse. In the second place, if any mistake has been committed in the
creation of an Electoral Commission and in investing it with exclusive
jurisdiction in all cases relating to the election, returns, and
qualifications of members of the National Assembly, the remedy is
political, not judicial, and must be sought through the ordinary
processes of democracy. All the possible abuses of the government
are not intended to be corrected by the judiciary. We believe, however,
that the people in creating the Electoral Commission reposed as much
confidence in this body in the exclusive determination of the specified
cases assigned to it, as they have given to the Supreme Court in the
proper cases entrusted to it for decision. All the agencies of the
government were designed by the Constitution to achieve specific
purposes, and each constitutional organ working within its own
particular sphere of discretionary action must be deemed to be
animated with the same zealand honesty in accomplishing the great
ends for which they were created by the sovereign will. That the
actuations of these constitutional agencies might leave much to be
desired in given instances, is inherent in the imperfections of human
institutions. In the third place, from the fact that the Electoral
Commission may not be interfered with in the exercise of its legitimate
power, it does not follow that its acts, however illegal or
unconstitutional, may not be challenged in appropriate cases over
which the courts may exercise jurisdiction.
But independently of the legal and constitutional aspects of the
present case, there are considerations of equitable character that
should not be overlooked in the appreciation of the intrinsic merits of
the controversy. The Commonwealth Government was inaugurated on
November 15, 1935, on which date the Constitution, except as to the

34
provisions mentioned in section 6 of Article XV thereof, went into
effect. The new National Assembly convened on November 25th of
that year, and the resolution confirming the election of the petitioner,
Jose A. Angara, was approved by that body on December 3, 11935.
The protest by the herein respondent Pedro Ynsua against the
election of the petitioner was filed on December 9 of the same year.
The pleadings do not show when the Electoral Commission was
formally organized but it does appear that on December 9, 1935, the
Electoral Commission met for the first time and approved a resolution
fixing said date as the last day for the filing of election protests. When,
therefore, the National Assembly passed its resolution of December 3,
1935, confirming the election of the petitioner to the National
Assembly, the Electoral Commission had not yet met; neither does it
appear that said body has actually been organized. As a matter of
fact, according to certified copies of official records on file in the
archives division of the National Assembly attached to the record of
this case upon the petition of the petitioner, the three justices of the
Supreme Court and the six members of the National Assembly
constituting the Electoral Commission were respectively designated
only on December 4 and 6, 1935. If Resolution No. 8 of the National
Assembly confirming non-protested elections of members of the
National Assembly had the effect of limiting or tolling the time for the
presentation of protests, the result would be that the National
Assembly on the hypothesis that it still retained the incidental
power of regulation in such cases had already barred the
presentation of protests before the Electoral Commission had had
time to organize itself and deliberate on the mode and method to be
followed in a matter entrusted to is exclusive jurisdiction by the
Constitution. This result was not and could not have been
contemplated,and should be avoided.
From another angle, Resolution No. 8 of the National Assembly
confirming the election of members against whom no protests had
been filed at the time of its passage on December 3, 1935, can not be
construed as a limitation upon the time for the initiation of election
contests. While there might have been good reason for the legislative
practice of confirmation of the election of members of the legislature
at the time when the power to decide election contests was still
lodged in the legislature, confirmation alone by the legislature cannot
be construed as depriving the Electoral Commission of the authority
incidental to its constitutional power to be "the sole judge of all

contests relating to the election, returns, and qualifications of the

members of the National Assembly", to fix the time for the filing of said
election protests. Confirmation by the National Assembly of the
returns of its members against whose election no protests have been
filed is, to all legal purposes, unnecessary. As contended by the
Electoral Commission in its resolution of January 23, 1936, overruling
the motion of the herein petitioner to dismiss the protest filed by the
respondent Pedro Ynsua, confirmation of the election of any member
is not required by the Constitution before he can discharge his duties
as such member. As a matter of fact, certification by the proper
provincial board of canvassers is sufficient to entitle a member-elect
to a seat in the National Assembly and to render him eligible to any
office in said body (No. 1, par. 1, Rules of the National Assembly,
adopted December 6, 1935).
Under the practice prevailing both in the English House of Commons
and in the Congress of the United States, confirmation is neither
necessary in order to entitle a member-elect to take his seat. The
return of the proper election officers in sufficient, and the memberelect presenting such return begins to enjoy the privileges of a
member from the time that he takes his oath of office (Laws of
England, vol. 12, pp. 331, 332; vol. 21, pp. 694, 695; U. S. C. A., Title
2, secs. 21, 25, 26). Confirmation is in order only in cases of
contested elections where the decision is adverse to the claims of the
protestant. In England, the judges' decision or report in controverted
elections is certified to the Speaker of the House of Commons, and
the House, upon being informed of such certificate or report by the
Speaker, is required to enter the same upon the Journals, and to give
such directions for confirming or altering the return, or for the issue of
a writ for a new election, or for carrying into execution the
determination as circumstances may require (31 & 32 Vict., c. 125,
sec. 13). In the United States, it is believed, the order or decision of
the particular house itself is generally regarded as sufficient, without
any actual alteration or amendment of the return (Cushing, Law and
Practice of Legislative Assemblies, 9th ed., sec. 166).
Under the practice prevailing when the Jones Law was still force,
each house of the Philippine Legislature fixed the time when protests
against the election of any of its members should be filed. This was
expressly authorized by section 18 of the Jones Law making each
house the sole judge of the election, returns and qualifications of its

35
members, as well as by a law (sec. 478, Act No. 3387) empowering
each house to respectively prescribe by resolution the time and
manner of filing contest in the election of members of said bodies. As
a matter of formality, after the time fixed by its rules for the filing of
protests had already expired, each house passed a resolution
confirming or approving the returns of such members against whose
election no protests had been filed within the prescribed time. This
was interpreted as cutting off the filing of further protests against the
election of those members not theretofore contested (Amistad vs.
Claravall [Isabela], Second Philippine Legislature, Record-First
Period, p. 89; Urgello vs. Rama [Third District, Cebu], Sixth Philippine
Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine
Legislature, Record First Period, pp. 637-640; Kintanar vs.
Aldanese [Fourth District, Cebu], Sixth Philippine Legislature, RecordFirst Period, pp. 1121, 1122; Aguilar vs. Corpus [Masbate], Eighth
Philippine Legislature, Record-First Period, vol. III, No. 56, pp. 892,
893). The Constitution has repealed section 18 of the Jones Law. Act
No. 3387, section 478, must be deemed to have been impliedly
abrogated also, for the reason that with the power to determine all
contests relating to the election, returns and qualifications of members
of the National Assembly, is inseparably linked the authority to
prescribe regulations for the exercise of that power. There was thus
no law nor constitutional provision which authorized the National
Assembly to fix, as it is alleged to have fixed on December 3, 1935,
the time for the filing of contests against the election of its members.
And what the National Assembly could not do directly, it could not do
by indirection through the medium of confirmation.
Summarizing, we conclude:
(a)
That the government established by the Constitution follows
fundamentally the theory of separation of powers into the legislative,
the executive and the judicial.
(b)
That the system of checks and balances and the overlapping
of functions and duties often makes difficult the delimitation of the
powers granted.
(c)
That in cases of conflict between the several departments and
among the agencies thereof, the judiciary, with the Supreme Court as
the final arbiter, is the only constitutional mechanism devised finally to
resolve the conflict and allocate constitutional boundaries.

(d)
That judicial supremacy is but the power of judicial review in
actual and appropriate cases and controversies, and is the power and
duty to see that no one branch or agency of the government
transcends the Constitution, which is the source of all authority.
(e)
That the Electoral Commission is an independent
constitutional creation with specific powers and functions to execute
and perform, closer for purposes of classification to the legislative
than to any of the other two departments of the government.
(f)
That the Electoral Commission is the sole judge of all contests
relating to the election, returns and qualifications of members of the
National Assembly.
(g)
That under the organic law prevailing before the present
Constitution went into effect, each house of the legislature was
respectively the sole judge of the elections, returns, and qualifications
of their elective members.
(h)
That the present Constitution has transferred all the powers
previously exercised by the legislature with respect to contests
relating to the election, returns and qualifications of its members, to
the Electoral Commission.
(i)
That such transfer of power from the legislature to the
Electoral Commission was full, clear and complete, and carried with it
ex necesitate rei the implied power inter alia to prescribe the rules and
regulations as to the time and manner of filing protests.
(j)
That the avowed purpose in creating the Electoral Commission
was to have an independent constitutional organ pass upon all
contests relating to the election, returns and qualifications of members
of the National Assembly, devoid of partisan influence or
consideration, which object would be frustrated if the National
Assembly were to retain the power to prescribe rules and regulations
regarding the manner of conducting said contests.
(k)
That section 4 of article VI of the Constitution repealed not
only section 18 of the Jones Law making each house of the Philippine
Legislature respectively the sole judge of the elections, returns and
qualifications of its elective members, but also section 478 of Act No.
3387 empowering each house to prescribe by resolution the time and
manner of filing contests against the election of its members, the time

36
and manner of notifying the adverse party,and bond or bonds, to be
required, if any, and to fix the costs and expenses of contest.
(l)
That confirmation by the National Assembly of the election of
any member, irrespective of whether his election is contested or not,
is not essential before such member-elect may discharge the duties
and enjoy the privileges of a member of the National Assembly.
(m)
That confirmation by the National Assembly of the election of
any member against whom no protest had been filed prior to said
confirmation, does not and cannot deprive the Electoral Commission
of its incidental power to prescribe the time within which protest
against the election of any member of the National Assembly should
be filed.
We hold, therefore, that the Electoral Commission was acting within
the legitimate exercise of its constitutional prerogative in assuming to
take cognizance of the protest filed by the respondent Pedro Ynsua
against the election of the herein petitioner Jose A. Angara, and that
the resolution of the National Assembly of December 3, 1935 can not
in any manner toll the time for filing protests against the election,
returns and qualifications of members of the National Assembly, nor
prevent the filing of a protest within such time as the rules of the
Electoral Commission might prescribe.
In view of the conclusion reached by us relative to the character of the
Electoral Commission as a constitutional creation and as to the scope
and extent of its authority under the facts of the present controversy,
we deem it unnecessary to determine whether the Electoral
Commission is an inferior tribunal, corporation, board or person within
the purview of sections 226 and 516 of the Code of Civil Procedure.
The petition for a writ of prohibition against the Electoral Commission
is hereby denied, with costs against the petitioner. So ordered.

37
EN BANC
[G.R. No. 133064. September 16, 1999.]
JOSE C. MIRANDA, ALFREDO S. DIRIGE, MANUEL H. AFIADO,
MARIANO V. BABARAN and ANDRES R. CABUYADAO, petitioners,
vs. HON. ALEXANDER AGUIRRE, In his capacity as Executive
Secretary; HON. EPIMACO VELASCO, in his capacity as Secretary of
Local Government, HON. SALVADOR ENRIQUEZ, in his capacity as
Secretary of Budget, THE COMMISSION ON AUDIT THE
COMMISSION ON ELECTIONS HON. BENJAMIN G. DY, in his
capacity as Governor of Isabela, THE HONORABLE SANGGUNIANG
PANLALAWIGAN OF ISABELA, ATTY. BALTAZAR PICIO, in his
capacity as Provincial Administrator, and MR. ANTONIO CHUA, in his
capacity as Provincial Treasurer, respondents.
GIORGIDI B. AGGABAO, intervenor.
DECISION
PUNO, J p:
This is a petition for a writ of prohibition with prayer for preliminary
injunction assailing the constitutionality of Republic Act No. 8528
converting the city of Santiago, Isabela from an independent
component city to a component city. LLjur
On May 5, 1994, Republic Act No. 7720 which converted the
municipality of Santiago, Isabela into an independent component city
was signed into law. On July 4, 1994, the people of Santiago ratified
R.A. No. 7720 in a plebiscite. 1
On February 14, 1998, Republic Act No. 8528 was enacted. It
amended R.A. No. 7720. Among others, it changed the status of
Santiago from an independent component city to a component city,
viz:

"AN ACT AMENDING CERTAIN SECTIONS OF REPUBLIC ACT

NUMBERED 7720 AN ACT CONVERTING THE MUNICIPALITY
OF SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE
KNOWN AS THE CITY OF SANTIAGO.
"Be it enacted by the Senate and House of Representatives of the
Philippines in Congress assembled:
"SECTION 1. Section 2 of Republic Act No. 7720 is hereby amended
by deleting the words "an independent" thereon so that said Section
will read as follows:
'SECTION 2. The City of Santiago. The Municipality of Santiago
shall be converted into a component city to be known as the City of
Santiago, hereinafter referred to as the City, which shall comprise of
the present territory of the Municipality of Santiago, Isabela. The
territorial jurisdiction of the City shall be within the present metes and
bounds of the Municipality of Santiago.' cdll
"SECTION 2. Section 51 of Republic Act No. 7720 is hereby
amended deleting the entire section and in its stead substitute the
following:
'SECTION 51. Election of Provincial Governor, Vice-Governor,
Sangguniang Panlalawigan Members, and any Elective Provincial
Position for the Province of Isabela. The voters of the City of
Santiago shall be qualified to vote in the elections of the Provincial
Governor, Vice-Governor, Sangguniang Panlalawigan members and
other elective provincial positions of the Province of Isabela, and any
such qualified voter can be a candidate for such provincial positions
and any elective provincial office.'
"SECTION 3. Repealing Clause. All existing laws or parts thereof
inconsistent with the provisions of this Act are hereby repealed or
modified accordingly.
"SECTION 4. Effectivity. This Act shall take effect upon its
approval.
"Approved."
Petitioners assail the constitutionality of R.A. No. 8528. 2 They
alleged as ground the lack of provision in R.A. No. 8528 submitting
the law for ratification by the people of Santiago City in a proper
plebiscite. Petitioner Miranda was the mayor of Santiago at the time of

38
the filing of the petition at bar. Petitioner Afiado is the President of the
Liga ng mga Barangay ng Santiago City. Petitioners Dirige,
Cabuyadao and Babaran are residents of Santiago City.
In their Comment, respondent provincial officials of Isabela defended
the constitutionality of R.A. No. 8528. They assailed the standing of
petitioners to file the petition at bar. They also contend that the petition
raises a political question over which this Court lacks jurisdiction.
llcd
Another Comment was filed by the Solicitor General for the
respondent public officials. The Solicitor General also contends that
petitioners are not real parties in interest. More importantly, it is
contended that R.A. No. 8528 merely reclassified Santiago City from
an independent component city to a component city. It allegedly did
not involve any "creation, division, merger, abolition, or substantial
alteration of boundaries of local government units," hence, a plebiscite
of the people of Santiago is unnecessary.
A third Comment similar in tone was submitted by intervenor Giorgidi
B. Aggabao, 3 a member of the provincial board of Isabela. 4 He
contended that both the Constitution and the Local Government Code
of 1991 do not require a plebiscite "to approve a law that merely
allowed qualified voters of a city to vote in provincial elections. The
rules implementing the Local Government Code cannot require a
plebiscite. He also urged that petitioners lacked locus standi.
Petitioners filed a Reply to meet the arguments of the respondents
and the intervenor. They defended their standing. They also stressed
the changes that would visit the city of Santiago as a result of its
reclassification.
We find merit in the petition.
First. The challenge to the locus standi of petitioners cannot succeed.
It is now an ancient rule that the constitutionality of law can be
challenged by one who will sustain a direct injury as a result of its
enforcement. 5 Petitioner Miranda was the mayor of Santiago City
when he filed the present petition in his own right as mayor and not on
behalf of the city, hence, he did not need the consent of the city
council of Santiago City. It is also indubitable that the change of status
of the city of Santiago from independent component city to a mere
component city will affect his powers as mayor, as will be shown

hereafter. The injury that he would sustain from the enforcement of

R.A. No. 8528 is direct and immediate and not a mere generalized
grievance shared with the people of Santiago City. Similarly, the
standing of the other petitioners rests on a firm foundation. They are
residents and voters in the city of Santiago. They have the right to be
heard in the conversion of their city thru a plebiscite to be conducted
by the COMELEC. The denial of this right in R.A. No. 8528 gives them
proper standing to strike the law as unconstitutional.
Second. The plea that this court back off from assuming jurisdiction
over the petition at bar on the ground that it involves a political
question has to be brushed aside. This plea has long lost its appeal
especially in light of Section 1 of Article VIII of the 1987 Constitution
which defines judicial power as including "the duty of the courts of
justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
government." To be sure, the cut between a political and justiciable
issue has been made by this Court in many cases and need no longer
mystify us. In Taada v. Cuenco, 6 we held: cda
"xxx

xxx

xxx

"The term 'political question' connotes what it means in ordinary

parlance, namely, a question of policy. It refers 'to those questions
which under the Constitution are to be decided by the people in their
sovereign capacity; or in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the
government.' It is concerned with issues dependent upon the wisdom,
not legality, of a particular measure."
In Casibang v. Aquino, 7 we defined a justiciable issue as follows:
"A purely justiciable issue implies a given right, legally demandable
and enforceable, an act or omission violative of such right, and a
remedy granted and sanctioned by law, for said breach of right."
Clearly, the petition at bar presents a justiciable issue. Petitioners
claim that under Section 10, Article X of the 1987 Constitution they
have a right to approve or disapprove R.A. No. 8528 in a plebiscite
before it can be enforced. It ought to be self-evident that whether or
not petitioners have the said right is a legal not a political question.

39
For whether or not laws passed by Congress comply with the
requirements of the Constitution pose questions that this Court alone
can decide. The proposition that this Court is the ultimate arbiter of
the meaning and nuances of the Constitution need not be the subject
of a prolix explanation.
Third. The threshold issue is whether R.A. No. 8528 is
unconstitutional for its failure to provide that the conversion of the city
of Santiago from an independent component city to a component city
should be submitted to its people in a proper plebiscite. We hold that
the Constitution requires a plebiscite. Section 10, Article X of the 1987
Constitution provides:
"No province, city, municipality, or barangay may be created, or
divided, merged, abolished, or its boundary substantially altered
except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected." cdphil
This constitutional requirement is reiterated in Section 10, Chapter 2
of the Local Government Code (R.A. No. 7160), thus:
"SECTION 10.No province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary substantially
altered except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected."
The power to create, divide, merge, abolish or substantially alter
boundaries of local government units belongs to Congress. 8 This
power is part of the larger power to enact laws which the Constitution
vested in Congress. 9 The exercise of the power must be in accord
with the mandate of the Constitution. In the case at bar, the issue is
whether the downgrading of Santiago City from an independent
component city to a mere component city requires the approval of the
people of Santiago City in a plebiscite. The resolution of the issue
depends on whether or not the downgrading falls within the meaning
of creation, division, merger, abolition or substantial alteration of
boundaries of municipalities per Section 10, Article X of the
Constitution. A close analysis of the said constitutional provision will
reveal that the creation, division, merger, abolition or substantial
alteration of boundaries of local government units involve a common
denominator material change in the political and economic rights of

the local government units directly affected as well as the people

therein. It is precisely for this reason that the Constitution requires the
approval of the people "in the political units directly affected." It is not
difficult to appreciate the rationale of this constitutional requirement.
The 1987 Constitution, more than any of our previous Constitutions,
gave more reality to the sovereignty of our people for it was borne out
of the people power in the 1986 EDSA revolution. Its Section 10,
Article X addressed the undesirable practice in the past whereby local
government units were created, abolished, merged or divided on the
basis of the vagaries of politics and not of the welfare of the people.
Thus, the consent of the people of the local government unit directly
affected was required to serve as a checking mechanism to any
exercise of legislative power creating, dividing, abolishing, merging or
altering the boundaries of local government units. It is one instance
where the people in their sovereign capacity decide on a matter that
affects them direct democracy of the people as opposed to
democracy thru people's representatives. This plebiscite requirement
is also in accord with the philosophy of the Constitution granting more
autonomy to local government units. LibLex
The changes that will result from the downgrading of the city of
Santiago from an independent component city to a component city are
many and cannot be characterized as insubstantial. For one, the
independence of the city as a political unit will be diminished. The city
mayor will be placed under the administrative supervision of the
provincial governor. The resolutions and ordinances of the city council
of Santiago will have to be reviewed by the Provincial Board of
Isabela. Taxes that will be collected by the city will now have to be
shared with the province. Petitioners pointed out these far reaching
changes on the life of the people of the city of Santiago, viz: 10
"Although RESPONDENTS would like to make it appear that R.A. No.
8528 had "merely re-classified" Santiago City from an independent
component city into a component city, the effect when challenged (sic)
the Act were operational would be, actually, that of conversion.
Consequently, there would be substantial changes in the political
culture and administrative responsibilities of Santiago City, and the
Province of Isabela. Santiago City from an independent component
city will revert to the Province of Isabela, geographically, politically and
administratively. Thus, the territorial land area of Santiago City will be
added to the land area comprising the province of Isabela. This will be

40
to the benefit or advantage of the Provincial Government of Isabela on
account of the subsequent increase of its share from the internal
revenue allotment (IRA) from the National Government (Section 285,
R.A. No. 7160 or the Local Government Code of 1991). The IRA is
based on land area and population of local government units,
provinces included.

"The resolutions and ordinances adopted and approved by the

Sangguniang Panlungsod will be subject to the review of the
Sangguniang Panlalawigan (Sections 56, 468 (a) (1) (i), 468 (a) (2)
(vii), and 469 (c) (4), R.A. No. 7160). Likewise, the decisions in
administrative cases by the former could be appealed and acted upon
by the latter (Section 67, R.A. No. 7160)."

"The nature or kinds, and magnitude of the taxes collected by the City
Government, and which taxes shall accrue solely to the City
Government, will be redefined (Section 151, R.A. No. 7160), and may
be shared with the province such as taxes on sand, gravel and other
quarry resources (Section 138, R.A. No. 7160), professional taxes
(Section 139, R.A. No. 7160), or amusement taxes (Section 140, R.A.
No. 7160). The Provincial Government will allocate operating funds for
the City. Inarguably, there would be a (sic) diminished funds for the
local operations of the City Government because of reduced shares of
the IRA in accordance with the schedule set forth by Section 285 of
the R.A. No. 7160. The City Government's share in the proceeds in
the development and utilization of national wealth shall be diluted
since certain portions shall accrue to the Provincial Government
(Section 292, R.A. No. 7160).

It is markworthy that when R.A. No. 7720 upgraded the status of

Santiago City from a municipality to an independent component city, it
required the approval of its people thru a plebiscite called for the
purpose. There is neither rhyme nor reason why this plebiscite should
not be called to determine the will of the people of Santiago City when
R.A. No. 8528 downgrades the status of their city. Indeed, there is
more reason to consult the people when a law substantially
diminishes their right. Rule II, Article 6, paragraph (f) (1) of the
Implementing Rules and Regulations of the Local Government Code
is in accord with the Constitution when it provides that: cdtai

"The registered voters of Santiago City will vote for and can be voted
as provincial officials (Section 451 and 452 [c], R.A. No. 7160). cda
"The City Mayor will now be under the administrative supervision of
the Provincial Governor who is tasked by law to ensure that every
component city and municipality within the territorial jurisdiction of the
province acts within the scope of its prescribed powers and functions
(Section 29 and 465 (b) (2) (i), R.A. No. 7160), and to review (Section
30, R.A. No. 7160) all executive orders submitted by the former
(Section 455 (b) (1) (xii), R.A. No. 7160) and (R)eportorial
requirements with respect to the local governance and state of affairs
of the city (Section 455 (b) (1) (xx), R.A. No. 7160). Elective city
officials will also be effectively under the control of the Provincial
Governor (Section 63, R.A. No. 7160). Such will be the great change
in the state of the political autonomy of what is now Santiago City
where by virtue of R.A. No. 7720, it is the Office of the President
which has supervisory authority over it as an independent component
city (Section 25, R.A. No. 7160; Section 4 (ARTICLE X), 1987
Constitution).

"(f) Plebiscite (1) no creation, conversion, division, merger,

abolition, or substantial alteration of boundaries of LGUS shall take
effect unless approved by a majority of the votes cast in a plebiscite
called for the purpose in the LGU or LGUs affected. The plebiscite
shall be conducted by the Commission on Elections (COMELEC)
within one hundred twenty (120) days from the effectivity of the law or
ordinance prescribing such action, unless said law or ordinance fixes
another date.
"xxx

xxx

xxx."

The rules cover all conversions, whether upward or downward in

character, so long as they result in a material change in the local
government unit directly affected, especially a change in the political
and economic rights of its people.
A word on the dissenting opinions of our esteemed brethren. Mr.
Justice Buena justifies R.A. No. 8528 on the ground that Congress
has the power to amend the charter of Santiago City. This power of
amendment, however, is limited by Section 10, Article X of the
Constitution. Quite clearly, when an amendment of a law involves the
creation, merger, division, abolition or substantial alteration of
boundaries of local government units, a plebiscite in the political units
directly affected is mandatory. He also contends that the amendment
merely caused a transition in the status of Santiago as a city.

41
Allegedly, it is a transition because no new city was created nor was a
former city dissolved by No. 8528. As discussed above, the spirit of
Section 10, Article X of the Constitution calls for the people of the local
government unit directly affected to vote in a plebiscite whenever
there is a material change in their rights and responsibilities. They
may call the downgrading of Santiago to a component city as a mere
transition but they cannot blink away from the fact that the transition
will radically change its physical and political configuration as well as
the rights and responsibilities of its people.
On the other hand, our esteemed colleague, Mr. Justice Mendoza,
posits the theory that "only if the classification involves changes in
income, population, and land area of the local government unit is
there a need for such changes to be approved by the people . . . ."
Cdpr
With due respect, such an interpretation runs against the letter and
spirit of section 10, Article X of the 1987 Constitution which, to repeat,
states: "No province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered
except in accordance with the criteria established in the Local
Government Code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected." It is clear that
the Constitution imposes two conditions first, the creation, division,
merger, abolition or substantial alteration of boundary of a local
government unit must meet the criteria fixed by the Local Government
Code on income, population and land area and second, the law must
be approved by the people "by majority of the votes cast in a
plebiscite in the political units directly affected."
In accord with the Constitution, sections 7, 8, and 9 of the Local
Government Code fixed the said criteria and they involve
requirements on income, population and land area. These
requirements, however, are imposed to help assure the economic
viability of the local government unit concerned. They were not
imposed to determine the necessity for a plebiscite of the people.
Indeed, the Local Government Code does not state that there will be
no more plebiscite after its requirements on income, population and
land area have been satisfied. On the contrary, section 10, Chapter 2
of the Code provides: "No creation, division, merger, abolition, or
substantial alteration of boundaries of local government units shall
take effect unless approved by a majority of the votes casts in a

plebiscite called for the purpose in the political unit or units directly
affected. Said plebiscite shall be conducted by the COMELEC within
one hundred twenty (120) days from the date of the effectivity of the
law or ordinance effecting such action, unless said law or ordinance
fixes another date." 11 Senator Aquilino Pimentel, the principal author
of the Local Government Code of 1991, opines that the plebiscite is
absolute and mandatory. 12
It cannot be overstressed that the said two requirements of the
Constitution have different purposes. The criteria fixed by the Local
Government Code on income, population and land area are designed
to achieve an economic purpose. They are to be based on verified
indicators, hence, section 7, Chapter 2 of the Local Government Code
requires that these "indicators shall be attested by the Department of
Finance, the National Statistics Office, and the Lands Management
Bureau of the Department of Environment and Natural Resources." In
contrast, the people's plebiscite is required to achieve a political
purpose to use the people's voice as a check against the
pernicious political practice of gerrymandering. There is no better
check against this excess committed by the political representatives of
the people themselves than the exercise of direct people power. As
well-observed by one commentator, as the creation, division, merger,
abolition, or substantial alteration of boundaries are ". . . basic to local
government, it is also imperative that these acts be done not only by
Congress but also be approved by the inhabitants of the locality
concerned. . . . By giving the inhabitants a hand in their approval, the
provision will also eliminate the old practice of gerrymandering and
minimize legislative action designed for the benefit of a few politicians.
Hence, it promotes the autonomy of local government units." 13 dctai
The records show that the downgrading of Santiago City was opposed
by certain segments of its people. In the debates in Congress, it was
noted that at the time R.A. No. 8528 was proposed, Santiago City has
been converted to an independent component city barely two and a
half (21/2) years ago and the conversion was approved by a majority
of 14,000 votes. Some legislators expressed surprise for the sudden
move to downgrade the status of Santiago City as there had been no
significant change in its socio-economic-political status. The only
reason given for the downgrading is to enable the people of the city to
aspire for the leadership of the province. To say the least, the alleged
reason is unconvincing for it is the essence of an independent

42
component city that its people can no longer participate or be voted
for in the election of officials of the province. The people of Santiago
were aware that they gave up that privilege when they voted to be
independent from the province of Isabela. There was an attempt on
the part of the Committee on Local Government to submit the
downgrading of Santiago City to its people via a plebiscite. The
amendment to this effect was about to be voted upon when a recess
was called. After the recess, the chairman of the Committee
announced the withdrawal of the amendment "after a very
enlightening conversation with the elders of the Body." We quote the
debates, viz: 14
"BILL ON SECOND READING
H.B. No. 8729 City of Santiago
"Senator Tatad. Mr. President, I move that we consider House Bill No.
8729 as reported out under Committee Report No. 971.
"The President. Is there any objection? [Silence] there being none, the
motion is approved. llcd
"Consideration of House Bill No. 8729 is now in order. With the
permission of the Body, the Secretary will read only the title of the bill
without prejudice to inserting in the Record the whole text thereof.
"The Acting Secretary [Atty. Raval]. House Bill No. 8729, entitled
AN ACT AMENDING CERTAIN SECTIONS OF R.A. NO. 7720
ENTITLED "AN ACT CONVERTING THE MUNICIPALITY OF
SANTIAGO INTO AN INDEPENDENT COMPONENT CITY TO BE
KNOWN AS THE CITY OF SANTIAGO
The following is the full text of H.B. No. 8729
Insert
"Senator Tatad. Mr. President, for the sponsorship, I ask that the
distinguished Chairman of the Committee on Local Government be
recognized. cdll
"The President. Senator Sotto is recognized.
SPONSORSHIP SPEECH OF SENATOR SOTTO
"Mr. President. House Bill No. 8729, which was introduced in the
House by Congressman Antonio M. Abaya as its principal author, is a

simple measure which merely seeks to convert the City of Santiago

into a component city of the Province of Isabela.
"The City of Santiago is geographically located within, and is
physically an integral part of the Province of Isabela. As an
independent component city, however, it is completely detached and
separate from the said province as a local political unit. To use the
language of the Explanatory Note of the proposed bill, the City of
Santiago is an 'island in the provincial milieu.'
"The residents of the city no longer participate in the elections, nor are
they qualified to run for any elective positions in the Province of
Isabela.
"The Province of Isabela, on the other hand, is no longer vested with
the power and authority of general supervision over the city and its
officials, which power and authority are now exercised by the Office of
the President, which is very far away from Santiago City. llcd
Being geographically located within the Province of Isabela, the City
of Santiago is affected, one way or the other, by the happenings in the
said province, and is benefited by its progress and development.
Hence, the proposed bill to convert the City of Santiago into a
component city of Isabela.
"Mr. President, it is my pleasure, therefore, to present for
consideration of this august Body Committee Report No. 971 of the
Committee on Local Government, recommending approval, with our
proposed committee amendment, of House Bill No. 8729.
"Thank you, Mr. President.
"The President. The Majority Leader is recognized.
"Senator Tatad. Mr. President, I moved (sic) that we close the period
of interpellations.
"The President. Is there any objection? [Silence] There being none,
the period of interpellations is closed.
"Senator Tatad. I move that we now consider the committee
amendments.
"Senator Roco. Mr. President.
"The President. What is the pleasure of Senator Roco?

43
"Senator Roco. Mr. President, may I ask for a reconsideration of the
ruling on the motion to close the period of interpellations just to be
able to ask a few questions?
"Senator Tatad. May I move for a reconsideration of my motion, Mr.
President.
"The President. Is there any objection to the reconsideration of the
closing of the period of interpellations? [Silence] There being none,
the motion is approved. prcd
"Senator Roco is recognized.
"Senator Roco. Will the distinguished gentleman yield for some
questions?
"Senator Sotto. Willingly, Mr. President.
"Senator Roco. Mr. President, together with the Chairman of the
Committee on Local Government, we were with the sponsors when
we approved this bill to make Santiago a City. That was about two and
a half years ago. At that time, I remember it was the cry of the city that
it be 'independent.' Now we are deleting that word 'independent.'
"Mr. President, only because I was a co-author and a co-sponsor, for
the Record, I want some explanation on what happened between then
and now that has made us decide that the City of Santiago should
cease to be independent and should now become a component city.
"Senator Sotto. Mr. President, the officials of the province said during
the public hearing that they are no longer vested with the power and
authority of general supervision over the city. The power and authority
is now being exercised by the Office of the President and it is quite far
from the City of Santiago.
"In the public hearing, we also gathered that there is a clamor from
some sectors that they want to participate in the provincial elections.
"Senator Roco. Mr. President, I did not mean to delay this. I did want it
on record, however. I think there was a majority of 14,000 who
approved the charter, and maybe we owe it to those who voted for
that charter some degree of respect. But if there has been a change
of political will, there has been a change of political will, then so be it.
dctai
"Thank you, Mr. President.

"Senator Sotto. Mr. President, to be very frank about it, that was a
very important point raised by Senator Roco, and I will have to place it
on the Record of the Senate that the reason why we are proposing a
committee amendment is that, originally, there was an objection on
the part of the local officials and those who oppose it by incorporating
a plebiscite in this bill. That was the solution. Because there were
some sectors in the City of Santiago who were opposing the
reclassification or reconversion of the city into a component city.
"Senator Roco. All I wanted to say, Mr. President because the two
of us had special pictures (sic) in the city is that I thought it should
be put on record that we have supported originally the proposal to
make it an independent city. But now if it is their request, then, on the
manifestation of the Chairman, let it be so.
"Thank you.
"Senator Drilon. Mr. President.
"Senator Drilon. Will the gentleman yield for a few questions, Mr.
President?
"Senator Sotto. Yes, Mr. President.

cda

"Senator Drilon. Mr. President, further to the interpellation of our good

friend, the Senator from Bicol, on the matter of the opinion of the
citizens of Santiago City, there is a resolution passed by the
Sanggunian on January 30, 1997 opposing the conversion of
Santiago from an independent city.
"This opposition was placed on records during the committee
hearings. And that is the reason why, as mentioned by the good
sponsor, one of the amendments is that a plebiscite be conducted
before the law takes effect.
"The question I would like to raise and I would like to recall the
statement of our Minority Leader is that, at this time we should not
be passing it for a particular politician.
"In this particular case, it is obvious that this bill is being passed in
order that the additional territory be added to the election of the
provincial officials of the province of Isabela.
"Now, is this for the benefit of any particular politician, Mr. President.
"Senator Sotto. If it is, I am not aware of it, Mr. President.

44
"Senator Alvarez. Mr. President.

dctai

"The President. With the permission of the two gentlemen on the

Floor, Senator Alvarez is recognized.
"Senator Alvarez. As a born inbred citizen of this city, Mr. President,
may I share some information.
"Mr. President, if we open up the election of the city to the provincial
leadership, it will not be to the benefit of the provincial leadership,
because the provincial leadership will then campaign in a bigger
territory.
"As a matter of fact, the ones who will benefit from this are the citizens
of Santiago who will now be enfranchised in the provincial electoral
process, and whose children will have the opportunity to grow into
provincial leadership. This is one of the prime reasons why this
amendment is being put forward.
"While it is true that there may have been a resolution by the city
council, those who signed the resolution were not the whole of the
council. This bill was sponsored by the congressman of that district
who represents a constituency, the voice of the district.
"I think, Mr. President, in considering which interest is paramount,
whose voice must be heard, and if we have to fathom the interest of
the people, the law which has been crafted here in accordance with
the rules should be given account, as we do give account to many of
the legislations coming from the House on local issues. prcd
"Senator Drilon. Mr. President, the reason why I am raising this
question is that, as Senator Roco said, just two-and-a-half years ago
we passed a bill which indeed disenfranchized if we want to use
that phrase the citizens of the City of Santiago in the matter of the
provincial election. Two-and-a-half years after, we are changing the
rule.
"In the original charter, the citizens of the City of Santiago participated
in a plebiscite in order to approve the conversion of the city into an
independent city. I believe that the only way to resolve this issue
raised by Senator Roco is again to subject this issue to another
plebiscite as part of the provision of this proposed bill and as will be
proposed by the Committee Chairman as an amendment.
"Thank you very much, Mr. President.

"Senator Alvarez. Mr. President, the Constitution does not require that
the change from an independent to a component city be subjected to
a plebiscite.
"Sections 10, 11, 12 of Article X of the 1987 Constitution provides as
follows:
'SECTION 10. No province, city, municipality, or barangay may be
created, divided, merged, abolished, or its boundary substantially
altered, except in accordance with the criteria established in the local
government code and subject to approval by a majority of the votes
cast in a plebiscite in the political units directly affected.' LexLib
"This change from an independent city into a component city is none
of those enumerated. So the proposal coming from the House is in
adherence to this constitutional mandate which does not require a
plebiscite.
"Senator Sotto. Mr. President, the key word here is 'conversion'. The
word 'conversion' appears in that provision wherein we must call a
plebiscite. During the public hearing, the representative of
Congressman Abaya was insisting that this is not a conversion; this is
merely a reclassification. But it is clear in the bill.
"We are amending a bill that converts, and we are converting it into a
component city. That is how the members of the committee felt. That
is why we have proposed an amendment to this, and this is to
incorporate a plebiscite in as much as there is no provision on
incorporating a plebiscite. Because we would like not only to give the
other people of Santiago a chance or be enfranchised as far as the
leadership of the province is concerned, but also we will give a
chance to those who are opposing it. To them, this is the best
compromise. Let the people decide, instead of the political leaders of
Isabela deciding for them.
"Senator Tatad. Mr. President.
"The President. The Majority Leader is recognized.
"Senator Tatad. At this point, Mr. President, I think we can move to
close the period of interpellations.
"The President. Is there any objection? [Silence] There being none,
the motion is approved.

45
"Senator Tatad. I move that we now consider the committee
amendments, Mr. President. LLphil

''Senator Sotto. Mr. President, after a very enlightening conversation

with the elders of the Body, I withdraw my amendment.

"The President. Is there any objection? [Silence] There being none,

the motion is approved.

"The President. The amendment is withdrawn.

"Senator Sotto. On page 2, after line 13, insert a new Section 3, as

follows:
"SECTION 3. SECTION 49 OF REPUBLIC ACT NO. 7720 IS
HEREBY AMENDED BY DELETING THE ENTIRE SECTION AND IN
ITS STEAD SUBSTITUTE THE FOLLOWING:
"SECTION 49.PLEBISCITE. THE CONVERSION OF THE CITY
OF SANTIAGO INTO A COMPONENT CITY OF THE PROVINCE OF
ISABELA SHALL TAKE EFFECT UPON THE RATIFICATION OF
THIS ACT BY A MAJORITY OF THE PEOPLE OF SAID CITY IN A
PLEBISCITE WHICH SHALL BE HELD FOR THE PURPOSE WITHIN
SIXTY (60) DAYS FROM THE APPROVAL OF THIS ACT. THE
COMMISSION ON ELECTIONS SHALL CONDUCT AND
SUPERVISE SUCH PLEBISCITE.

"Senator Maceda. Mr. President.

"The President. Senator Maceda is recognized.
"Senator Maceda. We wish to thank the sponsor for the withdrawal of
the amendment.
"Mr. President, with due respect to the Senator from Isabela I am
no great fan of the Senator from Isabela but it so happens that this
is a local bill affecting not only his province but his own city where he
is a resident and registered voter.
"So, unless the issue is really a matter of life and death and of
national importance, senatorial courtesy demands that we, as much
as possible, accommodate the request of the Senator from Isabela as
we have done on matters affecting the district of other senators. I
need not remind them. Cdpr

"The President. Is there any objection?

"Thank you anyway, Mr. President.

"Senator Enrile. Mr. President.

"Senator Alvarez. Mr. President.

"The President. Senator Enrile is recognized.

"The President. Senator Alvarez is recognized.

"Senator Enrile. I object to this committee amendment, Mr. President.

"Senator Alvarez. Mr. President, may I express my deepest

appreciation for the statement of the gentleman from Ilocos and
Laguna. Whatever he may have said, the feeling is not mutual. At
least for now, I have suddenly become his great fan for the evening.

"SUSPENSION OF SESSION
"Senator Tatad. May I ask for a one-minute suspension of the session.
dctai
"The President. The session is suspended for a few minutes if there is
no objection. [There was none]
"It was 7:54 p.m.
"RESUMPTION OF SESSION
"At 7:57 p.m., the session was resumed.

"May I put on record, Mr. President, that I campaigned against the

cityhood of Santiago not because I do not want it to be a city but
because it had disenfranchised the young men of my city from
aspiring for the leadership of the province. The town is the gem of the
province. How could we extricate the town from the province?

"The President. The session is resumed.

"But I would like to thank the gentleman, Mr. President, and also the
Chairman of the Committee.

"Senator Sotto is recognized.

"Senator Tatad. Mr. President.

"The President. The Majority Leader is recognized.

46
"Senator Tatad. There being no committee amendments, I move that
the period of committee amendments be closed.
"The President. Shall we amend the title of this bill by removing the
word 'independent' preceding 'component city'?
"Senator Sotto. No, Mr. President. We are merely citing the title. The
main title of this House Bill No. 8729 is 'An Act Amending Certain
Sections of Republic Act 7720'. The title is the title of Republic Act
7720. So, I do not think that we should amend that anymore.
"The President. What is the pending motion? Will the gentleman
kindly state the motion? llcd
"Senator Tatad. I move that we close the period of committee
amendments.
"The President. Is there any objection? [Silence] There being none,
the motion is approved.
"Senator Tatad. Unless there are any individual amendments, I move
that we close the period of individual amendments.
"The President. Is there any objection? [Silence] There being none,
the period of individual amendments is closed.
"APPROVAL OF H.B. NO. 8729 ON SECOND READING
"Senator Tatad. Mr. President, I move that we vote on Second
Reading on House Bill No. 8729.
"The President. Is there any objection? [Silence] There being none,
we shall now vote on Second Reading on House Bill No. 8729.
"As many as are in favor of the bill, say aye.
"Several Members. Aye
"As many as are against the bill, say nay. [Silence]
"House Bill No. 8729 is approved on Second Reading."
The debates cannot but raise some quizzical eyebrows on the real
purpose for the downgrading of the city of Santiago. There is all the
reason to listen to the voice of the people of the city via a plebiscite.
cdll

In the case of Tan, et al. vs. COMELEC, 15 BP 885 was enacted

partitioning the province of Negros Occidental without consulting its
people in a plebiscite. In his concurring opinion striking down the law
as unconstitutional, Chief Justice Teehankee cited the illicit political
purpose behind its enactment, viz:
"The scenario, as petitioners urgently asserted, was 'to have the
creation of the new Province a fait accompli by the time elections are
held on February 7, 1986. The transparent purpose is unmistakably
so that the new Governor and other officials shall by then have been
installed in office, ready to function for purposes of the election for
President and Vice President.' Thus, the petitioners reported after the
event: 'With indecent haste, the plebiscite was held; Negros del Norte
was set up and proclaimed by President Marcos as in existence; a
new set of government officials headed by Governor Armando Gustilo
was appointed; and, by the time the elections were held on February
7, 1986, the political machinery was in place to deliver the 'solid North'
to ex-President Marcos. The rest is history. What happened in Negros
del Norte during the elections the unashamed use of naked power
and resources contributed in no small way to arousing 'people's
power' and steel the ordinary citizen to perform deeds of courage and
patriotism that makes one proud to be a Filipino today.
"The challenged Act is manifestly void and unconstitutional.
Consequently, all the implementing acts complained of, viz. the
plebiscite, the proclamation of a new province of Negros del Norte
and the appointment of its officials are equally void. The limited
holding of the plebiscite only in the areas of the proposed new
province (as provided by Section 4 of the Act) to the exclusion of the
voters of the remaining areas of the integral province of Negros
Occidental (namely, the three cities of Bacolod, Bago and La Carlota
and the Municipalities of Las Castellana, Isabela, Moises Padilla,
Pontevedra, Hinigaran, Himamaylan, Kabankalan, Murcia, Valladolid,
San Enrique, Ilog, Cauayan, Hinoba-an and Sipalay and Candoni),
grossly contravenes and disregards the mandate of Article XI, section
3 of the then prevailing 1973 Constitution that no province may be
created or divided or its boundary substantially altered without 'the
approval of a majority of the votes in a plebiscite in the unit or units
affected.' It is plain that all the cities and municipalities of the province
of Negros Occidental, not merely those of the proposed new province,
comprise the units affected. It follows that the voters of the whole and

47
entire province of Negros Occidental have to participate and give their
approval in the plebiscite, because the whole province is affected by
its proposed division and substantial alteration of its boundary. To limit
the plebiscite to only the voters of the areas to be partitioned and
seceded from the province is as absurd and illogical as allowing only
the secessionists to vote for the secession that they demanded
against the wishes of the majority and to nullify the basic principle of
majority rule." LLphil
Mr. Justice Mendoza and Mr. Justice Buena also cite two instances
when allegedly independent component cities were downgraded into
component cities without need of a plebiscite. They cite the City of
Oroquieta, Misamis Occidental, 16 and the City of San Carlos,
Pangasinan 17 whose charters were amended to allow their people to
vote and be voted upon in the election of officials of the province to
which their city belongs without submitting the amendment to a
plebiscite. With due respect, the cities of Oroquieta and San Carlos
are not similarly situated as the city of Santiago. The said two cities
then were not independent component cities unlike the city of
Santiago. The two cities were chartered but were not independent
component cities for both were not highly urbanized cities which alone
were considered independent cities at that time. Thus, when the case
of San Carlos City was under consideration by the Senate, Senator
Pimentel explained: 18
". . . Senator Pimentel. The bill under consideration, Mr. President,
merely empowers the voters of San Carlos to vote in the elections of
provincial officials. There is no intention whatsoever to downgrade the
status of the City of San Carlos and there is no showing whatsoever
that the enactment of this bill will, in any way, diminish the powers and
prerogatives already enjoyed by the City of San Carlos. In fact, the
City of San Carlos as of now, is a component city. It is not a highly
urbanized city. Therefore, this bill merely, as we said earlier, grants the
voters of the city, the power to vote in provincial elections, without in
any way changing the character of its being a component city. It is for
this reason that I vote in favor of this bill."
It was Senator Pimentel who also sponsored the bill 19 allowing
qualified voters of the city of Oroquieta to vote in provincial elections
of the province of Misamis Occidental. In his sponsorship speech, he
explained that the right to vote being given to the people of Oroquieta
City was consistent with its status as a component city. 20 Indeed,

during the debates, former Senator Neptali Gonzales pointed out the
need to remedy the anomalous situation then obtaining ". . . where
voters of one component city can vote in the provincial election while
the voters of another component city cannot vote simply because their
charters so provide." 21 Thus, Congress amended other charters of
component cities prohibiting their people from voting in provincial
elections. prLL
IN VIEW WHEREOF, the petition is granted. Republic Act No. 8528 is
declared unconstitutional and the writ of prohibition is hereby issued
commanding the respondents to desist from implementing said law.
SO ORDERED.

48
[G.R. No. L-5279. October 31, 1955.]
PHILIPPINE ASSOCIATION OF COLLEGES AND UNIVERSITIES,
ETC., petitioner, vs. SECRETARY OF EDUCATION and the BOARD
OF TEXTBOOKS, respondents.
DECISION
BENGZON, J p:
The petitioning colleges and universities request that Act No. 2706 as
amended by Act No. 3075 and Commonwealth Act No. 180 be
declared unconstitutional, because: A. They deprive owners of
schools and colleges as well as teachers and parents of liberty and
property without due process of law; B. They deprive parents of their
natural right and duty to rear their children for civic efficiency; and C.
Their provisions conferring on the Secretary of Education unlimited
power and discretion to prescribe rules and standards constitute an
unlawful delegation of legislative power.
A printed memorandum explaining their position in extenso is attached
to the record.
The Government's legal representative submitted a mimeographed
memorandum contending that, (1) the matter constitutes no justiciable
controversy exhibiting unavoidable necessity of deciding the
constitutional questions; (2) petitioners are in estoppel to challenge
the validity of the said acts and (3) the Acts are constitutionally valid.
Petitioners submitted a lengthy reply to the above arguments.
Act No. 2706 approved in 1917 is entitled, "An Act making the
inspection and recognition of private schools and colleges obligatory
for the Secretary of Public Instruction." Under its provisions, the
Department of Education has, for the past 37 years, supervised and
regulated all private schools in this country apparently without audible
protest, nay, with the general acquiescence of the general public and
the parties concerned.
It should be understandable, then, that this Court should be doubly
reluctant to consider petitioner's demand for avoidance of the law
aforesaid, specially where, as respondents assert, petitioners suffered
no wrong nor allege any from the enforcement of the criticized
statute.

"It must be evident to any one that the power to declare a legislative
enactment void is one which the judge, conscious of the fallibility of
the human judgment, will shrink from exercising in any case where he
can conscientiously and with due regard to duty and official oath
decline the responsibility." (Cooley Constitutional Limitations, 8th Ed.,
Vol. I, p. 332.)
When a law has been long treated as constitutional and important
rights have become dependent thereon, the Court may refuse to
consider an attack on its validity. (C. J. S. 16, p. 204.)
As a general rule, the constitutionality of a statute will be passed on
only if, and to the extent that, it is directly and necessarily involved in
a justiciable controversy and is essential to the protection of the rights
of the parties concerned. (16 C. J. S., p. 207.)
In support of their first proposition petitioners contend that the right of
a citizen to own and operate a school is guaranteed by the
Constitution, and any law requiring previous governmental approval or
permit before such person could exercise said right, amounts to
censorship of previous restraint, a practice abhorent to our system of
law and government. Petitioners obviously refer to section 3 of Act No.
2706 as amended which provides that before a private school may be
opened to the public it must first obtain a permit from the Secretary of
Education. The Solicitor General on the other hand points out that
none of petitioners has cause to present this issue, because all of
them have permits to operate and are actually operating by virtue of
their permits. 1 And they do not assert that the respondent Secretary
of Education has threatened to revoke their permits. They have
suffered no wrong under the terms of the law and, naturally need
no relief in the form they now seek to obtain.
"It is an established principle that to entitle a private individual
immediately in danger of sustaining a direct injury as the result of that
action and it is not sufficient that he has merely a general to invoke
the judicial power to determine the validity of executive or legislative
action he must show that he has sustained or is interest common to
all members of the public." (Ex parte Levitt, 302 U. S. 633 82 L. Ed.
493.)
"Courts will not pass upon the constitutionality of a law" upon the
complaint of one who fails to show that he is injured by its operation.

49
(Tyler vs. Judges, 179 U. S. 405; Hendrick vs. Maryland, 235 U. S.
610; Coffman vs. Breeze Corp., 323 U. S. 316-325.)

was not originally included in Act No. 2706. It was introduced by

Commonwealth Act No. 180 approved in 1936. Why?

"The power of courts to declare a law unconstitutional arises only

when the interests of litigants require the use of that judicial authority
for their protection against actual interference, a hypothetical threat
being insufficient." (United Public Works vs. Mitchell, 330 U. S. 75; 91
L. Ed. 754.)

In March 1924 the Philippine Legislature approved Act No. 3162

creating a Board of Educational Survey to make a study and survey of
education in the Philippines and of all educational institutions, facilities
and agencies thereof. A Board chairmaned by Dr. Paul Munroe,
Columbia University, assisted by a staff of carefully selected technical
members performed the task, made a five-month thorough and
impartial examination of the local educational system, and submitted a
report with recommendations, printed as a book of 671 pages. The
following paragraphs are taken from such report:

"Bona fide suit. Judicial power is limited to the decision of actual

cases and controversies. The authority to pass on the validity of
statutes is incidental to the decision of such cases where conflicting
claims under the Constitution and under a legislative act assailed as
contrary to the Constitution are raised. It is legitimate only in the last
resort, and as necessity in the determination of real, earnest, and vital
controversy between litigants." (Taada and Fernando, Constitution of
the Philippines, p. 1138.)
Mere apprehension that the Secretary of Education might under the
law withdraw the permit of one of petitioners does not constitute a
justiciable controversy. (Cf. Com. ex rel Watkins vs. Winchester
Waterworks (Ky.) 197 S. W. 2d. 771.)
An action, like this, is brought for a positive purpose, nay, to obtain
actual and positive relief. (Salonga vs. Warner Barnes, L-2245,
January, 1951.) Courts do not sit to adjudicate mere academic
questions to satisfy scholarly interest therein however intellectually
solid the problem may be. This is specially true where the issues
"reach constitutional dimensions, for then there comes into play
regard for the court's duty to avoid decision of constitutional issues
unless avoidance becomes evasion." (Rice vs. Sioux City, U. S. Sup.
Ct. Adv. Rep., May 23, 1955, Law Ed., Vol. 99, p. 511.)
The above notwithstanding, in view of the several decisions of the
United States Supreme Court quoted by petitioners, apparently
outlawing censorship of the kind objected to by them, we have
decided to look into the matter, lest they may allege we refused to act
even in the face of clear violation of fundamental personal rights of
liberty and property.
Petitioners complain that before opening a school the owner must
secure a permit from the Secretary of Education. Such requirement

"PRIVATE-ADVENTURE SCHOOLS
There is no law or regulation in the Philippine Islands today to prevent
a person, however disqualified by ignorance, greed, or even immoral
character, from opening a school to teach the young. It true that in
order to post over the door 'Recognized by the Government,' a private
adventure school must first be inspected by the proper Government
official, but a refusal to grant such recognition does not by any means
result in such a school ceasing to exist. As a matter of fact, there are
more such nonrecognized private schools than of the recognized
variety. How many, no one knows, as the Division of Private Schools
keeps records only of the recognized type."
Conclusion. An unprejudiced consideration of the fact presented
under the caption Private Adventure Schools leads but to one
conclusion, viz.: the great majority of them from primary grade to
university are money-making devices for the profit of those who
organize and administer them. The people whose children and youth
attend them are not getting what they pay for. It is obvious that the
system constitutes a great evil. That it should be permitted to exist
with almost no supervision is indefensible. The suggestion has been
made with the reference to the private institutions of university grade
that some board of control be organized under legislative control to
supervise their administration. The Commission believes that the
recommendations it offers at the end of this chapter are more likely to
bring about the needed reforms.
Recommendations. The Commission recommends that legislation
be enacted to prohibit the opening of any school by an individual or
organization without the permission of the Secretary of Public

50
Instruction. That before granting such permission the Secretary
assure himself that such school measures up to proper standards in
the following respects, and that the continued existence of the school
be dependent upon its continuing to conform to these conditions:
(1)
The location and construction of the buildings, the lighting and
ventilation of the rooms, the nature of the lavatories, closets, water
supply, school furniture and apparatus, and methods of cleaning shall
be such as to insure hygienic conditions for both pupils and teachers.

"It shall be the duty of the Secretary of Public Instruction to maintain a

general standard of efficiency in all private schools and colleges of the
Philippines so that the same shall furnish adequate instruction to the
public, in accordance with the class and grade of instruction given in
them, and for this purpose said Secretary or his duly authorized
representative shall have authority to advise, inspect, and regulate
said schools and colleges in order to determine the efficiency of
instruction given in the same,"

(4)
The teachers shall meet qualifications equal to those of
teachers in the public schools of the same grade.

"Nowhere in this Act" petitioners argue "can one find any description,
either general or specific, of what constitutes a 'general standard of
efficiency.' Nowhere in this Act is there any indication of any basis or
condition to ascertain what is 'adequate instruction to the public.'
Nowhere in this Act is there any statement of conditions, acts, or
factors, which the Secretary of Education must take into account to
determine the 'efficiency of instruction.' "

xxx

The attack on this score is also extended to section 6 which provides:

(2)
The library and laboratory facilities shall be adequate to the
needs of instruction in the subjects taught.
(3)
The classes shall not show an excessive number of pupils per
teacher. The Commission recommends 40 as a maximum.

xxx

xxx"

In view of these finding and recommendations, can there be any

doubt that the Government in the exercise of its police power to
correct "a great evil" could validly establish the "previous permit"
system objected to by petitioners? This is what differentiates our law
from the other statutes declared invalid in other jurisdictions. And if
any doubt still exists, recourse may now be had to the provision of our
Constitution that "All educational institutions shall be under the
supervision and subject to regulation by the State." (Art. XIV, sec. 5.)
The power to regulate establishments or business occupations implies
the power to require a permit or license. (53 C. J. S. 4.)
What goes for the "previous permit" naturally goes for the power to
revoke such permit on account of violation of rules or regulations of
the Department.
II.
This brings us to the petitioners' third proposition that the
questioned statutes "conferring on the Secretary of Education
unlimited power and discretion to prescribe rules and standards
constitute an unlawful delegation of legislative power."
This attack is specifically aimed at section 1 of Act No. 2706 which, as
amended, provides:

"The Department of Education shall from time to time prepare and

publish in pamphlet form the minimum standards required of primary,
intermediate, and high schools, and colleges granting the degrees of
Bachelor of Arts, Bachelor of Science, or any other academic degree.
It shall also from time to time prepare and publish in pamphlet form
the minimum standards required of law, medical, dental,
pharmaceutical, engineering, agricultural and other medical or
vocational schools or colleges giving instruction of a technical,
vocational or professional character."
Petitioners reason out, "this section leaves everything to the
uncontrolled discretion of the Secretary of Education or his
department. The Secretary of Education is given the power to fix the
standard. In plain language, the statute turns over to the Secretary of
Education the exclusive authority of the legislature to formulate
standard . . ."
It is quite clear the two sections empower and require the Secretary of
Education to prescribe rules fixing minimum standards of adequate
and efficient instruction to be observed by all such private schools and
colleges as may be permitted to operate. The petitioners contend that
as the legislature has not fixed the standards, "the provision is
extremely vague, indefinite and uncertain" and for that reason
constitutionality objectionable. The best answer is that despite such

51
alleged vagueness the Secretary of Education has fixed standards to
ensure adequate and efficient instruction, as shown by the
memoranda fixing or revising curricula, the school calendars, entrance
and final examinations, admission and accreditation of students etc.;
and the system of private education has, in general, been
satisfactorily in operation for 37 years. Which only shows that the
Legislature did and could, validly rely upon the educational experience
and training of those in charge of the Department of Education to
ascertain and formulate minimum requirements of adequate
instruction as the basis of government recognition of any private
school.
At any rate, petitioners do not show how these standards have injured
any of them or interfered with their operation. Wherefore, no reason
exists for them to assail the validity of the power nor the exercise of
the power by the Secretary of Education.
True, the petitioners assert that, the Secretary has issued rules and
regulations "whimsical and capricious" and that such discretionary
power has produced arrogant inspectors who "bully heads and
teachers of private schools." Nevertheless, their remedy is to
challenge those regulations specifically, and/or to ring those
inspectors to book, in proper administrative or judicial proceedings
not to invalidate the law. For it needs no argument, to show that abuse
by the officials entrusted with the execution of a statute does not per
se demonstrate the unconstitutionality of such statute.
Anyway, way find the defendants' position to be sufficiently sustained
by the decision in Alegre vs. Collector of Customs, 53 Phil., 394
upholding the statute that authorized the Director of Agriculture to
"designate standards for the commercial grades of abaca, maguey
and sisal" against vigorous attacks on the ground of invalid delegation
of legislative power.
Indeed "adequate and efficient instruction" should be considered
sufficient, in the same way as "public welfare" "necessary in the
interest of law and order" "public interest" and "justice and equity and
substantial merits of the case" have been held sufficient as legislative
standards justifying delegation of authority to regulate. (See Taada
and Fernando, Constitution of the Philippines, p. 793, citing Philippine
cases.)

On this phase of the litigation we conclude that there has been no

undue delegation of legislative power.
In this connection, and to support their position that the law and the
Secretary of Education have transcended the governmental power of
supervision and regulation, the petitioners appended a list of circulars
and memoranda issued by the said Department. However they failed
to indicate which of such official documents was constitutionally
objectionable for being "capricious," or plain "nuisance"; and it is one
of our decisional practices that unless a constitutional point is
specifically raised, insisted upon and adequately argued, the court will
not consider it. (Santiago vs. Far Eastern, 73 Phil., 408.)
We are told that such list will give an idea of how the statute has
placed in the hands of the Secretary of Education complete control of
the various activities of private schools, and why the statute should be
struck down as unconstitutional. It is clear in our opinion that the
statute does not in express terms give the Secretary complete control.
It gives him powers to inspect private schools, to regulate their
activities, to give them official permits to operate under certain
conditions, and to revoke such permits for cause. This does not
amount to complete control. If any of such Department circulars or
memoranda issued by the Secretary go beyond the bounds of
regulation and seeks to establish complete control, it would surely be
invalid. Conceivably some of them are of this nature, but besides not
having before us the text of such circulars, the petitioners have
omitted to specify. In any event with the recent approval of Republic
Act No. 1124 creating the National Board of Education, opportunity for
administrative correction of the supposed anomalies or
encroachments is amply afforded herein petitioners. A more
expeditious and perhaps more technically competent forum exists,
wherein to discuss the necessity, convenience or relevancy of the
measures criticized by them. (See also Republic Act No. 176.)
If however the statutes in question actually give the Secretary control
over private schools, the question arises whether the power of
supervision and regulation granted to the State by section 5 Article
XIV was meant to include control of private educational institutions. It
is enough to point out that local educators and writers think the
Constitution provides for control of Education by the State. (See
Tolentino, Government of the Philippines (1950), p. 401; Aruego,

52
Framing of the Philippine Constitution, Vol. II, p. 615; Benitez,
Philippine Social Life and Progress, p. 335.)

both constitutional privileges have been held, in the United

States, to be invalid as taxes on the exercise of a constitutional right.

The Constitution (it) "provides for state control of all educational

institutions" even as it enumerates certain fundamental objectives of
all education to wit, the development of moral character, personal
discipline, civic conscience and vocational efficiency, and instruction in
the duties of citizenship. (Malcolm & Laurel, Philippine Constitutional
Law, 1936.)

The Solicitor General on the other hand argues that insofar as

petitioners' action attempts to restrain the further collection of the
assessment, courts have no jurisdiction to restrain the collection of
taxes by injunction, and in so far as they seek to recover fees already
paid the suit, it is one against the State without its consent. Anyway he
concludes, the action involving "the legality of any tax impost or
assessment" falls within the original jurisdiction of Courts of First
Instance.

The Solicitor General cities many authorities to show that the power to
regulate means power to control, and quotes from the proceedings of
the Constitutional Convention to prove that State control of private
education was intended by the organic law. It is significant to note that
the Constitution grants power to supervise and to regulate. Which
may mean greater power than mere regulation.
III.
Another grievance of petitioners probably the most
significant is the assessment of 1 per cent levied on gross receipts
of all private schools for additional Government expenses in
connection with their supervision and regulation. The statute is section
11-A of Act No. 2706 as amended by Republic Act No. 74 which reads
as follows:
"SEC. 11-A. The total annual expense of the Office of Private
Education shall be met by the regular amount appropriated in the
annual Appropriation Act: Provided, however, That for additional
expenses in the supervision and regulation of private schools,
colleges and universities and in the purchase of textbooks to be sold
to students of said schools, colleges and universities the President of
the Philippines may authorize the Secretary of Instruction to levy an
equitable assessment from each private educational institution
equivalent to one percent of the total amount accruing from tuition and
other fees: . . . and non-payment of the assessment herein provided
by any private school, college or university shall be sufficient cause
for the cancellation by the Secretary of Instruction of the permit for
recognition granted to it."
Petitioners maintain that this is a tax on the exercise of a
constitutional right the right to open a school, the liberty to teach
etc. They claim this is unconstitutional, in the same way that taxes on
the privilege of selling religious literature or of publishing a newspaper

There are good grounds in support of the Government's position. If

this levy of 1 per cent is truly a mere fee and not a tax to finance
the cost of the Department's duty and power to regulate and
supervise private schools, the exaction may be upheld; but such point
involves investigation and examination of relevant data, which should
best be carried out in the lower courts. If on the other hand it is a tax,
petitioners' issue would still be within the original jurisdiction of the
Courts of First Instance.
The last grievance of petitioners relates to the validity of Republic Act
No. 139 which in its section 1 provides:
"The textbooks to be used in the private schools recognized or
authorized by the government shall be submitted to the Board (Board
of Textbooks) which shall have the power to prohibit the use of any of
said textbooks which it may find to be against the law or to off end the
dignity and honor of the government and people of the Philippines, or
which it may find to be against the general policies of the government,
or which it may deem pedagogically unsuitable."
This power of the Board, petitioners aver, is censorship in "its baldest
form". They cite two U. S. cases (Miss. and Minnesota) outlawing
statutes that impose previous restraints upon publication of
newspapers, or curtail the right of individuals to disseminate teachings
critical of government institutions or policies.
Herein lies another important issue submitted in the cause. The
question is really whether the law may be enacted in the exercise of
the State's constitutional power (Art. XIV, sec. 5) to supervise and
regulate private schools. If that power amounts to control of private
schools, as some think it is, maybe the law is valid. In this connection

53
we do not share the belief that section 5 has added new power to
what the State inherently possesses by virtue of the police power. An
express power is necessarily more extensive than a mere implied
power. 1 For instance, if there is conflict between an express
individual right 2 and the express power to control private education it
cannot off-hand be said that the latter must yield to the former
conflict of two express powers. But if the power to control education is
merely implied from the police power, it is feasible to uphold the
express individual right, as was probably the situation in the two
decisions brought to our attention, of Mississippi and Minnesota,
states where constitutional control of private schools is not expressly
produced.
However, as herein previously noted, no justiciable controversy has
been presented to us. We are not informed that the Board on
Textbooks has prohibited this or that text, or that the petitioners
refused or intend to refuse to submit some textbooks, and are in
danger of losing substantial privileges or rights for so refusing.
The average lawyer who reads the above quoted section of Republic
Act 139 will fail to perceive anything objectionable. Why should not
the State prohibit the use of textbooks that are illegal, or offensive to
the Filipinos or adverse to governmental policies or educationally
improper? What's the power of regulation and supervision for? But
those trained to the investigation of constitutional issues are likely to
apprehend the danger to civil liberties, of possible educational
dictatorship or thought control, as petitioners' counsel foresee with
obvious alarm. Much depends, however, upon the execution and
implementation of the statute. Not that constitutionality depends
necessarily upon the law's effects. But if the Board on Textbooks in its
actuations strictly adheres to the letter of the section and wisely steers
a middle course between the Scylla of "dictatorship" and the
Charybdis of "thought control", no cause for complaint will arise and
no occasion for judicial review will develop. Anyway, and again,
petitioners now have a more expeditious remedy thru an
administrative appeal to the National Board of Education created by
Republic Act 1124.
Of course it is unnecessary to assure herein petitioners, that when
and if, the dangers they apprehend materialize and judicial
intervention is suitably invoked, after all administrative remedies are

exhausted, the courts will not shrink from their duty to delimit
constitutional boundaries and protect individual liberties.
IV.
For all the foregoing considerations, reserving to the
petitioners the right to institute in the proper court, and at the proper
time, such actions as may call for decision of the issues herein
presented by them, this petition for prohibition will be denied. So
ordered.

54
[G.R. No. 118577. March 7, 1995.]
JUANITO MARIANO, JR., et al., petitioners, vs. THE COMMISSION
ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, THE MUNICIPAL TREASURER, AND SANGGUNIANG
BAYAN OF MAKATI, respondents.
[G.R. No. 118627. March 7, 1995.]
JOHN R. OSMEA, petitioner, vs. THE COMMISSION ON
ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR
BINAY, MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN NG
MAKATI, respondents.

(a)
it increased the legislative district of Makati only by special law
(the Charter in violation of the constitutional provision requiring a
general reapportionment law to be passed by Congress within three
(3) years following the return of every census; dctai
(b)
the increase in legislative district was not expressed in the title
of the bill; and
(c)
the addition of another legislative district in Makati is not in
accord with Section 5 (3), as of the latest survey (1990 census), the
population of Makati stands at only 450,000.
G.R. No. 118627 was filed by petitioner John H. Osmea as senator,
taxpayer, and concerned citizen. Petitioner assails section 52 of R.A.
No. 7854 as unconstitutional on the same grounds as aforestated.

DECISION

We find no merit in the petitions.

PUNO, J p:

At bench are two (2) petitions assailing certain provisions of Republic

Act No. 7859 as unconstitutional. R.A. No. 7854 is entitled, "An Act
Converting the Municipality of Makati Into a Highly Urbanized City to
be known as the City of Makati." 1

Section 2, Article I of R.A. No. 7854 delineated the land area of the
proposed city of Makati, thus:

G.R. No. 118577 involves a petition for prohibition and declaratory

relief. It was filed by petitioners Juanito Mariano, Jr., Ligaya S.
Bautista, Teresita Abang, Valentina Pitalvero, Rufino Caldoza,
Florante Alba, and Perfecto Alba. Of the petitioners, only Mariano, Jr.,
is a resident of Makati. The others are residents of Ibayo Ususan,
Taguig, Metro Manila. Suing as taxpayers, they assail as
unconstitutional sections 2, 51 and 52 of R.A. No. 7854 on the
following grounds:
"1.
Section 2 of R.A. No. 7854 did not properly identify the land
area or territorial jurisdiction of Makati by metes and bounds, with
technical descriptions, in violation of Section 10, Article X of the
Constitution, in relation to Sections 7 and 450 of the Local
Government Code;
2.
Section 51 of R.A. No. 7854 attempts to alter or restart the
"three-consecutive term" limit for local elective officials, in violation of
Section 8, Article X and Section 7, Article VI of the Constitution.
3.

Section 52 of R.A. No. 7854 is unconstitutional for:

Sec. 2. The City of Makati. The Municipality of Makati shall be

converted into a highly urbanized city to be known as the City of
Makati, hereinafter referred to as the City, which shall comprise the
present territory of the Municipality of Makati in Metropolitan Manila
Area over which it has jurisdiction bounded on the northeast by Pasig
River and beyond by the City of Mandaluyong and the Municipality of
Pasig; on the southeast by the municipalities of Pateros and Taguig;
on the southwest by the City of Pasay and the Municipality of Taguig;
and the northwest, by the City of Manila.
The foregoing provision shall be without prejudice to the resolution by
the appropriate agency or forum of existing boundary disputes or
cases involving questions of territorial jurisdiction between the City of
Makati and the adjoining local government units. (Emphasis supplied)
In G.R. No. 118577, petitioners claim that this delineation violates
sections 7 and 450 of the Local Government Code which require that
the area of a local government unit should be made by metes and
bounds, with technical descriptions. 2
The importance of drawing with precise strokes the territorial
boundaries of a local unit of government cannot be overemphasized.

55
The boundaries must be clear for they define the limits of the territorial
jurisdiction of a local government unit. It can legitimately exercise
powers of government only within the limits of its territorial jurisdiction.
Beyond these limits of its acts are ultra vires. Needless to state, any
uncertainty in the boundaries of local government units will sow costly
conflicts in the exercise of governmental powers which ultimately will
prejudice the people's welfare. This is the evil sought to be avoided by
the local government unit requiring that the land area of local
government unit must be spelled out in metes and bounds, with
technical descriptions.
Given the facts of the cases at bench, we cannot perceive how this
evil can be brought about by the description made in section 2 of R.A.
No. 7854. Petitioners have not demonstrated that the delineation of
the land area of the proposed City of Makati will cause confusion as to
its boundaries. We note that said delineation did not change even by
an inch the land area previously covered by Makati as a municipality.
Section 2 did not add, subtract, divide, or multiply the established land
area of Makati. In language that cannot be any cleared, section 2
stated that the city's land area "shall comprise the present territory of
the municipality."
The deliberations of Congress will reveal that there is a legitimate
reason why the land area of the proposed City of Makati was not
defined by metes and bounds, with technical descriptions. At the time
of the consideration of R.A. No. 7854, the territorial dispute between
the municipalities of Makati and Taguig over Fort Bonifacio was under
court litigation. Out of a becoming sense of respect to a co-equal
department of government, the legislations felt that the dispute should
be left to the courts to decide. They did not want to foreclose the
dispute by making a legislative finding of fact which could decide the
issue. This would have ensued if they defined the land area of the
proposed city by its exact metes and bounds, with technical
descriptions. 3 We take judicial notice of the fact that Congress has
also refrained from using the metes and bounds description of land
areas of other local government units with unsettled boundary
disputes. 4
We hold that the existence of a boundary dispute does not per se
present an unsurmountable difficulty which will prevent Congress form
defining with reasonable certitude the territorial jurisdiction of as local
government unit. In the cases at bench, Congress maintained the

existing boundaries of the proposed City of Makati but as an act of

fairness, made them subject to the ultimate resolution by the courts.
Considering these peculiar circumstances, we are not prepared to
hold that section 2 of R.A. 7854 is unconstitutional. We sustain the
submission of the Solicitor General in this regard, viz:
"Going now to Sections 7 and 450 of the Local Government Code, it is
beyond cavil that the requirement stated therein, viz: 'the territorial
jurisdiction of newly created or converted cities should be described
by metes and bounds, with technical descriptions' was made in
order to provide a means by which the area of said cities may be
reasonably ascertained. In other words, the requirement on metes
and bounds was meant merely as tool in the establishment of local
government units. It is not an end in itself. Ergo, so long as the
territorial jurisdiction of a city may be reasonably ascertained, i.e., by
referring to common boundaries with neighboring municipalities, as in
this case, then, it may be concluded that the legislative intent behind
the law has been sufficiently served.
Certainly, Congress did not intend that laws creating new cities must
contain therein detailed technical descriptions similar to those
appearing in Torrens titles, as petitioners seem to imply. To require
such description in the law as a condition sine qua non for its validity
would be to defeat the very purpose which the Local Government
Code seeks to serve. The manifest intent of the Code is to empower
local government units and to give them their rightful due. It seeks to
make local governments more responsive to the needs of their
constituents while at the same time serving as a vital cog No. 7854 on
the mere ground that no cadastral type of description was used in the
law would serve the letter but defeat the spirit of the Code. It then
becomes a case of a master serving the slave, instead of the other
way around. This could not be the intendment of the law.
Too well settled is the rule that laws must be enforced when
ascertained, although it may not be consistent with the strict letter of
the statute. Courts will not follow the letter of the statute when to do so
would depart from the true intent of the legislature or would otherwise
yield conclusions inconsistent with the general purpose of the act
(Torres v. Limjap, 56 Phil., 141; Taada v. Cuenco, 103 Phil. 1051;
Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is an active instrument
of government which, for purposes of interpretation, means that laws
have ends to achieve, and statutes should be so construed as not to

56
defeat but to carry out such ends and purposes (Bocobo v. Estanislao,
72 SCRA 520). The same rule must indubitable apply to the case at
bar.
II
Petitioners in G.R. No. 118577 also assail the constitutionality of
section 51, Article X of R.A. No. 7854. Section 51 states:
"Sec. 51.
Officials of the City of Makati. The present elective
officials of the Municipality of Makati shall continue as the officials of
the City of Makati and shall exercise their powers and functions until
such time that a new election is held and the duly elected officials
shall have already qualified and assume their offices: Provided, The
new city will acquire a new corporate existence. The appointive
officials and employees of the City shall likewise continue exercising
the functions and duties and they shall be automatically absorbed by
the city government of the City of Makati."
They contend that this section collides with section 8, Article X and
section 7, Article VI of the Constitution which provide:
"Sec. 8.
The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for
the full term for which he was elected.
xxx

xxx

xxx

Sec. 7. The members of the House of Representatives shall be

elected for a term of three years which shall begin, unless otherwise
provided by law, at noon on the thirtieth day of June next following
their election.
No member of the House of Representatives shall serve for more than
three consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected."
cdll
Petitioners stress that under these provisions, elective local officials,
including Members of the House of Representatives, have a term of
three (3) years and are prohibited from serving for more than three (3)

consecutive terms. They argue that by providing that the new city
shall acquire a new corporate existence, section 51 of R.A. No. 7854
restarts the term of the present municipal elective officials of Makati
and disregards the terms previously serve by them. In particular,
petitioners point that section 51 favors the incumbent Makati mayor,
respondent Jejomar Binay, who was already served for two (2)
consecutive terms. They further argue that should Mayor Binay decide
to run and eventually win as city mayor in the coming elections, he
can still run for the same position in 1998 and seek another three-year
consecutive term since his previous three-year consecutive term as
municipal mayor would not be counted. Thus, petitioners conclude
that said section 51 has been conveniently crafted to suit the political
ambitions of respondent Mayor Binay.
We cannot entertain this challenge to the constitutionality of section
51. The requirements before a litigant can challenge the
constitutionality of a law are well-delineated. They are: (1) there must
be an actual case or controversy; (2) the question of constitutionality
must be raised by the proper party; (3) the constitutional question
must be raised at the earliest possible opportunity; and (4) the
decision on the constitutional question must be necessary to the
determination of the case itself. 5
Petitioners have far from complied with these requirements. The
petition is premised on the occurrence of many contingent events, i.e.,
that Mayor Binay will run again in this coming mayoralty elections; that
he would be re-elected in said elections; and that he would seek reelection for the same post in the 1998 elections. Considering that
these contingencies may or may not happen, petitioners merely pose
a hypothetical issue which has yet to ripen to an actual case or
controversy. Petitioners who are residents of Taguig (except Mariano)
are not also the proper parties to raise this abstract issue. Worse, they
hoist this futuristic issue in a petition for declaratory relief over which
this Court has no jurisdiction.
III
Finally, petitioners in two (2) cases at bench assail the constitutionality
of section 52, Article X of R.A. 7854. Section 52 of the Charter
provides:
"Sec. 52.
Legislative Districts. Upon its conversion into a
highly-urbanized city, Makati shall thereafter have at least two (2)

57
legislative districts that shall initially correspond to the two (2) existing
districts created under section 3(a) of republic Act No. 7166 as
implemented by the Commission on Elections to commence at the
next national elections to be held after the effectivity of this Act.
Henceforth, barangays Magallanes, Dasmarias, and Forbes shall be
with the first district, in lieu of Barangay Guadalupe-Viejo which shall
form part of the second district." (emphasis supplied)
They contend that the addition of another legislative district in Makati
is unconstitutional for: (1) reapportionment 6 cannot made by a
special law; (2) the addition of a legislative district is not expressed in
the title of the bill; 7 and (3) Makati's population, as per the 1990
census, stands at only four hundred fifty thousand (450,000).
These issues have been laid to rest in the recent case of Tobias v.
Abalos. 8 In said case, we ruled that reapportionment of legislative
districts may be made through a special law, such as in the charter of
a new city. The Constitution 9 clearly provides that Congress shall be
composed of not more than two hundred fifty (250) members, unless
otherwise fixed by law. As thus worded, the Constitution did not
preclude Congress from increasing its membership by passing a law,
other than a general reapportionment law. This is exactly what was
done by Congress in enacting R.A. No. 7854 and providing for an
increase in Makati's legislative district. Moreover, to hold that
reapportionment can only be made through a general apportionment
law, with a review of all the legislative districts allotted to each local
government unit nationwide, would create an inequitable situation
where a new city or province created by Congress will be denied
legislative representation for an indeterminate period of time. 10 That
intolerable situation will deprive the people of a new city or province a
particle of their sovereignty. 11 Sovereignty cannot admit of any kind
of subtraction. It is indivisible. It must be forever whole or it is not
sovereignty.
Petitioners cannot insist that the addition of another legislative district
in Makati is not in accord with section 5(3); Article VI 12 of the
Constitution for as of the latest survey (1990 census), the population
of Makati stands at only four hundred fifty thousand (450,000). 13
Said Section provides, inter alia, that a city with a population of at
least two hundred fifty thousand (250,000) shall have at least one
representative. Even granting that the population of Makati as of the
1990 census stood at four hundred fifty thousand (450,000), its

legislative district may still be increased since it has met the minimum
population requirement of two hundred fifty thousand (250,000). In
fact, section 3 of the Ordinance appended to the Constitution provides
that a city whose population has increased to more than two hundred
fifty thousand (250,000) shall be entitled to at least one congressional
representative. 14
Finally, we do not find merit in petitioners' contention that the creation
of an additional legislative district in Makati should have been
expressly stated in the title of the bill. In the same case of Tobias v.
Abalos, op cit, we reiterated the policy of the Court favoring a liberal
construction of the "one title-one subject" rule so as not to impede
legislation. To be sure, the Constitution does not command that the
title of a law should exactly mirror, fully index, or completely catalogue
all its details. Hence, we ruled that "it should be sufficient compliance
if the title expresses the general subject and all the provisions are
germane to such general subject."
WHEREFORE. the petitions are hereby DISMISSED for lack of merit.
No costs.
SO ORDERED.

58
EN BANC
[G.R. No. 152295. July 9, 2002.]
ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO,
JOSEPHINE ATANGAN, RONALD ATANGAN and CLARIZA
DECENA, and OTHER YOUTH OF THE LAND SIMILARLY
SITUATED, petitioners, vs. COMMISSION ON ELECTIONS,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT,
DEPARTMENT OF BUDGET AND MANAGEMENT, EXECUTIVE
SECRETARY of the OFFICE OF THE PRESIDENT, SENATOR
FRANKLIN DRILON in his capacity as Senate President and
SENATOR AQUILINO PIMENTEL in his capacity as Minority Leader
of the Senate of the Philippines, CONGRESSMAN JOSE DE
VENECIA in his capacity as Speaker, CONGRESSMAN AGUSTO L.
SYJOCO in his capacity as Chairman of the Committee on Suffrage
and Electoral Reforms, and CONGRESSMAN EMILIO C. MACIAS II
in his capacity as Chairman of the Committee on Local Government of
the House of Representatives, THE PRESIDENT OF THE
PAMBANSANG KATIPUNAN NG MGA SANGGUNIANG KABATAAN,
AND ALL THEIR AGENTS AND REPRESENTATIVES, respondents.
DECISION
CARPIO, J p:
The Case
Before us is a petition for certiorari, prohibition and mandamus with
prayer for a temporary restraining order or preliminary injunction. The
petition seeks to prevent the postponement of the Sangguniang
Kabataan ("SK" for brevity) elections originally scheduled last May 6,
2002. The petition also seeks to prevent the reduction of the age
requirement for membership in the SK.
Petitioners, who are all 20 years old, filed this petition as a taxpayer's
and class suit, on their own behalf and on behalf of other youths

similarly situated. Petitioners claim that they are in danger of being

disqualified to vote and be voted for in the SK elections should the SK
elections on May 6, 2002 be postponed to a later date. Under the
Local Government Code of 1991 (R.A. No. 7160), membership in the
SK is limited to youths at least 15 but not more than 21 years old.
Petitioners allege that public respondents "connived, confederated
and conspired" to postpone the May 6, 2002 SK elections and to
lower the membership age in the SK to at least 15 but less than 18
years of age. Petitioners assail the alleged conspiracy because
youths at least 18 but not more than 21 years old will be "summarily
and unduly dismembered, unfairly discriminated, unnecessarily
disenfranchised, unjustly disassociated and obnoxiously disqualified
from the SK organization." 1
Thus, petitioners pray for the issuance of a temporary restraining
order or preliminary injunction
"a)
To prevent, annul or declare unconstitutional any law, decree,
Comelec resolution/directive and other respondents' issuances,
orders and actions and the like in postponing the May 6, 2002 SK
elections.
b)
To command the respondents to continue the May 6, 2002 SK
elections set by the present law and in accordance with Comelec
Resolutions No. 4713 and 4714 and to expedite the funding of the SK
elections.
c)
In the alternative, if the SK elections will be postponed for
whatever reason, there must be a definite date for said elections, for
example, July 15, 2002, and the present SK membership, except
those incumbent SK officers who were elected on May 6, 1996, shall
be allowed to run for any SK elective position even if they are more
than 21 years old. aSIAHC
d)
To direct the incumbent SK officers who are presently
representing the SK in every sanggunian and the NYC to vacate their
post after the barangay elections." 2
The Facts
The SK is a youth organization originally established by Presidential
Decree No. 684 as the Kabataang Barangay ("KB" for brevity). The
KB was composed of all barangay residents who were less than 18

59
years old, without specifying the minimum age. The KB was organized
to provide its members with the opportunity to express their views and
opinions on issues of transcendental importance. 3

recommending to Congress the postponement of the SK elections to

November 2002 but holding the Barangay elections in May 2002 as
scheduled. 12

The Local Government Code of 1991 renamed the KB to SK and

limited SK membership to those youths "at least 15 but not more than
21 years of age." 4 The SK remains as a youth organization in every
barangay tasked to initiate programs "to enhance the social, political,
economic, cultural, intellectual, moral, spiritual, and physical
development of the youth." 5 The SK in every barangay is composed
of a chairperson and seven members, all elected by the Katipunan ng
Kabataan. The Katipunan ng Kabataan in every barangay is
composed of all citizens actually residing in the barangay for at least
six months and who meet the membership age requirement.

On March 6, 2002, the Senate and the House of Representatives

passed their respective bills postponing the SK elections. On March
11, 2002, the Bicameral Conference Committee ("Bicameral
Committee" for brevity) of the Senate and the House came out with a
Report 13 recommending approval of the reconciled bill consolidating
Senate Bill No. 2050 14 and House Bill No. 4456. 15 The Bicameral
Committee's consolidated bill reset the SK and Barangay elections to
July 15, 2002 and lowered the membership age in the SK to at least
15 but not more than 18 years of age.

The first SK elections took place on December 4, 1992. RA No. 7808

reset the SK elections to the first Monday of May of 1996 and every
three years thereafter. RA No. 7808 mandated the Comelec to
supervise the conduct of the SK elections under rules the Comelec
shall promulgate. Accordingly, the Comelec on December 4, 2001
issued Resolution Nos. 4713 6 and 4714 7 to govern the SK elections
on May 6, 2002.
On February 18, 2002, petitioner Antoniette V.C. Montesclaros
("Montesclaros" for brevity) sent a letter 8 to the Comelec, demanding
that the SK elections be held as scheduled on May 6, 2002.
Montesclaros also urged the Comelec to respond to her letter within
10 days upon receipt of the letter, otherwise, she will seek judicial
relief.
On February 20, 2002, Alfredo L. Benipayo ("Chairman Benipayo" for
brevity), then Comelec Chairman, wrote identical letters to the
Speaker of the House 9 and the Senate President 10 about the status
of pending bills on the SK and Barangay elections. In his letters, the
Comelec Chairman intimated that it was "operationally very difficult" to
hold both elections simultaneously in May 2002. Instead, the Comelec
Chairman expressed support for the bill of Senator Franklin Drilon that
proposed to hold the Barangay elections in May 2002 and postpone
the SK elections to November 2002.
Ten days lapsed without the Comelec responding to the letter of
Montesclaros. Subsequently, petitioners received a copy of Comelec
En Banc Resolution No. 4763 11 dated February 5, 2002

On March 11, 2002, petitioners filed the instant petition.

On March 11, 2002, the Senate approved the Bicameral Committee's
consolidated bill and on March 13, 2002, the House of
Representatives approved the same. The President signed the
approved bill into law on March 19, 2002.
The Issues
Petitioners 16 raise the following grounds in support of their petition:
"I.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO POSTPONE THE SK
ELECTIONS.
II.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO DISCRIMINATE,
DISENFRANCHISE, SINGLE OUT AND DISMEMBER THE SK
MEMBERS WHO ARE 18 BUT NOT LESS 17 (SIC) THAN 21 YEARS
OLD COMPOSED OF ABOUT 7 MILLION YOUTH.
III.

60
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY AND
UNCONSTITUTIONALLY THUS CONSTITUTED (SIC) WITH GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY WILLFULLY FAILED TO FUND THE
SK ELECTION PURPORTEDLY TO POSTPONE THE SAME IN
ORDER TO IMPLEMENT THEIR ILLEGAL SCHEME AND
MACHINATION IN SPITE OF THE FACT THAT THERE ARE
AVAILABLE FUNDS FOR THE PURPOSE.
IV.
THE INCUMBENT SK OFFICERS WANTED TO PERPETUALLY SIT
ON THEIR RESPECTIVE OFFICES CONTRARY TO THE ENVISION
(SIC) OF THE CREATION OF THE SK ORGANIZATION, HENCE, IN
VIOLATION OF LAW AND CONSTITUTION." 18
The Court's Ruling
The petition is bereft of merit.
At the outset, the Court takes judicial notice of the following events
that have transpired since petitioners filed this petition:
1.
The May 6, 2002 SK elections and May 13, 2002 Barangay
elections were not held as scheduled.
2.
Congress enacted RA No. 9164 19 which provides that voters
and candidates for the SK elections must be "at least 15 but less than
18 years of age on the day of the election." 20 RA No. 9164 also
provides that there shall be a synchronized SK and Barangay
elections on July 15, 2002.
3.
The Comelec promulgated Resolution No. 4846, the rules and
regulations for the conduct of the July 15, 2002 synchronized SK and
Barangay elections.
Petitioners, who all claim to be 20 years old, argue that the
postponement of the May 6, 2002 SK elections disenfranchises them,
preventing them from voting and being voted for in the SK elections.
Petitioners' theory is that if the SK elections were postponed to a date
later than May 6, 2002, the postponement would disqualify from SK
membership youths who will turn 21 years old between May 6, 2002
and the date of the new SK elections. Petitioners claim that a
reduction in the SK membership age to 15 but less than 18 years of
age from the then membership age of 15 but not more than 21 years

of age would disqualify about seven million youths. The public

respondents' failure to hold the elections on May 6, 2002 would
prejudice petitioners and other youths similarly situated. HDTSIE
Thus, petitioners instituted this petition to: (1) compel public
respondents to hold the SK elections on May 6, 2002 and should it be
postponed, the SK elections should be held not later than July 15,
2002; (2) prevent public respondents from passing laws and issuing
resolutions and orders that would lower the membership age in the
SK; and (3) compel public respondents to allow petitioners and those
who have turned more than 21 years old on May 6, 2002 to participate
in any re-scheduled SK elections.
The Court's power of judicial review may be exercised in constitutional
cases only if all the following requisites are complied with, namely: (1)
the existence of an actual and appropriate case or controversy; (2) a
personal and substantial interest of the party raising the constitutional
question; (3) the exercise of judicial review is pleaded at the earliest
opportunity; and (4) the constitutional question is the lis mota of the
case. 21
In the instant case, there is no actual controversy requiring the
exercise of the power of judicial review. While seeking to prevent a
postponement of the May 6, 2002 SK elections, petitioners are
nevertheless amenable to a resetting of the SK elections to any date
not later than July 15, 2002. RA No. 9164 has reset the SK elections
to July 15, 2002, a date acceptable to petitioners. With respect to the
date of the SK elections, there is therefore no actual controversy
requiring judicial intervention.
Petitioners' prayer to prevent Congress from enacting into law a
proposed bill lowering the membership age in the SK does not
present an actual justiciable controversy. A proposed bill is not subject
to judicial review because it is not a law. A proposed bill creates no
right and imposes no duty legally enforceable by the Court. A
proposed bill, having no legal effect, violates no constitutional right or
duty. The Court has no power to declare a proposed bill constitutional
or unconstitutional because that would be in the nature of rendering
an advisory opinion on a proposed act of Congress. The power of
judicial review cannot be exercised in vacuo. 22 The second
paragraph of Section 1, Article VIII of the Constitution states

61
"Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government."
(Emphasis supplied)
Thus, there can be no justiciable controversy involving the
constitutionality of a proposed bill. The Court can exercise its power of
judicial review only after a law is enacted, not before.
Under the separation of powers, the Court cannot restrain Congress
from passing any law, or from setting into motion the legislative mill
according to its internal rules. Thus, the following acts of Congress in
the exercise of its legislative powers are not subject to judicial
restraint: the filing of bills by members of Congress, the approval of
bills by each chamber of Congress, the reconciliation by the
Bicameral Committee of approved bills, and the eventual approval into
law of the reconciled bills by each chamber of Congress. Absent a
clear violation of specific constitutional limitations or of constitutional
rights of private parties, the Court cannot exercise its power of judicial
review over the internal processes or procedures of Congress. 23
The Court has also no power to dictate to Congress the object or
subject of bills that Congress should enact into law. The judicial power
to review the constitutionality of laws does not include the power to
prescribe to Congress what laws to enact. The Court has no power to
compel Congress by mandamus to enact a law allowing petitioners,
regardless of their age, to vote and be voted for in the July 15, 2002
SK elections. To do so would destroy the delicate system of checks
and balances finely crafted by the Constitution for the three co-equal,
coordinate and independent branches of government.
Under RA No. 9164, Congress merely restored the age requirement in
PD No. 684, the original charter of the SK, which fixed the maximum
age for membership in the SK to youths less than 18 years old.
Petitioners do not have a vested right to the permanence of the age
requirement under Section 424 of the Local Government Code of
1991. Every law passed by Congress is, always subject to
amendment or repeal by Congress. The Court cannot restrain
Congress from amending or repealing laws, for the power to make
laws includes the power to change the laws. 24

The Court cannot also direct the Comelec to allow over-aged voters to
vote or be voted for in an election that is limited under RA No. 9164 to
youths at least 15 but less than 18 years old. A law is needed to allow
all those who have turned more than 21 years old on or after May 6,
2002 to participate in the July 15, 2002 SK elections. Youths from 18
to 21 years old as of May 6, 2002 are also no longer SK members,
and cannot participate in the July 15, 2002 SK elections. Congress
will have to decide whether to enact an amendatory law. Petitioners'
remedy is legislation, not judicial intervention.
Petitioners have no personal and substantial interest in maintaining
this suit. A party must show that he has been, or is about to be denied
some personal right or privilege to which he is lawfully entitled. 25 A
party must also show that he has a real interest in the suit. By "real
interest" is meant a present substantial interest, as distinguished from
a mere expectancy or future, contingent, subordinate, or
inconsequential interest. 26
In the instant case, petitioners seek to enforce a right originally
conferred by law on those who were at least 15 but not more than 21
years old. Now, with the passage of RA No. 9164, this right is limited
to those who on the date of the SK elections are at least 15 but less
than 18 years old. The new law restricts membership in the SK to this
specific age group. Not falling within this classification, petitioners
have ceased to be members of the SK and are no longer qualified to
participate in the July 15, 2002 SK elections. Plainly, petitioners no
longer have a personal and substantial interest in the SK elections.
This petition does not raise any constitutional issue. At the time
petitioners filed this petition, RA No. 9164, which reset the SK
elections and reduced the age requirement for SK membership, was
not yet enacted into law. After the passage of RA No. 9164, petitioners
failed to assail any provision in RA No. 9164 that could be
unconstitutional. To grant petitioners' prayer to be allowed to vote and
be voted for in the July 15, 2002 SK elections necessitates assailing
the constitutionality of RA No. 9164. This, petitioners have not done.
The Court will not strike down a law unless its constitutionality is
properly raised in an appropriate action and adequately argued. 27
The only semblance of a constitutional issue, albeit erroneous, that
petitioners raise is their claim that SK membership is a "property right
within the meaning of the Constitution." 28 Since certain public offices

62
are "reserved" for SK officers, petitioners also claim a constitutionally
protected "opportunity" to occupy these public offices. In petitioners'
own words, they and others similarly situated stand to "lose their
opportunity to work in the government positions reserved for SK
members or officers." 29 Under the Local Government Code of 1991,
the president of the federation of SK organizations in a municipality,
city or province is an ex-officio member of the municipal council, city
council or provincial board, respectively. 30 The chairperson of the SK
in the barangay is an ex-officio member of the Sangguniang
Barangay. 31 The president of the national federation of SK
organizations is an ex-officio member of the National Youth
Commission, with rank of a Department Assistant Secretary. 32
Congress exercises the power to prescribe the qualifications for SK
membership. One who is no longer qualified because of an
amendment in the law cannot complain of being deprived of a
proprietary right to SK membership. Only those who qualify as SK
members can contest, based on a statutory right, any act disqualifying
them from SK membership or from voting in the SK elections. SK
membership is not a property right protected by the Constitution
because it is a mere statutory right conferred by law. Congress may
amend at any time the law to change or even withdraw the statutory
right.
A public office is not a property right. As the Constitution expressly
states, a "[P]ublic office is a public trust." 33 No one has a vested right
to any public office, much less a vested right to an expectancy of
holding a public office. In Cornejo v. Gabriel, 34 decided in 1920, the
Court already ruled:
"Again, for this petition to come under the due process of law
prohibition, it would be necessary to consider an office a "property." It
is, however, well settled . . . that a public office is not property within
the sense of the constitutional guaranties of due process of law, but is
a public trust or agency. . . . The basic idea of the government . . . is
that of a popular representative government, the officers being mere
agents and not rulers of the people, one where no one man or set of
men has a proprietary or contractual right to an office, but where
every officer accepts office pursuant to the provisions of the law and
holds the office as a trust for the people he represents." (Emphasis
supplied)

Petitioners, who apparently desire to hold public office, should realize

from the very start that no one has a proprietary right to public office.
While the law makes an SK officer an ex-officio member of a local
government legislative council, the law does not confer on petitioners
a proprietary right or even a proprietary expectancy to sit in local
legislative councils. The constitutional principle of a public office as a
public trust precludes any proprietary claim to public office. Even the
State policy directing "equal access to opportunities for public service"
35 cannot bestow on petitioners a proprietary right to SK membership
or a proprietary expectancy to ex-officio public offices.
Moreover, while the State policy is to encourage the youth's
involvement in public affairs, 36 this policy refers to those who belong
to the class of people defined as the youth. Congress has the power
to define who are the youth qualified to join the SK, which itself is a
creation of Congress. Those who do not qualify because they are past
the age group defined as the youth cannot insist on being part of the
youth. In government service, once an employee reaches mandatory
retirement age, he cannot invoke any property right to cling to his
office. In the same manner, since petitioners are now past the
maximum age for membership in the SK, they cannot invoke any
property right to cling to their SK membership.
The petition must also fail because no grave abuse of discretion
attended the postponement of the SK elections. RA No. 9164 is now
the law that prescribes the qualifications of candidates and voters for
the SK elections. This law also fixes the date of the SK elections.
Petitioners are not even assailing the constitutionality of RA No. 9164.
RA No. 9164 enjoys the presumption of constitutionality and will apply
to the July 15, 2002 SK elections. aEcHCD
Petitioners have not shown that the Comelec acted illegally or with
grave abuse of discretion in recommending to Congress the
postponement of the SK elections. The very evidence relied upon by
petitioners contradict their allegation of illegality. The evidence consist
of the following: (1) Comelec en banc Resolution No. 4763 dated
February 5, 2002 that recommended the postponement of the SK
elections to 2003; (2) the letter of then Comelec Chairman Benipayo
addressed to the Speaker of the House of Representatives and the
President of the Senate; and (3) the Conference Committee Report
consolidating Senate Bill No. 2050 and House Bill No. 4456.

63
The Comelec exercised its power and duty to "enforce and administer
all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall" 37 and to "recommend to
Congress effective measures to minimize election spending. 38 The
Comelec's acts enjoy the presumption of regularity in the performance
of official duties. 39 These acts cannot constitute proof, as claimed by
petitioners, that there "exists a connivance and conspiracy (among)
respondents in contravention of the present law." As the Court held in
Pangkat Laguna v. Comelec, 40 the "Comelec, as the government
agency tasked with the enforcement and administration of elections
laws, is entitled to the presumption of regularity of official acts with
respect to the elections."
The 1987 Constitution imposes upon the Comelec the duty of
enforcing and administering all laws and regulations relative to the
conduct of elections. Petitioners failed to prove that the Comelec
committed grave abuse of discretion in recommending to Congress
the postponement of the May 6, 2002 SK elections. The evidence
cited by petitioners even establish that the Comelec has
demonstrated an earnest effort to address the practical problems in
holding the SK elections on May 6, 2002. The presumption remains
that the decision of the Comelec to recommend to Congress the
postponement of the elections was made in good faith in the regular
course of its official duties.
Grave abuse of discretion is such capricious and whimsical exercise
of judgment that is patent and gross as to amount to an evasion of a
positive duty or a virtual refusal to perform a duty enjoined by law. 41
Public respondents having acted strictly pursuant to their
constitutional powers and duties, we find no grave abuse of discretion
in their assailed acts. EcIaTA
Petitioners contend that the postponement of the SK elections would
allow the incumbent SK officers to perpetuate themselves in power,
depriving other youths of the opportunity to serve in elective SK
positions. This argument deserves scant consideration. While RA No.
9164 contains a hold-over provision, incumbent SK officials can
remain in office only until their successors have been elected or
qualified. On July 15, 2002, when the SK elections are held, the holdover period expires and all incumbent SK officials automatically cease
to hold their SK offices and their ex-officio public offices.

In sum, petitioners have no personal and substantial interest in

maintaining this suit. This petition presents no actual justiciable
controversy. Petitioners do not cite any provision of law that is alleged
to be unconstitutional. Lastly, we find no grave abuse of discretion on
the part of public respondents.
WHEREFORE, the petition is DISMISSED for utter lack of merit.
SO ORDERED.

64
[G.R. No. 93100. June 19, 1997.]

similarly situated in violation of the constitutional guarantee of the

equal protection of the laws.

ATLAS FERTILIZER CORPORATION, petitioner, vs. THE

HONORABLE SECRETARY OF THE DEPARTMENT OF AGRARIAN
REFORM, respondent.

3.
The questioned provisions distort employment benefits and
burdens in favor of aquaculture employees and against other
industrial workers even as Section 1 and 3, Article XIII of the
Constitution mandate the State to promote equality in economic and
employment opportunities.

[G.R. No. 97855. June 19, 1997.]

PHILIPPINE FEDERATION OF FISHFARM PRODUCERS, INC.,
petitioner, vs. THE HONORABLE SECRETARY OF THE
DEPARTMENT OF AGRARIAN REFORM, respondent.

4.
The questioned provisions deprive petitioner of its
government-induced investments in aquaculture even as Sections 2
and 3, Article XIII of the Constitution mandate the State to respect the
freedom of enterprise and the right of enterprises to reasonable
returns on investments and to expansion and growth.

RESOLUTION

The constitutionality of the above-mentioned provisions has been

ruled upon in the case of Luz Farms, Inc. v. Secretary of Agrarian
Reform 4 regarding the inclusion of land devoted to the raising of
livestock, poultry and swine in its coverage.

Before this Court are consolidated petitions questioning the

constitutionality of some portions of Republic Act No. 6657 otherwise
known as the Comprehensive Agrarian Reform Law. 1

The issue now before this Court is the constitutionality of the same
above-mentioned provisions insofar as they include in its coverage
lands devoted to the aquaculture industry, particularly fishponds and
prawn farms.

ROMERO, J p:

Petitioners Atlas Fertilizer Corporation, 2 Philippine Federation of

Fishfarm Producers, Inc. and petitioner-in-intervention Archie's
Fishpond, Inc. and Arsenio Al. Acuna 3 are engaged in the
aquaculture industry utilizing fishponds and prawn farms. They assail
Sections 3 (b), 11, 13, 16 (d), 17 and 32 of R.A. 6657, as well as the
implementing guidelines and procedures contained in Administrative
Order Nos. 8 and 10 Series of 1988 issued by public respondent
Secretary of the Department of Agrarian Reform as unconstitutional.
Petitioners claim that the questioned provisions of CARL violate the
Constitution in the following manner:
1.
Sections 3 (b), 11, 13, 16 (d), 17 and 32 of CARL extend
agrarian reform to aquaculture lands even as Section 4, Article XIII of
the Constitution limits agrarian reform only to agricultural lands.
2.
The questioned provisions similarly treat of aquaculture lands
and agriculture lands when they are differently situated, and differently
treat aquaculture lands and other industrial lands, when they are

In their first argument, petitioners contend that in the case of Luz

Farms, Inc. v. Secretary of Agrarian Reform, 5 this Court has already
ruled impliedly that lands devoted to fishing are not agricultural lands.
In aquaculture, fishponds and prawn farms, the use of land is only
incidental to and not the principal factor in productivity and, hence, as
held in "Luz Farms," they too should be excluded from R.A. 6657 just
as lands devoted to livestock, swine, and poultry have been excluded
for the same reason. They also argue that they are entitled to the full
benefit of "Luz Farms" to the effect that only five percent of the total
investment in aquaculture activities, fishponds, and prawn farms, is in
the form of land, and therefore, cannot be classified as agricultural
activity. Further, that in fishponds and prawn farms, there are no
farmers, nor farm workers, who till lands, and no agrarian unrest, and
therefore, the constitutionally intended beneficiaries under Section 4,
Art. XIII, 1987 Constitution do not exist in aquaculture.
In their second argument, they contend that R.A. 6657, by including in
its coverage, the raising of fish and aquaculture operations including

65
fishponds and prawn ponds, treating them as in the same class or
classification as agriculture or farming violates the equal protection
clause of the Constitution and is, therefore, void. Further, the
Constitutional Commission debates show that the intent of the
constitutional framers is to exclude "industrial" lands, to which
category lands devoted to aquaculture, fishponds, and fish farms
belong.
Petitioners also claim that Administrative Order Nos. 8 and 10 issued
by the Secretary of the Department of Agrarian Reform are, likewise,
unconstitutional, as held in "Luz Farms," and are therefore void as
they implement the assailed provisions of CARL.
The provisions of CARL being assailed as unconstitutional are as
follows:
(a)
Section 3(b) which includes the "raising of fish in the definition
of "Agricultural, Agricultural Enterprise or Agricultural Activity."
(Emphasis Supplied)
(b)
Section 11 which defines "commercial farms" as private
agricultural lands devoted to fishponds and prawn ponds . . ."
(Emphasis Supplied)
(c)
Section 13 which calls upon petitioner to execute a productionsharing plan.
(d)
Section 16(d) and 17 which vest on the Department of
Agrarian reform the authority to summarily determine the just
compensation to be paid for lands covered by the comprehensive
Agrarian Reform Law.
(e)
Section 32 which spells out the production-sharing plan
mentioned in Section 13
". . . (W)hereby three percent (3%) of the gross sales from the
production of such lands are distributed within sixty (60) days at the
end of the fiscal year as compensation to regular and other
farmworkers in such lands over and above the compensation they
currently receive: Provided, That these individuals or entities realize
gross sales in excess of five million pesos per annum unless the DAR,
upon proper application, determines a lower ceiling. cda
In the event that the individual or entity realizes a profit, an additional
ten percent (10%) of the net profit after tax shall be distributed to said

regular and other farmworkers within ninety (90) days of the end of
the fiscal year. . . ."
While the Court will not hesitate to declare a law or an act void when
confronted squarely with constitutional issues, neither will it preempt
the Legislative and the Executive branches of the government in
correcting or clarifying, by means of amendment, said law or act. On
February 20, 1995, Republic Act No. 7881 6 was approved by
Congress. Provisions of said Act pertinent to the assailed provisions
of CARL are the following:
"Section 1.
Section 3, Paragraph (b) of Republic Act No. 6657 is
hereby amended to read as follows:
"Sec. 3.
Definitions. For the purpose of this Act, unless the
context indicates otherwise:
"(b)
Agriculture, Agricultural Enterprise or Agricultural Activity
means the cultivation of the soil, planting of crops, growing of fruit
trees, including the harvesting of such farm products and other farm
activities and practices performed by a farmer in conjunction with such
farming operations done by persons whether natural or juridical."
Sec. 2. Section 10 of Republic Act No. 6657 is hereby amended to
read as follows:
"Sec. 10.
xxx

Exemptions and Exclusions.

xxx

xxx

"b)
Private lands actually, directly and exclusively used for prawn
farms and fishponds shall be exempt from the coverage of this Act:
Provided, That said prawn farms and fishponds have not been
distributed and Certificate of Land Ownership Award (CLOA) issued to
agrarian reform beneficiaries under the Comprehensive Agrarian
Reform Program.
"In cases where the fishponds or prawn farms have been subjected to
the Comprehensive Agrarian Reform Law, by voluntary offer to sell, or
commercial farms deferment or notices of compulsory acquisition, a
simple and absolute majority of the actual regular workers or tenants
must consent to the exemption within one (1) year from the effectivity
of this Act. When the workers or tenants do not agree to this
exemption, the fishponds or prawn farms shall be distributed

66
collectively to the worker-beneficiaries or tenants who shall form a
cooperative or association to manage the same.
"In cases where the fishponds or prawn farms have not been
subjected to the Comprehensive Agrarian Reform Law, the consent of
the farm workers shall no longer be necessary, however, the provision
of Section 32-A hereof on incentives shall apply."
xxx

xxx

xxx

Sec. 3. Section 11, Paragraph 1 is hereby amended to read as

follows:
"Sec. 11.
Commercial Farming. Commercial farms, which are
private agricultural lands devoted to saltbeds, fruit farms, orchards,
vegetable and cut-flower farms, and cacao, coffee and rubber
plantations, shall be subject to immediate compulsory acquisition and
distribution after ten (10) years from the effectivity of this Act. In the
case of new farms, the ten-year period shall begin from the first year
of commercial production and operation, as determined by the DAR.
During the ten-year period, the Government shall initiate steps
necessary to acquire these lands, upon payment of just compensation
for the land and the improvements thereon, preferably in favor of
organized cooperatives or associations, which shall thereafter
manage the said lands for the workers-beneficiaries."
Sec. 4. There shall be incorporated after Section 32 of Republic Act
No. 6657 a section to read as follows:
"Sec. 32-A.
Incentives. Individuals or entities owning or
operating fishponds and prawn farms are hereby mandated to
execute within six (6) months from the effectivity of this Act, an
incentive plan with their regular fishpond or prawn farm workers'
organization, if any, whereby seven point five percent (7.5%) of their
net profit before tax from the operation of the fishpond or prawn farms
are distributed within sixty (60) days at the end of the fiscal year as
compensation to regular and other pond workers in such ponds over
and above the compensation they currently receive.
"In order to safeguard the right of the regular fishpond or prawn farm
workers under the incentive plan, the books of the fishpond or prawn
owners shall be subject to periodic audit or inspection by certified
public accountants chosen by the workers.

"The foregoing provision shall not apply to agricultural lands

subsequently converted to fishponds or prawn farms provided the size
of the land converted does not exceed the retention limit of the
landowner."
The above-mentioned provisions of R.A. No. 7881 expressly state that
fishponds and prawn farms are excluded from the coverage of CARL.
In view of the foregoing, the question concerning the constitutionality
of the assailed provisions has become moot and academic with the
passage of R.A. No. 7881.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.

67
EN BANC
[G.R. No. 147780. May 10, 2001.]
PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O.
MANCAO, petitioners, vs. SECRETARY HERNANDO PEREZ,
P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDO
BERROYA, respondents.
[G.R. No. 147781. May 10, 2001.]
MIRIAM DEFENSOR-SANTIAGO, petitioner, vs. ANGELO REYES,
Secretary of National Defense, et al., respondents.
[G.R. No. 147799. May 10, 2001.]
RONALDO A. LUMBAO, petitioner, vs. SECRETARY HERNANDO
PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIR. LEANDRO
MENDOZA and P/SR. SUPT. REYNALDO BERROYA, respondents.

there was a state of rebellion in the National Capital Region. She

likewise issued General Order No. 1 directing the Armed Forces of the
Philippines and the Philippine National Police to suppress the
rebellion in the National Capital Region. Warrantless arrests of several
alleged leaders and promoters of the "rebellion" were thereafter
effected. TaEIcS
Aggrieved by the warrantless arrests, and the declaration of a "state
of rebellion," which allegedly gave a semblance of legality to the
arrests, the following four related petitions were filed before the Court

(1) G.R. No. 147780 for prohibition, injunction, mandamus, and

habeas corpus (with an urgent application for the issuance of
temporary restraining order and/or writ of preliminary injunction) filed
by Panfilo M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao;
(2) G.R. No. 147781 for mandamus and/or review of the factual basis
for the suspension of the privilege of the writ of habeas corpus, with
prayer for a temporary restraining order filed by Miriam DefensorSantiago; (3) G.R. No. 147799 for prohibition and injunction with
prayer for a writ of preliminary injunction and/or restraining order filed
by Ronaldo A. Lumbao; and (4) G.R. No. 147810 for certiorari and
prohibition filed by the political party Laban ng Demokratikong Pilipino.

MELO, J p:

All the foregoing petitions assail the declaration of a state of rebellion

by President Gloria Macapagal-Arroyo and the warrantless arrests
allegedly effected by virtue thereof, as having no basis both in fact
and in law. Significantly, on May 6, 2001, President Macapagal-Arroyo
ordered the lifting of the declaration of a "state of rebellion" in Metro
Manila. Accordingly, the instant petitions have been rendered moot
and academic. As to petitioners' claim that the proclamation of a "state
of rebellion" is being used by the authorities to justify warrantless
arrests, the Secretary of Justice denies that it has issued a particular
order to arrest specific persons in connection with the "rebellion." He
states that what is extant are general instructions to law enforcement
officers and military agencies to implement Proclamation No. 38.
Indeed, as stated in respondents' Joint Comments:

On May 1, 2001, President Macapagal-Arroyo, faced by an "angry

and violent mob armed with explosives, firearms, bladed weapons,
clubs, stones and other deadly weapons" assaulting and attempting to
break into Malacaang, issued Proclamation No. 38 declaring that

[I]t is already the declared intention of the Justice Department and

police authorities to obtain regular warrants of arrests from the courts
for all acts committed prior to and until May 1, 2001 which means that
preliminary investigations will henceforth be conducted.

[G.R. No. 147810. May 10, 2001.]

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs. THE
DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ,
THE ARMED FORCES OF THE PHILIPPINES, GENERAL
DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and
DIRECTOR GENERAL LEANDRO MENDOZA, respondents.
RESOLUTION

68
(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No.
147799, p. 16; G.R. No. 147810, p.24)
With this declaration, petitioners' apprehensions as to warrantless
arrests should be laid to rest. SIcTAC
In quelling or suppressing the rebellion, the authorities may only resort
to warrantless arrests of persons suspected of rebellion, as provided
under Section 5, Rule 113 of the Rules of Court, if the circumstances
so warrant. The warrantless arrest feared by petitioners is, thus, not
based on the declaration of a "state of rebellion."
Moreover, petitioners' contention in G.R. No. 147780 (Lacson
Petition), 147781 (Defensor-Santiago Petition), and 147799 (Lumbao
Petition) that they are under imminent danger of being arrested
without warrant do not justify their resort to the extraordinary remedies
of mandamus and prohibition, since an individual subjected to
warrantless arrest is not without adequate remedies in the ordinary
course of law. Such an individual may ask for a preliminary
investigation under Rule 112 of the Rules of Court, where he may
adduce evidence in his defense, or he may submit himself to inquest
proceedings to determine whether or not he should remain under
custody and correspondingly be charged in court. Further, a person
subject of a warrantless arrest must be delivered to the proper judicial
authorities within the periods provided in Article 125 of the Revised
Penal Code, otherwise the arresting officer could be held liable for
delay in the delivery of detained persons. Should the detention be
without legal ground, the person arrested can charge the arresting
officer with arbitrary detention. All this is without prejudice to his filing
an action for damages against the arresting officer under Article 32 of
the Civil Code. Verily, petitioners have a surfeit of other remedies
which they can avail themselves of, thereby making the prayer for
prohibition and mandamus improper at this time (Sections 2 and 3,
Rule 65, Rules of Court).
Aside from the foregoing reasons, several considerations likewise
inevitably call for the dismissal of the petitions at bar. CAScIH
G.R. No. 147780
In connection with their alleged impending warrantless arrest,
petitioners Lacson, Aquino, and Mancao pray that the "appropriate
court before whom the informations against petitioners are filed be

directed to desist from arraigning and proceeding with the trial of the
case, until the instant petition is finally resolved." This relief is clearly
premature considering that as of this date, no complaints or charges
have been filed against any of the petitioners for any crime. And in the
event that the same are later filed, this Court cannot enjoin criminal
prosecution conducted in accordance with the Rules of Court, for by
that time any arrest would have been in pursuance of a duly issued
warrant.
As regards petitioners' prayer that the hold departure orders issued
against them be declared null and void ab initio, it is to be noted that
petitioners are not directly assailing the validity of the subject hold
departure orders in their petition. They are not even expressing
intention to leave the country in the near future. The prayer to set
aside the same must be made in proper proceedings initiated for that
purpose.
Anent petitioners' allegations ex abundante ad cautelam in support of
their application for the issuance of a writ of habeas corpus, it is
manifest that the writ is not called for since its purpose is to relieve
petitioners from unlawful restraint (Ngaya-an v. Balweg, 200 SCRA
149 [1991]), a matter which remains speculative up to this very day.
G.R. No. 147781
The petition herein is denominated by petitioner Defensor-Santiago as
one for mandamus. It is basic in matters relating to petitions for
mandamus that the legal right of the petitioner to the performance of a
particular act which is sought to be compelled must be clear and
complete. Mandamus will not issue unless the right to relief is clear at
the time of the award (Palileo v. Ruiz Castro, 85 Phil. 272). Up to the
present time, petitioner Defensor-Santiago has not shown that she is
in imminent danger of being arrested without a warrant. In point of
fact, the authorities have categorically stated that petitioner will not be
arrested without a warrant. HTCIcE
G.R. No. 147799
Petitioner Lumbao, leader of the People's Movement against Poverty
(PMAP), for his part, argues that the declaration of a "state of
rebellion" is violative of the doctrine of separation of powers, being an
encroachment on the domain of the judiciary which has the
constitutional prerogative to "determine or interpret" what took place

69
on May 1, 2001, and that the declaration of a state of rebellion cannot
be an exception to the general rule on the allocation of the
governmental powers.
We disagree. To be sure, Section 18, Article VII of the Constitution
expressly provides that "[t]he President shall be the Commander-inChief of all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion . . ." Thus, we held in Integrated
Bar of the Philippines v. Hon. Zamora, (G.R. No. 141284, August 15,
2000):
. . . The factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters
considered for satisfying the same is a combination of several factors
which are not always accessible to the courts. Besides the absence of
textual standards that the court may use to judge necessity,
information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be
difficult to verify, or wholly unavailable to the courts. In many
instances, the evidence upon which the President might decide that
there is a need to call out the armed forces may be of a nature not
constituting technical proof. CTHDcS
On the other hand, the President as Commander-in-Chief has a vast
intelligence network to gather information, some of which may be
classified as highly confidential or affecting the security of the state. In
the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. . . .
(at pp. 22-23)
The Court, in a proper case, may look into the sufficiency of the
factual basis of the exercise of this power. However, this is no longer
feasible at this time, Proclamation No. 38 having been lifted.
G.R. No. 147810
Petitioner Laban ng Demokratikong Pilipino is not a real party-ininterest. The rule requires that a party must show a personal stake in
the outcome of the case or an injury to himself that can be redressed
by a favorable decision so as to warrant an invocation of the court's
jurisdiction and to justify the exercise of the court's remedial powers in

his behalf (KMU Labor Center v. Garcia, Jr., 239 SCRA 386 [1994]).
Here, petitioner has not demonstrated any injury to itself which would
justify resort to the Court. Petitioner is a juridical person not subject to
arrest. Thus, it cannot claim to be threatened by a warrantless arrest.
Nor is it alleged that its leaders, members, and supporters are being
threatened with warrantless arrest and detention for the crime of
rebellion. Every action must be brought in the name of the party
whose legal right has been invaded or infringed, or whose legal right
is under imminent threat of invasion or infringement. HITAEC
At best, the instant petition may be considered as an action for
declaratory relief, petitioner claiming that its right to freedom of
expression and freedom of assembly is affected by the declaration of
a "state of rebellion" and that said proclamation is invalid for being
contrary to the Constitution.
However, to consider the petition as one for declaratory relief affords
little comfort to petitioner, this Court not having jurisdiction in the first
instance over such a petition. Section 5[1], Article VIII of the
Constitution limits the original jurisdiction of the Court to cases
affecting ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto, and
habeas corpus.
WHEREFORE, premises considered, the petitions are hereby
DISMISSED. However, in G.R. No. 147780, 147781, and 147799,
respondents, consistent and congruent with their undertaking earlier
adverted to, together with their agents, representatives, and all
persons acting for and in their behalf, are hereby enjoined from
arresting petitioners therein without the required judicial warrant for all
acts committed in relation to or in connection with the May 1, 2001
siege of Malacaang. HcTDSA
SO ORDERED.
Davide, Jr., C .J ., Bellosillo, Puno, Mendoza, Panganiban and
Gonzaga-Reyes, JJ ., concur.
Quisumbing, Buena, Ynares-Santiago and De Leon, Jr., JJ ., are on
leave.
Separate Opinions

70

VITUG, J., dissenting:

I concur insofar as the resolution enjoins any continued warrantless
arrests for acts related to, or connected with, the May 1st incident but
respectfully dissent from the order of dismissal of the petitions for
being said to be moot and academic. The persons have raised
important constitutional issues that, in my view, must likewise be fully
addressed.
KAPUNAN, J., dissenting:
The right against unreasonable searches and seizure has been
characterized as belonging "in the catalog of indispensable
freedoms."
Among deprivation of rights, none is so effective in cowing a
population, crushing the spirit of the individual and putting terror in
every heart. Uncontrolled search and seizure is one of the first and
most effective weapons in the arsenal of every arbitrary government.
And one need only briefly to have dwelt and worked among a people
possessed of many admirable qualities but deprived of these rights to
know that the human personality deteriorates and dignity and selfreliance disappear where homes, persons and possessions are
subject at any hour to unheralded search and seizure by the police. 1
Invoking the right against unreasonable searches and seizures,
petitioners Panfilo Lacson, Michael Ray Aquino and Cezar O. Mancao
II now seek a temporary restraining order and/or injunction from the
Court against their impending warrantless arrests upon the order of
the Secretary of Justice. 2 Petitioner Laban ng Demokratikong Pilipino
(LDP), likewise, seeks to enjoin the arrests of its senatorial
candidates, namely, Senator Juan Ponce-Enrile, Senator Miriam
Defensor-Santiago, Senator Gregorio B. Honasan and General
Panfilo Lacson. 3 Separate petitioners were also filed by Senator
Juan Ponce Enrile, 4 Former Ambassador Ernesto M. Maceda, 5
Senator Miriam Defensor-Santiago, 6 Senator Gregorio B. Honasan, 7
and the Integrated Bar of the Philippines (IBP). 8
Briefly, the order for the arrests of these political opposition leaders
and police officers stems from the following facts:

On April 25, 2001, former President Joseph Estrada was arrested

upon the warrant issued by the Sandiganbayan in connection with the
criminal case for plunder filed against him. Several hundreds of
policemen were deployed to effect his arrest. At the time, a number of
Mr. Estrada's supporters, who were then holding camp outside his
residence in Greenhills Subdivision, sought to prevent his arrest. A
skirmish ensued between them and the police. The police had to
employ batons and water hoses to control the rock-throwing proEstrada rallyists and allow the sheriffs to serve the warrant. Mr.
Estrada and his son and co accused, Mayor Jinggoy Estrada, were
then brought to Camp Crame where, with full media coverage, their
fingerprints were obtained and their mug shots taken. aSAHCE
Later that day, and on the succeeding days, a huge gathered at the
EDSA Shrine to show its support for the deposed President. Senators
Enrile, Santiago, Honasan, opposition senatorial candidates including
petitioner Lacson, as well as other political personalities, spoke before
the crowd during these rallies.
In the meantime, on April 28, 2001, Mr. Estrada and his son were
brought to the Veterans Memorial Medical Center for a medical checkup. It was announced that from there, they would be transferred to
Fort Sto. Domingo in Sta. Rosa, Laguna.
In the early morning of May 1, 2001, the crowd at EDSA decided to
march to Malacaang Palace. The Armed Forces of the Philippines
(AFP) was called to reinforce the Philippine National Police (PNP) to
guard the premises of the presidential residence. The marchers were
able to penetrate the barricades put up by the police at various points
leading to Mendiola and were able to reach Gate 7 of Malacaang. As
they were being dispersed with warning shots, tear gas and water
canons, the rallyists hurled stones at the police authorities. A melee
erupted. Scores of people, including some policemen, were hurt.
At noon of the same day, after the crowd in Mendiola had been
dispersed, President Gloria Macapagal-Arroyo issued Proclamation
No. 38 declaring a "state of rebellion" in Metro Manila:
Presidential Proclamation No. 38
DECLARING STATE OF REBELLION IN THE NATIONAL CAPITAL
REGION

71
WHEREAS, the angry and violent mob, armed with explosives,
firearms, bladed weapons, clubs, stones and other deadly weapons,
in great part coming from the mass gathering at the EDSA Shrine, and
other armed groups, having been agitated and incited and, acting
upon the instigation and under the command and direction of known
and unknown leaders, have and continue to assault and attempt to
break into Malacaang with the avowed purpose of overthrowing the
duly constituted Government and forcibly seize power, and have and
continue to rise publicly, shown open hostility, and take up arms
against the duly constituted Government for the purpose of removing
from the allegiance to the Government certain bodies of the Armed
Forces of the Philippines and the Philippine National Police, and to
deprive the President of the Republic of the Philippines, wholly and
partially, of her powers and prerogatives which constitute the
continuing crime of rebellion punishable under Article 134 of the
Revised Penal Code, cIADaC
WHEREAS, armed groups recruited by known and unknown leaders,
conspirators, and plotters have continue (sic) to rise publicly by the
use of arms to overthrow the duly constituted Government and seize
political power;
WHEREAS, under Article VII, Section 18 of the Constitution,
whenever necessary, the President as the Commander-in-Chief of all
armed forces of the Philippines, may call out such armed forces to
suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of
the powers vested in me by law hereby recognize and confirm the
existence of an actual and on-going rebellion compelling me to
declare a state of rebellion;
In view of the foregoing, I am issuing General Order No. 1 in
accordance with Section 18, Article VII of the Constitution calling upon
the Armed Forces of the Philippines and the Philippine National police
to suppress and quell the rebellion. TcDaSI
City of Manila, May 1, 2001.
The President likewise issued General Order No. 1 which reads:
GENERAL ORDER NO. 1

DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE

PHILIPPINE NATIONAL POLICE TO SUPPRESS THE REBELLION
IN THE NATIONAL CAPITAL REGION
WHEREAS, the angry and violent mob, armed with explosives,
firearms, bladed weapons, clubs, stones and other deadly weapons,
in great part coming from the mass gathering at the EDSA Shrine, and
other armed groups, having been agitated and incited and, acting
upon the instigation and under the command and direction of known
and unknown leaders, have and continue to assault and attempt to
break into Malacaang with the avowed purpose of overthrowing the
duly constituted Government and forcibly seize political power, and
have and continue to rise publicly, show open hostility, and take up
arms against the duly constituted Government certain bodies of the
Armed Forces of the Philippines and the Philippine National Police,
and to deprive the President of the Republic of the Philippines, wholly
and partially, of her powers and prerogatives which constitute the
continuing crime of rebellion punishable under Article 134 of the
Revised Penal Code;
WHEREAS, armed groups recruited by known and unknown leaders,
conspirators, and plotters have continue (sic) to rise publicly by the
use of arms to overthrow the duly constituted Government and seize
political power;
WHEREAS, under Article VII, Section 18 of the Constitution,
whenever necessary, the President as the Commander-in-Chief of all
armed forces of the Philippines, may call out such armed forces to
suppress the rebellion; DHIaTS
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of
the powers vested in me under the Constitution as President of the
Republic of the Philippines and Commander-in-Chief of all armed
forces of the Philippines and pursuant to Proclamation No. 38, dated
May 1, 2001, do hereby call upon the Armed Forces of the Philippines
and the Philippine national police to suppress and quell the rebellion.
I hereby direct the Chief of Staff of the Armed Forces of the
Philippines and the Chief of the Philippine National Police and the
officers and men of the Armed Forces of the Philippines and the
Philippine National Police to immediately carry out the necessary and
appropriate actions and measures to suppress and quell the rebellion
with due regard to constitutional rights.

72
City of Manila, May 1, 2001.
Pursuant to the proclamation, several key leaders of the opposition
were ordered arrested. Senator Enrile was arrested without warrant in
his residence at around 4:00 in the afternoon. Likewise arrested
without warrant the following day was former Ambassador Ernesto
Maceda. Senator Honasan and Gen. Lacson were also ordered
arrested but the authorities have so far failed to apprehend them.
Ambassador Maceda was temporarily released upon recognizance
while Senator Ponce Enrile was ordered released by the Court on
cash bond.
The basic issue raised by the consolidated petitions is whether the
arrest or impending arrest without warrant, pursuant to a declaration
of "state of rebellion" by the President of the above-mentioned
persons and unnamed other persons similarly situated suspected of
having committed rebellion is illegal, being unquestionably a
deprivation of liberty and violative of the Bill of Rights under the
Constitution. acEHSI
The declaration of a "state of rebellion" is supposedly based on
Section 18, Article VII of the Constitution which reads:
The President shall be the Commander-in-Chief of all armed forces of
the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion
or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty day, suspend the
privilege of the writ of habeas corpus or place the Philippines or any
part thereof under martial law. Within forty-eight hours from the
proclamation of martial law or the suspension of the writ of habeas
corpus, the President shall submit a report in person or in writing to
the Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may revoke
such proclamation or suspension, which revocation shall not be set
aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by

any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within
thirty days from its filing. ECaSIT
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able
to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
Section 18 grants the President, as Commander-in-Chief, the power
to call out the armed forces in cases of (1) lawless violence, (2)
rebellion and (3) invasion. 9 In the latter two cases, i.e., rebellion or
invasion, the President may, when public safety requires, also (a)
suspend the privilege of the writ of habeas corpus, or (b) place the
Philippines or any part thereof under martial law. However, in the
exercise of this calling out power as Commander-in-Chief of the
armed forces, the Constitution does not require the President to make
a declaration of a "state of rebellion" (or, for that matter, of lawless
violence or invasion). The term "state of rebellion" has no legal
significance. It is vague and amorphous and does not give the
President more power than what the Constitution says, i. e, whenever
it becomes necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion or rebellion. As Justice
Mendoza observed during the hearing of this case, such a declaration
is "legal surplusage." But whatever the term means, it cannot diminish
or violate constitutionally-protected rights, such as the right to due
process, 10 the rights to free speech and peaceful assembly to
petition the government for redress of grievances, 11 and the right
against unreasonable searches and seizures, 12 among others.
caITAC

73
In Integrated Bar of the Philippines vs. Zamora, et al., 13 the Court
held that:
. . . [T]he distinction (between the calling out power, on one hand, and
the power to suspend the privilege of the write of habeas corpus and
to declare martial law, on the other hand) places the calling out power
in a different category from the power to declare martial law and the
power to suspend the privilege of the writ of habeas corpus,
otherwise, the framers of the Constitution would have simply lumped
together the three powers and provided for their revocation and
review without any qualification. Expressio unius est exclusio alterius.
xxx

xxx

xxx

The reason for the difference in the treatment of the aforementioned

powers highlights the intent to grant the President the widest leeway
and broadest discretion in using the "calling out" power because it is
considered as the lesser and more benign power compared to the
power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and
suppression of certain basic civil rights and individual freedoms, and
thus necessitating affirmation by Congress and, in appropriate cases,
review by this Court.
On the other hand, if the motive behind the declaration of a "state of
rebellion" is to arrest persons without warrant and detain them without
bail and, thus, skirt the Constitutional safeguards for the citizens' civil
liberties, the so called "state of rebellion" partakes the nature of
martial law without declaring it as such. It is a truism that a law or rule
may itself be fair or innocuous on its face, yet, if it is applied and
administered by public authority with an evil eye so as to practically
make it unjust and oppressive, it is within the prohibition of the
Constitution. 14 In an ironic sense, a "state of rebellion" declared as a
subterfuge to effect warrantless arrest and detention for an unbailable
offense places a heavier burden on the people's civil liberties than the
suspension of the privilege of the writ of habeas corpus and the
declaration of martial law because in the latter case, built-in
safeguards are automatically set on motion: (1) The period for martial
law or suspension is limited to a period not exceeding sixty day; (2)
The President is mandated to submit a report to Congress within fortyeight hours from the proclamation or suspension; (3) The
proclamation or suspension is subject to review by Congress, which

may revoke such proclamation or suspension. If Congress is not in

session, it shall convene in 24 hours without need for call; and (4) The
sufficiency of the factual basis thereof or its extension is subject to
review by the Supreme Court in an appropriate proceeding. 15
No right is more fundamental than the right to life and liberty. Without
these rights, all other individual rights may not exist. Thus, the very
first section in our Constitution's Bill of Rights, Article III, reads:
SECTION 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
And to assure the fullest protection of the right, more especially
against government impairment, Section 2 thereof provides:
SECTION 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized. TIEHSA
Indeed, there is nothing in Section 18 which authorizes the President
or any person acting under her direction to make unwarranted arrests.
The existence of "lawless violence, invasion or rebellion" only
authorizes the President to call out the "armed forces to prevent or
suppress lawless violence, invasion or rebellion."
Not even the suspension of the privilege of the writ of habeas corpus
or the declaration of martial law authorizes the President to order the
arrest of any person. The only significant consequence of the
suspension of the writ of habeas corpus is to divest the courts of the
power to issue the writ whereby the detention of the person is put in
issue. It does not by itself authorize the President to order the arrest
of a person. And even then, the Constitution in Section 18, Article VII
makes the following qualifications:
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.

74
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
In the instant case, the President did not suspend the writ of habeas
corpus. Nor did she declare martial law. A declaration of a "state of
rebellion," at most, only gives notice to the nation that it exists, and
that the armed forces may be called to prevent or suppress it, as in
fact she did. Such declaration does not justify any deviation from the
Constitutional proscription against unreasonable searches and
seizures. HDcaAI
As a general rule, an arrest may be made only upon a warrant issued
by a court. In very circumscribed instances, however, the Rules of
Court allow warrantless arrests. Section 5, Rule 113 provides:
SECTION 5. Arrest without warrant; when lawful. A police officer
or a private person may, without a warrant, arrest a person:
(a)
When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
(b)
When an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
xxx

xxx

xxx

In cases falling under paragraphs (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the nearest
police station or jail and shall be proceeded against in accordance
with section 7 of Rule 112.
It must be noted that the above are exceptions to the constitutional
norm enshrined in the Bill of Rights that a person may only be
arrested on the strength of a warrant of arrest issued by a "judge"
after determining "personally" the existence of "probable cause" after
examination under oath or affirmation of the complainant and the
witnesses he may produce. Its requirements should, therefore, be
scrupulously met:
The right of a person to be secure against any unreasonable seizure
of his body and any deprivation of his liberty is a most basic and
fundamental one. The statute or rule which allows exceptions to the

requirement of warrants of arrests is strictly construed. Any exception

must clearly fall within the situations when securing a warrant would
be absurd or is manifestly unnecessary as provided by the Rule. We
cannot liberally construe the rule on arrests without warrant or extend
its application beyond the cases specifically provided by law. To do so
would infringe upon personal liberty and set back a basic right so
often violated and so deserving of full protection. 16
A warrantless arrest may be justified only if the police officer had facts
and circumstances before him which, had they been before a judge,
would constitute adequate basis for a finding of probable cause of the
commission of an offense and that the person arrested is probably
guilty of committing the offense. That is why the Rules of Criminal
Procedure require that when arrested, the person "arrested has
committed, is actually committing, or is attempting to commit an
offense" in the presence of the arresting officer. Or if it be a case of an
offense which had "just been committed," that the police officer
making the arrest "has personal knowledge of facts or circumstances
that the person to be arrested has committed it." AICHaS
Petitioners were arrested or sought to be arrested without warrant for
acts of rebellion ostensibly under Section S of Rule 113. Respondents'
theory is based on Umil vs. Ramos, 17 where this Court held:
The crimes of rebellion, subversion, conspiracy or proposal to commit
such crimes, and crimes or offenses committed in furtherance thereof
or in connection therewith constitute direct assault against the State
and are in the nature of continuing crimes. 18
Following this theory, it is argued that under Section 5(a), a person
who "has committed, is actually committing, or is attempting to
commit" rebellion and may be arrested without a warrant at any time
so long as the rebellion persists.
Reliance on Umil is misplaced. The warrantless arrests therein,
although effected a day or days after the commission of the violent
acts of petitioners therein, were upheld by the Court because at the
time of their respective arrests, they were members of organizations
such as the Communist Party of the Philippines, the New Peoples
Army and the National United Front Commission, then outlawed
groups under the Anti-Subversion Act. Their mere membership in said
illegal organizations amounted to committing the offense of
subversion 19 which justified their arrests without warrants.

75
In contrast, it has not been alleged that the persons to be arrested for
their alleged participation in the "rebellion" on May 1, 2001 are
members of an outlawed organization intending to overthrow the
government. Therefore, to justify a warrantless arrest under Section
5(a), there must be a showing that the persons arrested or to be
arrested has committed, is actually committing or is attempting to
commit the offense of rebellion. 20 In other words, there must be an
overt act constitutive of rebellion taking place in the presence of the
arresting officer. In United States vs. Samonte, 21 the term" in his [the
arresting officer's] presence" was defined thus:

by the person arrested. True it is that law enforcement agents and

even prosecutors are not all adept at the law. However, erroneous
perception, not to mention ineptitude among their ranks, especially if it
would result in the violation of any right of a person, may not be
tolerated. That the arrested person has the "right to insist during the
pre-trial or trial on the merits" (Resolution, p. 18) that he was
exercising a right which the arresting officer considered as contrary to
law, is beside the point. No person should be subjected to the ordeal
of a trial just because the law enforcers wrongly perceived his action.
27 (Emphasis supplied) AcSCaI

An offense is said to be committed in the presence or within the view

of an arresting officer or private citizen when such officer or person
sees the offense, even though at a distance, or hears the disturbance
created thereby and proceeds at once to the scene thereof; or the
offense is continuing, or has not been consummated, at the time the
arrest is made. 22

GUTIERREZ, JR., J., concurring and dissenting opinion

This requirement was not complied with particularly in the arrest of

Senator Enrile. In the Court's Resolution of May 5, 2001 in the petition
for habeas corpus filed by Senator Enrile, the Court noted that the
sworn statements of the policemen who purportedly arrested him
were hearsay. 23 Senator Enrile was arrested two (2) days after he
delivered allegedly seditious speeches. Consequently, his arrest
without warrant cannot be justified under Section 5(b) which states
that an arrest without a warrant is lawful when made after an offense
has just been committed and the arresting officer or private person
has probable cause to believe based on personal knowledge of facts
and circumstances that the person arrested has committed the
offense. DCcHAa
At this point, it must be stressed that apart from being inapplicable to
the cases at bar, Umil is not without any strong dissents. It merely reaffirmed Garcia-Padilla vs. Enrile, 24 a case decided during the
Marcos martial law regime. 25 It cannot apply when the country is
supposed to be under the regime of freedom and democracy. The
separate opinions of the following Justices in the motion for
reconsideration of said case 26 are apropos:
FERNAN, C.J., concurring and dissenting:
Secondly, warrantless arrests may not be allowed if the arresting
officers are not sure what particular provision f law had been violated

Insofar as G.R. No. 81567 is concerned, I join the other dissenting

Justices in their observations regarding "continuing offenses." To base
warrantless arrests on the doctrine of continuing offense is to give a
license for the illegal detention of persons on pure suspicion.
Rebellion, insurrection, or sedition are political offenses where the line
between overt acts and simple advocacy or adherence to a belief is
extremely thin. If a court has convicted an accused of rebellion and he
is found roaming around, he may be arrested. But until a person is
proved guilty, I fail to see how anybody can jump to a personal
conclusion that the suspect is indeed a rebel and must be picked up
on sight whenever seen. The grant of authority in the majority opinion
is too broad. If warrantless searches are to be validated, it should be
Congress and not this Court which should draw strict and narrow
standards. Otherwise, the non-rebels who are critical, noisy, or
obnoxious will be indiscriminately lumped up with those actually taking
up arms against the Government.
The belief of law enforcement authorities, no matter how wellgrounded on past events, that the petitioner would probably shoot
other policemen whom he may meet does not validate warrantless
arrests. I cannot understand why the authorities preferred to bide their
time. await the petitioner's surfacing from underground, and ounce on
him with no legal authority instead of securing warrants of arrest for
his apprehension. 28 (Emphasis supplied)
CRUZ, J., concurring and dissenting:
I submit that the affirmation by this Court of the Garcia-Padilla
decision to justify the illegal arrests made in the cases before us is a
step back to that shameful past when individual rights were wantonly

76
and systematically violated by the Marcos dictatorship. It seems some
of us have short memories of that repressive regime, but I for one am
not one to forget so soon. As the ultimate defender of the Constitution,
this Court should not gloss over the abuses of those who, out of
mistaken zeal, would violate individual liberty in the dubious name of
national security. Whatever their ideology and even if it be hostile to
ours, the petitioners are entitled to the protection of the Bill of Rights,
no more and no less than any other person in this country. That is
what democracy is all about. 29 (Emphasis supplied) HETDAa
FELICIANO, J., concurring and dissenting:
12.
My final submission, is that, the doctrine of "continuing
crimes," which has its own legitimate function to serve in our criminal
law jurisprudence, cannot be invoked for weakening and dissolving
the constitutional guarantee against warrantless arrest. Where no
overt acts comprising all or some of the elements of the offense
charged are shown to have been committed by the person arrested
without warrant, the "continuing crime" doctrine should not be used to
dress up the pretense that a crime, begun or committed elsewhere,
continued to be committed by the person arrested in the presence of
the arresting officer. The capacity for mischief of such a utilization of
the "continuing crimes" doctrine, is infinitely increased where the
crime charged does not consist of unambiguous criminal acts with a
definite beginning and end in time and space (such as the killing or
wounding of a person or kidnapping and illegal detention or arson) but
rather of such problematic offenses as membership in or affiliation
with or becoming a member of, a subversive association or
organization. For in such cases, the overt constitutive acts may be
morally neutral in themselves, and the unlawfulness of the acts a
function of the aims or objectives of the organization involved. Note,
for instance, the following acts which constitute prima facie evidence
of "membership in any subversive association:" ESDcIA
a)
Allowing himself to be listed as a member in any book or any
of the lists, records, correspondence, or any other document of the
organization;
b)
Subjecting himself to the discipline of such or association or
organization in any form whatsoever;
c)
Giving financial contribution to such association
organization in dues, assessments, loans or in any other forms;

or

xxx

xxx

xxx

f)
Conferring with officers or other members of such association
or organization in furtherance of any plan or enterprise thereof;
xxx

xxx

xxx

g)
Preparing documents, pamphlets, leaflets, books, or any other
type of publication to promote the objectives and purposes of such
association or organization;
xxx

xxx

xxx

k)
Participating in any way in the activities, planning action,
objectives, or purposes of such association or organization.
It may well be, as the majority implies, that the constitutional rule
against warrantless arrests and seizures makes the law enforcement
work of police agencies more difficult to carry out. It is not our Court's
function, however, and the Bill of Rights was not designed, to make
life easy for police forces but rather to protect the liberties of private
individuals. Our police forces must simply learn to live with the
requirements of the Bill of Rights, to enforce the law by modalities
which themselves comply with the fundamental law. Otherwise they
are very likely to destroy, whether through sheer ineptness or excess
of zeal, the very freedoms which make our policy worth protecting and
saving. 30 (Emphasis supplied) TaDSHC
It is observed that a sufficient period has lapsed between the fateful
day of May 1, 2001 up to the present. If respondents have ample
evidence against petitioners, then they should forthwith file the
necessary criminal complaints in order that the regular procedure can
be followed and the warrants of arrest issued by the courts in the
normal course. When practicable, resort to the warrant process is
always to be preferred because "it interposes an orderly procedure
involving 'judicial impartiality' whereby a neutral and detached
magistrate can make informed and deliberate determination on the
issue of probable cause." 31
The neutrality, detachment and independence that judges are
supposed to possess is precisely the reason the framers of the 1987
Constitution have reposed upon them alone the power to issue
warrants of arrest. To vest the same to a branch of government, which

77
is also charged with prosecutorial powers, would make such branch
the accused's adversary and accuser, his judge and jury. 32

symbolic function of educating bench and bar on the extent of

protection given by constitutional guarantees. AcEIHC

A declaration of a state of rebellion does not relieve the State of its

burden of proving probable cause. The declaration does not constitute
a substitute for proof. It does not in any way bind the courts, which
must still judge for itself the existence of probable cause. Under
Section 18, Article VII, the determination of the existence of a state of
rebellion for purposes of proclaiming martial law or the suspension of
the privilege of the writ of habeas corpus rests for which the President
is granted ample, though not absolute, discretion. Under Section 2,
Article III, the determination of probable cause is a purely legal
question of which courts are the final arbiters.

Petitioners look up in urgent supplication to the Court, considered the

last bulwark of democracy, for relief. If we do not act promptly, justly
and fearlessly, to whom will they turn to?

Justice Secretary Hernando Perez is reported to have announced that

the lifting of the "state of rebellion" on May 7, 2001 does not stop the
police from making warrantless arrests. 33 If this is so, the pernicious
effects of the declaration on the people's civil liberties have not abated
despite the lifting thereof. No one exactly knows who are in the list or
who prepared the list of those to be arrested for alleged complicity in
the "continuing" crime of "rebellion" defined as such by executive fiat.
The list of the perceived leaders, financiers and supporters of the
"rebellion" to be arrested and incarcerated could expand depending
on the appreciation of the police. The coverage and duration of
effectivity of the orders of arrest are thus so open-ended and limitless
as to place in constant and continuing peril the people's Bill of Rights.
It is of no small significance that four of the petitioners are opposition
candidates for the Senate. Their campaign activities have been to a
large extent immobilized. If the arrests and orders of arrest against
them are illegal, then their Constitutional right to seek public office, as
well as the right of the people to choose their officials, is violated.
In view of the transcendental importance and urgency of the issues
raised in these cases affecting as they do the basic liberties of the
citizens enshrined in our Constitution, it behooves us to rule thereon
now, instead of relegating the cases to trial courts which unavoidably
may come up with conflicting dispositions, the same to reach this
Court inevitably for final ruling. As we aptly pronounced in Salonga vs.
Cruz Pao: 34
The Court also has the duty to formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules. It has the

WHEREFORE, I vote as follows:

(1)

Give DUE COURSE to and GRANT the petitions;

(2)
Declare as NULL and VOID the orders of arrest issued against
petitioners;
(3)
Issue a WRIT OF INJUNCTION enjoining respondents, their
agents and all other persons acting for and in their behalf from
effecting warrantless arrests against petitioners and all other persons
similarly situated on the basis of Proclamation No. 38 and General
Order No. 1 of the President.
SO ORDERED.
SANDOVAL-GUTIERREZ, J., dissenting:
The exercise of certain powers by the President in an atmosphere of
civil unrest may sometimes raise constitutional issues. If such powers
are used arbitrarily and capriciously, they may degenerate into the
worst form of despotism.
It is on this premise that I express my dissent.
The chain of events which led to the present constitutional crisis are
as follows:
On March 2, 2001, the Supreme Court rendered the landmark
decision that would bar further questions on the legitimacy of Gloria
Macapagal-Arroyo's presidency. 1 In a unanimous decision, the Court
declared that Joseph Ejercito Estrada had effectively resigned his
post and that Macapagal-Arroyo is the legitimate President of the
Philippines. Estrada was stripped of all his powers and presidential
immunity from suit.
Knowing that a warrant of arrest may at any time be issued against
Estrada, his loyalists rushed to his residence in Polk Street, North
Greenhills Subdivision, San Juan, Metro Manila. They conducted vigil
in the vicinity swearing that no one can take away their "president."

78
Then the dreadful day for the Estrada loyalists came.
On April 25, 2001, the Third Division of the Sandiganbayan issued
warrants of arrest against Estrada, his son Jinggoy, Charlie "Atong"
Ang, Edward Serapio, Yolanda Ricaforte, Alma Alfaro, Eleuterio Tan
and Delia Rajas. 2 Emotions ran high as an estimated 10,000 Estrada
loyalists, ranging from tattooed teenagers of Tondo to well-heeled
Chinese, gathered in Estrada's neighborhood. 3 Supporters turned
hysterical. Newspapers captured pictures of raging men and wailing
women. 4 When policemen came, riots erupted. Police had to use
their batons as well as water hoses to control the rock-throwing
Estrada loyalists. 5
It took the authorities about four hours to implement the warrant of
arrest. At about 3:30 o'clock in the afternoon of the same day,
Philippine National Police (PNP) Chief, Director General Leandro R.
Mendoza, with the aid of PNP's Special Action Force and
reinforcements from the Philippine Army and Marines, implemented
the warrant of arrest against Estrada. 6
Like a common criminal, Estrada was fingerprinted and had his mug
shots taken at the detention center of the former Presidential AntiOrganized Task Force at Camp Crame. The shabby treatment, caught
on live TV cameras nationwide, had sparked off a wave of protest all
over the country. Even international news agencies like CNN and BBC
were appalled over the manner of Estrada's arrest calling it "overkill."
In a taped message aired over radio and television, Estrada defended
himself and said, "I followed the rule of law to the letter. I asked our
people now to tell the powers to respect our constitution and the rule
of law."
Being loyal to the end, the supporters of Estrada followed him to
Camp Crame. About 3,000 of them massed up in front of the camp.
They were shouting "Edsa Three! Edsa Three! They vowed not to
leave the place until Estrada is released. When asked how long they
planned to stay, the protesters said, "Kahit isang buwan, kahit isang
taon. 7
At about 6:00 o'clock in the afternoon, also of the same day, the
PNP's anti-riot squads dispersed them. Thus, they proceeded to the
Edsa Shrine in Mandaluyong City where they joined forces with
hundreds more who came from North Greenhills. 8 Hordes of Estrada
loyalists began gathering at the historic shrine.

On April 27, 2001, the crowd at Edsa begun to swell in great

magnitude. Estrada loyalists from various sectors, most of them
obviously belonging to the "masses," brought with them placards and
streamers denouncing the manner of arrest done to the former
president. 9 In the afternoon, buses loaded with loyalists from the
nearby provinces arrived at the Edsa Shrine. One of their leaders said
that the Estrada supporters will stay at Edsa Shrine until the former
president gets justice from the present administration. 10
An estimated 1,500 PNP personnel from the different parts of the
metropolis were deployed to secure the area. 11 On April 28, 2001,
the PNP and the Armed Forces declared a "nationwide red alert." 12
Counter-intelligence agents checked on possible defectors from the
military top officials. Several senators were linked to an alleged junta
plot.
During the rally, several Puwersa Ng Masa candidates delivered
speeches before the crowd. Among those who showed up at the rally
were Senators Miriam Defensor-Santiago, Gregorio Honasan, Juan
Ponce Enrile, Edgardo Angara, Vicente Sotto and former PNP
Director General Panfilo Lacson and former Ambassador Ernesto
Maceda. 13
On April 30, 2001, the government started to prepare its forces. A
2,000-strong military force backed up by helicopter gunships,
Scorpion tanks and armored combat vehicles stood ready to counter
any attempt by Estrada loyalists to mount a coup. And to show that it
meant business, the task force parked two MG-520 attack helicopters
armed to the teeth with rockets on the parade ground at Camp
Aguinaldo, Quezon City. Also deployed were two armored personnel
carriers and troops in camouflage uniforms. 14 Over 2,500 soldiers
from the army, navy, and air force were formed into Task Force Libra
to quell the indignant Estrada loyalists. 15
On May 1, 2001, at about 1:30 o'clock in the morning, the huge crowd
at Edsa started their march to Malacaang. 16 Along the way, they
overran the barricades set up by the members of the PNP Crowd
Dispersal Control Management. 17
Shortly past 5:00 o'clock in the morning of the same day, the
marchers were at the gates of Malacaang chanting, dancing, singing
and waving flags. 18

79
At around 10:00 o'clock in the morning, the police, with the assistance
of combat-ready soldiers, conducted dispersal operations. Some
members of the dispersal team were unceasingly firing their highpowered firearms in the air, while the police, armed with truncheons
and shields, were slowly pushing the protesters away from the gates
of Malacaang. Television footages showed protesters hurling stones
and rocks on the advancing policemen, shouting invectives against
them and attacking them with clubs. They burned police cars, a
motorcycle, three pick-ups owned by a television station, construction
equipment and a traffic police outpost along Mendiola Street. 19 They
also attacked Red Cross vans, destroyed traffic lights, and vandalized
standing structures. Policemen were seen clubbing protesters, hurling
back stones, throwing teargas under the fierce midday sun, and firing
guns towards the sky. National Security Adviser Roilo Golez said the
Street had to be cleared of rioters at all costs because "this is like an
arrow, a dagger going an the way to (Malacaang) Gate 7." 20
Before noontime of that same day, the Estrada loyalists were driven
away.
The violent street clashes prompted President Macapagal-Arroyo to
place Metro Manila under a "state of rebellion." Presidential
Spokesperson Rigoberto Tiglao told reporters, "We are in a state of
rebellion. This is not an ordinary demonstration." 21 After the
declaration, there were threats of arrests against those suspected of
instigating the march to Malacaang.
At about 3:30 o'clock in the afternoon, Senator Juan Ponce Enrile was
arrested in his house in Dasmarias Village, Makati City by a group
led by Reynaldo Berroya, Chief of the Philippine National Police
Intelligence Group. 22 Thereafter, Berroya and his men proceeded to
hunt re-electionist Senator Gregorio Honasan, former PNP Chief
Panfilo Lacson, former Ambassador Ernesto Maceda, Brig. Gen. Jake
Malajakan, Senior Superintendents Michael Ray Aquino and Cesar
Mancao II, Ronald Lumbao and Cesar Tanega of the People's
Movement Against Poverty (PMAP). 23 Justice Secretary Hernando
Perez said that he was "studying" the possibility of placing Senator
Miriam Defensor Santiago "under the Witness protection program."
Director Victor Batac, former Chief of the PNP Directorate for Police
Community Relations, and Senior Superintendent Diosdado Valeroso,

of the Philippine Center for Transnational Crime, surrendered to

Berroya. Both denied having plotted the siege.
On May 2, 2001, former Ambassador Ernesto Maceda was arrested.
The above scenario presents three crucial queries: First, is President
Macapagal-Arroyo's declaration of a "state of rebellion" constitutional?
Second, was the implementation of the warrantless arrests on the
basis of the declaration of a "state of rebellion" constitutional? And
third, did the rallyists commit rebellion at the vicinity of Malacaang
Palace on May 1, 2001?
The first and second queries involve constitutional issues, hence, the
basic yardstick is the 1987 Constitution of the Philippines. The third
query requires a factual analysis of the events which culminated in the
declaration of a state of rebellion; hence, an examination of Article
134 of the Revised Penal Code is in order.
On May 7, 2001, President Macapagal-Arroyo issued Proclamation
No. 39, "DECLARING THAT THE STATE OF REBELLION IN THE
NATIONAL CAPITAL REGION HAS CEASED TO EXIST", which in
effect has lifted the previous Proclamation No. 38.
I beg to disagree with the majority opinion in ruling that the instant
petitions have been rendered moot and academic with the lifting by
the President of the declaration of a "state of rebellion".
I believe that such lifting should not render moot and academic the
very serious and unprecedented constitutional issues at hand,
considering their grave implications involving the basic human rights
and civil liberties of our people. A resolution of these issues becomes
all the more necessary since, as reported in the papers, there are
saturation drives (sonas) being conducted by the police wherein
individuals in Metro Manila are picked up without warrants of arrest.
Moreover, the acts sought to be declared illegal and unconstitutional
are capable of being repeated by the respondents. In Salva v.
Makalintal (G.R. No. 132603, Sept. 18, 2000), this Court held that
"courts will decide a question otherwise moot and academic if it is
'capable of repetition, yet evading review' . . ."
I & II President Macapagal-Arroyo's declaration of a "state of
rebellion" and the implementation of the warrantless arrests premised
on the said declaration are unconstitutional.

80
Nowhere in the Constitution can be found a provision which grants
upon the executive the power to declare a "state of rebellion," much
more, to exercise on the basis of such declaration the prerogatives
which a president may validly do under a state of martial law.
President Macapagal-Arroyo committed a constitutional short cut. She
disregarded the clear provisions of the Constitution which provide:
"SECTION 18.The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes necessary,
he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative
of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual bases of the proclamation of
martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within
thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able
to function, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released." 24
Obviously, the power of the President in cases when she assumed the
existence of rebellion is properly laid down by the Constitution. I see
no reason or justification for the President's deviation from the concise
and plain provisions. To accept the theory that the President could
disregard the applicable statutes, particularly that which concerns
arrests, searches and seizures, on the mere declaration of a "state of
rebellion" is in effect to place the Philippines under martial law without
a declaration of the executive to that effect and without observing the
proper procedure. This should not be countenanced. In a society
which adheres to the rule of law, resort to extra-constitutional
measures is unnecessary where the law has provided everything for
any emergency or contingency. For even if it may be proven beneficial
for a time, the precedent it sets is pernicious as the law may, in a little
while, be disregarded again on the same pretext but for evil purposes.
Even in time of emergency, government action may vary in breath and
intensity from more normal times, yet it need not be less
constitutional. 25
My fear is rooted in history. Our nation had seen the rise of a dictator
into power. As a matter of fact, the changes made by the 1986
Constitutional Commission on the martial law text of the Constitution
were to a large extent a reaction against the direction which the
Supreme Court took during the regime of President Marcos. 26 Now,
if this Court would take a liberal view, and consider that the
declaration of a "state of rebellion" carries with it the prerogatives
given to the President during a "state of martial law," then, I say, the
Court is traversing a very dangerous path. It will open the way to
those who, in the end, would turn our democracy into a totalitarian
rule. History must not be allowed to repeat itself. Any act which gears
towards possible dictatorship must be severed at its inception.
The implementation of warrantless arrests premised on the
declaration of a "state of rebellion" is unconstitutional and contrary to
existing laws. The Constitution provides that "the right of the people to

81
be secure in their persons, houses, papers and effects against
unreasonable searches and seizure of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be
seized." 27 If a state of martial law "does not suspend the operation of
the Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians, where civil courts are able
to function, nor automatically suspend the privilege of the writ," 28(a)
then it is with more reason, that a mere declaration of a state of
rebellion could not bring about the suspension of the operation of the
Constitution or of the writ of habeas corpus.
Neither can we find the implementation of the warrantless arrests
justified under the Revised Rules on Criminal Procedure. Pertinent is
Section 5, Rule 113, thus:
"SECTION 5. Arrest without warrant, when lawful. A peace officer
or a private person may, without a warrant, arrest a person:
(a)
When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense.
(b)
When an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts and
circumstances that the person to be arrested has committed it; and
xxx

xxx

xxx."

Petitioners cannot be considered "to have committed, is actually

committing, or is attempting to commit an offense" at the time they
were hunted by Berroya for the implementation of the warrantless
arrests. None of them participated in the riot which took place in the
vicinity of the Malacaang Palace. Some of them were on their
respective houses performing innocent acts such as watching
television, resting etc. The sure fact however is that they were not in
the presence of Berroya. Clearly, he did not see whether they had
committed, were committing or were attempting to commit the crime
of rebellion. But of course, I cannot lose sight of the legal implication

of President Macapagal-Arroyo's declaration of a "state of rebellion."

Rebellion is a continuing offense and a suspected insurgent or rebel
may be arrested anytime as he is considered to be committing the
crime. Nevertheless, assuming ex gratia argumenti that the
declaration of a state of rebellion is constitutional, it is imperative that
the said declaration be reconsidered. In view of the changing times,
the dissenting opinion of the noted jurist, Justice Isagani Cruz, in Umil
v. Ramos, 28 quoted below must be given a second look.
"I dissent insofar as the ponencia affirms the ruling in Garcia-Padilla
vs. Enrile that subversion is a continuing offense, to justify the arrest
without warrant of any person at any time as long as the authorities
say he has been placed under surveillance on suspicion of the
offense. That is a dangerous doctrine. A person may be arrested
when he is doing the most innocent acts, as when he is only washing
his hands, or taking his supper, or even when he is sleeping, on the
ground that he is committing the 'continuing' offense of subversion.
Libertarians were appalled when that doctrine was imposed during the
Marcos regime. I am alarmed that even now this new Court is willing
to sustain it. I strongly urge my colleagues to discard it altogether as
one of the disgraceful vestiges of the past dictatorship and uphold the
rule guaranteeing the right of the people against unreasonable
searches and seizures. We can do no less if we are really to reject the
past oppression and commit ourselves to the true freedom. Even if it
be argued that the military should be given every support in our fight
against subversion, I maintain that that fight must be waged
honorably, in accordance with the Bill of Rights. I do not believe that in
fighting the enemy we must adopt the ways of the enemy, which are
precisely what we are fighting against. I submit that our more
important motivation should be what are we fighting for."
I need not belabor that at the time some of the suspected instigators
were arrested, (the others are still at-large), a long interval of time
already passed and hence, it cannot be legally said that they had just
committed an offense. Neither can it be said that Berroya or any of his
men had "personal knowledge of facts or circumstances that the
persons to be arrested have committed a crime." That would be far
from reality.
III The acts of the rallyists at the vicinity of Malacaang Palace on
May 1, 2001 do not constitute rebellion.

82
Article 134 of the Revised Penal Code reads:
"ARTICLE 134.
Rebellion or insurrection How committed.
The crime of rebellion or insurrection is committed by rising publicly
and taking arms against the Government for the purpose of removing
from the allegiance to said Government or its laws, the territory of the
Republic of the Philippines or any part thereof, of any body of land,
naval or other armed forces, or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or prerogatives."
(As amended by RA No. 6968, O.G. 52, p. 9864, 1990)
From the foregoing provisions, the elements of the crime of rebellion
may be deduced, thus: first, that there be (a) public uprising and (b)
taking arms against the government; second, that the purpose of the
uprising or movement is either (a) to remove from the allegiance to
said government or its laws (1) the territory of the Philippines or any
part thereof; or (2) any body of land, naval or other armed forces; or
(b) to deprive the Chief Executive or Congress, wholly or partially, of
any of their powers or prerogatives. 29
Looking at the events on a magnified scale, I am convinced that the
two elements of the crime of rebellion are lacking.
First, there was no "taking of arms" against the government. To my
mind, "taking arms" connotes the multitude's deliberate and conscious
resort to arms or weapons for the purpose of aiding them in
accomplishing any of the purposes of rebellion. Admittedly, the
Estrada loyalists pelted the policemen with rocks and stones and
attacked them with sticks and clubs, but such was merely a result of
the heightening tension between opposite camps during the period of
dispersal. The stones, rocks, sticks, clubs and other improvised
weapons were not deliberately resorted to by the Estrada loyalists to
further any of the purposes of rebellion. They availed of them, at the
precise moment of dispersal (this explains why their weapons were
those which could be easily gathered on the street) and only for the
purpose of stopping the policemen from dispersing them. In this age
of modernity, one who intends to overthrow the government will not
only settle for stones, woods, rocks, sticks or clubs as means to
disable the government. It will be extremely pathetic and the result will
only be in vain. Unlike a true rebellion which is organized, what
happened at the vicinity of Malacaang was merely a riot, a mob
violence, or a tumultuous uprising. At this juncture, it bears stressing

that the crime of rebellion is a vast movement of men and a complex

net of intrigues and plots. 30 It must be distinguished from riot and
offenses connected with mob violence. In rebellion/insurrection, there
is an organized and armed uprising against authority. 31
Second, the purpose of the Estrada loyalists was neither (a) to
remove from the allegiance to the government or its laws (1) the
territory of the Philippines or any part thereof; or (2) any part of land,
naval or other armed forces; nor (b) to deprive the Chief Executive or
Congress, wholly or partially, of any of their powers or prerogatives. I
looked at the chronology of events, and one thing surfaced the
Estrada loyalists mainly demanded that their beloved "president"
should not be incarcerated. The crowd at Edsa swelled in great
magnitude on April 25, 2001, the day Estrada was arrested. In fact,
when they followed Erap at Camp Crame, they were shouting "Edsa!
Edsa! and they vowed not to leave until Estrada is released." 32
One must not be swayed by the theory of respondents that the
purpose of those people who gathered in Edsa and marched to
Malacaang was to commit rebellion. For sure, there were a thousand
and one reasons why they proceeded to Edsa. In determining their
purpose, one must trace the roots, what prompted them to go to
Edsa? They were the Estrada loyalists who wanted him to be freed. If
indeed there were minorities who advocated another cause, the same
should not be considered as the prevailing one in the determination of
what crime was committed. Facts should not be stretched just to build
a case of rebellion. This runs counter to the principle of due process.
As a final word, I subscribe to the principle that the rule of law implies
the precept that similar cases be treated similarly. Men can not
regulate their actions by means of rule if this precept is not followed.
Edsa I, Edsa II and Edsa III are all public uprisings. Statements urging
people to overthrow the government were uttered in all these
occasions. Injuries were sustained, policemen were attacked,
standing structures were vandalized . . . in all these scenarios, one
cannot be said to be extremely away from the other. The only
difference is that the first two succeeded, while the last failed. This
should not result to an unbridled or unlimited exercise of power by the
duly constituted authorities. It is during these trying times that fealty to
the Constitution is strongly demanded from all, especially the
authorities concerned.

83
WHEREFORE, I vote to give DUE COURSE to the petitions and
GRANT the same and to enjoin the respondents from arresting the
petitioners in G.R. Nos. 147780, 147781, and 147799 without the
corresponding warrants.
SO ORDERED.

84

EN BANC

AQUILINO Q. PIMENTEL, JR. as a Member of the Senate, petitioner,

vs.
SECRETARY ALBERTO
ROMULO, AS
EXECUTIVE
SECRETARY; SECRETARY ANGELO REYES, AS SECRETARY OF
NATIONAL DEFENSE; GENERAL NARCISO ABAYA, AS CHIEF OF
STAFF OF THE ARMED FORCES; SECRETARY JOSE LINA, et al.,
respondents.

[G.R. No. 159085. February 3, 2004.]

DECISION
SANLAKAS, represented by REP. J.V. Bautista, and PARTIDO NG
MANGGAGAWA, represented by REP. RENATO MAGTUBO,
petitioners, vs. EXECUTIVE SECRETARY ANGELO REYES,
GENERAL NARCISO ABAYA, DIR. GEN. HERMOGENES EBDANE,
respondents.
[G.R. No. 159103. February 3, 2004.]
SOCIAL JUSTICE SOCIETY (SJS) OFFICERS/MEMBERS namely,
SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, RENE B.
GOROSPE, EDWIN R. SANDOVAL and RODOLFO D. MAPILE,
petitioners, vs. HON. EXECUTIVE SECRETARY ALBERTO G.
ROMULO,
HON.
SECRETARY
OF
JUSTICE
SIMEON
DATUMANONG, HON. SECRETARY OF NATIONAL DEFENSE
ANGELO REYES, and HON. SECRETARY JOSE LINA, JR.,
respondents.
[G.R. No. 159185. February 3, 2004.]
REP. ROLEX T. SUPLICO, REP. CARLOS M. PADILLA, REP. CELSO
L. LOBREGAT, REP. HUSSIN U. AMIN, REP. ABRAHAM KAHLIL B.
MITRA, REP. EMMYLOU J. TALINO-SANTOS, and REP. GEORGILU
R. YUMUL-HERMIDA, petitioners, vs. PRESIDENT GLORIA
MACAPAGAL-ARROYO; and EXECUTIVE SECRETARY ALBERTO
G. ROMULO, respondents.
[G.R. No. 159196. February 3, 2004.]

TINGA, J p:
They came in the middle of the night. Armed with high-powered
ammunitions and explosives, some three hundred junior officers and
enlisted men of the Armed Forces of the Philippines (AFP) stormed
into the Oakwood Premiere apartments in Makati City in the wee
hours of July 27, 2003. Bewailing the corruption in the AFP, the
soldiers demanded, among other things, the resignation of the
President, the Secretary of Defense and the Chief of the Philippine
National Police (PNP). 1
In the wake of the Oakwood occupation, the President issued later in
the day Proclamation No. 427 and General Order No. 4, both
declaring "a state of rebellion" and calling out the Armed Forces to
suppress the rebellion. Proclamation No. 427 reads in full:
PROCLAMATION NO. 427
DECLARING A STATE OF REBELLION
WHEREAS, certain elements of the Armed Forces of the Philippines,
armed with high-powered firearms and explosives, acting upon the
instigation and command and direction of known and unknown
leaders, have seized a building in Makati City, put bombs in the area,
publicly declared withdrawal of support for, and took arms against the
duly constituted Government, and continue to rise publicly and show
open hostility, for the purpose of removing allegiance to the
Government certain bodies of the Armed Forces of the Philippines
and the Philippine National Police, and depriving the President of the
Republic of the Philippines, wholly or partially, of her powers and
prerogatives which constitute the crime of rebellion punishable under
Article 134 of the Revised Penal Code, as amended; aTCADc

85
WHEREAS, these misguided elements of the Armed Forces of the
Philippines are being supported, abetted and aided by known and
unknown leaders, conspirators and plotters in the government service
and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution,
whenever it becomes necessary, the President, as the Commanderin-Chief of the Armed Forces of the Philippines, may call out such
Armed Forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of
the powers vested in me by law, hereby confirm the existence of an
actual and on-going rebellion, compelling me to declare a state of
rebellion.
In view of the foregoing, I am issuing General Order No. 4 in
accordance with Section 18, Article VII of the Constitution, calling out
the Armed Forces of the Philippines and the Philippine National Police
to immediately carry out the necessary actions and measures to
suppress and quell the rebellion with due regard to constitutional
rights.
General Order No. 4 is similarly worded:
GENERAL ORDER NO. 4
DIRECTING THE ARMED FORCES OF THE PHILIPPINES AND THE
PHILIPPINE NATIONAL POLICE TO SUPPRESS REBELLION
WHEREAS, certain elements of the Armed Forces of the Philippines,
armed with high-powered firearms and explosives, acting upon the
instigation and command and direction of known and unknown
leaders, have seized a building in Makati City, put bombs in the area,
publicly declared withdrawal of support for, and took arms against the
duly constituted Government, and continue to rise publicly and show
open hostility, for the purpose of removing allegiance to the
Government certain bodies of the Armed Forces of the Philippines
and the Philippine National Police, and depriving the President of the
Republic of the Philippines, wholly or partially, of her powers and
prerogatives which constitute the crime of rebellion punishable under
Article 134 et seq. of the Revised Penal Code, as amended;
WHEREAS, these misguided elements of the Armed Forces of the
Philippines are being supported, abetted and aided by known and

unknown leaders, conspirators and plotters in the government service

and outside the government;
WHEREAS, under Section 18, Article VII of the present Constitution,
whenever it becomes necessary, the President, as the Commanderin-Chief of all Armed Forces of the Philippines, may call out such
Armed Forces to suppress the rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, by virtue of
the powers vested in me by the Constitution as President of the
Republic of the Philippines and Commander-in-Chief of all the armed
forces of the Philippines and pursuant to Proclamation No. 427 dated
July 27, 2003, do hereby call upon the Armed Forces of the
Philippines and the Philippine National Police to suppress and quell
the rebellion.
I hereby direct the Chief of the Armed Forces of the Philippines and
the Chief of the Philippine National Police and the officers and men of
the Armed Forces of the Philippines and the Philippine National Police
to immediately carry out the necessary and appropriate actions and
measures to suppress and quell the rebellion with due regard to
constitutional rights.
By the evening of July 27, 2003, the Oakwood occupation had ended.
After hours-long negotiations, the soldiers agreed to return to
barracks. The President, however, did not immediately lift the
declaration of a state of rebellion and did so only on August 1, 2003,
through Proclamation No. 435:
DECLARING THAT THE STATE OF REBELLION HAS CEASED TO
EXIST
WHEREAS, by virtue of Proclamation No. 427 dated July 27, 2003, a
state of rebellion was declared;
WHEREAS, by virtue of General Order No. 4 dated July 27, 2003,
which was issued on the basis of Proclamation No. 427 dated July 27,
2003, and pursuant to Article VII, Section 18 of the Constitution, the
Armed Forces of the Philippines and the Philippine National Police
were directed to suppress and quell the rebellion;
WHEREAS, the Armed Forces of the Philippines and the Philippine
National Police have effectively suppressed and quelled the rebellion.

86
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President
of the Philippines, by virtue of the powers vested in me by law, hereby
declare that the state of rebellion has ceased to exist.
In the interim, several petitions were filed before this Court
challenging the validity of Proclamation No. 427 and General Order
No. 4.
In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al.),
2 party-list organizations Sanlakas and Partido ng Manggagawa (PM),
contend that Section 18, Article VII of the Constitution does not
require the declaration of a state of rebellion to call out the armed
forces. 3 They further submit that, because of the cessation of the
Oakwood occupation, there exists no sufficient factual basis for the
proclamation by the President of a state of rebellion for an indefinite
period. 4
Petitioners in G.R. No. 159103 (SJS Officers/Members P. Hon.
Executive Secretary, et al.) are officers/members of the Social Justice
Society (SJS), "Filipino citizens, taxpayers, law professors and bar
reviewers." 5 Like Sanlakas and PM, they claim that Section 18,
Article VII of the Constitution does not authorize the declaration of a
state of rebellion. 6 They contend that the declaration is a
"constitutional anomaly" that "confuses, confounds and misleads"
because "[o]verzealous public officers, acting pursuant to such
proclamation or general order, are liable to violate the constitutional
right of private citizens." 7 Petitioners also submit that the
proclamation is a circumvention of the report requirement under the
same Section 18, Article VII, commanding the President to submit a
report to Congress within 48 hours from the proclamation of martial
law. 8 Finally, they contend that the presidential issuances cannot be
construed as an exercise of emergency powers as Congress has not
delegated any such power to the President. 9
In G.R. No. 159185 (Rep. Suplico et al. v. President MacapagalArroyo and Executive Secretary Romulo), petitioners brought suit as
citizens and as Members of the House of Representatives whose
rights, powers and functions were allegedly affected by the
declaration of a state of rebellion. 10 Petitioners do not challenge the
power of the President to call out the Armed Forces. 11 They argue,
however, that the declaration of a state of rebellion is a "superfluity,"
and is actually an exercise of emergency powers. 12 Such exercise, it

is contended, amounts to a usurpation of the power of Congress

granted by Section 23 (2), Article VI of the Constitution. 13
In G.R. No. 159196 (Pimentel v. Romulo, et al.), petitioner Senator
assails the subject presidential issuances as "an unwarranted, illegal
and abusive exercise of a martial law power that has no basis under
the Constitution." 14 In the main, petitioner fears that the declaration
of a state of rebellion "opens the door to the unconstitutional
implementation of warrantless arrests" for the crime of rebellion. 15
Required to comment, the Solicitor General argues that the petitions
have been rendered moot by the lifting of the declaration. 16 In
addition, the Solicitor General questions the standing of the petitioners
to bring suit. 17
The Court agrees with the Solicitor General that the issuance of
Proclamation No. 435, declaring that the state of rebellion has ceased
to exist, has rendered the case moot. As a rule, courts do not
adjudicate moot cases, judicial power being limited to the
determination of "actual controversies." 18 Nevertheless, courts will
decide a question, otherwise moot, if it is "capable of repetition yet
evading review." 19 The case at bar is one such case.
Once before, the President on May 1, 2001 declared a state of
rebellion and called upon the AFP and the PNP to suppress the
rebellion through Proclamation No. 38 and General Order No. 1. On
that occasion, "an angry and violent mob armed with explosives,
firearms, bladed weapons, clubs, stones and other deadly weapons'
assaulted and attempted to break into Malacaang." 20 Petitions were
filed before this Court assailing the validity of the President's
declaration. Five days after such declaration, however, the President
lifted the same. The mootness of the petitions in Lacson v. Perez and
accompanying cases 21 precluded this Court from addressing the
constitutionality of the declaration.
To prevent similar questions from reemerging, we seize this
opportunity to finally lay to rest the validity of the declaration of a state
of rebellion in the exercise of the President's calling out power, the
mootness of the petitions notwithstanding.
Only petitioners Rep. Suplico et al. and Sen. Pimentel, as Members of
Congress, have standing to challenge the subject issuances. In

87
Philippine Constitution Association v. Enriquez, 22 this Court
recognized that:

mobilize public opinion to support the same. 24 [Emphasis in the

original.]

To the extent the powers of Congress are impaired, so is the power of

each member thereof, since his office confers a right to participate in
the exercise of the powers of that institution.

Petitioner party-list organizations claim no better right than the Laban

ng Demokratikong Pilipino, whose standing this Court rejected in
Lacson v. Perez.

An act of the Executive which injures the institution of Congress

causes a derivative but nonetheless substantial injury, which can be
questioned by a member of Congress. In such a case, any member of
Congress can have a resort to the courts.

. . . petitioner has not demonstrated any injury to itself which would

justify the resort to the Court. Petitioner is a juridical person not
subject to arrest. Thus, it cannot claim to be threatened by a
warrantless arrest. Nor is it alleged that the leaders, members, and
supporters are being threatened with warrantless arrest and detention
for the crime of rebellion. Every action must be brought in the name of
the party whose legal rights has been invaded or infringed, or whose
legal right is under imminent threat of invasion or infringement.

Petitioner Members of Congress claim that the declaration of a state

of rebellion by the President is tantamount to an exercise of Congress'
emergency powers, thus impairing the lawmakers' legislative powers.
Petitioners also maintain that the declaration is a subterfuge to avoid
congressional scrutiny into the President's exercise of martial law
powers.
Petitioners Sanlakas and PM, and SJS Officers/Members, have no
legal standing or locus standi to bring suit. "Legal standing" or locus
standi has been defined as a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged. . . . The gist of
the question of standing is whether a party alleges "such personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which
the court depends for illumination of difficult constitutional questions."
23
Petitioners Sanlakas and PM assert that:
2.
As a basic principle of the organizations and as an important
plank in their programs, petitioners are committed to assert, defend,
protect, uphold, and promote the rights, interests, and welfare of the
people, especially the poor and marginalized classes and sectors of
Philippine society. Petitioners are committed to defend and assert
human rights, including political and civil rights, of the citizens.
3.
Members of the petitioner organizations resort to mass actions
and mobilizations in the exercise of their Constitutional rights to
peaceably assemble and their freedom of speech and of expression
under Section 4, Article III of the 1987 Constitution, as a vehicle to
publicly ventilate their grievances and legitimate demands and to

At best, the instant petition may be considered as an action for

declaratory relief, petitioner claiming that it[']s right to freedom of
expression and freedom of assembly is affected by the declaration of
a "state of rebellion" and that said proclamation is invalid for being
contrary to the Constitution.
However, to consider the petition as one for declaratory relief affords
little comfort to petitioner, this Court not having jurisdiction in the first
instance over such a petition. Section 5 [1], Article VIII of the
Constitution limits the original jurisdiction of the court to cases
affecting ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo warranto, and
habeas corpus. 25
Even assuming that petitioners are "people's organizations," this
status would not vest them with the requisite personality to question
the validity of the presidential issuances, as this Court made clear in
Kilosbayan v. Morato: 26
The Constitution provides that "the State shall respect the role of
independent people's organizations to enable the people to pursue
and protect, within the democratic framework, their legitimate and
collective interests and aspirations through peaceful and lawful
means," that their right to "effective and reasonable participation at all
levels of social, political, and economic decision-making shall not be
abridged." (Art. XIII, 1516)

88
These provisions have not changed the traditional rule that only real
parties in interest or those with standing, as the case may be, may
invoke the judicial power. The jurisdiction of this Court, even in cases
involving constitutional questions, is limited by the "case and
controversy" requirement of Art. VIII, 5. This requirement lies at the
very heart of the judicial function. It is what differentiates decisionmaking in the courts from decision-making in the political departments
of the government and bars the bringing of suits by just any party. 27
That petitioner SJS officers/members are taxpayers and citizens does
not necessarily endow them with standing. A taxpayer may bring suit
where the act complained of directly involves the illegal disbursement
of public funds derived from taxation. 28 No such illegal disbursement
is alleged.
On the other hand, a citizen will be allowed to raise a constitutional
question only when he can show that he has personally suffered
some actual or threatened injury as a result of the allegedly illegal
conduct of the government; the injury is fairly traceable to the
challenged action; and the injury is likely to be redressed by a
favorable action. 29 Again, no such injury is alleged in this case.
Even granting these petitioners have standing on the ground that the
issues they raise are of transcendental importance, the petitions must
fail.
It is true that for the purpose of exercising the calling out power the
Constitution does not require the President to make a declaration of a
state of rebellion. Section 18, Article VII provides:
Sec. 18.
The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes necessary,
he may call out such armed forces to prevent or suppress lawless
violence, invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the
writ of habeas corpus, the President shall submit a report in person or
in writing to the Congress. The Congress, voting jointly, by a vote of at
least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not
be set aside by the President. Upon the initiative of the President, the

Congress may, in the same manner, extend such proclamation or

suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis for the proclamation of
martial law or the suspension of the privilege of the writ of habeas
corpus or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of the jurisdiction
on military courts and agencies over civilians where civil courts are
able to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released. [Emphasis supplied.]
The above provision grants the President, as Commander-in-Chief, a
"sequence" of "graduated power[s]." 30 From the most to the least
benign, these are: the calling out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to declare
martial law. In the exercise of the latter two powers, the Constitution
requires the concurrence of two conditions, namely, an actual invasion
or rebellion, and that public safety requires the exercise of such
power. 31 However, as we observed in Integrated Bar of the
Philippines v. Zamora, 32 "[t]hese conditions are not required in the
exercise of the calling out power. The only criterion is that 'whenever it
becomes necessary,' the President may call the armed forces 'to
prevent or suppress lawless violence, invasion or rebellion.'"
Nevertheless, it is equally true that Section 18, Article VII does not
expressly prohibit the President from declaring a state of rebellion.
Note that the Constitution vests the President not only with

89
Commander-in-Chief powers but, first and foremost, with Executive
powers.
Section 1, Article VII of the 1987 Philippine Constitution states: "The
executive power shall be vested in the President. . . ." As if by
exposition, Section 17 of the same Article provides: "He shall ensure
that the laws be faithfully executed." The provisions trace their history
to the Constitution of the United States.
The specific provisions of the U.S. Constitution granting the U.S.
President executive and commander-in-chief powers have remained
in their original simple form since the Philadelphia Constitution of
1776, Article II of which states in part:
Section 1.1. The Executive Power shall be vested in a President of
the United States of America . . . .
xxx

xxx

xxx

Section 2.1. The President shall be Commander in Chief of the

Army and Navy of the United States. . . .
xxx

xxx

xxx

Section 3.
. . . he shall take care that the laws be faithfully
executed. . . . [Article II Executive Power]
Recalling in historical vignettes the use by the U.S. President of the
above-quoted provisions, as juxtaposed against the corresponding
action of the U.S. Supreme Court, is instructive. Clad with the
prerogatives of the office and endowed with sovereign powers, which
are drawn chiefly from the Executive Power and Commander-in-Chief
provisions, as well as the presidential oath of office, the President
serves as Chief of State or Chief of Government, Commander-inChief, Chief of Foreign Relations and Chief of Public Opinion. 33
First to find definitive new piers for the authority of the Chief of State,
as the protector of the people, was President Andrew Jackson.
Coming to office by virtue of a political revolution, Jackson, as
President not only kept faith with the people by driving the patricians
from power. Old Hickory, as he was fondly called, was the first
President to champion the indissolubility of the Union by defeating
South Carolina's nullification effort. 34

The Federal Tariff Acts of 1828 and 1832 that Congress enacted did
not pacify the hotspurs from South Carolina. Its State Legislature
ordered an election for a convention, whose members quickly passed
an Ordinance of Nullification. The Ordinance declared the Tariff Acts
unconstitutional, prohibited South Carolina citizens from obeying them
after a certain date in 1833, and threatened secession if the Federal
Government sought to oppose the tariff laws. The Legislature then
implemented the Ordinance with bristling punitive laws aimed at any
who sought to pay or collect customs duties. 35
Jackson bided his time. His task of enforcement would not be easy.
Technically, the President might send troops into a State only if the
Governor called for help to suppress an insurrection, which would not
occur in the instance. The President could also send troops to see to
it that the laws enacted by Congress were faithfully executed. But
these laws were aimed at individual citizens, and provided no
enforcement machinery against violation by a State. Jackson
prepared to ask Congress for a force bill. 36
In a letter to a friend, the President gave the essence of his position.
He wrote: ". . . when a faction in a State attempts to nullify a
constitutional law of Congress, or to destroy the Union, the balance of
the people composing this Union have a perfect right to coerce them
to obedience." Then in a Proclamation he issued on December 10,
1832, he called upon South Carolinians to realize that there could be
no peaceable interference with the execution of the laws, and dared
them, "disunion by armed force is treason. Are you ready to incur its
guilt?" 37
The Proclamation frightened nullifiers, non-nullifiers and tight-rope
walkers. Soon, State Legislatures began to adopt resolutions of
agreement, and the President announced that the national voice from
Maine on the north to Louisiana on the south had declared nullification
and accession "confined to contempt and infamy." 38
No other President entered office faced with problems so formidable,
and enfeebled by personal and political handicaps so daunting, as
Abraham Lincoln.
Lincoln believed the President's power broad and that of Congress
explicit and restricted, and sought some source of executive power
not failed by misuse or wrecked by sabotage. He seized upon the
President's designation by the Constitution as Commander-in-Chief,

90
coupled it to the executive power provision and joined them as "the
war power" which authorized him to do many things beyond the
competence of Congress. 39

that it is beyond its province to inquire into the exercise of the power.
45 Later, the grant of the power was incorporated in the 1935
Constitution. 46

Lincoln embraced the Jackson concept of the President's independent

power and duty under his oath directly to represent and protect the
people. In his Message of July 4, 1861, Lincoln declared that "the
Executive found the duty of employing the war power in defense of
the government forced upon him. He could not but perform the duty or
surrender the existence of the Government . . . ." This concept began
as a transition device, to be validated by Congress when it
assembled. In less than two-years, it grew into an independent power
under which he felt authorized to suspend the privilege of the writ of
habeas corpus, issue the Emancipation Proclamation, and restore
reoccupied States. 40

Elected in 1884, Grover Cleveland took his ascent to the presidency

to mean that it made him the trustee of all the people. Guided by the
maxim that "Public office is a public trust," which he practiced during
his incumbency, Cleveland sent federal troops to Illinois to quell
striking railway workers who defied a court injunction. The injunction
banned all picketing and distribution of handbills. For leading the
strikes and violating the injunction, Debs, who was the union
president, was convicted of contempt of court. Brought to the
Supreme Court, the principal issue was by what authority of the
Constitution or statute had the President to send troops without the
request of the Governor of the State. 47

Lincoln's Proclamation of April 15, 1861, called for 75,000 troops.

Their first service, according to the proclamation, would be to
recapture forts, places and property, taking care "to avoid any
devastation, any destruction of or interference with property, or any
disturbance of peaceful citizens." 41

In In Re: Eugene Debs, et a1, 48 the Supreme Court upheld the

contempt conviction. It ruled that it is not the government's province to
mix in merely individual present controversies. Still, so it went on,
"whenever wrongs complained of are such as affect the public at
large, and are in respect of matters which by the Constitution are
entrusted to the care of the Nation and concerning which the Nation
owes the duty to all citizens of securing to them their common rights,
then the mere fact that the Government has no pecuniary interest in
the controversy is not sufficient to exclude it from the Courts, or
prevent it from taking measures therein to fully discharge those
constitutional duties." 49 Thus, Cleveland's course had the Court's
attest.

Early in 1863, the U.S. Supreme Court approved President Lincoln's

report to use the war powers without the benefit of Congress. The
decision was handed in the celebrated Prize Cases 42 which involved
suits attacking the President's right to legally institute a blockade.
Although his Proclamation was subsequently validated by Congress,
the claimants contended that under international law, a blockade
could be instituted only as a measure of war under the sovereign
power of the State. Since under the Constitution only Congress is
exclusively empowered to declare war, it is only that body that could
impose a blockade and all prizes seized before the legislative
declaration were illegal. By a 5 to 4 vote, the Supreme Court upheld
Lincoln's right to act as he had. 43
In the course of time, the U.S. President's power to call out armed
forces and suspend the privilege of the writ of habeas corpus without
prior legislative approval, in case of invasion, insurrection, or rebellion
came to be recognized and accepted. The United States introduced
the expanded presidential powers in the Philippines through the
Philippine Bill of 1902. 44 The use of the power was put to judicial test
and this Court held that the case raised a political question and said

Taking off from President Cleveland, President Theodore Roosevelt

launched what political scientists dub the "stewardship theory." Calling
himself "the steward of the people," he felt that the executive power
"was limited only by the specific restrictions and prohibitions
appearing in the Constitution, or impleaded by Congress under its
constitutional powers." 50
The most far-reaching extension of presidential power "T.R." ever
undertook to employ was his plan to occupy and operate
Pennsylvania's coal mines under his authority as Commander-inChief. In the issue, he found means other than force to end the 1902
hard-coal strike, but he had made detailed plans to use his power as

91
Commander-in-Chief to wrest the mines from the stubborn operators,
so that coal production would begin again. 51
Eventually, the power of the State to intervene in and even take over
the operation of vital utilities in the public interest was accepted. In the
Philippines, this led to the incorporation of Section 6, 52 Article XIII of
the 1935 Constitution, which was later carried over with modifications
in Section 7, 53 Article XIV of the 1973 Constitution, and thereafter in
Section 18, 54 Article XII of the 1987 Constitution.
The lesson to be learned from the U.S. constitutional history is that
the Commander-in-Chief powers are broad enough as it is and
become more so when taken together with the provision on executive
power and the presidential oath of office. Thus, the plenitude of the
powers of the presidency equips the occupant with the means to
address exigencies or threats which undermine the very existence of
government or the integrity of the State.
In The Philippine Presidency A Study of Executive Power, the late
Mme. Justice Irene R. Cortes, proposed that the Philippine President
was vested with residual power and that this is even greater than that
of the U.S. President. She attributed this distinction to the "unitary and
highly centralized" nature of the Philippine government. She noted
that, "There is no counterpart of the several states of the American
union which have reserved powers under the United States
constitution." Elaborating on the constitutional basis for her argument,
she wrote:
. . . The [1935] Philippine [C]onstitution establishes the three
departments of the government in this manner: "The legislative power
shall be vested in a Congress of the Philippines which shall consist of
a Senate and a House of Representatives." "The executive power
shall be vested in a President of the Philippines." The judicial powers
shall be vested in one Supreme Court and in such inferior courts as
may be provided by law." These provisions not only establish a
separation of powers by actual division but also confer plenary
legislative, executive, and judicial powers. For as the Supreme Court
of the Philippines pointed out in Ocampo v. Cabangis, "a grant of
legislative power means a grant of all the legislative power; and a
grant of the judicial power means a grant of all the judicial power
which may be exercised under the government." If this is true of the
legislative power which is exercised by two chambers with a

combined membership [at that time] of more than 120 and of the
judicial power which is vested in a hierarchy of courts, it can equally if
not more appropriately apply to the executive power which is vested in
one official the president. He personifies the executive branch.
There is a unity in the executive branch absent from the two other
branches of government. The president is not the chief of many
executives. He is the executive. His direction of the executive branch
can be more immediate and direct than the United States president
because he is given by express provision of the constitution control
over all executive departments, bureaus and offices. 55
The esteemed justice conducted her study against the backdrop of
the 1935 Constitution, the framers of which, early on, arrived at a
general opinion in favor of a strong Executive in the Philippines." 56
Since then, reeling from the aftermath of martial law, our most recent
Charter has restricted the President's powers as Commander-inChief. The same, however, cannot be said of the President's powers
as Chief Executive.
In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis
into jurisprudence. There, the Court, by a slim 8-7 margin, upheld the
President's power to forbid the return of her exiled predecessor. The
rationale for the majority's ruling rested on the President's
. . . unstated residual powers which are implied from the grant of
executive power and which are necessary for her to comply with her
duties under the Constitution. The powers of the President are not
limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the Constitution.
This is so, notwithstanding the avowed intent of the members of the
Constitutional Commission of 1986 to limit the powers of the President
as a reaction to the abuses under the regime of Mr. Marcos, for the
result was a limitation of specific powers of the President, particularly
those relating to the commander-in-chief clause, but not a diminution
of the general grant of executive power. 57 [Emphasis supplied. Italics
in the original.]
Thus, the President's authority to declare a state of rebellion springs
in the main from her powers as chief executive and, at the same time,
draws strength from her Commander-in-Chief powers. Indeed, as the
Solicitor General accurately points out, statutory authority for such a
declaration may be found in Section 4, Chapter 2 (Ordinance Power),

92
Book III (Office of the President) of the Revised Administrative Code
of 1987, which states:

President has declared a state of rebellion, so long as the requisites

for a valid warrantless arrest are present.

SEC. 4.
Proclamations. Acts of the President fixing a date or
declaring a status or condition of public moment or interest, upon the
existence of which the operation of a specific law or regulation is
made to depend, shall be promulgated in proclamations which shall
have the force of an executive order. [Emphasis supplied.]

It is not disputed that the President has full discretionary power to call
out the armed forces and to determine the necessity for the exercise
of such power. While the Court may examine whether the power was
exercised within constitutional limits or in a manner constituting grave
abuse of discretion, none of the petitioners here have, by way of
proof, supported their assertion that the President acted without
factual basis. 65

The foregoing discussion notwithstanding, in calling out the armed

forces, a declaration of a state of rebellion is an utter superfluity. 58 At
most, it only gives notice to the nation that such a state exists and that
the armed forces may be called to prevent or suppress it. 59 Perhaps
the declaration may wreak emotional effects upon the perceived
enemies of the State, even on the entire nation. But this Court's
mandate is to probe only into the legal consequences of the
declaration. This Court finds that such a declaration is devoid of any
legal significance. For all legal intents, the declaration is deemed not
written.
Should there be any "confusion" generated by the issuance of
Proclamation No. 427 and General Order No. 4, we clarify that, as the
dissenters in Lacson correctly pointed out, the mere declaration of a
state of rebellion cannot diminish or violate constitutionally protected
rights. 60 Indeed, if a state of martial law does not suspend the
operation of the Constitution or automatically suspend the privilege of
the writ of habeas corpus, 61 then it is with more reason that a simple
declaration of a state of rebellion could not bring about these
conditions. 62 At any rate, the presidential issuances themselves call
for the suppression of the rebellion "with due regard to constitutional
rights."
For the same reasons, apprehensions that the military and police
authorities may resort to warrantless arrests are likewise unfounded.
In Lacson vs. Perez, supra, majority of the Court held that "[i]n
quelling or suppressing the rebellion, the authorities may only resort to
warrantless arrests of persons suspected of rebellion, as provided
under Section 5, Rule 113 of the Rules of Court, 63 if the
circumstances so warrant. The warrantless arrest feared by
petitioners is, thus, not based on the declaration of a 'state of
rebellion.'" 64 In other words, a person may be subjected to a
warrantless arrest for the crime of rebellion whether or not the

The argument that the declaration of a state of rebellion amounts to a

declaration of martial law and, therefore, is a circumvention of the
report requirement, is a leap of logic. There is no indication that
military tribunals have replaced civil courts in the "theater of war" or
that military authorities have taken over the functions of civil
government. There is no allegation of curtailment of civil or political
rights. There is no indication that the President has exercised judicial
and legislative powers. In short, there is no illustration that the
President has attempted to exercise or has exercised martial law
powers.
Nor by any stretch of the imagination can the declaration constitute an
indirect exercise of emergency powers, which exercise depends upon
a grant of Congress pursuant to Section 23 (2), Article VI of the
Constitution:
Sec. 23.

(1) . . . .

(2)
In times of war or other national emergency, the Congress
may, by law, authorize the President, for a limited period and subject
to such restrictions as it may prescribe, to exercise powers necessary
and proper to carry out a declared national policy. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease
upon the next adjournment thereof.
The petitions do not cite a specific instance where the President has
attempted to or has exercised powers beyond her powers as Chief
Executive or as Commander-in-Chief. The President, in declaring a
state of rebellion and in calling out the armed forces, was merely
exercising a wedding of her Chief Executive and Commander-in-Chief
powers. These are purely executive powers, vested on the President

93
by Sections 1 and 18, Article VII, as opposed to the delegated
legislative powers contemplated by Section 23 (2), Article VI.
WHEREFORE, the petitions are hereby DISMISSED.
SO ORDERED.
Davide, Jr., C .J ., Carpio, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr. and Tinga, JJ ., concur.
Vitug, Panganiban, Quisumbing and Ynares-Santiago, JJ ., see
separate opinion.
Puno, J ., concurs in the result.
Sandoval-Gutierrez, J ., see dissenting opinion.
Azcuna, J ., is on official leave.
Separate Opinions
VITUG, J.:
I am in complete agreement, eloquently expressed in the ponencia,
that a "declaration of a state of rebellion is an utter superfluity," which,
at most, merely gives notice "that such a state exists and that the
armed forces may be called to prevent or suppress it." I also agree
that the declaration of a state of rebellion does not diminish
constitutionally protected rights.

questioned issuances, however, were subsequently lifted by her on

August 1, 2003, when she issued Proclamation No. 435. Hence, as of
today, there is no more extant proclamation or order that can be
declared valid or void.
For this reason, I believe that the Petitions should be dismissed on the
ground of mootness.
The judicial power to declare a law or an executive order
unconstitutional, according to Justice Jose P. Laurel, is "limited to
actual cases and controversies to be exercised after full opportunity of
argument by the parties, and limited further to the constitutional
question raised or the very lis mota presented." 1 Following this longheld principle, the Court has thus always been guided by these
fourfold requisites in deciding constitutional law issues 1) there must
be an actual case or controversy involving a conflict of rights
susceptible of judicial determination; 2) the constitutional question
must be raised by a proper party; 3) the constitutional question must
be raised at the earliest opportunity; and 4) adjudication of the
constitutional question must be indispensable to the resolution of the
case. 2
Unquestionably, the first and the fourth requirements are absent in the
present case.
Absence of Case and Controversy

I find it necessary to emphasize, however, that while this Court

considers the proclamation of the state of rebellion as being
essentially devoid of any legal significance, it is not, however, to be
understood as countenancing the commission of acts ostensibly in
pursuance thereof but which may, in themselves, be violative of
fundamental rights. Indeed, the warrantless arrests and searches, to
which my colleague Mme. Justice Ynares-Santiago made reference in
her dissenting opinion, may not necessarily find justification in the
bare proclamation.

The first requirement, the existence of a live case or controversy,

means that an existing litigation is ripe for resolution and susceptible
of judicial determination; as opposed to one that is conjectural or
anticipatory, 3 hypothetical or feigned. 4 A justiciable controversy
involves a definite and concrete dispute touching on the legal relations
of parties having adverse legal interests. 5 Hence, it admits of specific
relief through a decree that is conclusive in character, in contrast to an
opinion which only advises what the law would be upon a hypothetical
state of facts. 6

I vote for the dismissal of the petitions.

As a rule, courts have no authority to pass upon issues through

advisory opinions or friendly suits between parties without real
adverse interests. 7 Neither do courts sit to adjudicate academic
questions no matter how intellectually challenging 8 because
without a justiciable controversy, an adjudication would be of no
practical use or value. 9

PANGANIBAN, J.:
Petitioners challenge the constitutionality of the "state of rebellion"
declared by the President through Proclamation No. 427 and General
Order No. 4 in the wake of the so-called "Oakwood Incident." The

94
While the Petitions herein have previously embodied a live case or
controversy, they now have been rendered extinct by the lifting of the
questioned issuances. Thus, nothing is gained by breathing life into a
dead issue.
Moreover, without a justiciable controversy, the Petitions 10 have
become pleas for declaratory relief, over which the Supreme Court
has no original jurisdiction. Be it remembered that they were filed
directly with this Court and thus invoked its original jurisdiction. 11
On the theory that the "state of rebellion" issue is "capable of
repetition yet evading review," I respectfully submit that the question
may indeed still be resolved even after the lifting of the Proclamation
and Order, provided the party raising it in a proper case has been
and/or continue to be prejudiced or damaged as a direct result of their
issuance.
In the present case, petitioners have not shown that they have been
or continue to be directly and pecuniarily prejudiced or damaged by
the Proclamation and Order. Neither have they shown that this Court
has original jurisdiction over petitions for declaratory relief. I would
venture to say that, perhaps, if this controversy had emanated from an
appealed judgment from a lower tribunal, then this Court may still
pass upon the issue on the theory that it is "capable of repetition yet
evading review," and the case would not be an original action for
declaratory relief.
In short, the theory of "capable of repetition yet evading review" may
be invoked only when this Court has jurisdiction over the subject
matter. It cannot be used in the present controversy for declaratory
relief, over which the Court has no original jurisdiction.
The Resolution of the Case on Other Grounds
The fourth requisite, which relates to the absolute necessity of
deciding the constitutional issue, means that the Court has no other
way of resolving the case except by tackling an unavoidable
constitutional question. It is a well-settled doctrine that courts will not
pass upon a constitutional question unless it is the lis mota of the
case, or if the case can be disposed on some other grounds. 12
With due respect, I submit that the mootness of the Petitions has
swept aside the necessity of ruling on the validity of Proclamation No.
427 and General Order No. 4. In the wake of its mootness, the

constitutionality issue has ceased to be the lis mota of the case or to

be an unavoidable question in the resolution thereof. Hence, the
dismissal of the Petitions for mootness is justified. 13
WHEREFORE, I vote to DISMISS the Petitions. On the
constitutionality of a "state of rebellion," I reserved my judgment at the
proper time and in the proper case.
YNARES-SANTIAGO, J.:
The fundamental issue in the petitions is the legality of Proclamation
No. 427 issued by the President on July 27, 2003 declaring a "state of
rebellion".
The majority affirmed the declaration is legal because the President
was only exercising a wedding of the "Chief Executive" and
"Commander-in-Chief powers. U.S. jurisprudence and commentators
are cited discussing the awesome powers exercised by the U.S.
President during moments of crisis 1 and that these powers are also
available to the Philippine President. 2 Although the limits cannot be
precisely defined, the majority concluded that there are enough
"residual powers" to serve as the basis to support the Presidential
declaration of a "state of rebellion". 3 The majority, however,
emphasized that the declaration cannot diminish or violate
constitutionally protected rights. 4 They affirmed the legality of
warrantless arrests of persons who participated in the rebellion, if
circumstances so warrant 5 with this clarification: "[i]n other words, a
person may be subjected to a warrantless arrest for the crime of
rebellion whether or not the President has declared a state of
rebellion, so long as the requisites for a valid warrantless arrest are
present." 6
If the requisites for a warrantless arrest must still be present for an
arrest to be made, then the declaration is a superfluity. I therefore
shudder when a blanket affirmation is given to the President to issue
declarations of a "state of rebellion" which in fact may not be the truth
or which may be in effect even after the rebellion has ended.
Proclamation No. 427 was issued at 1:00 p.m. on July 27, 2003, at the
height of the occupation of the Oakwood Premier Apartments in Ayala
Center, Makati City, by 323 junior officers and enlisted men (Oakwood
Incident), 7 which began in the early morning of July 27, 2003. 8
Shortly after, the President issued General Order No. 4, ordering the

95
Armed Forces of the Philippines and the Philippine National Police to
use reasonable force, and pay due regard to constitutional rights, in
putting down the rebellion. 9 The Oakwood, incident ended peacefully
that same evening when the militant soldiers surrendered after
negotiations.
From July 27 to August 1, 2003, "search and recovery" operations
were conducted. Throughout the Oakwood Incident, searches were
conducted in the non-occupied areas, 10 and, with the recovery of
evidence, staging points for the Oakwood Incident were found in
Cavite, Makati and Mandaluyong. 11 After the soldiers left at around
11:00 in the evening of July 27, a search was conducted around the
Oakwood premises. 12 These searches expanded in scope on the
basis of recovered evidence. 13
Ramon Cardenas, Assistant Executive Secretary in the previous
administration, was arrested, presented to the media in handcuffs and
brought for inquest proceedings before the Department of Justice
("DOJ") in the morning of July 28. 14 He was initially detained at the
Office of the Anti-Organized Crime Division of the Criminal
Investigation and Detection Group ("CIDG"), and brought to the DOJ
in the afternoon of July 28. 15 Cardenas was later charged with the
crime of rebellion, 16 but as of this writing has been allowed bail.
On July 31, 2003, 4 days after the militant group had surrendered
peacefully, an official spokesperson from the DOJ declared that the
President's "indefinite" imposition of the "state of rebellion" would
make "warrantless arrests" a valid exercise of executive power.
The Court can take judicial notice that the police authorities were
releasing to media "evidence found" purporting to link personalities in
the political opposition, the most prominent of whom was Senator
Gringo Honasan. Even Senator Loi Ejercito and Mayor JV Ejercito's
names were being linked to the attempted uprising.
On August 1, 2003, the President issued Proclamation No. 435,
declaring that the Armed Forces of the Philippines and the Philippine
National Police had effectively suppressed and quelled the rebellion,
and, accordingly, that the "state of rebellion" had ceased on that date.
The majority discussed only the abstract nature of the powers
exercised by the Chief Executive, without considering if there was
sufficient factual basis for the President's declaration of a "state of

rebellion" and when it ended. In taking this position, the majority is

returning, if not expanding, the doctrine enunciated in Garcia-Padilla
v. Enrile, 17 which overturned the landmark doctrine in Lansang v.
Garcia. 18 In Lansang, the Supreme Court upheld its authority to
inquire into the factual bases for the suspension of the privilege of the
writ of habeas corpus, and held that this inquiry raises a judicial rather
than a political question. In Garcia-Padilla, on the other hand, the
ponencia held that Lansang was no longer authoritative, and that the
President's decision to suspend the privilege is final and conclusive
upon the courts and all other persons.
These two cases were decided prior to the 1987 Constitution, which
requires this Court not only to settle actual controversies involving
rights which are legally demandable and enforceable, but also to
determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. 19 This provision in the 1987
Constitution was precisely meant to check abuses of executive power.
Martial Law was still fresh in the minds of the delegates in 1987!
The majority ignored the fact that the "state of rebellion" declared by
the President was in effect five days after the peaceful surrender of
the militant group.
The President's proclamation cites Section 18, Article VII of the
Constitution as the basis for the declaration of the "state of rebellion".
Section 18 authorizes the President, as Commander-in-Chief, to call
out the Armed Forces, in order to suppress one of three conditions:
(1) lawless violence, (2) rebellion or (3) invasion. 20 In the latter two
cases, i.e., rebellion or invasion, the President may, when public
safety requires, also (1) suspend the privilege of the writ of habeas
corpus, or (2) place the Philippines or any part thereof under martial
law.
The majority made it clear that exercise of the President's
Commander-in-Chief powers does not require the declaration of a
"state of rebellion" or a declaration of a "state of lawless violence" or a
"state of invasion". When any of these conditions exist, the President
may call out the armed forces to suppress the danger.

96
Thus, the declaration of a "state of rebellion" does not have any legal
meaning or consequence. This declaration does not give the
President any extra powers. It does not have any good purpose.
If the declaration is used to justify warrantless arrests even after the
rebellion has ended, as in the case of Cardenas, such declaration or,
at the least, the warrantless arrest, must be struck down.
Clearly defined in Article 134 of the Revised Penal Code is the crime
of rebellion or insurrection, to wit:
ART. 134.
Rebellion or insurrection How committed. The
crime of rebellion or insurrection is committed by rising publicly and
taking up arms against the Government for the purpose of removing
from the allegiance to said Government or its laws, the territory of the
Republic of the Philippines or any part thereof, of any body of land,
naval or other armed forces, or depriving the Chief Executive or the
legislature, wholly or partially, of any of their powers or prerogatives.
On the other hand, a coup d'etat is defined as follows:
ART. 134-A. Coup d'etat. How committed. The crime of coup
d'etat is a swift attack accompanied by violence, intimidation, threat,
strategy or stealth, directed against the duly constituted authorities of
the Republic of the Philippines, or any military camp or installation,
communications networks, public utilities or other facilities needed for
the exercise and continued possession of power, singly or
simultaneously carried out anywhere in the Philippines by any person
or persons, belonging to the military or police or holding any public
office or employment, with or without civilian support or participation,
for the purpose of seizing or diminishing state power.
Under these provisions, the crime of rebellion or insurrection is
committed only by "rising publicly or taking up arms against the
Government". A coup d'etat, on the other hand, takes place only when
there is a "swift attack accompanied by violence." Once the act of
"rising publicly and taking up arms against the Government" ceases,
the commission of the crime of rebellion ceases. Similarly, when the
"swift attack" ceases, the crime of coup d'etat is no longer being
committed. DCASEc
Rebellion has been held to be a continuing crime, 21 and the
authorities may resort to warrantless arrests of persons suspected of
rebellion, as provided under Section 5, Rule 113 of the Rules of Court.

22 However, this doctrine should be applied to its proper context

i.e., relating to subversive armed organizations, such as the New
People's Army, the avowed purpose of which is the armed overthrow
of the organized and established government. Only in such instance
should rebellion be considered a continuing crime.
When the soldiers surrendered peacefully in the evening of July 27,
the rebellion or the coup d'etat ended. The President, however, did not
lift the declaration of the "state of rebellion" until 5 days later, on
August 1, 2003.
After the peaceful surrender, no person suspected of having
conspired with the soldiers or participated in the Oakwood incident
could be arrested without a warrant of arrest. Section 5, Rule 113 of
the Revised Rules of Court, which governs arrest without warrant,
provides as follows:
SEC. 5.
Arrest without warrant; when lawful. A peace officer
or a private person may, without a warrant, arrest a person:
(a)
When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an
offense;
(b)
When an offense has just been committed and he has
probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
xxx

xxx

xxx

In cases falling under paragraphs (a) and (b) above, the person
arrested without a warrant shall be forthwith delivered to the nearest
police station or jail and shall be proceeded against in accordance
with section 7 of Rule 112.
Rule 113, Section 5, pars. (a) and (b) of the Rules of Court are
exceptions to the due process clause in the Constitution. Section 5,
par. (a) relates to a situation where a crime is committed or attempted
in the presence of the arresting officer.
Section 5, par. (b), on the other hand, presents the requirement of
"personal knowledge", on the part of the arresting officer, of facts
indicating that an offense had "just been committed", and that the
person to be arrested had committed that offense.

97
After the peaceful surrender of the soldiers on July 27, 2003, there
was no crime that was being "attempted", "being committed", or "had
just been committed." There should, therefore, be no occasion to
effect a valid warrant less arrest in connection with the Oakwood
Incident.
The purpose of the declaration and its duration as far as the
overeager authorities were concerned was only to give legal cover to
effect warrantless arrests even if the "state of rebellion" or the
instances stated in Rule 113, Section 5 of the Rules are absent or no
longer exist.
Our history has shown the dangers when too much power is
concentrated in the hands of one person. Unless specifically defined,
it is risky to concede and acknowledge the "residual powers" to justify
the validity of the presidential issuances. This can serve as a blank
check for other issuances and open the door to abuses. The majority
cite the exercise of strong executive powers by U.S. President Andrew
Jackson. Was it not President Jackson who is said to have cynically
defied the U.S. Supreme Court's ruling (under Chief Justice Marshall)
against the forcible removal of the American Indians from the tribal
lands by saying: "The Chief Justice has issued his Decision, now let
him try to enforce it?" Others quote Madison as having gone further
with: "With what army will the Chief Justice enforce his Decision?"
WHEREFORE, I vote for Proclamation No. 427 and General Order
No. 4, issued on July 27, 2003 by Respondent President Gloria
Macapagal-Arroyo, to be declared NULL and VOID for having been
issued with grave abuse of discretion amounting to lack of jurisdiction.
All other orders issued and action taken based on those issuances,
especially after the Oakwood incident ended in the evening of July 27,
2003, e.g., warrantless arrests, should also be declared null and void.
SANDOVAL-GUTIERREZ, J., dissenting:
"Courts will decide a question otherwise moot and academic if it is
'capable of repetition, yet evading review.'" 1 On this premise, I stood
apart from my colleagues in dismissing the petition in Lacson vs.
Perez. 2
Their reason was that President Gloria Macapagal-Arroyo's lifting of
the declaration of a "state of rebellion" rendered moot and academic

the issue of its constitutionality. Looking in retrospect, my fear then

was the repetition of the act sought to be declared unconstitutional.
No more than three (3) years have passed, and here we are again
haunted by the same issue.
I
A brief restatement of the facts is imperative.
In the wee hours of July 27, 2003, three hundred twenty-three (323)
junior officers and enlisted men of the Armed Forces of the Philippines
(AFP) took over the Oakwood Premier Apartments, Ayala Center,
Makati City. Introducing themselves as the "Magdalo Group," they
claimed that they went to Oakwood to air their grievances about graft
and corruption in the military, the sale of arms and ammunitions to the
"enemies" of the state, the bombings in Davao City allegedly ordered
by Gen. Victor Corpus, then Chief of the Intelligence Service of the
Armed Forces of the Philippines (ISAFP), the increased military
assistance from the United States, and "micromanagement" in the
AFP by Gen. Angelo Reyes, then Secretary of the Department of
National Defense. 3 The military men demanded the resignation of the
President, the Secretary of National Defense and the Chief of the
Philippine National Police.
At about 9:00 A.M. of the same day, President Arroyo gave the
Magdalo Group until 5:00 P.M. to give up their positions peacefully
and return to the barracks. At around 1:00 P.M., she issued
Proclamation No. 427 and General Order No. 4 declaring the
existence of a "state of rebellion" and calling out the AFP to suppress
the rebellion.
Shortly before the 5:00 P.M. deadline, President Arroyo announced an
extension until 7:00 P.M. During the two-hour reprieve, negotiations
between the Magdalo Group and various personalities took place. The
rebels agreed to return to the barracks. They left the Oakwood
premises at 11:00 P.M.
On July 28, 2003, Agents of the National Bureau of Investigation (NBI)
searched the house owned by Ramon Cardenas at 2177 Paraiso St.,
Dasmarias Village, Makati City. After the raid and the recovery of
evidence claimed to link him to rebellion, Cardenas, accompanied by
Atty. Rene Saguisag, went to the CIDG in Camp Crame. On the same

98
day, Cardenas was brought to the Department of Justice for inquest
proceeding. He was later charged with the crime of rebellion.
The Mandaluyong City Police likewise searched the townhouses
belonging to Laarni Enriquez, allegedly used as staging areas by the
Magdalo Group.
On August 1, 2003, President Arroyo lifted her declaration of a state of
rebellion through Proclamation No. 435.
Meanwhile, on August 4, 2003, Secretary Jose Lina, Jr. of the
Department of the Interior and Local Government, forwarded to the
DOJ the affidavit-complaint for coup d'etat of PC Chief Superintendent
Eduardo Matillano against Senator Gregorio Honasan, Ernesto
Macahiya, George Duldulao and several "John and Jane Does"
numbering about 1,000.
On August 8, 2003, PNP Chief Inspector Jesus Fernandez of the
Eastern Police District referred to the DOJ an investigation report
recommending that Enriquez and a certain Romy Escalona be
prosecuted for rebellion and insurrection.
II
I regret that I cannot give my assent to the ponencia of Mr. Justice
Dante O. Tinga even as I admire it for its lucidity and historical
accuracy. The passage of time has not changed my Opinion in
Lacson vs. Perez that President Arroyo's declaration of a "state of
rebellion" is unconstitutional.
I cannot subscribe to the majority's view that the declaration of a
"state of rebellion" is justified under Article VII of the 1987 Constitution
granting her "Executive" and "Commander-in-Chief" powers.
III
Consistent with my previous stand, it is my view that nowhere in the
Constitution can be found a provision which grants to the President
the authority to declare a "state of rebellion," or exercise powers,
which may be legally allowed only under a state of martial law.
President Arroyo, in declaring a "state of rebellion," deviated from the
following provisions of the Constitution:
"Sec. 18.
The President shall be the Commander-in-Chief of all
armed forces of the Philippines and whenever it becomes necessary,

he may call out such armed forces to prevent or suppress lawless

violence, invasion or rebellion. In case of invasion or rebellion, when
the public safety requires it, he may, for a period not exceeding sixty
days, suspend the privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within forty-eight
hours from the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or
special session, may revoke such proclamation or suspension, which
revocation shall not be set aside by the President. Upon the initiative
of the President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual bases of the proclamation of
martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within
thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able
to function, nor automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released." 4
The powers of the President when she assumed the existence of
rebellion are laid down by the Constitution. She may (1) call the
armed forces to prevent or suppress lawless violence, invasion or

99
rebellion; (2) suspend the privilege of the writ of habeas corpus; or (3)
place the Philippines or any part thereof under martial law. Now, why
did President Arroyo declare a "state of rebellion" when she has no
such power under the Constitution?
If President Arroyo's only purpose was merely to exercise her "calling
out power," then she could have simply ordered the AFP to prevent or
suppress what she perceived as an invasion or rebellion. Such course
raises no constitutional objection, it being provided for by the abovequoted provisions. However, adopting an unorthodox measure
unbounded and not canalized by the language of the Constitution is
dangerous. It leaves the people at her mercy and that of the military,
ignorant of their rights under the circumstances and wary of their
settled expectations. One good illustration is precisely in the case of
invasion or rebellion. Under such situation, the President has the
power to suspend the privilege of the writ of habeas corpus or to
declare martial law. Such power is not a plenary one, as shown by the
numerous limitations imposed thereon by the Constitution, some of
which are: (1) the public safety requires it; (2) it does not exceed sixty
(60) days; (3) within forty-eight (48) hours, she shall submit a report,
in writing or in person, to Congress; (4) the Congress, by a vote of at
least a majority of all its members, may revoke such proclamation or
suspension. All these limitations form part of the citizens' settled
expectations. If the President exceeds the set limitations, the citizens
know that they may resort to this Court through appropriate
proceeding to question the sufficiency of the factual bases of the
proclamation of martial law or the suspension of the privilege of the
writ. In turn, this Court shall promulgate its Decision within thirty days
from the filing of the proper pleading. All the foregoing guarantees and
limitations are absent in the declaration of a "state of rebellion." It is
not subject to clear legal restraints. How then can the citizens
determine the propriety of the President's acts committed pursuant to
such declaration? How can excess of power be curtailed at its
inception?
Indeed, I see no reason for the President to deviate from the concise
and plain provisions of the Constitution. In a society which adheres to
the rule of law, resort to extra-constitutional measures is unnecessary
where the law has provided everything for any emergency or
contingency. For even if it may be proven beneficial for a time, the
precedent it sets is pernicious as the law may, in a little while, be

disregarded again on the same pretext but for questionable purposes.

Even in time of emergency, government action may vary in breath and
intensity from more normal times, yet it need not be less
constitutional. 5 Extraordinary conditions may call for extraordinary
remedies. But it cannot justify action which lies outside the sphere of
constitutional authority. Extraordinary conditions do not create or
enlarge constitutional power. 6
I cannot simply close my eyes to the dangers that lurk behind the
seemingly harmless declaration of a "state of rebellion." Still fresh
from my memory is the May 1, 2001 civil unrest. On such date,
President Arroyo placed Metro Manila under a "state of rebellion"
because of the violent street clashes involving the loyalists of former
President Joseph Estrada and the police authorities. Presidential
Spokesperson Rigoberto Tiglao told reporters, "We are in a state of
rebellion. This is not an ordinary demonstration." 7 Immediately
thereafter, there were threats of arrests against those suspected of
instigating the march to Malacaang. At about 3:30 in the afternoon,
Senator Juan Ponce Enrile was arrested in his house in Dasmarias
Village, Makati City by a group led by Gen. Reynaldo Berroya, Chief
of the Philippine National Police Intelligence Group. 8 Thereafter, he
and his men proceeded to hunt re-electionist Senator Gregorio
Honasan, former PNP Chief, now Senator Panfilo Lacson, former
Ambassador Ernesto Maceda, Brig. Gen. Jake Malajakan, Senior
Superintendents Michael Ray Aquino and Cesar Mancao II, Ronald
Lumbao and Cesar Tanega of the People's Movement Against Poverty
(PMAP). 9 Former Justice Secretary Hernando Perez said that he
was "studying" the possibility of placing Senator Miriam DefensorSantiago "under the Witness Protection Program." Director Victor
Batac, former Chief of the PNP Directorate for Police Community
Relations, and Senior Superintendent Diosdado Valeroso, of the
Philippine Center for Transnational Crime, surrendered to Gen.
Berroya. Both denied having plotted the siege. On May 2, 2001,
former Ambassador Ernesto Maceda was arrested.
On President Arroyo's mere declaration of a "state of rebellion," police
authorities arrested without warrants the above-mentioned
personalities. In effect, she placed the Philippines under martial law
without a declaration to that effect and without observing the proper
procedure. This is a very dangerous precedent. The Constitution
provides that "the right of the people to be secure in their persons,

100
houses, papers and effects against unreasonable searches and
seizure of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized." 10 Obviously,
violation of this constitutional provision cannot be justified by reason
of the declaration of a "state of rebellion" for such declaration, as
earlier mentioned, is unconstitutional.
Even under Section 5, Rule 113 of the Revised Rules on Criminal
Procedure 11 the warrantless arrests effected by President Arroyo's
men are not justified. The above-mentioned personalities cannot be
considered "to have committed, are actually committing, or are
attempting to commit an offense" at the time they were arrested
without warrants. None of them participated in the riot which took
place in the vicinity of the Malacaang Palace. Some of them were in
their respective houses performing innocent acts. The sure fact is
they were not in the presence of Gen. Berroya. Clearly, he did not see
whether they had committed, were committing or were attempting, to
commit the crime of rebellion. 12 It bears mentioning that at the time
some of the suspected instigators were arrested, a long interval of
time already passed and hence, it cannot be legally said that they had
just committed an offense. Neither can it be said that Gen. Berroya or
any of his men had "personal knowledge of facts or circumstances
that the persons to be arrested have committed a crime." That would
be far from reality.
The circumstances that arose from President Arroyo's resort to the
declaration of a "state of rebellion" to suppress what she perceived as
the May 1, 2001 rebellion are the very evils that we should prevent
from happening again. This can only be done if we strike such
unusual measure as unconstitutional.
Significantly, while the Oakwood event ended peacefully on the night
of July 27, 2003, President Arroyo's declaration of a "state of
rebellion" continued until the lifting thereof on August 1, 2003. This
means that although the alleged rebellion had ceased, the President's
declaration continued to be in effect. As it turned out, several
searches and seizures took place during the extended period.

Generally, the power of the President in times of war, invasion or

rebellion and during other emergency situations should be exercised
jointly with Congress. This is to insure the correctness and propriety of
authorizing our armed forces to quell such hostilities. Such collective
judgment is to be effected by "heightened consultation" between the
President and Congress. Thus, as can be gleaned from the provisions
of the Constitution, when the President proclaims martial law or
suspends the privilege of the writ, he shall "submit a report in person
or in writing to the Congress. The Congress, voting jointly, by a vote of
at least a majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall not
be set aside by the President." Not only that, Section 23, Article VI of
the Constitution provides that: "The Congress, by a vote of two-thirds
of both Houses in joint session assembled, voting separately, shall
have the sole power to declare the existence of a state of war. In
times of war or other national emergency, the Congress may, by law,
authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to exercise powers necessary and
proper to carry out a declared national policy." Clearly, the
Constitution has not extended excessive authority in military, defense
and emergency matters to the President. Though the President is
designated as the Commander-in-Chief of all armed forces of the
Philippines, the textual reed does not suffice to support limitless
authority. Born by the nation's past experiences, the concurrence of
the Congress is required as a measure to ward-off totalitarian rule. By
declaring a "state of rebellion," President Arroyo effectively
disregarded such concurrent power of Congress. At this point, let it be
stressed that the accumulation of both the executive and legislative
powers in the same hands constitutes the very definition of tyranny.
By sustaining the unusual course taken by President Arroyo, we are
traversing a very dangerous path. We are opening the way to those
who, in the end, would turn our democracy into a totalitarian rule.
While it may not plunge us straightway into dictatorship, however, it is
a step towards a wrong direction. History must not be allowed to
repeat itself. Any act which gears towards possible dictatorship must
be severed at its inception. As I have stated in my previous dissent,
our nation had seen the rise of a dictator into power. As a matter of
fact, the changes made by the 1986 Constitutional Commission in the
martial law text of the Constitution were to a large extent a reaction
against the direction which this Court took during the regime of

101
President Marcos. 13 In ruling that the declaration of a "state of
rebellion" is a prerogative of the President, then, I say, our country is
tracing the same dangerous road of the past. AEcTCD
IV
The majority cited U.S. cases in support of their stand that the
President's proclamation of "state of rebellion" is in accordance with
the Constitutional provisions granting her "powers as chief executive."
I find that In re Debs 14 and Prize Cases 15 illustrate an executive
power much larger than is indicated by the rudimentary constitutional
provisions. Clearly, these cases cannot support the majority's
conclusion that: "The lesson to be learned from the U.S. constitutional
history is that the Commander-in-Chief powers are broad enough as it
is and become more so when taken together with the provision on
executive power and the presidential oath of office. Thus, the
plenitude of the powers of the presidency equips the occupant with
the means to address exigencies or threats which undermine the very
existence of government or the integrity of the State."
There are reasons why I find the above conclusion of the majority
inaccurate. From a survey of U.S. jurisprudence, the outstanding fact
remains that every specific proposal to confer uncontrollable power
upon the President is rejected. 16 In re Debs, 17 the U.S. Supreme
Court Decision upheld the power of President Grover Cleveland to
prevent the strike of railway workers on the ground that it threatened
interference with interstate commerce and with the free flow of mail.
The basic theory underlying this case that the President has
inherent power to act for the nation in cases of major public need
was eroded by the Youngstown Sheet & Tube Co. vs. Sawyer, also
known as the Steel Seizure Case. 18 This case aroused great public
interest, largely because of its important implications concerning the
boundaries of presidential powers. The seven separate opinions
consist of 128 pages in the Reports and contain a great deal of
important data on the powers of the Chief Executive. The same case
demonstrates well that executive powers, even during an alleged
emergency, may still be subject to judicial control. The decision
constitutes a "dramatic vindication" of the American constitutional
government. 19 Mr. Justice Andrew Jackson, concurring in the
judgment and opinion of the Court, eloquently expounded on the
"executive" and "commander-in-chief" powers, thus:

"The Solicitor general seeks the power of seizure in three clauses of

the Executive Article, the first reading, 'The executive Power shall be
vested in a President of the United States of America.' Lest I be
thought to exaggerate, I quote the interpretation which his brief puts
upon it: 'In our view, this clause constitutes a grant of all the executive
powers of which the Government is capable.' If that be true, it is
difficult to see why the forefathers bothered to add several specific
items, including some trifling ones.
The example of such unlimited executive power that must have most
impressed the forefathers was the prerogative exercised by George
III, and the description of its evils in the Declaration of Independence
leads me to doubt that they were creating their new Executive in his
image. Continental European examples were no more appealing. And
if we seek instruction from our own times, we can match it only from
the executive powers in those governments we disparagingly describe
as totalitarian. I cannot accept the view that this clause is a grant in
bulk of all conceivable executive powers but regard it as an allocation
to the presidential office of the generic powers thereafter stated.
The clause on which the Government next relies is that 'The President
shall be Commander in Chief of the Army and Navy of the United
States. . .' These cryptic words have given rise to some of the most
persistent controversies in our constitutional history. Of course, they
imply something more than an empty title. But just what authority goes
with the name has plagued presidential advisers who would not waive
or narrow it by non-assertion yet cannot say where it begins or ends.
xxx

xxx

xxx

The third clause in which the Solicitor General finds seizure powers is
that 'he shall take care that the laws be faithfully executed. . .' That
authority must be matched against words of the Fifth Amendment that
'No person shall be. . . deprived of life, liberty or property, without due
process of law. . .' One gives a governmental authority that reaches
so far as there is law, the other gives a private right that authority shall
go no farther. These signify about all there is of the principle that ours
is a government of laws, not of men, and that we submit ourselves to
rulers only if under rules."
Further, Mr. Justice Jackson referred to the discussion of inherent
executive power as "loose and irresponsible use of adjectives." His

102
wrath could be seen as reserved for those who use the word
"inherent" to mean "unlimited." 20 Thus:
"The Solicitor General lastly grounds support of the seizure upon
nebulous, inherent powers never expressly granted but said to have
accrued to the office from the customs and claims of preceding
administrations. The plea is for a resulting power to deal with a crisis
or an emergency according to the necessities of the case, the
unarticulated assumption being that necessity knows no law.
Loose and irresponsible use of adjectives colors all non-legal and
much legal discussion of presidential powers. 'Inherent' powers,
'implied' powers, 'incidental' powers, 'plenary' powers, 'war' powers
and 'emergency' powers are used, often interchangeably and without
fixed or ascertainable meanings.
The vagueness and generality of the clauses that set forth presidential
powers afford a plausible basis for pressures within and without an
administration for presidential action beyond that supported by those
whose responsibility it is to defend his actions in court. The claim of
inherent and unrestricted presidential powers has long been a
persuasive dialectical weapon in political controversy. While it is not
surprising that counsel should grasp support from such unadjudicated
claims of power, a judge cannot accept self-serving press statements
of the attorney for one of the interested parties as authority in
answering a constitutional question, even if the advocate was himself.
But prudence has counseled that actual reliance on such nebulous
claims stop short of provoking a judicial test. . ."
In re Debs also received a serious blow in United States vs. United
States District Court. 21 The Supreme Court Justices unanimously
rejected the inherent executive authority to engage in warrantless
electronic surveillance in domestic security cases. Thus, where a
substantial personal interest in life, liberty or property is threatened by
presidential action, In re Debs is regarded more as an anachronism
than authority.
In Prizes Cases, by a vote of 5 to 4, the U.S. Supreme Court upheld
President Abraham Lincoln's authority to impose a blockade. Under
the U.S. Constitution, only Congress, empowered to declare a war,
could impose a blockade. It must be emphasized, however, that there
is a distinction between the role of the U.S. President in domestic
affairs and in foreign affairs. The patterns in the foreign and domestic

realms are quite different. The federal regulation of domestic affairs

has its constitutional origins in the people and the states, and its
initiation is allocated primarily to Congress (not the Executive). The
constitutional role for the executive in domestic matters is thus largely
ancillary to that of Congress. 22 Thus, while it is recognized that
executive power is predominant in foreign affairs, it is not so in the
domestic sphere. This distinction should be considered in invoking
U.S. jurisprudence.
Clearly, the trail of U.S. jurisprudence does not support the view that
the "Executive and Commander-in-Chief clauses" of the Constitution
grant the President such broad power as to give her the option of
disregarding the other restrictive provisions of the Constitution. The
purpose of the Constitution is not only to grant power, but to keep it
from getting out of hand. The policy should be where the
Constitution has laid down specific procedures on how the President
should deal with a crisis, it is imperative that he must follow those
procedures in meeting the crisis. These procedures serve as
limitations to what would otherwise be an unbounded exercise of
power.
V
In fine, may I state that every presidential claim to a power must be
scrutinized with caution, for what is at stake is the equilibrium
established by our constitutional system. The powers of the President
are not as particularized as are those of Congress. Enumerated
powers do not include undefined powers, as what the majority would
want to point out. I state once more that there is no provision in our
Constitution authorizing the President to declare "a state of rebellion."
Not even the constitutional powers vested upon her include such
power. SEIaHT
WHEREFORE, I vote to GRANT the petitions. Proclamation No. 427
and General Order No. 4 are declared UNCONSTITUTIONAL.

103
EN BANC

Meanwhile, President Arroyo issued appointments 2 to respondents

as acting secretaries of their respective departments.
Appointee

[G.R. No. 164978. October 13, 2005.]

AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN
PONCE ENRILE, LUISA P. EJERCITO-ESTRADA, JINGGOY E.
ESTRADA, PANFILO M. LACSON, ALFREDO S. LIM, JAMBY A.S.
MADRIGAL, and SERGIO R. OSMEA III, petitioners, vs. EXEC.
SECRETARY EDUARDO R. ERMITA, FLORENCIO B. ABAD,
AVELINO J. CRUZ, JR., MICHAEL T. DEFENSOR, JOSEPH H.
DURANO, RAUL M. GONZALEZ, ALBERTO G. ROMULO, RENE C.
VILLA, and ARTHUR C. YAP, respondents.
DECISION

Department

Arthur C. Yap Agriculture

Date of Appointment
15 August 2004

Alberto G. Romulo

Foreign Affairs 23 August 2004

Raul M. Gonzalez

Justice 23 August 2004

Florencio B. Abad

Education

Avelino J. Cruz, Jr.

National Defense

23 August 2004
23 August 2004

Rene C. Villa Agrarian Reform

23 August 2004

Joseph H. Durano

23 August 2004

Michael T. Defensor
August 2004

Tourism

Environment and Natural Resources 23

The appointment papers are uniformly worded as follows:

Sir:

CARPIO, J p:
The Case
This is a petition for certiorari and prohibition 1 with a prayer for the
issuance of a writ of preliminary injunction to declare unconstitutional
the appointments issued by President Gloria Macapagal-Arroyo
("President Arroyo") through Executive Secretary Eduardo R. Ermita
("Secretary Ermita") to Florencio B. Abad, Avelino J. Cruz, Jr., Michael
T. Defensor, Joseph H. Durano, Raul M. Gonzalez, Alberto G.
Romulo, Rene C. Villa, and Arthur C. Yap ("respondents") as acting
secretaries of their respective departments. The petition also seeks to
prohibit respondents from performing the duties of department
secretaries. THCSEA
Antecedent Facts
The Senate and the House of Representatives ("Congress")
commenced their regular session on 26 July 2004. The Commission
on Appointments, composed of Senators and Representatives, was
constituted on 25 August 2004.

Pursuant to the provisions of existing laws, you are hereby appointed

ACTING SECRETARY, DEPARTMENT OF (appropriate department)
vice (name of person replaced).
By virtue hereof, you may qualify and enter upon the performance of
the duties and functions of the office, furnishing this Office and the
Civil Service Commission with copies of your Oath of Office.
(signed)
Gloria Arroyo
Respondents took their oath of office and assumed duties as acting
secretaries. DEAaIS
On 8 September 2004, Aquilino Q. Pimentel, Jr. ("Senator Pimentel"),
Edgardo J. Angara ("Senator Angara"), Juan Ponce Enrile ("Senator
Enrile"), Luisa P. Ejercito-Estrada ("Senator Ejercito-Estrada"),
Jinggoy E. Estrada ("Senator Estrada"), Panfilo M. Lacson ("Senator
Lacson"), Alfredo S. Lim ("Senator Lim"), Jamby A.S. Madrigal
("Senator Madrigal"), and Sergio R. Osmea, III ("Senator Osmea")
("petitioners") filed the present petition as Senators of the Republic of
the Philippines.

104
Congress adjourned on 22 September 2004. On 23 September 2004,
President Arroyo issued ad interim appointments 3 to respondents as
secretaries of the departments to which they were previously
appointed in an acting capacity. The appointment papers are
uniformly worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed
SECRETARY [AD INTERIM], DEPARTMENT OF (appropriate
department).
By virtue hereof, you may qualify and enter upon the performance of
the duties and functions of the office, furnishing this Office and the
Civil Service Commission with copies of your oath of office.
(signed)
Gloria Arroyo
Issue
The petition questions the constitutionality of President Arroyo's
appointment of respondents as acting secretaries without the consent
of the Commission on Appointments while Congress is in session.
The Court's Ruling
The petition has no merit.
Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot because
President Arroyo had extended to respondents ad interim
appointments on 23 September 2004 immediately after the recess of
Congress.
As a rule, the writ of prohibition will not lie to enjoin acts already done.
4 However, as an exception to the rule on mootness, courts will
decide a question otherwise moot if it is capable of repetition yet
evading review. 5
In the present case, the mootness of the petition does not bar its
resolution. The question of the constitutionality of the President's

appointment of department secretaries in an acting capacity while

Congress is in session will arise in every such appointment.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and the
legislature may not interfere with the exercise of this executive power
except in those instances when the Constitution expressly allows it to
interfere. 6 Limitations on the executive power to appoint are
construed strictly against the legislature. 7 The scope of the
legislature's interference in the executive's power to appoint is limited
to the power to prescribe the qualifications to an appointive office.
Congress cannot appoint a person to an office in the guise of
prescribing qualifications to that office. Neither may Congress impose
on the President the duty to appoint any particular person to an office.
8
However, even if the Commission on Appointments is composed of
members of Congress, the exercise of its powers is executive and not
legislative. The Commission on Appointments does not legislate when
it exercises its power to give or withhold consent to presidential
appointments. Thus:
. . . The Commission on Appointments is a creature of the
Constitution. Although its membership is confined to members of
Congress, said Commission is independent of Congress. The powers
of the Commission do not come from Congress, but emanate directly
from the Constitution. Hence, it is not an agent of Congress. In fact,
the functions of the Commissioner are purely executive in nature. . . .
9
On Petitioners' Standing
The Solicitor General states that the present petition is a quo warranto
proceeding because, with the exception of Secretary Ermita,
petitioners effectively seek to oust respondents for unlawfully
exercising the powers of department secretaries. The Solicitor
General further states that petitioners may not claim standing as
Senators because no power of the Commission on Appointments has
been "infringed upon or violated by the President. . . . If at all, the
Commission on Appointments as a body (rather than individual
members of the Congress) may possess standing in this case." 10

105
Petitioners, on the other hand, state that the Court can exercise its
certiorari jurisdiction over unconstitutional acts of the President. 11
Petitioners further contend that they possess standing because
President Arroyo's appointment of department secretaries in an acting
capacity while Congress is in session impairs the powers of
Congress. Petitioners cite Sanlakas v. Executive Secretary 12 as
basis, thus: EcDATH
To the extent that the powers of Congress are impaired, so is the
power of each member thereof, since his office confers a right to
participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress
causes a derivative but nonetheless substantial injury, which can be
questioned by a member of Congress. In such a case, any member of
Congress can have a resort to the courts.

292"), 14 which enumerates the powers and duties of the

undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10.
Powers and Duties of the Undersecretary. The
Undersecretary shall:
xxx

xxx

xxx

(5)
Temporarily discharge the duties of the Secretary in the latter's
absence or inability to discharge his duties for any cause or in case of
vacancy of the said office, unless otherwise provided by law. Where
there are more than one Undersecretary, the Secretary shall allocate
the foregoing powers and duties among them. The President shall
likewise make the temporary designation of Acting Secretary from
among them; and
xxx

xxx

xxx

Considering the independence of the Commission on Appointments

from Congress, it is error for petitioners to claim standing in the
present case as members of Congress. President Arroyo's issuance
of acting appointments while Congress is in session impairs no power
of Congress. Among the petitioners, only the following are members
of the Commission on Appointments of the 13th Congress: Senator
Enrile as Minority Floor Leader, Senator Lacson as Assistant Minority
Floor Leader, and Senator Angara, Senator Ejercito-Estrada, and
Senator Osmea as members.

Petitioners further assert that "while Congress is in session, there can

be no appointments, whether regular or acting, to a vacant position of
an office needing confirmation by the Commission on Appointments,
without first having obtained its consent." 15

Thus, on the impairment of the prerogatives of members of the

Commission on Appointments, only Senators Enrile, Lacson, Angara,
Ejercito-Estrada, and Osmea have standing in the present petition.
This is in contrast to Senators Pimentel, Estrada, Lim, and Madrigal,
who, though vigilant in protecting their perceived prerogatives as
members of Congress, possess no standing in the present petition.

SEC. 16.
The President shall nominate and, with the consent of
the Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this
Constitution. He shall also appoint all other officers of the Government
whose appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments,
agencies, commissions, or boards.

The Constitutionality of President Arroyo's Issuance

of Appointments to Respondents as Acting Secretaries
Petitioners contend that President Arroyo should not have appointed
respondents as acting secretaries because "in case of a vacancy in
the Office of a Secretary, it is only an Undersecretary who can be
designated as Acting Secretary." 13 Petitioners base their argument
on Section 10, Chapter 2, Book IV of Executive Order No. 292 ("EO

In sharp contrast, respondents maintain that the President can issue

appointments in an acting capacity to department secretaries without
the consent of the Commission on Appointments even while Congress
is in session. Respondents point to Section 16, Article VII of the 1987
Constitution. Section 16 reads:

The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproval by the

106
Commission on Appointments or until the next adjournment of the
Congress.

necessarily appoint an alter ego of her choice as acting secretary

before the permanent appointee of her choice could assume office.

Respondents also rely on EO 292, which devotes a chapter to the

President's power of appointment. Sections 16 and 17, Chapter 5,
Title I, Book III of EO 292 read:

Congress, through a law, cannot impose on the President the

obligation to appoint automatically the undersecretary as her
temporary alter ego. An alter ego, whether temporary or permanent,
holds a position of great trust and confidence. Congress, in the guise
of prescribing qualifications to an office, cannot impose on the
President who her alter ego should be.

SEC. 16.
Power of Appointment. The President shall exercise
the power to appoint such officials as provided for in the Constitution
and laws.
SEC. 17.
Power to Issue Temporary Designation. (1) The
President may temporarily designate an officer already in the
government service or any other competent person to perform the
functions of an office in the executive branch, appointment to which is
vested in him by law, when: (a) the officer regularly appointed to the
office is unable to perform his duties by reason of illness, absence or
any other cause; or (b) there exists a vacancy[.]
(2)
The person designated shall receive the compensation
attached to the position, unless he is already in the government
service in which case he shall receive only such additional
compensation as, with his existing salary, shall not exceed the salary
authorized by law for the position filled. The compensation hereby
authorized shall be paid out of the funds appropriated for the office or
agency concerned.
(3)
In no case shall a temporary designation exceed one (1) year.
(Emphasis supplied)
Petitioners and respondents maintain two diametrically opposed lines
of thought. Petitioners assert that the President cannot issue
appointments in an acting capacity to department secretaries while
Congress is in session because the law does not give the President
such power. In contrast, respondents insist that the President can
issue such appointments because no law prohibits such
appointments. DTSIEc
The essence of an appointment in an acting capacity is its temporary
nature. It is a stop-gap measure intended to fill an office for a limited
time until the appointment of a permanent occupant to the office. 16 In
case of vacancy in an office occupied by an alter ego of the President,
such as the office of a department secretary, the President must

The office of a department secretary may become vacant while

Congress is in session. Since a department secretary is the alter ego
of the President, the acting appointee to the office must necessarily
have the President's confidence. Thus, by the very nature of the office
of a department secretary, the President must appoint in an acting
capacity a person of her choice even while Congress is in session.
That person may or may not be the permanent appointee, but
practical reasons may make it expedient that the acting appointee will
also be the permanent appointee.
The law expressly allows the President to make such acting
appointment. Section 17, Chapter 5, Title I, Book III of EO 292 states
that "[t]he President may temporarily designate an officer already in
the government service or any other competent person to perform the
functions of an office in the executive branch." Thus, the President
may even appoint in an acting capacity a person not yet in the
government service, as long as the President deems that person
competent.
Petitioners assert that Section 17 does not apply to appointments
vested in the President by the Constitution, because it only applies to
appointments vested in the President by law. Petitioners forget that
Congress is not the only source of law. "Law" refers to the
Constitution, statutes or acts of Congress, municipal ordinances,
implementing rules issued pursuant to law, and judicial decisions. 17
Finally, petitioners claim that the issuance of appointments in an
acting capacity is susceptible to abuse. Petitioners fail to consider that
acting appointments cannot exceed one year as expressly provided in
Section 17(3), Chapter 5, Title I, Book III of EO 292. The law has
incorporated this safeguard to prevent abuses, like the use of acting
appointments as a way to circumvent confirmation by the Commission
on Appointments.

107
In distinguishing ad interim appointments from appointments in an
acting capacity, a noted textbook writer on constitutional law has
observed:
Ad-interim appointments must be distinguished from appointments in
an acting capacity. Both of them are effective upon acceptance. But
ad-interim appointments are extended only during a recess of
Congress, whereas acting appointments may be extended any time
there is a vacancy. Moreover ad-interim appointments are submitted
to the Commission on Appointments for confirmation or rejection;
acting appointments are not submitted to the Commission on
Appointments. Acting appointments are a way of temporarily filling
important offices but, if abused, they can also be a way of
circumventing the need for confirmation by the Commission on
Appointments. 18
However, we find no abuse in the present case. The absence of
abuse is readily apparent from President Arroyo's issuance of ad
interim appointments to respondents immediately upon the recess of
Congress, way before the lapse of one year.
WHEREFORE, we DISMISS the present petition for certiorari and
prohibition. TAScID
SO ORDERED.

108
[G.R. No. 96541. August 24, 1993.]
DEAN JOSE JOYA, CARMEN GUERRERO NAKPIL, ARMIDA
SIGUION REYNA, PROF. RICARTE M. PURUGANAN, IRMA
POTENCIANO, ADRIAN CRISTOBAL, INGRID SANTAMARIA,
CORAZON FIEL, AMBASSADOR E. AGUILAR CRUZ, FLORENCIO
R. JACELA, JR., MAURO MALANG, FEDERICO AGUILAR ALCUAZ,
LUCRECIA R. URTULA, SUSANO GONZALES, STEVE SANTOS,
EPHRAIM SAMSON, SOLER SANTOS, ANG KIU KOK, KERIMA
POLOTAN, LUCRECIA KASILAG, LIGAYA DAVID PEREZ, VIRGILIO
ALMARIO, LIWAYWAY A. ARCEO, CHARITO PLANAS, HELENA
BENITEZ, ANNA MARIA L. HARPER, ROSALINDA OROSA, SUSAN
CALO MEDINA, PATRICIA RUIZ, BONNIE RUIZ, NELSON
NAVARRO, MANDY NAVASERO, ROMEO SALVADOR, JOSEPHINE
DARANG, and PAZ VETO PLANAS, petitioners, vs. PRESIDENTIAL
COMMISSION ON GOOD GOVERNMENT (PCGG), CATALINO
MACARAIG, JR., in his official capacity, and/or the Executive
Secretary, and CHAIRMAN MATEO A.T. CAPARAS, respondents.
DECISION
BELLOSILLO, J p:
All thirty-five (35) petitioners in this Special Civil Action for Prohibition
and Mandamus with Prayer for Preliminary Injunction and/or
Restraining Order seek to enjoin the Presidential Commission on
Good Government (PCGG) from proceeding with the auction sale
scheduled on 11 January 1991 by Christie's of New York of the Old
Masters Paintings and 18th and 19th century silverware seized from
Malacaang and the Metropolitan Museum of Manila and placed in
the custody of the Central Bank.
The antecedents: On 9 August 1990, Mateo A.T. Caparas, then
Chairman of PCGG, wrote then President Corazon C. Aquino,
requesting her for authority to sign the proposed Consignment
Agreement between the Republic of the Philippines through PCGG
and Christie, Manson and Woods International, Inc. (Christie's of New
York, or CHRISTIE'S) concerning the scheduled sale on 11 January
1991 of eighty-two (82) Old Masters Paintings and antique silverware

seized from Malacaang and the Metropolitan Museum of Manila

alleged to be part of the ill-gotten wealth of the late President Marcos,
his relatives and cronies. cdrep
On 14 August 1990, then President Aquino, through former Executive
Secretary Catalino Macaraig, Jr., authorized Chairman Caparas to
sign the Consignment Agreement allowing Christie's of New York to
auction off the subject art pieces for and in behalf of the Republic of
the Philippines.
On 15 August 1990, PCGG through Chairman Caparas, representing
the Government of the Republic of the Philippines, signed the
Consignment Agreement with Christie's of New York. According to the
agreement, PCGG shall consign to CHRISTIE'S for sale at public
auction the eighty-two (82) Old Masters Paintings then found at the
Metropolitan Museum of Manila as well as the silverware contained in
seventy-one (71) cartons in the custody of the Central Bank of the
Philippines, and such other property as may subsequently be
identified by PCGG and accepted by CHRISTIE'S to be subject to the
provisions of the agreement. 1
On 26 October 1990, the Commission on Audit (COA) through then
Chairman Eufemio C. Domingo submitted to President Aquino the
audit findings and observations of COA on the Consignment
Agreement of 15 August 1990 to the effect that: (a) the authority of
former PCGG Chairman Caparas to enter into the Consignment
Agreement was of doubtful legality; (b) the contract was highly
disadvantageous to the government; (c) PCGG had a poor track
record in asset disposal by auction in the U.S.; and, (d) the assets
subject of auction were historical relics and had cultural significance,
hence, their disposal was prohibited by law. 2
On 15 November 1990, PCGG through its new Chairman David M.
Castro, wrote President Aquino defending the Consignment
Agreement and refuting the allegations of COA Chairman Domingo. 3
On the same date, Director of National Museum Gabriel S. Casal
issued a certification that the items subject of the Consignment
Agreement did not fall within the classification of protected cultural
properties and did not specifically qualify as part of the Filipino cultural
heritage. 4 Hence, this petition originally filed on 7 January 1991 by
Dean Jose Joya, Carmen Guerrero Nakpil, Armida Siguion Reyna,
Prof. Ricarte M. Puruganan, Irma Potenciano, Adrian Cristobal, Ingrid

109
Santamaria, Corazon Fiel, Ambassador E. Aguilar Cruz, Florencio R.
Jacela, Jr., Mauro Malang, Federico Aguilar Alcuaz, Lucrecia R.
Urtula, Susano Gonzales, Steve Santos, Ephraim Samson, Soler
Santos, Ang Kiu Kok, Kerima Polotan, Lucrecia Kasilag, Ligaya David
Perez, Virgilio Almario and Liwayway A. Arceo.
After the oral arguments of the parties on 9 January 1991, we issued
immediately our resolution denying the application for preliminary
injunction to restrain the scheduled sale of the artworks on the ground
that petitioners had not presented a clear legal right to a restraining
order and that proper parties had not been impleaded.
On 11 January 1991, the sale at public auction proceeded as
scheduled and the proceeds of $13,302,604.86 were turned over to
the Bureau of Treasury. 5
On 5 February 1991, on motion of petitioners, the following were
joined as additional petitioners: Charito Planas, Helena Benitez, Ana
Maria L. Harper, Rosalinda Orosa, Susan Calo Medina, Patricia Ruiz,
Bonnie Ruiz, Nelson Navarro, Mandy Navasero, Romeo Salvador,
Josephine Darang and Paz Veto Planas.
On the other hand, Catalino Macaraig, Jr., in his capacity as former
Executive Secretary, the incumbent Executive Secretary, and
Chairman Mateo A. T. Caparas were impleaded as additional
respondents.
Petitioners raise the following issues: (a) whether petitioners have
legal standing to file the instant petition; (b) whether the Old Masters
Paintings and antique silverware are embraced in the phrase "cultural
treasure of the nation" which is under the protection of the state
pursuant to the 1987 Constitution and/or "cultural properties"
contemplated under R.A. 4846, otherwise known as "The Cultural
Properties Preservation and Protection Act;" (c) whether the paintings
and silverware are properties of public dominion which can be
disposed of through the joint concurrence of the President and
Congress; (d) whether respondent PCGG has the jurisdiction and
authority to enter into an agreement with Christie's of New York for the
sale of the artworks; (e) whether PCGG has complied with the due
process clause and other statutory requirements for the exportation
and sale of the subject items; and, (f) whether the petition has
become moot and academic, and if so, whether the above issues
warrant resolution from this Court. LexLib

The issues being interrelated, they will be discussed jointly hereunder.

However, before proceeding, we wish to emphasize that we admire
and commend petitioners' zealous concern to keep and preserve
within the country great works of art by well-known old masters.
Indeed, the value of art cannot be gainsaid. For, by serving as a
creative medium through which man can express his innermost
thoughts and unbridled emotions while, at the same time, reflecting
his deep-seated ideals, art has become a true expression of beauty,
joy, and life itself. Such artistic creations give us insights into the
artists' cultural heritage the historic past of the nation and the era to
which they belong in their triumphant, glorious, as well as troubled
and turbulent years. It must be for this reason that the framers of the
1987 Constitution mandated in Art. XIV, Sec. 14, that it is the solemn
duty of the state to "foster the preservation, enrichment, and dynamic
evolution of a Filipino national culture based on the principle of unity in
diversity in a climate of free artistic and intellectual expression." And,
in urging this Court to grant their petition, petitioners invoke this policy
of the state on the protection of the arts.
But, the altruistic and noble purpose of the petition notwithstanding,
there is that basic legal question which must first be resolved: whether
the instant petition complies with the legal requisites for this Court to
exercise its power of judicial review over this case.
The rule is settled that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the
court unless there is compliance with the legal requisites for judicial
inquiry, namely: that the question must be raised by the proper party;
that there must be an actual case or controversy; that the question
must be raised at the earliest possible opportunity; and, that the
decision on the constitutional or legal question must be necessary to
the determination of the case itself. 6 But the most important are the
first two (2) requisites.
On the first requisite, we have held that one having no right or interest
to protect cannot invoke the jurisdiction of the court as party-plaintiff in
an action. 7 This is premised on Sec. 2, Rule 3, of the Rules of Court
which provides that every action must be prosecuted and defended in
the name of the real party-in-interest, and that all persons having
interest in the subject of the action and in obtaining the relief
demanded shall be joined as plaintiffs. The Court will exercise its
power of judicial review only if the case is brought before it by a party

110
who has the legal standing to raise the constitutional or legal question.
"Legal standing" means a personal and substantial interest in the
case such that the party has sustained or will sustain direct injury as a
result of the governmental act that is being challenged. The term
"interest" is material interest, an interest in issue and to be affected by
the decree, as distinguished from mere interest in the question
involved, or a mere incidental interest. 8 Moreover, the interest of the
party plaintiff must be personal and not one based on a desire to
vindicate the constitutional right of some third and unrelated party. 9
There are certain instances however when this Court has allowed
exceptions to the rule on legal standing, as when a citizen brings a
case for mandamus to procure the enforcement of a public duty for
the fulfillment of a public right recognized by the Constitution, 10 and
when a taxpayer questions the validity of a governmental act
authorizing the disbursement of public funds. 11
Petitioners claim that as Filipino citizens, taxpayers and artists deeply
concerned with the preservation and protection of the country's artistic
wealth, they have the legal personality to restrain respondents
Executive Secretary and PCGG from acting contrary to their public
duty to conserve the artistic creations as mandated by the 1987
Constitution, particularly Art. XIV, Secs. 14 to 18, on Arts and Culture,
and R.A. 4846 known as "The Cultural Properties Preservation and
Protection Act," governing the preservation and disposition of national
and important cultural properties. Petitioners also anchor their case on
the premise that the paintings and silverware are public properties
collectively owned by them and by the people in general to view and
enjoy as great works of art. They allege that with the unauthorized act
of PCGG in selling the art pieces, petitioners have been deprived of
their right to public property without due process of law in violation of
the Constitution. 12
Petitioners' arguments are devoid of merit. They lack basis in fact and
in law. They themselves allege that the paintings were donated by
private persons from different parts of the world to the Metropolitan
Museum of Manila Foundation, which is a non-profit and non-stock
corporation established to promote non-Philippine arts. The
foundation's chairman was former First Lady Imelda R. Marcos, while
its president was Bienvenido R. Tantoco. On this basis, the ownership
of these paintings legally belongs to the foundation or corporation or
the members thereof, although the public has been given the

opportunity to view and appreciate these paintings when they were

placed on exhibit. llcd
Similarly, as alleged in the petition, the pieces of antique silverware
were given to the Marcos couple as gifts from friends and dignitaries
from foreign countries on their silver wedding anniversary, an
occasion personal to them. When the Marcos administration was
toppled by the revolutionary government, these paintings and
silverware were taken from Malacaang and the Metropolitan
Museum of Manila and transferred to the Central Bank Museum. The
confiscation of these properties by the Aquino administration however
should not be understood to mean that the ownership of these
paintings has automatically passed on to the government without
complying with constitutional and statutory requirements of due
process and just compensation. If these properties were already
acquired by the government, any constitutional or statutory defect in
their acquisition and their subsequent disposition must be raised only
by the proper parties the true owners thereof whose authority to
recover emanates from their proprietary rights which are protected by
statutes and the Constitution. Having failed to show that they are the
legal owners of the artworks or that the valued pieces have become
publicly owned, petitioners do not possess any clear legal right
whatsoever to question their alleged unauthorized disposition.
Further, although this action is also one of mandamus filed by
concerned citizens, it does not fulfill the criteria for a mandamus suit.
In Legaspi v. Civil Service Commission, 13 this Court laid down the
rule that a writ of mandamus may be issued to a citizen only when the
public right to be enforced and the concomitant duty of the state are
unequivocably set forth in the Constitution. In the case at bar,
petitioners are not after the fulfillment of a positive duty required of
respondent officials under the 1987 Constitution. What they seek is
the enjoining of an official act because it is constitutionally infirmed.
Moreover, petitioners' claim for the continued enjoyment and
appreciation by the public of the artworks is at most a privilege and is
unenforceable as a constitutional right in this action for mandamus.
Neither can this petition be allowed as a taxpayer's suit. Not every
action filed by a taxpayer can qualify to challenge the legality of official
acts done by the government. A taxpayer's suit can prosper only if the
governmental acts being questioned involve disbursement of public
funds upon the theory that the expenditure of public funds by an

111
officer of the state for the purpose of administering an unconstitutional
act constitutes a misapplication of such funds, which may be enjoined
at the request of a taxpayer. 14 Obviously, petitioners are not
challenging any expenditure involving public funds but the disposition
of what they allege to be public properties. It is worthy to note that
petitioners admit that the paintings and antique silverware were
acquired from private sources and not with public money.
Anent the second requisite of actual controversy, petitioners argue
that this case should be resolved by this Court as an exception to the
rule on moot and academic cases; that although the sale of the
paintings and silver has long been consummated and the possibility of
retrieving the treasure trove is nil, yet the novelty and importance of
the issues raised by the petition deserve this Court's attention. They
submit that the resolution by the Court of the issues in this case will
establish future guiding principles and doctrines on the preservation of
the nation's priceless artistic and cultural possessions for the benefit
of the public as a whole. 15
For a court to exercise its power of adjudication, there must be an
actual case or controversy one which involves a conflict of legal
rights, an assertion of opposite legal claims susceptible of judicial
resolution; the case must not be moot or academic or based on extralegal or other similar considerations not cognizable by a court of
justice. 16 A case becomes moot and academic when its purpose has
become stale, 17 such as the case before us. Since the purpose of
this petition for prohibition is to enjoin respondent public officials from
holding the auction sale of the artworks on a particular date 11
January 1991 which is long past, the issues raised in the petition
have become moot and academic. LLpr
At this point, however, we need to emphasize that this Court has the
discretion to take cognizance of a suit which does not satisfy the
requirements of an actual case or legal standing when paramount
public interest is involved. 18 We find however that there is no such
justification in the petition at bar to warrant the relaxation of the rule.
Section 2 of R.A. 4846, as amended by P.D. 374, declares it to be the
policy of the state to preserve and protect the important cultural
properties and national cultural treasures of the nation and to
safeguard their intrinsic value. As to what kind of artistic and cultural
properties are considered by the State as involving public interest

which should therefore be protected, the answer can be gleaned from

a reading of the reasons behind the enactment of R.A. 4846:
"WHEREAS, the National Museum has the difficult task, under
existing laws and regulations, of preserving and protecting the cultural
properties of the nation;
"WHEREAS, innumerable sites all over the country have since been
excavated for cultural relics, which have passed on to private hands,
representing priceless cultural treasure that properly belongs to the
Filipino people as their heritage;
"WHEREAS, it is perhaps impossible now to find an area in the
Philippines, whether government or private property, which has not
been disturbed by commercially-minded diggers and collectors,
literally destroying part of our historic past;
"WHEREAS, because of this the Philippines has been charged as
incapable of preserving and protecting her cultural legacies;
"WHEREAS, the commercialization of Philippine relics from the
contact period, the Neolithic Age, and the Paleolithic Age, has
reached a point perilously placing beyond reach of savants the study
and reconstruction of Philippine prehistory; and
"WHEREAS, it is believed that more stringent regulation on
movement and a limited form of registration of important cultural
properties and of designated national cultural treasures is necessary,
and that regardless of the item, any cultural property exported or sold
locally must be registered with the National Museum to control the
deplorable situation regarding our national cultural properties and to
implement the Cultural Properties Law" (Emphasis ours)
Clearly, the cultural properties of the nation which shall be under the
protection of the state are classified as the "important cultural
properties" and the "national cultural treasures." "Important cultural
properties" are cultural properties which have been singled out from
among the innumerable cultural properties as having exceptional
historical and cultural significance to the Philippines but are not
sufficiently outstanding to merit the classification of national cultural
treasures. 19 On the other hand, a "national cultural treasure" is a
unique object found locally, possessing outstanding historical, cultural,
artistic and/or scientific value which is highly significant and important
to this country and nation. 20 This Court takes note of the certification

112
issued by the Director of the Museum that the Italian paintings and
silverware subject of this petition do not constitute protected cultural
properties and are not among those listed in the Cultural Properties
Register of the National Museum. llcd
We agree with the certification of the Director of the Museum. Under
the law, it is the Director of the Museum who is authorized to
undertake the inventory, registration, designation or classification, with
the aid of competent experts, of important cultural properties and
national cultural treasures. 21 Findings of administrative officials and
agencies who have acquired expertise because their jurisdiction is
confined to specific matters are generally accorded not only respect
but at times even finality if such findings are supported by substantial
evidence and are controlling on the reviewing authorities because of
their acknowledged expertise in the fields of specialization to which
they are assigned. 22
In view of the foregoing, this Court finds no compelling reason to grant
the petition. Petitioners have failed to show that respondents
Executive Secretary and PCGG exercised their functions with grave
abuse of discretion or in excess of their jurisdiction.
WHEREFORE, for lack of merit, the petition for prohibition and
mandamus is DISMISSED.
SO ORDERED.

113
EN BANC
[G.R. No. 155001. May 5, 2003.]
DEMOSTHENES P. AGAN, JR., JOSEPH B. CATAHAN, JOSE MARI
B. REUNILLA, MANUEL ANTONIO B. BOE, MAMERTO S. CLARA,
REUEL E. DIMALANTA, MORY V. DOMALAON, CONRADO G.
DIMAANO, LOLITA R. HIZON, REMEDIOS P. ADOLFO,
BIENVENIDO C. HILARIO, MIASCOR WORKERS UNIONNATIONAL LABOR UNION (MWU-NLU), and PHILIPPINE AIRLINES
EMPLOYEES ASSOCIATION (PALEA), petitioners, vs. PHILIPPINE
INTERNATIONAL AIR
TERMINALS
CO.,
INC.,
MANILA
INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS and SECRETARY
LEANDRO M. MENDOZA, in his capacity as Head of the Department
of Transportation and Communications, respondents.
MIASCOR GROUNDHANDLING CORPORATION, DNATA-WINGS
AVIATION SYSTEMS CORPORATION, MACROASIA-EUREST
SERVICES, INC., MACROASIA-MENZIES AIRPORT SERVICES
CORPORATION,
MIASCOR
CATERING
SERVICES
CORPORATION,
MIASCOR
AIRCRAFT
MAINTENANCE
CORPORATION, and MIASCOR LOGISTICS CORPORATION,
petitioners-in-intervention,
[G.R. No. 155547. May 5, 2003.]
SALACNIB F. BATERINA, CLAVEL A. MARTINEZ and
CONSTANTINO G. JARAULA, petitioners, vs. PHILIPPINE
INTERNATIONAL AIR
TERMINALS
CO.,
INC.,
MANILA
INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS, DEPARTMENT OF
PUBLIC WORKS AND HIGHWAYS, SECRETARY LEANDRO M.
MENDOZA, in his capacity as Head of the Department of
Transportation and Communications, and SECRETARY SIMEON A.
DATUMANONG, in his capacity as Head of the Department of Public
Works and Highways, respondents,
JACINTO V. PARAS, RAFAEL P. NANTES, EDUARDO C. ZIALCITA,
WILLY BUYSON VILLARAMA, PROSPERO C. NOGRALES,

PROSPERO A. PICHAY, JR., HARLIN CAST ABAYON, and

BENASING O. MACARANBON, respondents-intervenors,
[G.R. No. 155661. May 5, 2003.]
CEFERINO C. LOPEZ, RAMON M. SALES, ALFREDO B. VALENCIA,
MA. TERESA V. GAERLAN, LEONARDO DE LA ROSA, DINA C. DE
LEON, VIRGIE CATAMIN RONALD SCHLOBOM, ANGELITO
SANTOS, MA. LUISA M. PALCON and SAMAHANG MANGGAGAWA
SA PALIPARAN NG PILIPINAS (SMPP), petitioners, vs. PHILIPPINE
INTERNATIONAL AIR
TERMINALS
CO.,
INC.,
MANILA
INTERNATIONAL AIRPORT AUTHORITY, DEPARTMENT OF
TRANSPORTATION AND COMMUNICATIONS, SECRETARY
LEANDRO M. MENDOZA, in his capacity as Head of the Department
of Transportation and Communications, respondents.
DECISION
PUNO, J p:
Petitioners and petitioners-in-intervention filed the instant petitions for
prohibition under Rule 65 of the Revised Rules of Court seeking to
prohibit the Manila International Airport Authority (MIAA) and the
Department of Transportation and Communications (DOTC) and its
Secretary from implementing the following agreements executed by
the Philippine Government through the DOTC and the MIAA and the
Philippine International Air Terminals Co., Inc. (PIATCO): (1) the
Concession Agreement signed on July 12, 1997, (2) the Amended and
Restated Concession Agreement dated November 26, 1999, (3) the
First Supplement to the Amended and Restated Concession
Agreement dated August 27, 1999, (4) the Second Supplement to the
Amended and Restated Concession Agreement dated September 4,
2000, and (5) the Third Supplement to the Amended and Restated
Concession Agreement dated June 22, 2001 (collectively, the PIATCO
Contracts). SIcEHD
The facts are as follows:
In August 1989, the DOTC engaged the services of Aeroport de Paris
(ADP) to conduct a comprehensive study of the Ninoy Aquino
International Airport (NAIA) and determine whether the present airport

114
can cope with the traffic development up to the year 2010. The study
consisted of two parts: first, traffic forecasts, capacity of existing
facilities, NAIA future requirements, proposed master plans and
development plans; and second, presentation of the preliminary
design of the passenger terminal building. The ADP submitted a Draft
Final Report to the DOTC in December 1989.
Some time in 1993, six business leaders consisting of John
Gokongwei, Andrew Gotianun, Henry Sy, Sr., Lucio Tan, George Ty
and Alfonso Yuchengco met with then President Fidel V. Ramos to
explore the possibility of investing in the construction and operation of
a new international airport terminal. To signify their commitment to
pursue the project, they formed the Asia's Emerging Dragon Corp.
(AEDC) which was registered with the Securities and Exchange
Commission (SEC) on September 15, 1993. CSaITD
On October 5, 1994, AEDC submitted an unsolicited proposal to the
Government through the DOTC/MIAA for the development of NAIA
International Passenger Terminal III (NAIA IPT III) under a buildoperate-and-transfer arrangement pursuant to RA 6957 as amended
by RA 7718 (BOT Law). 1
On December 2, 1994, the DOTC issued Dept. Order No. 94-832
constituting the Prequalification Bids and Awards Committee (PBAC)
for the implementation of the NAIA IPT III project.
On March 27, 1995, then DOTC Secretary Jose Garcia endorsed the
proposal of AEDC to the National Economic and Development
Authority (NEDA). A revised proposal, however, was forwarded by the
DOTC to NEDA on December 13, 1995. On January 5, 1996, the
NEDA Investment Coordinating Council (NEDA ICC) Technical
Board favorably endorsed the project to the ICC Cabinet
Committee which approved the same, subject to certain conditions, on
January 19, 1996. On February 13, 1996, the NEDA passed Board
Resolution No. 2 which approved the NAIA IPT III Project. DTEcSa
On June 7, 14, and 21, 1996, DOTC/MIAA caused the publication in
two daily newspapers of an invitation for competitive or comparative
proposals on AEDC's unsolicited proposal, in accordance with Sec. 4A of RA 6957, as amended. The alternative bidders were required to
submit three (3) sealed envelopes on or before 5:00 p.m. of
September 20, 1996. The first envelope should contain the
Prequalification Documents, the second envelope the Technical

Proposal, and the third envelope the Financial Proposal of the

proponent.
On June 20, 1996, PBAC Bulletin No. 1 was issued, postponing the
availment of the Bid Documents and the submission of the
comparative bid proposals. Interested firms were permitted to obtain
the Request for Proposal Documents beginning June 28, 1996, upon
submission of a written application and payment of a non-refundable
fee of P50,000.00 (US$2,000).
The Bid Documents issued by the PBAC provided among others that
the proponent must have adequate capability to sustain the financing
requirement for the detailed engineering, design, construction,
operation, and maintenance phases of the project. The proponent
would be evaluated based on its ability to provide a minimum amount
of equity to the project, and its capacity to secure external financing
for the project.
On July 23, 1996, the PBAC issued PBAC Bulletin No. 2 inviting all
bidders to a pre-bid conference on July 29, 1996.
On August 16, 1996, the PBAC issued PBAC Bulletin No. 3 amending
the Bid Documents. The following amendments were made on the Bid
Documents:
a.
Aside from the fixed Annual Guaranteed Payment, the
proponent shall include in its financial proposal an additional
percentage of gross revenue share of the Government, as follows:
i.

First 5 years

5.0%

ii.

Next 10 years 7.5%

iii.

Next 10 years 10.0%

b.
The amount of the fixed Annual Guaranteed Payment shall be
subject of the price challenge. Proponent may offer an Annual
Guaranteed Payment which need not be of equal amount, but
payment of which shall start upon site possession.
c.
The project proponent must have adequate capability to
sustain the financing requirement for the detailed engineering, design,
construction, and/or operation and maintenance phases of the project
as the case may be. For purposes of pre-qualification, this capability
shall be measured in terms of:

115
i.
Proof of the availability of the project proponent and/or the
consortium to provide the minimum amount of equity for the project;
and
ii.
a letter testimonial from reputable banks attesting that the
project proponent and/or the members of the consortium are banking
with them, that the project proponent and/or the members are of good
financial standing, and have adequate resources.
d.
The basis for the pre qualification shall be the proponent's
compliance with the minimum technical and financial requirements
provided in the Bid Documents and the IRR of the BOT Law. The
minimum amount of equity shall be 30% of the Project Cost. CSaITD
e.
Amendments to the draft Concession Agreement shall be
issued from time to time. Said amendments shall only cover items that
would not materially affect the preparation of the proponent's
proposal.
On August 29, 1996, the Second Pre-Bid Conference was held where
certain clarifications were made. Upon the request of prospective
bidder People's Air Cargo & Warehousing Co., Inc (Paircargo), the
PBAC warranted that based on Sec. 11.6, Rule 11 of the
Implementing Rules and Regulations of the BOT Law, only the
proposed Annual Guaranteed Payment submitted by the challengers
would be revealed to AEDC, and that the challengers' technical and
financial proposals would remain confidential. The PBAC also clarified
that the list of revenue sources contained in Annex 4.2a of the Bid
Documents was merely indicative and that other revenue sources
may be included by the proponent, subject to approval by
DOTC/MIAA. Furthermore, the PBAC clarified that only those fees
and charges denominated as Public Utility Fees would be subject to
regulation, and those charges which would be actually deemed Public
Utility Fees could still be revised, depending on the outcome of
PBAC's query on the matter with the Department of Justice.
In September 1996, the PBAC issued Bid Bulletin No. 5, entitled
"Answers to the Queries of PAIRCARGO as Per Letter Dated
September 3 and 10, 1996." Paircargo's queries and the PBAC's
responses were as follows:
1.
It is difficult for Paircargo and Associates to meet the required
minimum equity requirement as prescribed in Section 8.3.4 of the Bid

Documents considering that the capitalization of each member

company is so structured to meet the requirements and needs of their
current respective business undertaking/activities. In order to comply
with this equity requirement, Paircargo is requesting PBAC to just
allow each member of (sic) corporation of the joint Venture to just
execute an agreement that embodies a commitment to infuse the
required capital in case the project is awarded to the Joint Venture
instead of increasing each corporation's current authorized capital
stock just for prequalification purposes.
In prequalification, the agency is interested in one's financial capability
at the time of prequalification, not future or potential capability.
A commitment to put up equity once awarded the project is not
enough to establish that "present" financial capability. However, total
financial capability of all member companies of the Consortium, to be
established by submitting the respective companies' audited financial
statements, shall be acceptable.
2.
At present, Paircargo is negotiating with banks and other
institutions for the extension of a Performance Security to the joint
venture in the event that the Concessions Agreement (sic) is awarded
to them. However, Paircargo is being required to submit a copy of the
draft concession as one of the documentary requirements. Therefore,
Paircargo is requesting that they'd (sic) be furnished copy of the
approved negotiated agreement between the PBAC and the AEDC at
the soonest possible time.
A copy of the draft Concession Agreement is included in the Bid
Documents. Any material changes would be made known to
prospective challengers through bid bulletins. However, a final version
will be issued before the award of contract. SECAHa
The PBAC also stated that it would require AEDC to sign Supplement
C of the Bid Documents (Acceptance of Criteria and Waiver of Rights
to Enjoin Project) and to submit the same with the required Bid
Security.
On September 20, 1996, the consortium composed of People's Air
Cargo and Warehousing Co., Inc. (Paircargo), Phil. Air and Grounds
Services, Inc. (PAGS) and Security Bank Corp. (Security Bank)
(collectively, Paircargo Consortium) submitted their competitive
proposal to the PBAC. On September 23, 1996, the PBAC opened the

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first envelope containing the prequalification documents of the
Paircargo Consortium. On the following day, September 24, 1996, the
PBAC prequalified the Paircargo Consortium.
On September 26, 1996, AEDC informed the PBAC in writing of its
reservations as regards the Paircargo Consortium, which include:
a.
The lack of corporate approvals and financial capability of
PAIRCARGO;
b.
The lack of corporate approvals and financial capability of
PAGS;
c.
The prohibition imposed by RA 337, as amended (the General
Banking Act) on the amount that Security Bank could legally invest in
the project;
d.
The inclusion of Siemens as a contractor of the PAIRCARGO
Joint Venture, for prequalification purposes; and
e.
The appointment of Lufthansa as the facility operator, in view
of the Philippine requirement in the operation of a public utility.
DTEcSa
The PBAC gave its reply on October 2, 1996, informing AEDC that it
had considered the issues raised by the latter, and that based on the
documents submitted by Paircargo and the established
prequalification criteria, the PBAC had found that the challenger,
Paircargo, had prequalified to undertake the project. The Secretary of
the DOTC approved the finding of the PBAC.
The PBAC then proceeded with the opening of the second envelope
of the Paircargo Consortium which contained its Technical Proposal.
On October 3, 1996, AEDC reiterated its objections, particularly with
respect to Paircargo's financial capability, in view of the restrictions
imposed by Section 21-B of the General Banking Act and Sections
1380 and 1381 of the Manual Regulations for Banks and Other
Financial Intermediaries. On October 7, 1996, AEDC again
manifested its objections and requested that it be furnished with
excerpts of the PBAC meeting and the accompanying technical
evaluation report where each of the issues they raised were
addressed.

On October 16, 1996, the PBAC opened the third envelope submitted
by AEDC and the Paircargo Consortium containing their respective
financial proposals. Both proponents offered to build the NAIA
Passenger Terminal III for at least $350 million at no cost to the
government and to pay the government: 5% share in gross revenues
for the first five years of operation, 7.5% share in gross revenues for
the next ten years of operation, and 10%. share in gross revenues for
the last ten years of operation, in accordance with the Bid Documents.
However, in addition to the foregoing, AEDC offered to pay the
government a total of P135 million as guaranteed payment for 27
years while Paircargo Consortium offered to pay the government a
total of P17.75 billion for the same period. CSaITD
Thus, the PBAC formally informed AEDC that it had accepted the
price proposal submitted by the Paircargo Consortium, and gave
AEDC 30 working days or until November 28, 1996 within which to
match the said bid, otherwise, the project would be awarded to
Paircargo.
As AEDC failed to match the proposal within the 30-day period, then
DOTC Secretary Amado Lagdameo, on December 11, 1996, issued a
notice to Paircargo Consortium regarding AEDC's failure to match the
proposal.
On February 27, 1997, Paircargo Consortium incorporated into
Philippine International Airport Terminals Co., Inc. (PIATCO).
AEDC subsequently protested the alleged undue preference given to
PIATCO and reiterated its objections as regards the prequalification of
PIATCO.
On April 11, 1997, the DOTC submitted the concession agreement for
the second-pass approval of the NEDA-ICC,
On April 16, 1997, AEDC filed with the Regional Trial Court of Pasig a
Petition for Declaration of Nullity of the Proceedings, Mandamus and
Injunction against the Secretary of the DOTC, the Chairman of the
PBAC, the voting members of the PBAC and Pantaleon D. Alvarez, in
his capacity as Chairman of the PBAC Technical Committee.
On April 17, 1997, the NEDA-ICC conducted an ad referendum to
facilitate the approval, on a no-objection basis, of the BOT agreement
between the DOTC and PIATCO. As the ad referendum gathered only

117
four (4) of the required six (6) signatures, the NEDA merely noted the
agreement.

the Third Supplement on June 22, 2001 (collectively, Supplements).

DTEcSa

On July 9, 1997, the DOTC issued the notice of award for the project
to PIATCO.

The First Supplement to the ARCA amended Sec. 1.36 of the ARCA
defining "Revenues" or "Gross Revenues"; Sec. 2.05 (d) of the ARCA
referring to the obligation of MIAA to provide sufficient funds for the
upkeep, maintenance, repair and/or replacement of all airport facilities
and equipment which are owned or operated by MIAA; and further
providing additional special obligations on the part of GRP aside from
those already enumerated in Sec. 2.05 of the ARCA. The First
Supplement also provided a stipulation as regards the construction of
a surface road to connect NAIA Terminal II and Terminal III in lieu of
the proposed access tunnel crossing Runway 13/31; the swapping of
obligations between GRP and PIATCO regarding the improvement of
Sales Road; and the changes in the timetable. It also amended Sec.
6.01 (c) of the ARCA pertaining to the Disposition of Terminal Fees;
Sec. 6.02 of the ARCA by inserting an introductory paragraph; and
Sec. 6.02 (a) (iii) of the ARCA referring to the Payments of
Percentage, Share in Gross Revenues. CSaITD

On July 12, 1997, the Government, through then DOTC Secretary

Arturo T. Enrile, and PIATCO, through its President, Henry T. Go,
signed the "Concession Agreement for the Build-Operate-andTransfer Arrangement of the Ninoy Aquino International Airport
Passenger Terminal III" (1997 Concession Agreement). The
Government granted PIATCO the franchise to operate and maintain
the said terminal during the concession period and to collect the fees,
rentals and other charges in accordance with the rates or schedules
stipulated in the 1997 Concession Agreement. The Agreement
provided that the concession period shall be for twenty-five (25) years
commencing from the in-service date, and may be renewed at the
option of the Government for a period not exceeding twenty-five (25)
years. At the end of the concession period, PIATCO shall transfer the
development facility to MIAA.
On November 26, 1998, the Government and PIATCO signed an
Amended and Restated Concession Agreement (ARCA). Among the
provisions of the 1997 Concession Agreement that were amended by
the ARCA were: Sec. 1.11 pertaining to the definition of "certificate of
completion"; Sec. 2.05 pertaining to the Special Obligations of GRP;
Sec. 3.02 (a) dealing with the exclusivity of the franchise given to the
Concessionaire; Sec. 4.04 concerning the assignment by
Concessionaire of its interest in the Development Facility; Sec. 5.08
(c) dealing with the proceeds of Concessionaire's insurance; Sec.
5.10 with respect to the temporary take-over of operations by GRP;
Sec. 5.16 pertaining to the taxes, duties and other imposts that may
be levied on the Concessionaire; Sec. 6.03 as regards the periodic
adjustment of public utility fees and charges; the entire Article VIII
concerning the provisions on the termination of the contract; and Sec.
10.02 providing for the venue of the arbitration proceedings in case a
dispute or controversy arises between the parties to the agreement.
Subsequently, the Government and PIATCO signed three
Supplements to the ARCA. The First Supplement was signed on
August 27, 1999; the Second Supplement on September 4, 2000; and

The Second Supplement to the ARCA contained provisions

concerning the clearing, removal, demolition or disposal of
subterranean structures uncovered or discovered at the site of the
construction of the terminal by the Concessionaire. It defined the
scope of works; it provided for the procedure for the demolition of the
said structures and the consideration for the same which the GRP
shall pay PIATCO; it provided for time extensions, incremental and
consequential costs and losses consequent to the existence of such
structures; and it provided for some additional obligations on the part
of PIATCO as regards the said structures.
Finally, the Third Supplement provided for the obligations of the
Concessionaire as regards the construction of the surface road
connecting Terminals II and III.
Meanwhile, the MIAA which is charged with the maintenance and
operation of the NAIA Terminals I and II, had existing concession
contracts with various service providers to offer international airline
airport services, such as in-flight catering, passenger handling, ramp
and ground support, aircraft maintenance and provisions, cargo
handling and warehousing, and other services, to several international
airlines at the NAIA. Some of these service providers are the Miascor

118
Group, DNATA-Wings Aviation Systems Corp., and the MacroAsia
Group. Miascor, DNATA and MacroAsia, together with Philippine
Airlines (PAL), are the dominant players in the industry with an
aggregate market share of 70%.
On September 17, 2002, the workers of the international airline
service providers, claiming that they stand to lose their employment
upon the implementation of the questioned agreements, filed before
this Court a petition for prohibition to enjoin the enforcement of said
agreements. 2
On October 15, 2002, the service providers, joining the cause of the
petitioning workers, filed a motion for intervention and a petition-inintervention.
On October 24, 2002, Congressmen Salacnib Baterina, Clavel
Martinez and Constantino Jaraula filed a similar petition with this
Court. 3
On November 6, 2002, several employees of the MIAA likewise filed a
petition assailing the legality of the various agreements. 4
On December 11, 2002. another group of Congressmen, Hon. Jacinto
V. Paras, Rafael P. Nantes, Eduardo C. Zialcita, Willie B. Villarama,
Prospero C. Nograles, Prospero A. Pichay, Jr., Harlin Cast Abayon
and Benasing O. Macaranbon, moved to intervene in the case as
Respondents-Intervenors. They filed their Comment-In-Intervention
defending the validity of the assailed agreements and praying for the
dismissal of the petitions. DTEcSa
During the pendency of the case before this Court, President Gloria
Macapagal Arroyo, on November 29, 2002, in her speech at the 2002
Golden Shell Export Awards at Malacaang Palace, stated that she
will not "honor (PIATCO) contracts which the Executive Branch's legal
offices have concluded (as) null and void." 5
Respondent PIATCO filed its Comments to the present petitions on
November 7 and 27, 2002. The Office of the Solicitor General and the
Office of the Government Corporate Counsel filed their respective
Comments in behalf of the public respondents.
On December 10, 2002, the Court heard the case on oral argument.
After the oral argument, the Court then resolved in open court to
require the parties to file simultaneously their respective Memoranda

in amplification of the issues heard in the oral arguments within 30

days and to explore the possibility of arbitration or mediation as
provided in the challenged contracts. CSaITD
In their consolidated Memorandum, the Office of the Solicitor General
and the Office of the Government Corporate Counsel prayed that the
present petitions be given due course and that judgment be rendered
declaring the 1997 Concession Agreement, the ARCA and the
Supplements thereto void for being contrary to the Constitution, the
BOT Law and its Implementing Rules and Regulations.
On March 6, 2003, respondent PIATCO informed the Court that on
March 4, 2003 PIATCO commenced arbitration proceedings before
the International Chamber of Commerce, International Court of
Arbitration (ICC) by filing a Request for Arbitration with the Secretariat
of the ICC against the Government of the Republic of the Philippines
acting through the DOTC and MIAA.
In the present cases, the Court is again faced with the task of
resolving complicated issues made difficult by their intersecting legal
and economic implications. The Court is aware of the far reaching fall
out effects of the ruling which it makes today. For more than a century
and whenever the exigencies of the times demand it, this Court has
never shirked from its solemn duty to dispense justice and resolve
"actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction."
6 To be sure, this Court will not begin to do otherwise today.
We shall first dispose of the procedural issues raised by respondent
PIATCO which they allege will bar the resolution of the instant
controversy.
Petitioners' Legal Standing to File
the present Petitions
a.

G.R. Nos. 155001 and 155661

In G.R. No. 155001 individual petitioners are employees of various

service providers 7 having separate concession contracts with MIAA
and continuing service agreements with various international airlines
to provide in-flight catering, passenger handling, ramp and ground
support, aircraft maintenance and provisions, cargo handling and

119
warehousing and other services. Also included as petitioners are labor
unions MIASCOR Workers Union-National Labor Union and Philippine
Airlines Employees Association, These petitioners filed the instant
action for prohibition as taxpayers and as parties whose rights and
interests stand to be violated by the implementation of the PIATCO
Contracts. DTEcSa
Petitioners-Intervenors in the same case are all corporations
organized and existing under Philippine laws engaged in the business
of providing in-flight catering, passenger handling, ramp and ground
support, aircraft maintenance and provisions, cargo handling and
warehousing and other services to several international airlines at the
Ninoy Aquino International Airport. Petitioners-Intervenors allege that
as tax-paying international airline and airport-related service
operators, each one of them stands to be irreparably injured by the
implementation of the PIATCO Contracts. Each of the petitionersintervenors have separate and subsisting concession agreements
with MIAA and with various international airlines which they allege are
being interfered with and violated by respondent PIATCO.
In G.R. No. 155661, petitioners constitute employees of MIAA and
Samahang Manggagawa sa Paliparan ng Pilipinas a legitimate
labor union and accredited as the sole and exclusive bargaining agent
of all the employees in MIAA. Petitioners anchor their petition for
prohibition on the nullity of the contracts entered into by the
Government and PIATCO regarding the build-operate-and-transfer of
the NAIA IPT III. They filed the petition as taxpayers and persons who
have a legitimate interest to protect in the implementation of the
PIATCO Contracts.
Petitioners in both cases raise the argument that the PIATCO
Contracts contain stipulations which directly contravene numerous
provisions of the Constitution, specific provisions of the BOT Law and
its Implementing Rules and Regulations, and public policy. Petitioners
contend that the DOTC and the MIAA, by entering into said contracts,
have committed grave abuse of discretion amounting to lack or
excess of jurisdiction which can be remedied only by a writ of
prohibition, there being no plain, speedy or adequate remedy in the
ordinary course of law.
In particular, petitioners assail the provisions in the 1997 Concession
Agreement and the ARCA which grant PIATCO the exclusive right to

operate a commercial international passenger terminal within the

Island of Luzon, except those international airports already existing at
the time of the execution of the agreement. The contracts further
provide that upon the commencement of operations at the NAIA IPT
III, the Government shall cause the closure of Ninoy Aquino
International Airport Passenger Terminals I and II as international
passenger terminals. With respect to existing concession agreements
between MIAA and international airport service providers regarding
certain services or operations, the 1997 Concession Agreement and
the ARCA uniformly provide that such services or operations will not
be carried over to the NAIA IPT III and PIATCO is under no obligation
to permit such carry over except through a separate agreement duly
entered into with PIATCO. 8
With respect to the petitioning service providers and their employees,
upon the commencement of operations of the NAIA IPT III, they allege
that they will be effectively barred from providing international airline
airport services at the NAIA Terminals I and II as all international
airlines and passengers will be diverted to the NAIA IPT III. The
petitioning service providers will thus be compelled to contract with
PIATCO alone for such services, with no assurance that subsisting
contracts with MIAA and other international airlines will be respected.
Petitioning service providers stress that despite the very competitive
market, the substantial capital investments required and the high rate
of fees, they entered into their respective contracts with the MIAA with
the understanding that the said contracts will be in force for the
stipulated period, and thereafter, renewed so as to allow each of the
petitioning service providers to recoup their investments and obtain a
reasonable return thereon.
Petitioning employees of various service providers at the NAIA
Terminals I and II and of MIAA on the other hand allege that with the
closure of the NAIA Terminals I and II as international passenger
terminals under the PIATCO Contracts, they stand to lose
employment. DTEcSa
The question on legal standing is whether such parties have "alleged
such a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues
upon which the court so largely depends for illumination of difficult
constitutional questions." 9 Accordingly, it has been held that the
interest of a person assailing the constitutionality of a statute must be

120
direct and personal. He must be able, to show, not only that the law or
any government act is invalid, but also that he sustained or is in
imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some indefinite
way. It must appear that the person complaining has been or is about
to be denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of. 10
We hold that petitioners have the requisite standing. In the
abovementioned cases, petitioners have a direct and substantial
interest to protect by reason of the implementation of the PIATCO
Contracts. They stand to lose their source of livelihood, a property
right which is zealously protected by the Constitution. Moreover,
subsisting concession agreements between MIAA and petitionersintervenors and service contracts between international airlines and
petitioners-intervenors stand to be nullified or terminated by the
operation of the NAIA IPT III under the PIATCO Contracts. The
financial prejudice brought about by the PIATCO Contracts on
petitioners and petitioners-intervenors in these cases are legitimate
interests sufficient to confer on them the requisite standing to file the
instant petitions. CSaITD
b.

G.R. No. 155547

In G.R. No. 155547, petitioners filed the petition for prohibition as

members of the House of Representatives, citizens and taxpayers.
They allege that as members of the House of Representatives, they
are especially interested in the PIATCO Contracts, because the
contracts compel the Government and/or the House of
Representatives to appropriate funds necessary to comply with the
provisions therein. 11 They cite provisions of the PIATCO Contracts
which require disbursement of unappropriated amounts in compliance
with the contractual obligations of the Government. They allege that
the Government obligations in the PIATCO Contracts which compel
government expenditure without appropriation is a curtailment of their
prerogatives as legislators, contrary to the mandate of the Constitution
that "[n]o money shall be paid out of the treasury except in pursuance
of an appropriation made by law." 12
Standing is a peculiar concept in constitutional law because in some
cases, suits are not brought by parties who have been personally

injured by the operation of a law or any other government act but by

concerned citizens, taxpayers or voters who actually sue in the public
interest. Although we are not unmindful of the cases of Imus Electric
Co. v. Municipality of Imus 13 and Gonzales v. Raquiza 14 wherein
this Court held that appropriation must be made only on amounts
immediately demandable, public interest demands that we take a
more liberal view in determining whether the petitioners suing as
legislators, taxpayers and citizens have locus standi to file the instant
petition. In Kilosbayan, Inc. v. Guingona, 15 this Court held "[i]n line
with the liberal policy of this Court on locus standi, ordinary taxpayers,
members of Congress, and even association of planters, and nonprofit civic organizations were allowed to initiate and prosecute
actions before this Court to question the constitutionality or validity of
laws, acts, decisions, rulings, or orders of various government
agencies or instrumentalities," 16 Further, "insofar as taxpayers' suits
are concerned . . . (this Court) is not devoid of discretion as to
whether or not it should be entertained." 17 As such ". . . even if,
strictly speaking, they [the petitioners] are not covered by the
definition, it is still within the wide discretion of the Court to waive the
requirement and so remove the impediment to its addressing and
resolving the serious constitutional questions raised." 18 In view of the
serious legal questions involved and their impact on public interest,
we resolve to grant standing to the petitioners.
Other Procedural Matters
Respondent PIATCO further alleges that this Court is without
jurisdiction to review the instant cases as factual issues are involved
which this Court is ill-equipped to resolve. Moreover, PIATCO alleges
that submission of this controversy to this Court at the first instance is
a violation of the rule on hierarchy of courts. They contend that trial
courts have concurrent jurisdiction with this Court with respect to a
special civil action for prohibition and hence, following the rule on
hierarchy of courts, resort must first be had before the trial courts.
After a thorough study and careful evaluation of the issues involved,
this Court is of the view that the crux of the instant controversy
involves significant legal questions. The facts necessary to resolve
these legal questions are well established and, hence, need not be
determined by a trial court.

121
The rule on hierarchy of courts will not also prevent this Court from
assuming jurisdiction over the cases at bar. The said rule may be
relaxed when the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for the
exercise of this Court's primary jurisdiction. 19
It is easy to discern that exceptional circumstances exist in the cases
at bar that call for the relaxation of the rule. Both petitioners and
respondents agree that these cases are of transcendental importance
as they involve the construction and operation of the country's premier
international airport. Moreover, the crucial issues submitted for
resolution are of first impression and they entail the proper legal
interpretation of key provisions of the Constitution, the BOT Law and
its Implementing Rules and Regulations. Thus, considering the nature
of the controversy before the Court, procedural bars may be lowered
to give way for the speedy disposition of the instant cases.
Legal Effect of the Commencement
of Arbitration Proceedings by
PIATCO
There is one more procedural obstacle which must be overcome. The
Court is aware that arbitration proceedings pursuant to Section 10.02
of the ARCA have been filed at the instance of respondent PIATCO.
Again, we hold that the arbitration step taken by PIATCO will not oust
this Court of its jurisdiction over the cases at bar.
In Del Monte Corporation-USA v. Court of Appeals, 20 even after
finding that the arbitration clause in the Distributorship Agreement in
question is valid and the dispute between the parties is arbitrable, this
Court affirmed the trial court's decision denying petitioner's Motion to
Suspend Proceedings pursuant to the arbitration clause under the
contract. In so ruling, this Court held that as contracts produce legal
effect between the parties, their assigns and heirs, only the parties to
the Distributorship Agreement are bound by its terms, including the
arbitration clause stipulated therein. This Court ruled that arbitration
proceedings could be called for but only with respect to the parties to
the contract in question. Considering that there are parties to the case
who are neither parties to the Distributorship Agreement nor heirs or
assigns of the parties thereto, this Court, citing its previous ruling in

Salas, Jr. v. Laperal Realty Corporation, 21 held that to tolerate the

splitting of proceedings by allowing arbitration as to some of the
parties on the one hand and trial for the others on the other hand
would, in effect, result in multiplicity of suits, duplicitous procedure and
unnecessary delay, 22 Thus, we ruled that the interest of justice would
best be served if the trial court hears and adjudicates the case in a
single and complete proceeding. DTEcSa
It is established that petitioners in the present cases who have
presented legitimate interests in the resolution of the controversy are
not parties to the PIATCO Contracts. Accordingly, they cannot be
bound by the arbitration clause provided for in the ARCA and hence,
cannot be compelled to submit to arbitration proceedings. A speedy
and decisive resolution of all the critical issues in the present
controversy, including those raised by petitioners, cannot be made
before an arbitral tribunal. The object of arbitration is precisely to allow
an expeditious determination of a dispute. This objective would not be
met if this Court were to allow the parties to settle the cases by
arbitration as there are certain issues involving non-parties to the
PIATCO Contracts which the arbitral tribunal will not be equipped to
resolve.
Now, to the merits of the instant controversy.
I
Is PIATCO a qualified bidder?
Public respondents argue that the Paircargo Consortium, PIATCO's
predecessor, was not a duly pre-qualified bidder on the unsolicited
proposal submitted by AEDC as the Paircargo Consortium failed to
meet the financial capability required under the BOT Law and the Bid
Documents. They allege that in computing the ability of the Paircargo
Consortium to meet the minimum equity requirements for the project,
the entire net worth of Security Bank, a member of the consortium,
should not be considered.
PIATCO relies, on the other hand, on the strength of the
Memorandum dated October 14, 1996 issued by the DOTC
Undersecretary Primitivo C. Cal stating that the Paircargo Consortium
is found to have a combined net worth of P3,900,000,000.00,
sufficient to meet the equity requirements of the project. The said
Memorandum was in response to a letter from Mr. Antonio Henson of

122
AEDC to President Fidel V. Ramos questioning the financial capability
of the Paircargo Consortium on the ground that it does not have the
financial resources to put up the required minimum equity of
P2,700,000,000.00. This contention is based on the restriction under
R.A. No. 337, as amended or the General Banking Act that a
commercial bank cannot invest in any single enterprise in an amount
more than 15% of its net worth. In the said Memorandum,
Undersecretary Cal opined:
The Bid Documents, as clarified through Bid Bulletin Nos. 3 and 5,
require that financial capability will be evaluated based on total
financial capability of all the member companies of the [Paircargo]
Consortium. In this connection, the Challenger was found to have a
combined net worth of P3,926,421,242.00 that could support a project
costing approximately P13 Billion. CSaITD
It is not a requirement that the net worth must be "unrestricted." To
impose that as a requirement now will be nothing less than unfair.
The financial statement or the net worth is not the sole basis in
establishing financial capability. As stated in Bid Bulletin No. 3,
financial capability may also be established by testimonial letters
issued by reputable banks. The Challenger has complied with this
requirement.
To recap, net worth reflected in the Financial Statement should not be
taken as the amount of the money to be used to answer the required
thirty percent (30%) equity of the challenger but rather to be used in
establishing if there is enough basis to believe that the challenger can
comply with the required 30% equity. In fact, proof of sufficient equity
is required as one of the conditions for award of contract (Section 12.1
IRR of the BOT Law) but not for pre-qualification (Section 5.4 of the
same document). 23
Under the BOT Law, in case of a build-operate-and-transfer
arrangement, the contract shall be awarded to the bidder "who,
having satisfied the minimum financial, technical, organizational and
legal standards" required by the law, has submitted the lowest bid and
most favorable terms of the project, 24 Further, the 1994
Implementing Rules and Regulations of the BOT Law provide:
Section 5.4 Pre-qualification Requirements.
xxx

xxx

xxx

c.
Financial Capability: The project proponent must have
adequate capability to sustain the financing requirements for the
detailed engineering design, construction and/or operation and
maintenance phases of the project, as the case may be. For purposes
of pre-qualification, this capability shall be measured in terms of (i)
proof of the ability of the project proponent and/or the consortium to
provide a minimum amount of equity to the project, and (ii) a letter
testimonial from reputable banks attesting that the project proponent
and/or members of the consortium are banking with them, that they
are in good financial standing, and that they have adequate
resources. The government agency/LGU concerned shall determine
on a project-to-project basis and before pre-qualification, the minimum
amount of equity needed. (emphasis supplied)
Pursuant to this provision, the PBAC issued PBAC Bulletin No. 3
dated August 16, 1996 amending the financial capability requirements
for pre-qualification of the project proponent as follows:
6.

Basis of Pre-qualification

The basis for the pre-qualification shall be on the compliance of the

proponent to the minimum technical and financial requirements
provided in the Bid Documents and in the IRR of the BOT Law, R.A.
No. 6957, as amended by R.A. 7718.
The minimum amount of equity to which the proponent's financial
capability will be based shall be thirty percent (30%) of the project
cost instead of the twenty percent (20%) specified in Section 3.6.4 of
the Bid Documents. This is to correlate with the required debt-toequity ratio of 70:30 in Section 2.01a of the draft concession
agreement, The debt portion of the project financing should not
exceed 70% of the actual project cost.
Accordingly, based on the above provisions of law, the Paircargo
Consortium or any challenger to the unsolicited proposal of AEDC has
to show that it possesses the requisite financial capability to
undertake the project in the minimum amount of 30% of the project
cost through (i) proof of the ability to provide a minimum amount of
equity to the project, and (ii) a letter testimonial from reputable banks
attesting that the project proponent or members of the consortium are
banking with them, that they are in good financial standing, and that
they have adequate resources.

123
As the minimum project cost was estimated to be US$350,000,000.00
or roughly P9,183,650,000.00, 25 the Paircargo Consortium had to
show to the satisfaction of the PBAC that it had the ability to provide
the minimum equity for the project in the amount of at least
P2,755,095,000.00.

the investing bank's net worth for purposes of computing the

prescribed ratio of net worth to risk assets. DTEcSa

Paircargo's Audited Financial Statements as of 1993 and 1994

indicated that it had a net worth of P2,783,592,00 and P3,123,515,00
respectively. 26 PAGS' Audited Financial Statements as of 1995
indicate that it has approximately P26,735,700.00 to invest as its
equity for the project. 27 Security Bank's Audited Financial
Statements as of 1995 show that it has a net worth equivalent to its
capital funds in the amount of P3,523,504,377.00. 28

SECTION X383.
Other Limitations and Restrictions. The
following limitations and restrictions shall also apply regarding equity
investments of banks.

We agree with public respondents that with respect to Security Bank,

the entire amount of its net worth could not be invested in a single
undertaking or enterprise, whether allied or non-allied in accordance
with the provisions of R.A. No. 337, as amended or the General
Banking Act:

Thus, the maximum amount that Security Bank could validly invest in
the Paircargo Consortium is only P528,525,656.55, representing 15%
of its entire net worth. The total net worth therefore of the Paircargo
Consortium, after considering the maximum amounts that may be
validly invested by each of its members is P558,384,871.55 or only
6.08% of the project cost, 29 an amount substantially less than the
prescribed minimum equity investment required for the project in the
amount of P2,755,095,000.00 or 30% of the project cost.

Sec. 21-B.
The provisions in this or in any other Act to the contrary
notwithstanding, the Monetary Board, whenever it shall deem
appropriate and necessary to further national development objectives
or support national priority projects, may authorize a commercial
bank, a bank authorized to provide commercial banking services, as
well as a government-owned and controlled bank, to operate under an
expanded commercial banking authority and by virtue thereof
exercise, in addition to powers authorized for commercial banks, the
powers of an Investment House as provided in Presidential Decree
No. 129, invest in the equity of a non-allied undertaking, or own a
majority or all of the equity in a financial intermediary other than a
commercial bank or a bank authorized. to provide commercial banking
services; Provided, That (a) the total investment in equities shall not
exceed fifty percent (50%) of the net worth of the bank; (b) the equity
investment in any one enterprise whether allied or non-allied shall not
exceed fifteen percent (15%) of the net worth of the bank; (c) the
equity investment of the bank, or of its wholly or majority-owned
subsidiary, in a single non-allied undertaking shall not exceed thirtyfive percent (35%) of the total equity in the enterprise nor shall it
exceed thirty-five percent (35%) of the voting stock in that enterprise;
and (d) the equity investment in other banks shall be deducted from

xxx

xxx

xxx

Further, the 1993 Manual of Regulations for Banks provides:

a.
In any single enterprise. The equity investments of banks in
any single enterprise shall not exceed at any time fifteen percent
(15%) of the net worth of the 'investing bank as defined in Sec. X106
and Subsec. X121.5. CSaITD

The purpose of pre-qualification in any public bidding is to determine,

at the earliest opportunity, the ability of the bidder to undertake the
project. Thus, with respect to the bidder's financial capacity at the prequalification stage, the law requires the government agency to
examine and determine the ability of the bidder to fund the entire cost
of the project by considering the maximum amounts that each bidder
may invest in the project at the time of pre-qualification.
The PBAC has determined that any prospective bidder, for the
construction, operation and maintenance of the NAIA IPT III project
should prove that it has the ability to provide equity in the minimum
amount of 30% of the project cost, in accordance with the 70:30 debtto-equity ratio prescribed in the Bid Documents. Thus, in the case of
Paircargo Consortium, the PBAC should determine the maximum
amounts that each member of the consortium may commit for the
construction, operation and maintenance of the NAIA IPT III project at
the time of pre-qualification. With respect to Security Bank, the
maximum amount which may be invested by it would only be 15% of
its net worth in view of the restrictions imposed by the General

124
Banking Act. Disregarding the investment ceilings provided by
applicable law would not result in a proper evaluation of whether or
not a bidder is pre-qualified to undertake the project as for all intents
and purposes, such ceiling or legal restriction determines the true
maximum amount which a bidder may invest in the project.
Further, the determination of whether or not a bidder is pre-qualified to
undertake the project requires an evaluation of the financial capacity
of the said bidder at the time the bid is submitted based on the
required documents presented by the bidder. The PBAC should not
be allowed to speculate on the future financial ability of the bidder to
undertake the project on the basis of documents submitted. This
would open doors to abuse and defeat the very purpose of a public
bidding. This is especially true in the case at bar which involves the
investment of billions of pesos by the project proponent. The relevant
government authority is duty-bound to ensure that the awardee of the
contract possesses the minimum required financial capability to
complete the project. To allow the PBAC to estimate the bidder's
future financial capability would not secure the viability and integrity of
the project. A restrictive and conservative application of the rules and
procedures of public bidding is necessary not only to protect the
impartiality and regularity of the proceedings but also to ensure the
financial and technical reliability of the project. It has been held that:
The basic rule in public bidding is that bids should be evaluated based
on the required documents submitted before and not after the opening
of bids. Otherwise, the foundation of a fair and competitive public
bidding would be defeated. Strict observance of the rules, regulations,
and guidelines of the bidding process is the only safeguard to a fair,
honest and competitive public bidding. 30
Thus, if the maximum amount of equity that a bidder may invest in the
project at the time the bids are submitted falls short of the minimum
amounts required to be put up by the bidder, said bidder should be
properly disqualified. Considering that at the pre-qualification stage,
the maximum amounts which the Paircargo Consortium may invest in
the project fell short of the minimum amounts prescribed by the
PBAC, we hold that Paircargo Consortium was not a qualified bidder.
Thus the award of the contract by the PBAC to the Paircargo
Consortium, a disqualified bidder, is null and void.

While it would be proper at this juncture to end the resolution of the

instant controversy, as the legal effects of the disqualification of
respondent PIATCO's predecessor would come into play and
necessarily result in the nullity of all the subsequent contracts entered
by it in pursuance of the project, the Court feels that it is necessary to
discuss in full the pressing issues of the present controversy for a
complete resolution thereof. DTEcSa
II
Is the 1997 Concession Agreement valid?
Petitioners and public respondents contend that the 1997 Concession
Agreement is invalid as it contains provisions that substantially depart
from the draft Concession Agreement included in the Bid Documents.
They maintain that a substantial departure from the draft Concession
Agreement is a violation of public policy and renders the 1997
Concession Agreement null and void.
PIATCO maintains, however, that the Concession Agreement
attached to the Bid Documents is intended to be a draft, i.e., subject
to change, alteration or modification, and that this intention was clear
to all participants, including AEDC, and DOTC/MIAA. It argued further
that said intention is expressed in Part C (6) of Bid Bulletin No. 3
issued by the PBAC which states:
6.

Amendments to the Draft Concessions Agreement

Amendments to the Draft Concessions Agreement shall be issued

from time to time. Said amendments shall only cover items that would
not materially affect the preparation of the proponent's proposal.
By its very nature, public bidding aims to protect the public interest by
giving the public the best possible advantages through open
competition. Thus:
Competition must be legitimate, fair and honest. In the field of
government contract law, competition requires, not only bidding upon
a common standard, a common basis, upon the same thing, the same
subject matter, the same undertaking,' but also that it be legitimate,
fair and honest; and not designed to injure or defraud the government.
31
An essential element of a publicly bidded contract is that all bidders
must be on equal footing. Not simply in terms of application of the

125
procedural rules and regulations imposed by the relevant government
agency, but more importantly, on the contract bidded upon. Each
bidder must be able to bid on the same thing. The rationale is
obvious. If the winning bidder is allowed to later include or modify
certain provisions in the contract awarded such that the contract is
altered in any material respect, then the essence of fair competition in
the public bidding is destroyed. A public bidding would indeed be a
farce if after the contract is awarded, the winning bidder may modify
the contract and include provisions which are favorable to it that were
not previously made available to the other bidders. Thus:
It is inherent in public biddings that there shall be a fair competition
among the bidders. The specifications in such biddings provide the
common ground or basis for the bidders. The specifications should,
accordingly, operate equally or indiscriminately upon all bidders. 32
The same rule was restated by Chief Justice Stuart of the Supreme
Court of Minnesota:
The law is well settled that where, as in this case, municipal
authorities can only let a contract for public work to the lowest
responsible bidder, the proposals and specifications therefore must be
so framed as to permit free and full competition. Nor can they enter
into a contract with the best bidder containing substantial provisions
beneficial to him, not included or contemplated in the terms and
specifications upon which the bids were invited. 33
In fact, in the PBAC Bid Bulletin No. 3 cited by PIATCO to support its
argument that the draft concession agreement is subject to
amendment, the pertinent portion of which was quoted above, the
PBAC also clarified that "[s]aid amendments shall only cover items
that would not materially affect the preparation of the proponent's
proposal."
While we concede that a winning bidder is not precluded from
modifying or amending certain provisions of the contract bidded upon,
such changes must not constitute substantial or material amendments
that would alter the basic parameters of the contract and would
constitute a denial to the other bidders of the opportunity to bid on the
same terms. Hence, the determination of whether or not a
modification or amendment of a contract bidded out constitutes a
substantial amendment rests on whether the contract, when taken as
a whole, would contain substantially different terms and conditions

that would have the effect of altering the technical and/or financial
proposals previously submitted by other bidders. The alterations and
modifications in the contract executed between the government and
the winning bidder must be such as to render such executed contract
to be an entirely different contract from the one that was bidded upon.
CSaITD
In the case of Caltex (Philippines), Inc. v. Delgado Brothers, Inc., 34
this Court quoted with approval the ruling of the trial court that an
amendment to a contract awarded through public bidding, when such
subsequent amendment was made without a new public bidding, is
null and void:
The Court agrees with the contention of counsel for the plaintiffs that
the due execution of a contract after public bidding is a limitation upon
the right of the contracting parties to alter or amend it without another
public bidding, for otherwise what would a public bidding be good for if
after the execution of a contract after public bidding, the contracting
parties may alter or amend the contract, or even cancel it, at their will?
Public biddings are held for the protection of the public, and to give
the public the best possible advantages by means of open
competition between the bidders. He who bids or offers the best terms
is awarded the contract subject of the bid, and it is obvious that such
protection and best possible advantages to the public will disappear if
the parties to a contract executed after public bidding may alter or
amend it without another previous public bidding. 35
Hence, the question that comes to fore is this: is the 1997 Concession
Agreement the same agreement that was offered for public bidding,
i.e., the draft Concession Agreement attached to the Bid Documents?
A close comparison of the draft Concession Agreement attached to
the Bid Documents and the 1997 Concession Agreement reveals that
the documents differ in at least two material respects:
a.

Modification on the Public

Utility Revenues and Non-Public

Utility Revenues that may be
collected by PIATCO
The fees that may be, imposed and collected by PIATCO under the
draft Concession Agreement and the 1997 Concession Agreement

126
may be classified into three distinct categories: (1) fees which are
subject to periodic adjustment of once every two years in accordance
with a prescribed parametric formula and adjustments are made
effective only upon written approval by MIAA; (2) fees other than
those included in the first category which may be adjusted by PIATCO
whenever it deems necessary without need for consent of
DOTC/MIAA; and (3) new fees and charges that may be imposed by
PIATCO which have not been previously imposed or collected at the
Ninoy Aquino International Airport Passenger Terminal I, pursuant to
Administrative Order No. 1, Series of 1993, as amended. The glaring
distinctions between the draft Concession Agreement and the 1997
Concession Agreement lie in the types of fees included in each
category and the extent of the supervision and regulation which MIAA
is allowed to exercise in relation thereto.
For fees under the first category, i.e., those which are subject to
periodic adjustment in accordance with a prescribed parametric
formula and effective only upon written approval by MIAA, the draft
Concession Agreement includes the following: 36
(1)

aircraft parking fees;

(2)

aircraft tacking fees;

(3)

groundhandling fees;

(4)

rentals and airline offices;

(5)

check-in counter rentals; and

(6)

porterage fees.

Under the 1997 Concession Agreement, fees which are subject to

adjustment and effective upon MIAA approval are classified as "Public
Utility Revenues" and include: 37

Agreement, fees which PIATCO may adjust whenever it deems

necessary without need for consent of DOTC/MIAA are "Non-Public
Utility Revenues" and is defined as "all other income not classified as
Public Utility Revenues derived from operations of the Terminal and
the Terminal Complex." 38 Thus, under the 1997 Concession
Agreement, groundhandling fees, rentals from airline offices and
porterage fees are no longer subject to MIAA regulation.
Further, under Section 6.03 of the draft Concession Agreement; MIAA
reserves the right to regulate (1) lobby and vehicular parking fees and
(2) other new fees and charges that may be imposed by PIATCO.
Such regulation may be made by periodic adjustment and is effective
only upon written approval of MIAA. The full text of said provision is
quoted below:
Section 6.03. Periodic Adjustment in Fees and Changes.
Adjustments in the aircraft parking fees, aircraft tacking fees,
groundhandling fees, rentals and airline offices, check-in-counter
rentals and porterage fees shall be allowed only once every two years
and in accordance with the Parametric Formula attached hereto as
Annex F. Provided that adjustments shall be made effective only after
the written express approval of the MIAA. Provided, further, that such
approval of the MIAA, shall be contingent only on the conformity of the
adjustments with the above said parametric formula. The first
adjustment shall be made prior to the In-Service Date of the Terminal.
The MIAA reserves the right to regulate under the foregoing terms and
conditions the lobby and vehicular parking fees and other new fees
and charges as contemplated in paragraph 2 of Section 6.01 if in its
judgment the users of the airport shall be deprived of a free option for
the services they cover. 39

(1)

aircraft parking fees;

On the other hand, the equivalent provision under the 1997

Concession Agreement reads:

(2)

aircraft tacking fees;

Section 6.03 Periodic Adjustment in Fees, and Charges.

(3)

check-in counter fees; and

xxx

(4)

Terminal Fees.

(c)
Concessionaire shall at all times be judicious in fixing fees and
charges constituting Non-Public Utility Revenues in order to ensure
that End Users are not unreasonably deprived of services. While the
vehicular parking fee, porterage fee and greeter/well wisher fee
constitute Non-Public Utility Revenues of Concessionaire, GRP may

The implication of the reduced number of fees that are subject to

MIAA approval is best appreciated in relation to fees included in the
second category identified above. Under the 1997 Concession

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xxx

127
intervene and require Concessionaire to explain and justify the fee it
may set from time to time, if in the reasonable opinion of GRP the said
fees have become exorbitant resulting in the unreasonable
deprivation of End Users of such services. 40
Thus, under the 1997 Concession Agreement, with respect to (1)
vehicular parking fee, (2) porterage fee and (3) greeter/well wisher
fee, all that MIAA can do is to require PIATCO to explain and justify
the fees set by PIATCO. In the draft Concession Agreement, vehicular
parking fee is subject to MIAA regulation and approval under the
second paragraph of Section 6.03 thereof while porterage fee is
covered by the first paragraph of the same provision. There is an
obvious relaxation of the extent of control and regulation by MIAA with
respect to the particular fees that may be charged by PIATCO.
CSaITD
Moreover, with respect to the third category of fees that may be
imposed and collected by PIATCO, i.e., new fees and charges that
may be imposed by PIATCO which have not been previously imposed
or collected at the Ninoy Aquino International Airport Passenger
Terminal I, under Section 6.03 of the draft Concession Agreement
MIAA has reserved the right to regulate the same under the same
conditions that MIAA may regulate fees under the first category, i.e.,
periodic adjustment of once every two years in accordance with a
prescribed parametric formula and effective only upon written
approval by MIAA. However, under the 1997 Concession Agreement,
adjustment of fees under the third category is not subject to MIAA
regulation.
With respect to terminal fees that may be charged by PIATCO, 41 as
shown earlier, this was included within the category of "Public Utility
Revenues" under the 1997 Concession Agreement. This classification
is significant because under the 1997 Concession Agreement, "Public
Utility Revenues" are subject to an "Interim Adjustment" of fees upon
the occurrence of certain extraordinary events specified in the
agreement. 42 However, under the draft Concession Agreement,
terminal fees are not included in the types of fees that may be subject
to "Interim Adjustment." 43
Finally, under the 1997 Concession Agreement, "Public Utility
Revenues," except terminal fees, are denominated in US Dollars 44
while payments to the Government are in Philippine Pesos. In the

draft Concession Agreement, no such stipulation was included. By

stipulating that "Public Utility Revenues" will be paid to PIATCO in US
Dollars while payments by PIATCO to the Government are in
Philippine currency under the 1997 Concession Agreement, PIATCO
is able to enjoy the benefits of depreciations of the Philippine Peso,
while being effectively insulated from the detrimental effects of
exchange rate fluctuations.
When taken as a whole, the changes under the 1997 Concession
Agreement with respect to reduction in the types of fees that are
subject to MIAA regulation and the relaxation of such regulation with
respect to other fees are significant amendments that substantially
distinguish the draft Concession Agreement from the 1997
Concession Agreement. The 1997 Concession Agreement, in this
respect, clearly gives PIATCO more favorable terms than what was
available to other bidders at the time the contract was bidded out. It is
not very difficult to see that the changes in the 1997 Concession
Agreement translate to direct and concrete financial advantages for
PIATCO which were not available at the time the contract was offered
for bidding. It cannot be denied that under the 1997 Concession
Agreement only "Public Utility Revenues" are subject to MIAA
regulation. Adjustments of all other fees imposed and collected by
PIATCO are entirely within its control. Moreover, with respect to
terminal fees, under the 1997 Concession Agreement, the same is
further subject to "Interim Adjustments" not previously stipulated in the
draft Concession Agreement. Finally, the change in the currency
stipulated for "Public Utility Revenues" under the 1997 Concession
Agreement, except terminal fees, gives PIATCO an added benefit
which was not available at the time of bidding. aSTAIH
b.
Assumption by the Government of the liabilities of PIATCO in
the event of the latter's default thereof
Under the draft Concession Agreement, default by PIATCO of any of
its obligations to creditors who have provided, loaned or advanced
funds for the NAIA IPT III project does not result in the assumption by
the Government of these liabilities. In fact, nowhere in the said
contract does default of PIATCO's loans figure in the agreement. Such
default does not directly result in any concomitant right or obligation in
favor of the Government.
However, the 1997 Concession Agreement provides:

128
Section 4.04 Assignment.
xxx

xxx

xxx

(b)
In the event Concessionaire should default in the payment of
an Attendant Liability, and the default has resulted in the acceleration
of the payment due date of the Attendant Liability prior to its stated
date of maturity, the Unpaid Creditors and Concessionaire shall
immediately inform GRP in writing of such default. GRP shall, within
one hundred eighty (180) Days from receipt of the joint written notice
of the Unpaid Creditors and Concessionaire, either (i) take over the
Development Facility and assume the Attendant Liabilities, or (ii) allow
the Unpaid Creditors, if qualified, to be substituted as concessionaire
and operator of the Development Facility in accordance with the terms
and conditions hereof, or designate a qualified operator acceptable to
GRP to operate the Development Facility, likewise under the terms
and conditions of this Agreement; Provided that if at the end of the
180-day period GRP shall not have served the Unpaid Creditors and
Concessionaire written notice of its choice, GRP shall be deemed to
have elected to take over the Development Facility with the
concomitant assumption of Attendant Liabilities.
(c)
If GRP should, by written notice, allow the Unpaid Creditors to
be substituted as concessionaire, the latter shall form and organize a
concession company qualified to take over the operation of the
Development Facility. If the concession company should elect to
designate an operator for the Development Facility, the concession
company shall in good faith identify and designate a qualified operator
acceptable to GRP within one hundred eighty (180) days from receipt
of GRP's written notice. If the concession company, acting in good
faith and with due diligence, is unable to designate a qualified
operator within the aforesaid period, then GRP shall at the end of the
180-day period take over the Development Facility and assume
Attendant Liabilities.
The term "Attendant Liabilities" under the 1997 Concession
Agreement is defined as:
Attendant Liabilities refer to all amounts recorded and from time to
time outstanding in the books of the Concessionaire as owing to
Unpaid Creditors who have provided, loaned or advanced funds
actually used for the Project, including all interests, penalties,
associated fees, charges, surcharges, indemnities, reimbursements

and other related expenses, and further including amounts owed by

Concessionaire to its suppliers, contractors and sub-contractors.
Under the above quoted portions of Section 4.04 in relation to the
definition of "Attendant Liabilities," default by PIATCO of its loans
used to finance the NAIA IPT III project triggers the occurrence of
certain events that leads to the assumption by the Government of the
liability for the loans. Only in one instance may the Government
escape the assumption of PIATCO's liabilities, i.e., when the
Government so elects and allows a qualified operator to take over as
Concessionaire. However, this circumstance is dependent on the
existence and availability of a qualified operator who is willing to take
over the rights and obligations of PIATCO under the contract, a
circumstance that is not entirely within the control of the Government.
DTEcSa
Without going into the validity of this provision at this juncture, suffice
it to state that Section 4.04 of the 1997 Concession Agreement may
be considered a form of security for the loans PIATCO has obtained to
finance the project, an option that was not made available in the draft
Concession Agreement. Section 4.04 is an important amendment to
the 1997 Concession Agreement because it grants PIATCO a
financial advantage or benefit which was not previously made
available during the bidding process. This financial advantage is a
significant modification that translates to better terms and conditions
for PIATCO.
PIATCO, however, argues that the parties to the bidding procedure
acknowledge that the draft Concession Agreement is subject to
amendment because the Bid Documents permit financing or
borrowing. They claim that it was the lenders who proposed the
amendments to the draft Concession Agreement which resulted in the
1997 Concession Agreement.
We agree that it is not inconsistent with the rationale and purpose of
the BOT Law to allow the project proponent or the winning bidder to
obtain financing for the project, especially in this case which involves
the construction, operation and maintenance of the NAIA IPT III.
Expectedly, compliance by the project proponent of its undertakings
therein would involve a substantial amount of investment. It is
therefore inevitable for the awardee of the contract to seek alternate
sources of funds to support the project. Be that as it may, this Court

129
maintains that amendments to the contract bidded upon should
always conform to the general policy on public bidding if such
procedure is to be faithful to its real nature and purpose. By its very
nature and characteristic, competitive public bidding aims to protect
the public interest by giving the public the best possible advantages
through open competition. 45 It has been held that the three principles
in public bidding are (1) the offer to the public; (2) opportunity for
competition; and (3) a basis for the exact comparison of bids. A
regulation of the matter which excludes any of these factors destroys
the distinctive character of the system and thwarts the purpose of its
adoption. 46 These are the basic parameters which every awardee of
a contract bidded out must conform to, requirements of financing and
borrowing notwithstanding. Thus, upon a concrete showing that, as in
this case, the contract signed by the government and the contract
awardee is an entirely different contract from the contract bidded,
courts should not hesitate to strike down said contract in its entirety
for violation of public policy on public bidding. A strict adherence on
the principles, rules and regulations on public bidding must be
sustained if only to preserve the integrity and the faith of the general
public on the procedure.
Public bidding is a standard practice for procuring government
contracts for public service and for furnishing supplies and other
materials. It aims to secure for the government the lowest possible
price under the most favorable terms and conditions, to curtail
favoritism in the award of government contracts and avoid suspicion
of anomalies and it places all bidders in equal footing. 47 Any
government action which permits any substantial variance between
the conditions under which the bids are invited and the contract
executed after the award thereof is a grave abuse of discretion
amounting to lack or excess of jurisdiction which warrants proper
judicial action. DTEcSa
In view of the above discussion, the fact that the foregoing substantial
amendments were made on the 1997 Concession Agreement renders
the same null and void for being contrary to public policy. These
amendments convert the 1997 Concession Agreement to an entirely
different agreement from the contract bidded out or the draft
Concession Agreement. It is not difficult to see that the amendments
on (1) the types of fees or charges that are subject to MIAA regulation
or control and the extent thereof and (2) the assumption by the

Government, under certain conditions, of the liabilities of PIATCO

directly translates concrete financial advantages to PIATCO that were
previously not available during the bidding process. These
amendments cannot be taken as merely supplements to or
implementing provisions of those already existing in the draft
Concession Agreement. The amendments discussed above present
new terms and conditions which provide financial benefit to PIATCO
which may have altered the technical and financial parameters of
other bidders had they known that such terms were available.
III
Direct Government Guarantee
Article IV, Section 4.04(b) and (c), in relation to Article 1.06, of the
1997 Concession Agreement provides:
Section 4.04 Assignment
xxx

xxx

xxx

(b)
In the event Concessionaire should default in the payment of
an Attendant Liability, and the default resulted in the acceleration of
the payment due date of the Attendant Liability prior to its stated date
of maturity, the Unpaid Creditors and Concessionaire shall
immediately inform GRP in writing of such default. GRP shall within
one hundred eighty (180) days from receipt of the joint written notice
of the Unpaid Creditors and Concessionaire, either (i) take over the
Development Facility and assume the Attendant Liabilities, or (ii) allow
the Unpaid Creditors, if qualified to be substituted as concessionaire
and operator of the Development facility in accordance with the terms
and conditions hereof, or designate a qualified operator acceptable to
GRP to operate the Development Facility, likewise under the terms
and conditions of this Agreement; Provided, that if at the end of the
180-day period GRP shall not have served the Unpaid Creditors and
Concessionaire written notice of its choice, GRP shall be deemed to
have elected to take over the Development Facility with the
concomitant assumption of Attendant Liabilities.
(c)
If GRP, by written notice, allow the Unpaid Creditors to be
substituted as concessionaire, the latter shall form and organize a
concession company qualified to takeover the operation of the
Development Facility. If the concession company should elect to
designate an operator for the Development Facility, the concession

130
company shall in good faith identify and designate a qualified operator
acceptable to GRP within one hundred eighty (180) days from receipt
of GRP's written notice. If the concession company, acting in good
faith and with due diligence, is unable to designate a qualified
operator within the aforesaid period, then GRP shall at the end of the
180-day period take over the Development Facility and assume
Attendant Liabilities.
xxx

xxx

xxx

Section 1.06. Attendant Liabilities

Attendant Liabilities refer to all amounts recorded and from time to
time outstanding in the books of the Concessionaire as owing to
Unpaid Creditors who have provided, loaned or advanced funds
actually used for the Project, including all interests, penalties,
associated fees, charges, surcharges, indemnities, reimbursements
and other related expenses, and further including amounts owed by
Concessionaire to its suppliers, contractors and subcontractors. 48
It is clear from the above-quoted provisions that Government, in the
event that PIATCO defaults in its loan obligations, is obligated to pay
"all amounts recorded and from time to time outstanding from the
books" of PIATCO which the latter owes to its creditors. 49 These
amounts include "all interests, penalties, associated fees, charges,
surcharges, indemnities, reimbursements and other related
expenses." 50 This obligation of the Government to pay PIATCO's
creditors upon PIATCO's default would arise if the Government opts to
take over NAIA IPT III. It should be noted, however, that even if the
Government chooses the second option, which is to allow PIATCO's
unpaid creditors operate NAIA IPT III, the Government is still at a risk
of being liable to PIATCO's creditors should the latter be unable to
designate a qualified operator within the prescribed period. 51 In
effect, whatever option the Government chooses to take in the event
of PIATCO's failure to fulfill its loan obligations, the Government is still
at a risk of assuming PIATCO's outstanding loans. This is due to the
fact that the Government would only be free from assuming PIATCO's
debts if the unpaid creditors would be able to designate a qualified
operator within the period provided for in the contract. Thus, the
Government's assumption of liability is virtually out of its control. The
Government under the circumstances provided for in the 1997
Concession Agreement is at the mercy of the existence, availability

and willingness of a qualified operator. The above contractual

provisions constitute a direct government guarantee which is
prohibited by law.
One of the main impetus for the enactment of the BOT Law is the lack
of government funds to construct the infrastructure and development
projects necessary for economic growth and development. This is why
private sector resources are being tapped in order to finance these
projects. The BOT law allows the private sector to participate, and is
in fact encouraged to do so by way of incentives, such as minimizing,
the unstable flow of returns, 52 provided that the government would
not have to unnecessarily expend scarcely available funds for the
project itself. As such, direct guarantee, subsidy and equity by the
government in these projects are strictly prohibited. 53 This is but
logical for if the government would in the end still be at a risk of paying
the debts incurred by the private entity in the BOT projects, then the
purpose of the law is subverted.
Section 2(n) of the BOT Law defines direct guarantee as follows:
(n)
Direct government guarantee An agreement whereby the
government or any of its agencies or local government units assume
responsibility for the repayment of debt directly incurred by the project
proponent in implementing the project in case of a loan default.
Clearly by providing that the Government "assumes" the attendant
liabilities, which consists of PIATCO's unpaid debts, the 1997
Concession Agreement provided for a direct government guarantee
for the debts incurred by PIATCO in the implementation of the NAIA
IPT III project. It is of no moment that the relevant sections are
subsumed under the title of "assignment". The provisions providing for
direct government guarantee which is prohibited by law is clear from
the terms thereof.
The fact that the ARCA superseded the 1997 Concession Agreement
did not cure this fatal defect. Article IV, Section 4.04(c), in relation to
Article 1, Section 1.06, of the ARCA provides:
Section 4.04 Security
xxx

xxx

xxx

(c)
GRP agrees with Concessionaire (PIATCO) that it shall
negotiate in good faith and enter into direct agreement with the Senior

131
Lenders, or with an agent of such Senior Lenders (which agreement
shall be subject to the approval of the Bangko Sentral ng Pilipinas), in
such form as may be reasonably acceptable to both GRP and Senior
Lenders, with regard, inter alia, to the following parameters:
xxx

xxx

xxx

(iv)
If the Concessionaire [PIATCO] is in default under a payment
obligation owed to the Senior Lenders, and as a result thereof the
Senior Lenders have become entitled to accelerate the Senior Loans,
the Senior Lenders shall have the right to notify GRP of the same, and
without prejudice to any other rights of the Senior Lenders or any
Senior Lenders' agent may have (including without limitation under
security interests granted in favor of the Senior Lenders), to either in
good faith identify and designate a nominee which is qualified under
sub-clause (viii)(y) below to operate the Development Facility [NAIA
Terminal 3] or transfer the Concessionaire's [PIATCO] rights and
obligations under this Agreement to a transferee which is qualified
under sub-clause (viii) below;
xxx

xxx

xxx

(vi)
if the Senior Lenders, acting in good faith and using
reasonable efforts, are unable to designate a nominee or effect a
transfer in terms and conditions satisfactory to the Senior Lenders
within one hundred eighty (180) days after giving GRP notice as
referred to respectively in (iv) or (v) above, then GRP and the Senior
Lenders shall endeavor in good faith to enter into any other
arrangement relating to the Development Facility [NAIA Terminal 3]
(other than a turnover of the Development Facility [NAIA Terminal 3] to
GRP) within the following one hundred eighty (180) days. If no
agreement relating to the Development Facility [NAIA Terminal 3] is
arrived at by GRP and the Senior Lenders within the said 180-day
period, then at the end thereof the Development Facility [NAIA
Terminal 3] shall be transferred by the Concessionaire [PIATCO] to
GRP or its designee and GRP shall make a termination payment to
Concessionaire [PIATCO] equal to the Appraised Value (as hereinafter
defined) of the Development Facility [NAIA Terminal 3] or the sum of
the Attendant Liabilities, if greater. Notwithstanding Section 8.01 (c)
hereof, this Agreement shall be deemed terminated upon the transfer
of the Development Facility [NAIA Terminal 3] to GRP pursuant
hereto;

xxx

xxx

xxx

Section 1.06. Attendant Liabilities

Attendant Liabilities refer to all amounts in each case supported by
verifiable evidence from time to time owed or which may become
owing by Concessionaire [PIATCO] to Senior Lenders or any other
persons or entities who have provided, loaned, or advanced funds or
provided financial facilities to Concessionaire [PIATCO] for the Project
[NAIA Terminal 3], including, without limitation, all principal, interest,
associated fees, charges, reimbursements, and other related
expenses (including the fees, charges and expenses of any agents or
trustees of such persons or entities), whether payable at maturity, by
acceleration or otherwise, and further including amounts owed by
Concessionaire [PIATCO] to its professional consultants and advisers,
suppliers, contractors and sub-contractors. 54
It is clear from the foregoing contractual provisions that in the event
that PIATCO fails to fulfill its loan obligations to its Senior Lenders, the
Government is obligated to directly negotiate and enter into an
agreement relating to NAIA IPT III with the Senior Lenders, should the
latter fail to appoint a qualified nominee or transferee who will take the
place of PIATCO. If the Senior Lenders and the Government are
unable to enter into an agreement after the prescribed period, the
Government must then pay PIATCO, upon transfer of NAIA IPT III to
the Government, termination payment equal to the appraised value of
the project or the value of the attendant liabilities whichever is greater.
Attendant liabilities as defined in the ARCA includes all amounts owed
or thereafter may be owed by PIATCO not only to the Senior Lenders
with whom PIATCO has defaulted in its loan obligations but to all
other persons who may have loaned, advanced funds or provided any
other type of financial facilities to PIATCO for NAIA IPT III. The
amount of PIATCO's debt that the Government would have to pay as
a result of PIATCO's default in its loan obligations in case no
qualified nominee or transferee is appointed by the Senior Lenders
and no other agreement relating to NAIA IPT III has been reached
between the Government and the Senior Lenders includes, but is
not limited to, "all principal, interest, associated fees, charges,
reimbursements, and other related expenses . . . whether payable at
maturity, by acceleration or otherwise." 55

132
It is clear from the foregoing that the ARCA provides for a direct
guarantee by the government to pay PIATCO's loans not only to its
Senior Lenders but all other entities who provided PIATCO funds or
services upon PIATCO's default in its loan obligation with its Senior
Lenders. The fact that the Government's obligation to pay PIATCO's
lenders for the latter's obligation would only arise after the Senior
Lenders fail to appoint a qualified nominee or transferee does not
detract from the fact that, should the conditions as stated in the
contract occur, the ARCA still obligates the Government to pay any
and all amounts owed by PIATCO to its lenders in connection with
NAIA IPT III. Worse, the conditions that would make the Government
liable for PIATCO's debts is triggered by PIATCO's own default of its
loan obligations to its Senior Lenders to which loan contracts the
Government was never a party to. The Government was not even
given an option as to what course of action it should take in case
PIATCO defaulted in the payment of its senior loans. The
Government, upon PIATCO's default, would be merely notified by the
Senior Lenders of the same and it is the Senior Lenders who are
authorized to appoint a qualified nominee or transferee. Should the
Senior Lenders fail to make such an appointment, the Government is
then automatically obligated to "directly deal and negotiate" with the
Senior Lenders regarding NAIA IPT III. The only way the Government
would not be liable for PIATCO's debt is for a qualified nominee or
transferee to be appointed in place of PIATCO to continue the
construction, operation and maintenance of NAIA IPT III. This "precondition", however, will not take the contract out of the ambit of a
direct guarantee by the government as the existence, availability and
willingness of a qualified nominee or transferee is totally out of the
government's control. As such the Government is virtually at the
mercy of PIATCO (that it would not default on its loan obligations to its
Senior Lenders), the Senior Lenders (that they would appoint a
qualified nominee or transferee or agree to some other arrangement
with the Government) and the existence of a qualified nominee or
transferee who is able and willing to take the place of PIATCO in NAIA
IPT III. STECDc
The proscription against government guarantee in any form is one of
the policy considerations behind the BOT Law. Clearly, in the present
case, the ARCA obligates the Government to pay for all loans,
advances and obligations arising out of financial facilities extended to
PIATCO for the implementation of the NAIA IPT III project should

PIATCO default in its loan obligations to its Senior Lenders and the
latter fails to appoint a qualified nominee or transferee. This in effect
would make the Government liable for PIATCO's loans should the
conditions as set forth in the ARCA arise. This is a form of direct
government guarantee.
The BOT Law and its implementing rules provide that in order for an
unsolicited proposal for a BOT project may be accepted, the following
conditions must first be met: (1) the project involves a new concept in
technology and/or is not part of the list of priority projects, (2) no direct
government guarantee, subsidy or equity is required, and (3) the
government agency or local government unit has invited by
publication other interested parties to a public bidding and conducted
the same. 56 The failure to meet any of the above conditions will
result in the denial of the proposal. It is further provided that the
presence of direct government guarantee, subsidy or equity will
"necessarily, disqualify a proposal from being treated and accepted as
an unsolicited proposal." 57 The BOT Law clearly and strictly prohibits
direct government guarantee, subsidy and equity in unsolicited
proposals that the mere inclusion of a provision to that effect is fatal
and is sufficient to deny the proposal. It stands to reason therefore
that if a proposal can be denied by reason of the existence of direct
government guarantee, then its inclusion in the contract executed
after the said proposal has been accepted is likewise sufficient to
invalidate the contract itself. A prohibited provision, the inclusion of
which would result in the denial of a proposal cannot, and should not,
be allowed to later on be inserted in the contract resulting from the
said proposal. The basic rules of justice and fair play alone militate
against such an occurrence and must not, therefore, be countenanced
particularly in this instance where the government is exposed to the
risk of shouldering hundreds of million of dollars in debt.
This Court has long and consistently adhered to the legal maxim that
those that cannot be done directly cannot be done indirectly. 58 To
declare the PIATCO contracts valid despite the clear statutory
prohibition against a direct government guarantee would not only
make a mockery of what the BOT Law seeks to prevent which is to
expose the government to the risk of incurring a monetary obligation
resulting from a contract of loan between the project proponent and its
lenders and to which the Government is not a party to but would
also render the BOT Law useless for what it seeks to achieve to

133
make use of the resources of the private sector in the "financing,
operation and maintenance of infrastructure and development
projects" 59 which are necessary for national growth and
development but which the government, unfortunately, could ill-afford
to finance at this point in time.
IV
Temporary takeover of business affected with public interest
Article XII, Section 17 of the 1987 Constitution provides:
Section 17.
In times of national emergency, when the public
interest so requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct the
operation of any privately owned public utility or business affected
with public interest.
The above provision pertains to the right of the State in times of
national emergency, and in the exercise of its police power, to
temporarily take over the operation of any business affected with
public interest. In the 1986 Constitutional Commission, the term
"national emergency" was defined to include threat from external
aggression, calamities or national disasters, but not strikes "unless it
is of such proportion that would paralyze government service." 60 The
duration of the emergency itself is the determining factor as to how
long the temporary takeover by the government would last. 61 The
temporary takeover by the government extends only to the operation
of the business and not to the ownership thereof. As such the
government is not required to compensate the private entity-owner of
the said business as there is no transfer of ownership, whether
permanent or temporary. The private entity-owner affected by the
temporary takeover cannot, likewise, claim just compensation for the
use of the said business and its properties as the temporary takeover
by the government is in exercise of its police power and not of its
power of eminent domain.
Article V, Section 5.10 (c) of the 1997 Concession Agreement
provides:
Section 5.10 Temporary Take-over of operations by GRP.
xxx

xxx

xxx

(c)
In the event the development Facility or any part thereof
and/or the operations of Concessionaire or any part thereof, become
the subject matter of or be included in any notice, notification, or
declaration concerning or relating to acquisition, seizure or
appropriation by GRP in times of war or national emergency, GRP
shall, by written notice to Concessionaire, immediately take over the
operations of the Terminal and/or the Terminal Complex. During such
take over by GRP, the Concession Period shall be suspended;
provided, that upon termination of war, hostilities or national
emergency, the operations shall be returned to Concessionaire, at
which time, the Concession period shall commence to run again.
Concessionaire shall be entitled to reasonable compensation for the
duration of the temporary take over by GRP, which compensation
shall take into account the reasonable cost for the use of the Terminal
and/or Terminal Complex, (which is in the amount at least equal to the
debt service requirements of Concessionaire, if the temporary take
over should occur at the time when Concessionaire is still servicing
debts owed to project lenders), any loss or damage to the
Development Facility, and other consequential damages. If the parties
cannot agree on the reasonable compensation of Concessionaire, or
on the liability of GRP as aforesaid, the matter shall be resolved in
accordance with Section 10.01 [Arbitration]. Any amount determined
to be payable by GRP to Concessionaire shall be offset from the
amount next payable by Concessionaire to GRP. 62
PIATCO cannot, by mere contractual stipulation, contravene the
Constitutional provision on temporary government takeover and
obligate the government to pay "reasonable cost for the use of the
Terminal and/or Terminal Complex". 63 Article XII, section 17 of the
1987 Constitution envisions a situation wherein the exigencies of the
times necessitate the government to "temporarily take over or direct
the operation of any privately owned public utility or business affected
with public interest." It is the welfare and interest of the public which is
the paramount consideration in determining whether or not to
temporarily take over a particular business. Clearly, the State in
effecting the temporary takeover is exercising its police power. Police
power is the "most essential, insistent, and illimitable of powers." 64
Its exercise therefore must not be unreasonably hampered nor its
exercise be a source of obligation by the government in the absence
of damage due to arbitrariness of its exercise. 65 Thus, requiring the
government to pay reasonable compensation for the reasonable use

134
of the property pursuant to the operation of the business contravenes
the Constitution.
V
Regulation of Monopolies
A monopoly is "a privilege or peculiar advantage vested in one or
more persons or companies, consisting in the exclusive right (or
power) to carry on a particular business or trade, manufacture a
particular article, or control the sale of a particular commodity." 66 The
1987 Constitution strictly regulates monopolies, whether private or
public, and even provides for their prohibition if public interest so
requires. Article XII, Section 19 of the 1987 Constitution states:
Sec. 19.
The state shall regulate or prohibit monopolies when
the public interest so requires. No combinations in restraint of trade or
unfair competition shall be allowed.
Clearly, monopolies are not per se prohibited by the Constitution but
may be permitted to exist to aid the government in carrying on an
enterprise or to aid in the performance of various services and
functions in the interest of the public. 67 Nonetheless, a determination
must first be made as to whether public interest requires a monopoly.
As monopolies are subject to abuses that can inflict severe prejudice
to the public, they are subject to a higher level of State regulation than
an ordinary business undertaking.
In the cases at bar, PIATCO, under the 1997 Concession Agreement
and the ARCA, is granted the "exclusive right to operate a commercial
international passenger terminal within the Island of Luzon" at the
NAIA IPT III, 68 This is with the exception of already existing
international airports in Luzon such as those located in the Subic Bay
Freeport Special Economic Zone ("SBFSEZ"), Clark Special
Economic Zone ("CSEZ") and in Laoag City. 69 As such, upon
commencement of PIATCO's operation of NAIA IPT III, Terminals 1
and 2 of NAIA would cease to function as international passenger
terminals. This, however, does not prevent MIAA to use Terminals 1
and 2 as domestic passenger terminals or in any other manner as it
may deem appropriate except those activities that would compete with
NAIA IPT III in the latter's operation as an international passenger
terminal. 70 The right granted to PIATCO to exclusively operate NAIA
IPT III would be for a period of twenty-five (25) years from the In-

Service Date 71 and renewable for another twenty-five (25) years at

the option of the government. 72 Both the 1997 Concession
Agreement and the ARCA further provide that, in view of the exclusive
right granted to PIATCO, the concession contracts of the service
providers currently servicing Terminals 1 and 2 would no longer be
renewed and those concession contracts whose expiration are
subsequent to the In-Service Date would cease to be effective on the
said date. 73
The operation of an international passenger airport terminal is no
doubt an undertaking imbued with public interest. In entering into a
Build-Operate-and-Transfer contract for the construction, operation
and maintenance of NAIA IPT III, the government has determined that
public interest would be served better if private sector resources were
used in its construction and an exclusive right to operate be granted to
the private entity undertaking the said project, in this case PIATCO.
Nonetheless, the privilege given to PIATCO is subject to reasonable
regulation and supervision by the Government through the MIAA,
which is the government agency authorized to operate the NAIA
complex, as well as DOTC, the department to which MIAA is attached.
74
This is in accord with the Constitutional mandate that a monopoly
which is not prohibited must be regulated. 75 While it is the declared
policy of the BOT Law to encourage private sector participation by
"providing a climate of minimum government regulations," 76 the
same does not mean that Government must completely surrender its
sovereign power to protect public interest in the operation of a public
utility as a monopoly. The operation of said public utility can not be
done in an arbitrary manner to the detriment of the public which it
seeks to serve. The right granted to the public utility may be exclusive
but the exercise of the right cannot run riot. Thus, while PIATCO may
be authorized to exclusively operate NAIA IPT III as an international
passenger terminal, the Government, through the MIAA, has the right
and the duty to ensure that it is done in accord with public interest.
PIATCO's right to operate NAIA IPT III cannot also violate the rights of
third parties.
Section 3.01(e) of the 1997 Concession Agreement and the ARCA
provide:
3.01

Concession Period

135
xxx

xxx

xxx

(e)
GRP confirms that certain concession agreements relative to
certain services and operations currently being undertaken at the
Ninoy Aquino International Airport passenger Terminal I have a validity
period extending beyond the In-Service Date. GRP through
DOTC/MIAA, confirms that these services and operations shall not be
carried over to the Terminal and the Concessionaire is under no legal
obligation to permit such carry-over except through a separate
agreement duly entered into with Concessionaire. In the event
Concessionaire becomes involved in any litigation initiated by any
such concessionaire or operator, GRP undertakes and hereby holds
Concessionaire free and harmless on full indemnity basis from and
against any loss and/or any liability resulting from any such litigation,
including the cost of litigation and the reasonable fees paid or payable
to Concessionaire's counsel of choice, all such amounts shall be fully
deductible by way of an offset from any amount which the
Concessionaire is bound to pay GRP under this Agreement.
During the oral arguments on December 10, 2002, the counsel for the
petitioners-in-intervention for G.R. No. 155001 stated that there are
two service providers whose contracts are still existing and whose
validity extends beyond the In-Service Date. One contract remains
valid until 2008 and the other until 2010. 77
We hold that while the service providers presently operating at NAIA
Terminal 1 do not have an absolute right for the renewal or the
extension of their respective contracts, those contracts whose
duration extends beyond NAIA IPT III's In-Service-Date should not be
unduly prejudiced. These contracts must be respected not just by the
parties thereto but also by third parties. PIATCO cannot, by law and
certainly not by contract, render a valid and binding contract nugatory.
PIATCO, by the mere expedient of claiming an exclusive right to
operate, cannot require the Government to break its contractual
obligations to the service providers. In contrast to the arrastre and
stevedoring service providers in the case of Anglo-Fil Trading
Corporation v. Lazaro 78 whose contracts consist of temporary holdover permits, the affected service providers in the cases at bar, have a
valid and binding contract with the Government, through MIAA, whose
period of effectivity, as well as the other terms and conditions thereof
cannot be violated.

In fine, the efficient functioning of NAIA IPT III is imbued with public
interest. The provisions of the 1997 Concession Agreement and the
ARCA did not strip government, thru the MIAA, of its right to supervise
the operation of the whole NAIA complex, including NAIA IPT III. As
the primary government agency tasked with the job, 79 it is MIAA's
responsibility to ensure that whoever by contract is given the right to
operate NAIA IPT III will do so within the bounds of the law and with
due regard to the rights of third parties and above all, the interest of
the public.
VI
CONCLUSION
In sum, this Court rules that in view of the absence of the requisite
financial capacity of the Paircargo Consortium, predecessor of
respondent PIATCO, the award by the PBAC of the contract for the
construction, operation and maintenance of the NAIA IPT III is null
and void. Further, considering that the 1997 Concession Agreement
contains material and substantial amendments, which amendments
had the effect of converting the 1997 Concession Agreement into an
entirely different agreement from the contract bidded upon, the 1997
Concession Agreement is similarly null and void for being contrary to
public policy. The provisions under Sections 4.04(b) and (c) in relation
to Section 1.06 of the 1997 Concession Agreement and Section
4.04(c) in relation to Section 1.06 of the ARCA, which constitute a
direct government guarantee expressly prohibited by, among others,
the BOT Law and its Implementing Rules and Regulations are also
null and void. The Supplements, being accessory contracts to the
ARCA, are likewise null and void. TcEaAS
WHEREFORE, the 1997 Concession Agreement, the Amended and
Restated Concession Agreement and the Supplements thereto are set
aside for being null and void.

136
[G.R. No. 155336. November 25, 2004.]
COMMISSION ON HUMAN RIGHTS EMPLOYEES' ASSOCIATION
(CHREA) Represented by its President, MARCIAL A. SANCHEZ, JR.,
petitioner, vs. COMMISSION ON HUMAN RIGHTS, respondent.
DECISION
CHICO-NAZARIO, J p:
Can the Commission on Human Rights lawfully implement an
upgrading and reclassification of personnel positions without the prior
approval of the Department of Budget and Management?
Before this Court is a petition for review filed by petitioner Commission
on Human Rights Employees' Association (CHREA) challenging the
Decision 1 dated 29 November 2001 of the Court of Appeals in CAG.R. SP No. 59678 affirming the Resolutions 2 dated 16 December
1999 and 09 June 2000 of the Civil Service Commission (CSC), which
sustained the validity of the upgrading and reclassification of certain
personnel positions in the Commission on Human Rights (CHR)
despite the disapproval thereof by the Department of Budget and
Management (DBM). Also assailed is the resolution dated 11
September 2002 of the Court of Appeals denying the motion for
reconsideration filed by petitioner.
The antecedent facts which spawned the present controversy are as
follows:
On 14 February 1998, Congress passed Republic Act No. 8522,
otherwise known as the General Appropriations Act of 1998. It
provided for Special Provisions Applicable to All Constitutional Offices
Enjoying Fiscal Autonomy. The last portion of Article XXXIII covers the
appropriations of the CHR. These special provisions state:
1.
Organizational Structure. Any provision of law to the contrary
notwithstanding and within the limits of their respective appropriations
as authorized in this Act, the Constitutional Commissions and Offices
enjoying fiscal autonomy are authorized to formulate and implement

the organizational structures of their respective offices, to fix and

determine the salaries, allowances, and other benefits of their
personnel, and whenever public interest so requires, make
adjustments in their personal services itemization including, but not
limited to, the transfer of item or creation of new positions in their
respective offices: PROVIDED, That officers and employees whose
positions are affected by such reorganization or adjustments shall be
granted retirement gratuities and separation pay in accordance with
existing laws, which shall be payable from any unexpended balance
of, or savings in the appropriations of their respective offices:
PROVIDED, FURTHER, That the implementation hereof shall be in
accordance with salary rates, allowances and other benefits
authorized under compensation standardization laws.
2.
Use of Savings. The Constitutional Commissions and Offices
enjoying fiscal autonomy are hereby authorized to use savings in their
respective appropriations for: (a) printing and/or publication of
decisions, resolutions, and training information materials; (b) repair,
maintenance and improvement of central and regional offices,
facilities and equipment; (c) purchase of books, journals, periodicals
and equipment; (d) necessary expenses for the employment of
temporary, contractual and casual employees; (e) payment of
extraordinary
and
miscellaneous
expenses,
commutable
representation and transportation allowances, and fringe benefits for
their officials and employees as may be authorized by law; and (f)
other official purposes, subject to accounting and auditing rules and
regulations. (Emphases supplied) THaCAI
On the strength of these special provisions, the CHR, through its then
Chairperson Aurora P. Navarette-Recia and Commissioners Nasser
A. Marohomsalic, Mercedes V. Contreras, Vicente P. Sibulo, and
Jorge R. Coquia, promulgated Resolution No. A98-047 on 04
September 1998, adopting an upgrading and reclassification scheme
among selected positions in the Commission, to wit:
WHEREAS, the General Appropriations Act, FY 1998, R.A. No. 8522
has provided special provisions applicable to all Constitutional Offices
enjoying Fiscal Autonomy, particularly on organizational structures
and authorizes the same to formulate and implement the
organizational structures of their respective offices to fix and
determine the salaries, allowances and other benefits of their
personnel and whenever public interest so requires, make

137
adjustments in the personnel services itemization including, but not
limited to, the transfer of item or creation of new positions in their
respective offices: PROVIDED, That officers and employees whose
positions are affected by such reorganization or adjustments shall be
granted retirement gratuities and separation pay in accordance with
existing laws, which shall be payable from any unexpanded balance
of, or savings in the appropriations of their respective offices;

(In the
Regional
Field
Offices)

WHEREAS, the Commission on Human Rights is a member of the

Constitutional Fiscal Autonomy Group (CFAG) and on July 24, 1998,
CFAG passed an approved Joint Resolution No. 49 adopting internal
rules implementing the special provisions heretoforth mentioned;

Director III

Director IV

27

28

38,928.00

Financial &

Director IV

24

28

36,744.00

Management
Officer II
1

NOW THEREFORE, the Commission by virtue of its fiscal autonomy

hereby approves and authorizes the upgrading and augmentation of
the commensurate amount generated from savings under Personal
Services to support the implementation of this resolution effective
Calendar Year 1998;
Let the Human Resources Development Division (HRDD) prepare the
necessary Notice of Salary Adjustment and other appropriate
documents to implement this resolution; . . . 3 (Emphasis supplied)
Annexed to said resolution is the proposed creation of ten additional
plantilla positions, namely: one Director IV position, with Salary Grade
28 for the Caraga Regional Office, four Security Officer II with Salary
Grade 15, and five Process Servers, with Salary Grade 5 under the
Office of the Commissioners. 4

of

Position

Title
From To

12
Attorney VI
P229,104.00

Accountant

Chief 18

Director IV

28

Accountant
Cashier V

18

24

51,756.00

Information

Director IV

24

28

36,744.00

Officer V
It, likewise, provided for the creation and upgrading of the following
positions:
A.

Creation
Number of

Position

Positions

Title

Salary Total Salary

Grade Requirements

Security Officer II

15

P684,780.00

Coterminous
Upgrading
of

26

51,756.00

Cashier III

Number
From To

24

B.

Positions

Officer IV

51,756.00

Salary Grade Total Salary

Requirements

24

Officer III
III

On 19 October 1998, CHR issued Resolution No. A98-055 5 providing

for the upgrading or raising of salary grades of the following positions
in the Commission:
Number

Budget Budget 18

Position

Title

Salary Grade Total Salary

Requirements

Positions
From To

From To

138
1

Attorney V

Director IV

Security

Security

Officer I

Officer II

25

28

P28,092.00

11

15

57,456.00

Total 3

P85,548.00 7

To support the implementation of such scheme, the CHR, in the same

resolution, authorized the augmentation of a commensurate amount
generated from savings under Personnel Services. DAETcC
By virtue of Resolution No. A98-062 dated 17 November 1998, the
CHR "collapsed" the vacant positions in the body to provide additional
source of funding for said staffing modification. Among the positions
collapsed were: one Attorney III, four Attorney IV, one Chemist III,
three Special Investigator I, one Clerk III, and one Accounting Clerk II.
8
The CHR forwarded said staffing modification and upgrading scheme
to the DBM with a request for its approval, but the then DBM secretary
Benjamin Diokno denied the request on the following justification:
. . . Based on the evaluations made the request was not favorably
considered as it effectively involved the elevation of the field units
from divisions to services.
The present proposal seeks further to upgrade the twelve (12)
positions of Attorney VI, SG-26 to Director IV, SG-28. This would
elevate the field units to a bureau or regional office, a level even
higher than the one previously denied.
The request to upgrade the three (3) positions of Director III, SG-27 to
Director IV, SG-28, in the Central Office in effect would elevate the
services to Office and change the context from support to substantive
without actual change in functions.
In the absence of a specific provision of law which may be used as a
legal basis to elevate the level of divisions to a bureau or regional
office, and the services to offices, we reiterate our previous stand
denying the upgrading of the twelve (12) positions of Attorney VI, SG26 to Director III, SG-27 or Director IV, SG-28, in the Field Operations
Office (FOO) and three (3) Director III, SG-27 to Director IV, SG-28 in
the Central Office.

As represented, President Ramos then issued a Memorandum to the

DBM Secretary dated 10 December 1997, directing the latter to
increase the number of Plantilla positions in the CHR both Central and
Regional Offices to implement the Philippine Decade Plan on Human
Rights Education, the Philippine Human Rights Plan and Barangay
Rights Actions Center in accordance with existing laws. (Emphasis in
the original)
Pursuant to Section 78 of the General Provisions of the General
Appropriations Act (GAA) FY 1998, no organizational unit or changes
in key positions shall be authorized unless provided by law or directed
by the President, thus, the creation of a Finance Management Office
and a Public Affairs Office cannot be given favorable
recommendation.
Moreover, as provided under Section 2 of RA No. 6758, otherwise
known as the Compensation Standardization Law, the Department of
Budget and Management is directed to establish and administer a
unified compensation and position classification system in the
government. The Supreme Court ruled in the case of Victorina Cruz
vs. Court of Appeals, G.R. No. 119155, dated January 30, 1996, that
this Department has the sole power and discretion to administer the
compensation and position classification system of the National
Government. TCAScE
Being a member of the fiscal autonomy group does not vest the
agency with the authority to reclassify, upgrade, and create positions
without approval of the DBM. While the members of the Group are
authorized to formulate and implement the organizational structures of
their respective offices and determine the compensation of their
personnel, such authority is not absolute and must be exercised within
the parameters of the Unified Position Classification and
Compensation System established under RA 6758 more popularly
known as the Compensation Standardization Law. We therefore
reiterate our previous stand on the matter. 9 (Emphases supplied)
In light of the DBM's disapproval of the proposed personnel
modification scheme, the CSC-National Capital Region Office,
through a memorandum dated 29 March 1999, recommended to the
CSC-Central Office that the subject appointments be rejected owing
to the DBM's disapproval of the plantilla reclassification.

139
Meanwhile, the officers of petitioner CHREA, in representation of the
rank and file employees of the CHR, requested the CSC-Central
Office to affirm the recommendation of the CSC-Regional Office.
CHREA stood its ground in saying that the DBM is the only agency
with appropriate authority mandated by law to evaluate and approve
matters of reclassification and upgrading, as well as creation of
positions.
The CSC-Central Office denied CHREA's request in a Resolution
dated 16 December 1999, and reversed the recommendation of the
CSC-Regional Office that the upgrading scheme be censured. The
decretal portion of which reads:
WHEREFORE, the request of Ronnie N. Rosero, Hubert V. Ruiz,
Flordeliza A. Briones, George Q. Dumlao [and], Corazon A. SantosTiu, is hereby denied. 10
CHREA filed a motion for reconsideration, but the CSC-Central Office
denied the same on 09 June 2000.
Given the cacophony of judgments between the DBM and the CSC,
petitioner CHREA elevated the matter to the Court of Appeals. The
Court of Appeals affirmed the pronouncement of the CSC-Central
Office and upheld the validity of the upgrading, retitling, and
reclassification scheme in the CHR on the justification that such action
is within the ambit of CHR's fiscal autonomy. The fallo of the Court of
Appeals decision provides:
IN VIEW OF ALL THE FOREGOING, the instant petition is ordered
DISMISSED and the questioned Civil Service Commission Resolution
No. 99-2800 dated December 16, 1999 as well as No. 001354 dated
June 9, 2000, are hereby AFFIRMED. No cost. 11
Unperturbed, petitioner filed this petition in this Court contending that:
A.
. . . THE COURT OF APPEALS GRAVELY ERRED WHEN IT HELD
THAT UNDER THE 1987 CONSTITUTION, THE COMMISSION ON
HUMAN RIGHTS ENJOYS FISCAL AUTONOMY.
B.
. . . THE COURT OF APPEALS SERIOUSLY ERRED IN UPHOLDING
THE CONSTRUCTION OF THE COMMISSION ON HUMAN RIGHTS

OF REPUBLIC ACT NO. 8522 (THE GENERAL APPROPRIATIONS

ACT FOR THE FISCAL YEAR 1998) DESPITE ITS BEING IN SHARP
CONFLICT WITH THE 1987 CONSTITUTION AND THE STATUTE
ITSELF. DaScCH
C.
. . . THE COURT OF APPEALS SERIOUSLY AND GRAVELY ERRED
IN AFFIRMING THE VALIDITY OF THE CIVIL SERVICE
COMMISSION RESOLUTION NOS. 992800 AND 001354 AS WELL
AS THAT OF THE OPINION OF THE DEPARTMENT OF JUSTICE IN
STATING THAT THE COMMISSION ON HUMAN RIGHTS ENJOYS
FISCAL AUTONOMY UNDER THE 1987 CONSTITUTION AND THAT
THIS FISCAL AUTONOMY INCLUDES THE ACTION TAKEN BY IT
IN COLLAPSING, UPGRADING AND RECLASSIFICATION OF
POSITIONS THEREIN. 12
The central question we must answer in order to resolve this case is:
Can the Commission on Human Rights validly implement an
upgrading, reclassification, creation, and collapsing of plantilla
positions in the Commission without the prior approval of the
Department of Budget and Management?
Petitioner CHREA grouses that the Court of Appeals and the CSCCentral Office both erred in sanctioning the CHR's alleged blanket
authority to upgrade, reclassify, and create positions inasmuch as the
approval of the DBM relative to such scheme is still indispensable.
Petitioner bewails that the CSC and the Court of Appeals erroneously
assumed that CHR enjoys fiscal autonomy insofar as financial matters
are concerned, particularly with regard to the upgrading and
reclassification of positions therein.
Respondent CHR sharply retorts that petitioner has no locus standi
considering that there exists no official written record in the
Commission recognizing petitioner as a bona fide organization of its
employees nor is there anything in the records to show that its
president, Marcial A. Sanchez, Jr., has the authority to sue the CHR.
The CHR contends that it has the authority to cause the upgrading,
reclassification, plantilla creation, and collapsing scheme sans the
approval of the DBM because it enjoys fiscal autonomy.

140
After a thorough consideration of the arguments of both parties and
an assiduous scrutiny of the records in the case at bar, it is the Court's
opinion that the present petition is imbued with merit.
On petitioner's personality to bring this suit, we held in a multitude of
cases that a proper party is one who has sustained or is in immediate
danger of sustaining an injury as a result of the act complained of. 13
Here, petitioner, which consists of rank and file employees of
respondent CHR, protests that the upgrading and collapsing of
positions benefited only a select few in the upper level positions in the
Commission resulting to the demoralization of the rank and file
employees. This sufficiently meets the injury test. Indeed, the CHR's
upgrading scheme, if found to be valid, potentially entails eating up
the Commission's savings or that portion of its budgetary pie
otherwise allocated for Personnel Services, from which the benefits of
the employees, including those in the rank and file, are derived.
aCSEcA

base differences in pay upon substantive differences in duties and

responsibilities, and qualification requirements of the positions. In
determining rates of pay, due regard shall be given to, among others,
prevailing rates in the private sector for comparable work. For this
purpose, the Department of Budget and Management (DBM) is
hereby directed to establish and administer a unified Compensation
and Position Classification System, hereinafter referred to as the
System as provided for in Presidential Decree No. 985, as amended,
that shall be applied for all government entities, as mandated by the
Constitution. (Emphasis supplied.)
SEC. 4.
Coverage. The Compensation and Position
Classification System herein provided shall apply to all positions,
appointive or elective, on full or part-time basis, now existing or
hereafter created in the government, including government-owned or
controlled corporations and government financial institutions.

Further, the personality of petitioner to file this case was recognized

by the CSC when it took cognizance of the CHREA's request to affirm
the recommendation of the CSC-National Capital Region Office.
CHREA's personality to bring the suit was a non-issue in the Court of
Appeals when it passed upon the merits of this case. Thus, neither
should our hands be tied by this technical concern. Indeed, it is settled
jurisprudence that an issue that was neither raised in the complaint
nor in the court below cannot be raised for the first time on appeal, as
to do so would be offensive to the basic rules of fair play, justice, and
due process. 14

The term "government" refers to the Executive, the Legislative and the
Judicial Branches and the Constitutional Commissions and shall
include all, but shall not be limited to, departments, bureaus, offices,
boards, commissions, courts, tribunals, councils, authorities,
administrations, centers, institutes, state colleges and universities,
local government units, and the armed forces. The term "governmentowned or controlled corporations and financial institutions" shall
include all corporations and financial institutions owned or controlled
by the National Government, whether such corporations and financial
institutions perform governmental or proprietary functions. (Emphasis
supplied.) CcaDHT

We now delve into the main issue of whether or not the approval by
the DBM is a condition precedent to the enactment of an upgrading,
reclassification, creation and collapsing of plantilla positions in the
CHR.

The disputation of the Court of Appeals that the CHR is exempt from
the long arm of the Salary Standardization Law is flawed considering
that the coverage thereof, as defined above, encompasses the entire
gamut of government offices, sans qualification.

Germane to our discussion, is Rep. Act No. 6758, An Act Prescribing

a Revised Compensation and Position Classification System in the
Government and For Other Purposes, or the Salary Standardization
Law, dated 01 July 1989, which provides in Sections 2 and 4 thereof
that it is the DBM that shall establish and administer a unified
Compensation and Position Classification System. Thus:

This power to "administer" is not purely ministerial in character as

erroneously held by the Court of Appeals. The word to administer
means to control or regulate in behalf of others; to direct or
superintend the execution, application or conduct of; and to manage
or conduct public affairs, as to administer the government of the state.
15

SEC. 2.
Statement of Policy. It is hereby declared the policy
of the State to provide equal pay for substantially equal work and to

The regulatory power of the DBM on matters of compensation is

encrypted not only in law, but in jurisprudence as well. In the recent

141
case of Philippine Retirement Authority (PRA) v. Jesusito L. Buag, 16
this Court, speaking through Mr. Justice Reynato Puno, ruled that
compensation, allowances, and other benefits received by PRA
officials and employees without the requisite approval or authority of
the DBM are unauthorized and irregular. In the words of the Court
Despite the power granted to the Board of Directors of PRA to
establish and fix a compensation and benefits scheme for its
employees, the same is subject to the review of the Department of
Budget and Management. However, in view of the express powers
granted to PRA under its charter, the extent of the review authority of
the Department of Budget and Management is limited. As stated in
Intia, the task of the Department of Budget and Management is simply
to review the compensation and benefits plan of the government
agency or entity concerned and determine if the same complies with
the prescribed policies and guidelines issued in this regard. The role
of the Department of Budget and Management is supervisorial in
nature, its main duty being to ascertain that the proposed
compensation, benefits and other incentives to be given to PRA
officials and employees adhere to the policies and guidelines issued
in accordance with applicable laws.
In Victorina Cruz v. Court of Appeals, 17 we held that the DBM has the
sole power and discretion to administer the compensation and
position classification system of the national government.
In Intia, Jr. v. Commission on Audit, 18 the Court held that although
the charter 19 of the Philippine Postal Corporation (PPC) grants it the
power to fix the compensation and benefits of its employees and
exempts PPC from the coverage of the rules and regulations of the
Compensation and Position Classification Office, by virtue of Section
6 of P.D. No. 1597, the compensation system established by the PPC
is, nonetheless, subject to the review of the DBM. This Court intoned:
It should be emphasized that the review by the DBM of any PPC
resolution affecting the compensation structure of its personnel should
not be interpreted to mean that the DBM can dictate upon the PPC
Board of Directors and deprive the latter of its discretion on the matter.
Rather, the DBM's function is merely to ensure that the action taken
by the Board of Directors complies with the requirements of the law,
specifically, that PPC's compensation system "conforms as closely as

possible with that provided for under R.A. No. 6758." (Emphasis
supplied.) AcDaEH
As measured by the foregoing legal and jurisprudential yardsticks, the
imprimatur of the DBM must first be sought prior to implementation of
any reclassification or upgrading of positions in government. This is
consonant to the mandate of the DBM under the Revised
Administrative Code of 1987, Section 3, Chapter 1, Title XVII, to wit:
SEC. 3.
Powers and Functions. The Department of Budget
and Management shall assist the President in the preparation of a
national resources and expenditures budget, preparation, execution
and control of the National Budget, preparation and maintenance of
accounting systems essential to the budgetary process, achievement
of more economy and efficiency in the management of government
operations, administration of compensation and position classification
systems, assessment of organizational effectiveness and review and
evaluation of legislative proposals having budgetary or organizational
implications. (Emphasis supplied.)
Irrefragably, it is within the turf of the DBM Secretary to disallow the
upgrading, reclassification, and creation of additional plantilla
positions in the CHR based on its finding that such scheme lacks legal
justification.
Notably, the CHR itself recognizes the authority of the DBM to deny or
approve the proposed reclassification of positions as evidenced by its
three letters to the DBM requesting approval thereof. As such, it is
now estopped from now claiming that the nod of approval it has
previously sought from the DBM is a superfluity.
The Court of Appeals incorrectly relied on the pronouncement of the
CSC-Central Office that the CHR is a constitutional commission, and
as such enjoys fiscal autonomy. 20
Palpably, the Court of Appeals' Decision was based on the mistaken
premise that the CHR belongs to the species of constitutional
commissions. But, Article IX of the Constitution states in no uncertain
terms that only the CSC, the Commission on Elections, and the
Commission on Audit shall be tagged as Constitutional Commissions
with the appurtenant right to fiscal autonomy. Thus:

142
Sec. 1. The Constitutional Commissions, which shall be independent,
are the Civil Service Commission, the Commission on Elections, and
the Commission on Audit.
Sec. 5. The Commission shall enjoy fiscal autonomy. Their approved
annual appropriations shall be automatically and regularly released.
Along the same vein, the Administrative Code, in Chapter 5, Sections
24 and 26 of Book II on Distribution of Powers of Government, the
constitutional commissions shall include only the Civil Service
Commission, the Commission on Elections, and the Commission on
Audit, which are granted independence and fiscal autonomy. In
contrast, Chapter 5, Section 29 thereof, is silent on the grant of similar
powers to the other bodies including the CHR. Thus:
SEC. 24.
Constitutional Commissions. The Constitutional
Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission on
Audit. DECSIT
SEC. 26.
Fiscal Autonomy. The Constitutional Commissions
shall enjoy fiscal autonomy. The approved annual appropriations shall
be automatically and regularly released.
SEC. 29.
Other Bodies. There shall be in accordance with the
Constitution, an Office of the Ombudsman, a Commission on Human
Rights, and independent central monetary authority, and a national
police commission. Likewise, as provided in the Constitution,
Congress may establish an independent economic and planning
agency. (Emphasis ours.)
From the 1987 Constitution and the Administrative Code, it is
abundantly clear that the CHR is not among the class of Constitutional
Commissions. As expressed in the oft-repeated maxim expressio
unius est exclusio alterius, the express mention of one person, thing,
act or consequence excludes all others. Stated otherwise, expressium
facit cessare tacitum what is expressed puts an end to what is
implied. 21
Nor is there any legal basis to support the contention that the CHR
enjoys fiscal autonomy. In essence, fiscal autonomy entails freedom
from outside control and limitations, other than those provided by law.
It is the freedom to allocate and utilize funds granted by law, in
accordance with law, and pursuant to the wisdom and dispatch its

needs may require from time to time. 22 In Blaquera v. Alcala and

Bengzon v. Drilon, 23 it is understood that it is only the Judiciary, the
Civil Service Commission, the Commission on Audit, the Commission
on Elections, and the Office of the Ombudsman, which enjoy fiscal
autonomy. Thus, in Bengzon, 24 we explained:
As envisioned in the Constitution, the fiscal autonomy enjoyed by the
Judiciary, the Civil Service Commission, the Commission on Audit, the
Commission on Elections, and the Office of the Ombudsman
contemplates a guarantee of full flexibility to allocate and utilize their
resources with the wisdom and dispatch that their needs require. It
recognizes the power and authority to levy, assess and collect fees,
fix rates of compensation not exceeding the highest rates authorized
by law for compensation and pay plans of the government and
allocate and disburse such sums as may be provided by law or
prescribed by them in the course of the discharge of their functions.
xxx

xxx

xxx

The Judiciary, the Constitutional Commissions, and the Ombudsman

must have the independence and flexibility needed in the discharge of
their constitutional duties. The imposition of restrictions and
constraints on the manner the independent constitutional offices
allocate and utilize the funds appropriated for their operations is
anathema to fiscal autonomy and violative not only of the express
mandate of the Constitution but especially as regards the Supreme
Court, of the independence and separation of powers upon which the
entire fabric of our constitutional system is based. In the interest of
comity and cooperation, the Supreme Court, [the] Constitutional
Commissions, and the Ombudsman have so far limited their
objections to constant reminders. We now agree with the petitioners
that this grant of autonomy should cease to be a meaningless
provision. (Emphasis supplied.) IATSHE
Neither does the fact that the CHR was admitted as a member by the
Constitutional Fiscal Autonomy Group (CFAG) ipso facto clothed it
with fiscal autonomy. Fiscal autonomy is a constitutional grant, not a
tag obtainable by membership.
We note with interest that the special provision under Rep. Act No.
8522, while cited under the heading of the CHR, did not specifically
mention CHR as among those offices to which the special provision to
formulate and implement organizational structures apply, but merely

143
states its coverage to include Constitutional Commissions and Offices
enjoying fiscal autonomy. In contrast, the Special Provision Applicable
to the Judiciary under Article XXVIII of the General Appropriations Act
of 1998 specifically mentions that such special provision applies to the
judiciary and had categorically authorized the Chief Justice of the
Supreme Court to formulate and implement the organizational
structure of the Judiciary, to wit:
1.
Organizational Structure. Any provision of law to the contrary
notwithstanding and within the limits of their respective appropriations
authorized in this Act, the Chief Justice of the Supreme Court is
authorized to formulate and implement organizational structure of the
Judiciary, to fix and determine the salaries, allowances, and other
benefits of their personnel, and whenever public interest so requires,
make adjustments in the personal services itemization including, but
not limited to, the transfer of item or creation of new positions, in the
Judiciary; PROVIDED, That officers and employees whose positions
are affected by such reorganization or adjustments shall be granted
retirement gratuities and separation pay in accordance with existing
law, which shall be payable from any unexpended balance of, or
savings in the appropriations of their respective offices: PROVIDED,
FURTHER, That the implementation hereof shall be in accordance
with salary rates, allowances and other benefits authorized under
compensation standardization laws. (Emphasis supplied.)
All told, the CHR, although admittedly a constitutional creation is,
nonetheless, not included in the genus of offices accorded fiscal
autonomy by constitutional or legislative fiat.
Even assuming en arguendo that the CHR enjoys fiscal autonomy, we
share the stance of the DBM that the grant of fiscal autonomy
notwithstanding, all government offices must, all the same, kowtow to
the Salary Standardization Law. We are of the same mind with the
DBM on its standpoint, thus
Being a member of the fiscal autonomy group does not vest the
agency with the authority to reclassify; upgrade, and create positions
without approval of the DBM. While the members of the Group are
authorized to formulate and implement the organizational structures of
their respective offices and determine the compensation of their
personnel, such authority is not absolute and must be exercised within
the parameters of the Unified Position Classification and

Compensation System established under RA 6758 more popularly

known as the Compensation Standardization Law. 25 (Emphasis
supplied.) ATESCc
The most lucid argument against the stand of respondent, however, is
the provision of Rep. Act No. 8522 "that the implementation hereof
shall be in accordance with salary rates, allowances and other
benefits authorized under compensation standardization laws." 26
Indeed, the law upon which respondent heavily anchors its case upon
has expressly provided that any form of adjustment in the
organizational structure must be within the parameters of the Salary
Standardization Law.
The Salary Standardization Law has gained impetus in addressing
one of the basic causes of discontent of many civil servants. 27 For
this purpose, Congress has delegated to the DBM the power to
administer the Salary Standardization Law and to ensure that the
spirit behind it is observed. This power is part of the system of checks
and balances or system of restraints in our government. The DBM's
exercise of such authority is not in itself an arrogation inasmuch as it
is pursuant to the paramount law of the land, the Salary
Standardization Law and the Administrative Code.
In line with its role to breathe life into the policy behind the Salary
Standardization Law of "providing equal pay for substantially equal
work and to base differences in pay upon substantive differences in
duties and responsibilities, and qualification requirements of the
positions," the DBM, in the case under review, made a determination,
after a thorough evaluation, that the reclassification and upgrading
scheme proposed by the CHR lacks legal rationalization.
The DBM expounded that Section 78 of the general provisions of the
General Appropriations Act FY 1998, which the CHR heavily relies
upon to justify its reclassification scheme, explicitly provides that "no
organizational unit or changes in key positions shall be authorized
unless provided by law or directed by the President." Here, the DBM
discerned that there is no law authorizing the creation of a Finance
Management Office and a Public Affairs Office in the CHR. Anent
CHR's proposal to upgrade twelve positions of Attorney VI, SG-26 to
Director IV, SG-28, and four positions of Director III, SG-27 to Director
IV, SG-28, in the Central Office, the DBM denied the same as this

144
would change the context from support to substantive without actual
change in functions.
This view of the DBM, as the law's designated body to implement and
administer a unified compensation system, is beyond cavil. The
interpretation of an administrative government agency, which is
tasked to implement a statute is accorded great respect and ordinarily
controls the construction of the courts. In Energy Regulatory Board v.
Court of Appeals, 28 we echoed the basic rule that the courts will not
interfere in matters which are addressed to the sound discretion of
government agencies entrusted with the regulation of activities
coming under the special technical knowledge and training of such
agencies. ADSIaT
To be sure, considering his expertise on matters affecting the nation's
coffers, the Secretary of the DBM, as the President's alter ego, knows
from where he speaks inasmuch as he has the front seat view of the
adverse effects of an unwarranted upgrading or creation of positions
in the CHR in particular and in the entire government in general.
WHEREFORE, the petition is GRANTED, the Decision dated 29
November 2001 of the Court of Appeals in CA-G.R. SP No. 59678
and its Resolution dated 11 September 2002 are hereby REVERSED
and SET ASIDE. The ruling dated 29 March 1999 of the Civil Service
Commision-National Capital Region is REINSTATED. The
Commission on Human Rights Resolution No. A98-047 dated 04
September 1998, Resolution No. A98-055 dated 19 October 1998 and
Resolution No. A98-062 dated 17 November 1998 without the
approval of the Department of Budget and Management are
disallowed. No pronouncement as to costs. SCADIT
SO ORDERED.

145
EN BANC
[G.R. No. 157509. January 18, 2005.]
AUTOMOTIVE INDUSTRY WORKERS ALLIANCE (AIWA) and its
Affiliated Unions: Mitsubishi Motors Workers Phils. Union; Mitsubishi
Motors Phils. Supervisors Union, Nissan Motors Phils., Inc. Workers
Union, Toyota Motors Phils. Workers Union, DURASTEEL WORKERS
UNION, FILSHUTTERS EMPLOYEES & WORKERS UNION,
NATIONAL LABOR UNION, PEPSI-COLA SUPERVISORS AND
EMPLOYEES UNION, PSBA FACULTY ASSOCIATION, PLDT
SECURITY PERSONNEL UNION, PUREFOODS UNIFIED LABOR
ORGANIZATION, SAMAHANG MANGGAGAWA NG BICUTAN
CONTAINERS
CORP.,
SAMAHANG
MANGGAGAWA
NG
CINDERELLA, SAMAHANG MANGGAGAWA NG LAURAS FOOD
PRODUCTS, petitioners, vs. HON. ALBERTO ROMULO, in his
capacity as Executive Secretary, and HON. PATRICIA STO. TOMAS,
in her capacity as Secretary of Labor and Employment, respondents.
DECISION
CHICO-NAZARIO, J p:
Petitioners, composed of ten (10) labor unions, call upon this Court to
exercise its power of judicial review to declare as unconstitutional an
executive order assailed to be in derogation of the constitutional
doctrine of separation of powers. SIHCDA
In an original action for certiorari, petitioners invoke their status as
labor unions and as taxpayers whose rights and interests are
allegedly violated and prejudiced by Executive Order No. 185 dated
10 March 2003 whereby administrative supervision over the National
Labor Relations Commission (NLRC), its regional branches and all its
personnel including the executive labor arbiters and labor arbiters was
transferred from the NLRC Chairperson to the Secretary of Labor and
Employment. In support of their position, 1 petitioners argue that the
NLRC created by Presidential Decree No. 442, otherwise known as
the Labor Code, during Martial Law was an integral part of the
Department (then Ministry) of Labor and Employment (DOLE) under
the administrative supervision of the Secretary of Justice. During the

time of President Corazon C. Aquino, and while she was endowed

with legislative functions after EDSA I, Executive Order No. 292 2 was
issued whereby the NLRC became an agency attached to the DOLE
for policy and program coordination and for administrative
supervision. On 02 March 1989, Article 213 of the Labor Code was
expressly amended by Republic Act No. 6715 declaring that the
NLRC was to be attached to the DOLE for program and policy
coordination only while the administrative supervision over the NLRC,
its regional branches and personnel, was turned over to the NLRC
Chairman. The subject E.O. No. 185, in authorizing the Secretary of
Labor to exercise administrative supervision over the NLRC, its
regional branches and personnel, allegedly reverted to the pre-Rep.
Act No. 6715 set-up, amending the latter law which only Congress
can do.
The respondents herein, as represented by the Office of the Solicitor
General, opposed the petition on procedural 3 and substantive 4
grounds. Procedurally, it is alleged that the petition does not pose an
actual case or controversy upon which judicial review may be
exercised as petitioners have not specifically cited how E.O. No. 185
has prejudiced or threatened to prejudice their rights and existence as
labor unions and as taxpayers. Closely intertwined therewith,
respondents further argue that petitioners have no locus standi to
assail the validity of E.O. No. 185, not even in their capacity as
taxpayers, considering that labor unions are exempt from paying
taxes, citing Sec. 30 of the Tax Reform Act of 1997. Even assuming
that their individual members are taxpayers, respondents maintain
that a taxpayer suit will not prosper as E.O. No. 185 does not require
additional appropriation for its implementation. As the petition can be
decided without passing on the validity of the subject executive order,
respondents conclude that the same should be forthwith dismissed.
IEHDAT
Even on the merits, respondents advance the view that the petition
must fail as the administrative supervision granted by the Labor Code
to the NLRC Chairman over the NLRC, its regional branches and
personnel, does not place them beyond the President's broader
power of control and supervision, a power conferred no less than by
the Constitution in Section 17, Article VII thereof. Thus, in the exercise
of the President's power of control and supervision, he can generally
oversee the operations of the NLRC, its regional branches and

146
personnel thru his alter ego, the Secretary of Labor, pursuant to the
doctrine of qualified political agency.
In their Reply, 5 petitioners affirm their locus standi contending that
they are suing for and in behalf of their members estimated to be
more or less fifty thousand (50,000) workers who are the real
parties to be affected by the resolution of this Court. They likewise
maintain that they are suing in behalf of the employees of the NLRC
who have pending cases for dismissal. Thus, possessed of the
necessary standing, petitioners theorize that the issue before this
Court must necessarily be decided as it involves an act of the Chief
Executive amending a provision of law.
For clarity, E.O. No. 185 is hereby quoted:
EXECUTIVE ORDER NO. 185
AUTHORIZING THE SECRETARY OF LABOR AND
EMPLOYMENT TO EXERCISE ADMINISTRATIVE
SUPERVISION OVER THE NATIONAL LABOR RELATIONS
COMMISSION
WHEREAS, Section 17, Article VII of the Constitution provides that
the President shall have control of all executive departments, bureaus
and offices and shall ensure that the laws be faithfully executed;
WHEREAS, the National Labor Relations Commission (NLRC) which
was created by virtue of Presidential Decree No. 442, otherwise
known as the "Labor Code of the Philippines," is an agency under the
Executive Department and was originally envisaged as being an
integral part of the Department (then Ministry) of Labor and
Employment (DOLE) under the administrative supervision of the
Secretary of Labor and Employment ("Secretary of Labor"); AHDacC
WHEREAS, upon the issuance of Executive Order No. 292, otherwise
known as the "Revised Administrative Code of 1987" (the
"Administrative Code"), the NLRC, by virtue of Section 25, Chapter 6,
Title VII, Book IV thereof, became an agency attached to the DOLE
for policy and program coordination and administrative supervision;

WHEREAS, Article 213 of the Labor Code and Section 25, Chapter 6,
Title VII, Book IV of the Administrative Code were amended by
Republic Act. No. 6715 approved on March 2, 1989, which provides
that the NLRC shall be attached to the DOLE for program and policy
coordination only and transferred administrative supervision over the
NLRC, all its regional branches and personnel to the NLRC Chairman;
WHEREAS, Section 16, Article III of the Constitution guarantees the
right of all persons to a speedy disposition of their cases before all
judicial, quasi-judicial and administrative bodies;
WHEREAS, the Secretary of Labor, after evaluating the NLRC's
performance record in the last five (5) years, including the rate of
disposition of pending cases before it, has informed the President that
there is a need to expedite the disposition of labor cases pending
before the NLRC and all its regional and sub-regional branches or
provincial extension units and initiate potent measures to prevent graft
and corruption therein so as to reform its systems and personnel, as
well as infuse the organization with a sense of public service in
consonance with the imperative of change for the greater interest of
the people; LLpr
WHEREAS, after consultations with the relevant sectors, the
Secretary of Labor has recommended that the President, pursuant to
her powers under the Constitution and existing laws, authorize the
Secretary of Labor to exercise administrative supervision over the
NLRC and all its regional and sub-regional branches or provincial
extension units with the objective of improving the rate of disposition
of pending cases and institute adequate measures for the prevention
of graft and corruption within the said agency;
NOW, THEREFORE, I, GLORIA MACAPAGAL ARROYO, President of
the Republic of the Philippines, by virtue of the powers vested in me
by the Constitution and existing laws, do hereby order:
SECTION 1. Authority To Exercise Administrative Supervision.
The Secretary of Labor is hereby authorized to exercise administrative
supervision over the NLRC, its regional branches and all its
personnel, including the Executive Labor Arbiters and Labor Arbiters,
with the objective of improving the rate of disposition of cases pending
before it and its regional and sub-regional branches or provincial
extension units and to institute adequate measures for the prevention
of graft and corruption within the said agency. aEIADT

147
For this purpose, the Secretary of Labor shall, among others:
a.
Generally oversee the operations of the NLRC and its regional
and sub-regional branches or provincial extension units for the
purpose of ensuring that cases pending before them are decided or
resolved expeditiously;

b.
Detailed Master Plan on how to liquidate its backlog of cases
with clear timetables to clean up its dockets within six (6) months from
the issuance hereof;
c.
Complete inventory of its assets and list of personnel
indicating their present positions and stations; and STcDIE

b.
Require the submission of reports as the Secretary of Labor
may deem necessary;

d.
Such other matters as may be required by the Secretary of
Labor.

c.
Initiate measures within the agency to prevent graft and
corruption, including but not limited to, the conduct of management
audits, performance evaluations and inspections to determine
compliance with established policies, standards and guidelines;

SECTION 3. Rules and Regulations. The Secretary of Labor, in

consultation with the Chairman of the NLRC, is hereby authorized to
issue rules and regulations for the effective implementation of the
provisions of this Executive Order.

d.
To take such action as may be necessary for the proper
performance of official functions, including rectification of violations,
abuses and other forms of mal-administration; and aAHDIc

SECTION 4. Repealing Clause. All laws, executive issuances, rules

and regulations or parts thereof which are inconsistent with the
provisions of this Executive Order are hereby repealed, amended, or
modified accordingly.

e.
Investigate, on its own or upon complaint, matters involving
disciplinary action against any of the NLRC's personnel, including
Presidential appointees, in accordance with existing laws, rules and
regulations. After completing his/her investigation, the Secretary of
Labor shall submit a report to the President on the investigation
conducted with a recommendation as to the penalty to be imposed or
other action to be taken, including referral to the Presidential AntiGraft Commission (PAGC), the Office of the Ombudsman or any other
office, committee, commission, agency, department, instrumentality or
branch of the government for appropriate action.
The authority conferred herein upon the Secretary of Labor shall not
extend to the power to review, reverse, revise, or modify the decisions
of the NLRC in the exercise of its quasi-judicial functions (cf . Section
38(2) (b), Chapter 7, Book IV, Administrative Code). EIcTAD
SECTION 2. Report to the Secretary of Labor. The NLRC,
through its Chairman, shall submit a report to the Secretary of Labor
within thirty (30) days from issuance of this Executive Order, on the
following matters:
a.
Performance Report/Audit for the last five (5) years, including
list of pending cases and cases disposed of within the said period by
the NLRC en banc, by Division and by the Labor Arbiters in each of its
regional and sub-regional branches or provincial extension units;

SECTION 5. Effectivity. This Executive Order shall take effect

immediately upon the completion of its publication in the Official
Gazette or in a newspaper of general circulation in the country.
City of Manila, March 10, 2003. 6
The constitutionality of a governmental act having been challenged, it
comes as no surprise that the first line of defense is to question the
standing of petitioners and the justiciability of herein case. THaAEC
It is hornbook doctrine that the exercise of the power of judicial review
requires the concurrence of the following requisites, namely: (1) the
existence of an appropriate case; (2) an interest personal and
substantial by the party raising the constitutional question; (3) the plea
that the function be exercised at the earliest opportunity; and (4) the
necessity that the constitutional question be passed upon in order to
decide the case. 7
As correctly pointed out by respondents, judicial review cannot be
exercised in vacuo. The function of the courts is to determine
controversies between litigants and not to give advisory opinions. 8
The power of judicial review can only be exercised in connection with
a bona fide case or controversy which involves the statute sought to
be reviewed. 9

148
Even with the presence of an actual case or controversy, the Court
may refuse to exercise judicial review unless the constitutional
question is brought before it by a party having the requisite standing
to challenge it. 10 Legal standing or locus standi is defined as a
"personal and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the governmental
act that is being challenged." 11 For a citizen to have standing, he
must establish that he has suffered some actual or threatened injury
as a result of the allegedly illegal conduct of the government; the
injury is fairly traceable to the challenged action; and the injury is likely
to be redressed by a favorable action. 12
Petitioners have not shown that they have sustained or are in danger
of sustaining any personal injury attributable to the enactment of E.O.
No. 185. As labor unions representing their members, it cannot be
said that E.O. No. 185 will prejudice their rights and interests
considering that the scope of the authority conferred upon the
Secretary of Labor does not extend to the power to review, reverse,
revise or modify the decisions of the NLRC in the exercise of its quasijudicial functions. 13 Thus, only NLRC personnel who may find
themselves the subject of the Secretary of Labors disciplinary
authority, conferred by Section 1(d) of the subject executive order,
may be said to have a direct and specific interest in raising the
substantive issue herein. Moreover, and if at all, only Congress, and
not petitioners, can claim any injury 14 from the alleged executive
encroachment of the legislative function to amend, modify and/or
repeal laws. aTEADI
Neither can standing be conferred on petitioners as taxpayers since
petitioners have not established disbursement of public funds in
contravention of law or the Constitution. 15 A taxpayer's suit is
properly brought only when there is an exercise of the spending or
taxing power of Congress. 16 As correctly pointed out by respondents,
E.O. No. 185 does not even require for its implementation additional
appropriation.
All told, if we were to follow the strict rule on locus standi, this petition
should be forthwith dismissed on that score. The rule on standing,
however, is a matter of procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens, taxpayers and legislators
when the public interest so requires, such as when the matter is of

transcendental importance, of overarching significance to society, or

of paramount public interest. 17
The question is, does the issue posed in this petition meet the
exacting standard required for this Court to take the liberal approach
and recognize the standing of herein petitioners? HSIADc
The instant petition fails to persuade us.
The subject matter of E.O. No. 185 is the grant of authority by the
President to the Secretary of Labor to exercise administrative
supervision over the NLRC, its regional branches and all its
personnel, including the Executive Labor Arbiters and Labor Arbiters.
Its impact, sans the challenge to its constitutionality, is thereby limited
to the departments to which it is addressed. Taking our cue from the
early case of Olsen v. Herstein and Rafferty, 18 the subject executive
order can be considered as nothing more or less than a command
from a superior to an inferior. It creates no relation except between the
official who issued it and the officials who received it. It has for its
object simply the efficient and economical administration of the affairs
of the department to which it is issued in accordance with the law
governing the subject matter. Administrative in its nature, the subject
order does not pass beyond the limits of the departments to which it is
directed, hence, it has not created any rights in third persons, not
even in the fifty thousand or so union members being represented by
petitioners who may or may not have pending cases before the labor
arbiters or the NLRC. ISCaDH
In fine, considering that the governmental act being questioned has a
limited reach, its impact confined to corridors of the executive
department, this is not one of those exceptional occasions where the
Court is justified in sweeping aside a critical procedural requirement,
rooted as it is in the constitutionally enshrined principle of separation
of powers. As succinctly put by Mr. Justice Reynato S. Puno in his
dissenting opinion in the first Kilosbayan case: 19
. . . [C]ourts are neither free to decide all kinds of cases dumped into
their laps nor are they free to open their doors to all parties or entities
claiming a grievance. The rationale for this constitutional requirement
of locus standi is by no means trifle. It is intended "to assure a
vigorous adversary presentation of the case, and, perhaps more
importantly to warrant the judiciary's overruling the determination of a

149
coordinate, democratically elected organ of government." 20 It thus
goes to the very essence of representative democracies. ACSaHc
xxx

xxx

xxx

A lesser but not insignificant reason for screening the standing of

persons who desire to litigate constitutional issues is economic in
character. Given the sparseness of our resources, the capacity of
courts to render efficient judicial service to our people is severely
limited. For courts to indiscriminately open their doors to all types of
suits and suitors is for them to unduly overburden their dockets, and
ultimately render themselves ineffective dispensers of justice. To be
sure, this is an evil that clearly confronts our judiciary today.
All things considered, whether or not E.O. No. 185 is indeed
unconstitutional will have to await the proper party in a proper case to
assail its validity.
WHEREFORE, premises considered, the instant petition dated 27
March 2003 is hereby DISMISSED for lack of merit. No costs.
SO ORDERED.

150
[G.R. No. 63915. April 24, 1985.]
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY
AND NATIONALISM, INC. [MABINI], petitioners, vs. HON. JUAN C.
TUVERA, in his capacity as Executive Assistant to the President,
HON. JOAQUIN VENUS, in his capacity as Deputy Executive
Assistant to the President, MELQUIADES P. DE LA CRUZ, in his
capacity as Director, Malacaang Records Office, and FLORENDO S.
PABLO, in his capacity as Director, Bureau of Printing, respondents.
DECISION
ESCOLIN, J p:
Invoking the people's right to be informed on matters of public
concern, a right recognized in Section 6, Article IV of the 1973
Philippine Constitution, 1 as well as the principle that laws to be valid
and enforceable must be published in the Official Gazette or
otherwise effectively promulgated, petitioners seek a writ of
mandamus to compel respondent public officials to publish, and or
cause the publication in the Official Gazette of various presidential
decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is
sought:
a]
Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171,
179, 184, 197, 200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337,
355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473,
486, 491, 503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658,
661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961, 10171030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250,
1278, 1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826,
1829-1840, 1842-1847.
b]
Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130,
136, 141, 150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202,
204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248251, 253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358, 362,
367, 370, 382, 385, 386, 396-397, 405, 438-440, 444-445, 473, 486,

488, 498, 501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610,
611, 612, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-879,
881, 882, 939-940, 964, 997, 1149-1178, 1180-1278.
c]

General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.

d]
Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281,
1319-1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 15611588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649,
1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744,
1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 18311832, 1835-1836, 1839-1840, 1843-1844, 1846-1847, 1849, 18531858, 1860, 1866, 1868, 1870, 1876-1889, 1892, 1900, 1918, 1923,
1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044,
2046-2145, 2147-2161, 2163-2244.
e]
Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457-471,
474-492, 494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604,
609, 611-647, 649-677, 679-703, 705-707, 712-786, 788-852, 854857.
f]
Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39,
50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g]
Administrative Orders Nos.: 347, 348, 352-354, 360-378, 380433, 436-439.
The respondents, through the Solicitor General, would have this case
dismissed outright on the ground that petitioners have no legal
personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are
personally and directly affected or prejudiced by the alleged nonpublication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus
proceeding, they are not being "aggrieved parties" within the meaning
of Section 3, Rule 65 of the Rules of Court, which we quote: Cdpr
"SEC. 3.
Petition for Mandamus. When any tribunal,
corporation, board or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use
and enjoyment of a right or office to which such other is entitled, and

151
there is no other plain, speedy and adequate remedy in the ordinary
course of law, the person aggrieved thereby may file a verified petition
in the proper court alleging the facts with certainty and praying that
judgment be rendered commanding the defendant, immediately or at
some other specified time, to do the act required to be done to protect
the rights of the petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the defendant."
Upon the other hand, petitioners maintain that since the subject of the
petition concerns a public right and its object is to compel the
performance of a public duty, they need not show any specific interest
for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910
case of Severino vs. Governor General, 3 this Court held that while
the general rule is that "a writ of mandamus would be granted to a
private individual only in those cases where he has some private or
particular interest to be subserved, or some particular right to be
protected, independent of that which he holds with the public at large,"
and "it is for the public officers exclusively to apply for the writ when
public rights are to be subserved [Mithchell vs. Boardmen, 79 M.e.,
469]," nevertheless, "when the question is one of public right and the
object of the mandamus is to procure the enforcement of a public
duty, the people are regarded as the real party in interest and the
relator at whose instigation the proceedings are instituted need not
show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the
execution of the laws [High, Extraordinary Legal Remedies, 3rd ed.,
sec. 431]."
Thus, in said case, this Court recognized the relator Lope Severino, a
private individual, as a proper party to the mandamus proceedings
brought to compel the Governor General to call a special election for
the position of municipal president in the town of Silay, Negros
Occidental. Speaking for this Court, Mr. Justice Grant T. Trent said:
Cdpr
"We are therefore of the opinion that the weight of authority supports
the proposition that the relator is a proper party to proceedings of this
character when a public right is sought to be enforced. If the general
rule in America were otherwise, we think that it would not be
applicable to the case at bar for the reason 'that it is always

dangerous to apply a general rule to a particular case without keeping

in mind the reason for the rule, because, if under the particular
circumstances the reason for the rule does not exist, the rule itself is
not applicable and reliance upon the rule may well lead to error.'
"No reason exists in the case at bar for applying the general rule
insisted upon by counsel for the respondent. The circumstances
which surround this case are different from those in the United States,
inasmuch as if the relator is not a proper party to these proceedings
no other person could be, as we have seen that it is not the duty of
the law officer of the Government to appear and represent the people
in cases of this character."
The reasons given by the Court in recognizing a private citizen's legal
personality in the aforementioned case apply squarely to the present
petition. Clearly, the right sought to be enforced by petitioners herein
is a public right recognized by no less than the fundamental law of the
land. If petitioners were not allowed to institute this proceeding, it
would indeed be difficult to conceive of any other person to initiate the
same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his
appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is
not a sine qua non requirement for the effectivity of laws where the
laws themselves provide for their own effectivity dates. It is thus
submitted that since the presidential issuances in question contain
special provisions as to the date they are to take effect, publication in
the Official Gazette is not indispensable for their effectivity. The point
stressed is anchored on Article 2 of the Civil Code:
"Art. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided, . . ."
The interpretation given by respondent is in accord with this Court's
construction of said article. In a long line of decisions, 4 this Court
has ruled that publication in the Official Gazette is necessary in those
cases where the legislation itself does not provide for its effectivity
date for then the date of publication is material for determining its
date of effectivity, which is the fifteenth day following its publication
but not when the law itself provides for the date when it goes into
effect.

152

Respondents' argument, however, is logically correct only insofar as it

equates the effectivity of laws with the fact of publication. Considered
in the light of other statutes applicable to the issue at hand, the
conclusion is easily reached that said Article 2 does not preclude the
requirement of publication in the Official Gazette, even if the law itself
provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
"Section 1.
There shall be published in the Official Gazette [1] all
important legislative acts and resolutions of a public nature of the
Congress of the Philippines; [2] all executive and administrative
orders and proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of the Supreme
Court and the Court of Appeals as may be deemed by said courts of
sufficient importance to be so published; [4] such documents or
classes of documents as may be required so to be published by law;
and [5] such documents or classes of documents as the President of
the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be
published. . . ."
The clear object of the above quoted provision is to give the general
public adequate notice of the various laws which are to regulate their
actions and conduct as citizens. Without such notice and publication,
there would be no basis for the application of the maxim "ignorantia
legis non excusat." It would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law of which he
had no notice whatsoever, not even a constructive one. cdphil
Perhaps at no time since the establishment of the Philippine Republic
has the publication of laws taken so vital significance that at this time
when the people have bestowed upon the President a power
heretofore enjoyed solely by the legislature. While the people are kept
abreast by the mass media of the debates and deliberations in the
Batasan Pambansa and for the diligent ones, ready access to the
legislative records no such publicity accompanies the law-making
process of the President. Thus, without publication, the people have
no means of knowing what presidential decrees have actually been
promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of

Spain ruled: "Bajo la denominacion genrica de leyes, se comprenden

tambin los reglamentos, Reales decretos, Instrucciones, Circulares y
Reales ordines dictadas de conformidad con las mismas por el
Gobierno en uso de su potestad." 5
The very first clause of Section 1 of Commonwealth Act 638 reads:
"There shall be published in the Official Gazette . . ." The word "shall"
used therein imposes upon respondent officials an imperative duty.
That duty must be enforced if the Constitutional right of the people to
be informed on matters of public concern is to be given substance and
reality. The law itself makes a list of what should be published in the
official Gazette. Such listing, to our mind, leaves respondents with no
discretion whatsoever as to what must be included or excluded from
such publication.
The publication of all presidential issuances "of a public nature" or "of
general applicability" is mandated by law. Obviously, presidential
decrees that provide for fines, forfeitures or penalties for their violation
or otherwise impose a burden on the people, such as tax and revenue
measures, fall within this category. Other presidential issuances which
apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the
assumption that they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of
a public nature" or "of general applicability" is a requirement of due
process. It is a rule of law that before a person may be bound by law,
he must first be officially and specifically informed of its contents. As
Justice Claudio Teehankee said in Peralta vs. COMELEC 7 :
"In a time of proliferating decrees, orders and letters of instructions
which all form part of the law of the land, the requirement of due
process and the Rule of Law demand that the Official Gazette as the
official government repository promulgate and publish the texts of all
such decrees, orders and instructions so that the people may know
where to obtain their official and specific contents."
The Court therefore declares that presidential issuances of general
application, which have not been published, shall have no force and
effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in
reliance of the validity of those presidential decrees which were
published only during the pendency of this petition, have put the

153
question as to whether the Court's declaration of invalidity apply to
P.D.s which had been enforced or implemented prior to their
publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth
in Chicot County Drainage District vs. Baxter Bank 8 to wit: LLjur
"The courts below have proceeded on the theory that the Act of
Congress, having been found to be unconstitutional, was not a law;
that it was inoperative, conferring no rights and imposing no duties,
and hence affording no basis for the challenged decree. Norton v.
Shelby County, 118 U.S. 425, 442; Chicago, I. & L. Ry. Co. v. Hackett,
228 U.S. 559, 566. It is quite clear, however, that such broad
statements as to the effect of a determination of unconstitutionality
must be taken with qualifications. The actual existence of a statute,
prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot
always be erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be considered in
various aspects with respect to particular conduct, private and
official. Questions of rights claimed to have become vested, of status,
of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the
statute and of its previous application, demand examination. These
questions are among the most difficult of those which have engaged
the attention of courts, state and federal, and it is manifest from
numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified."
Consistently with the above principle, this Court in Rutter vs. Esteban
9 sustained the right of a party under the Moratorium Law, albeit said
right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees
prior to their publication in the Official Gazette is "an operative fact
which may have consequences which cannot be justly ignored. The
past cannot always be erased by a new judicial declaration . . . that an
all-inclusive statement of a principle of absolute retroactive invalidity
cannot be justified."
From the report submitted to the Court by the Clerk of Court, it
appears that of the presidential decrees sought by petitioners to be

published in the Official Gazette, only Presidential Decrees Nos. 1019

to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been
so published. 10 Neither the subject matters nor the texts of these
PDs can be ascertained since no copies thereof are available. But
whatever their subject matter may be, it is undisputed that none of
these unpublished PDs has ever been implemented or enforced by
the government. In Pesigan vs. Angeles,
11 the Court, through
Justice Ramon Aquino, ruled that "publication is necessary to apprise
the public of the contents of [penal] regulations and make the said
penalties binding on the persons affected thereby." The cogency of
this holding is apparently recognized by respondent officials
considering the manifestation in their comment that "the government,
as a matter of policy, refrains from prosecuting violations of criminal
laws until the same shall have been published in the Official Gazette
or in some other publication, even though some criminal laws provide
that they shall take effect immediately."
WHEREFORE, the Court hereby orders respondents to publish in the
Official Gazette all unpublished presidential issuances which are of
general application, and unless so published, they shall have no
binding force and effect.
SO ORDERED.

154
EN BANC
[G.R. No. 133250. July 9, 2002.]
FRANCISCO I. CHAVEZ, petitioner, vs. PUBLIC ESTATES
AUTHORITY and AMARI COASTAL BAY DEVELOPMENT
CORPORATION, respondents.
DECISION
CARPIO, J p:
This is an original Petition for Mandamus with prayer for a writ of
preliminary injunction and a temporary restraining order. The petition
seeks to compel the Public Estates Authority ("PEA" for brevity) to
disclose all facts on PEA's then on-going renegotiations with Amari
Coastal Bay and Development Corporation ("AMARI" for brevity) to
reclaim portions of Manila Bay. The petition further seeks to enjoin
PEA from signing a new agreement with AMARI involving such
reclamation.
The Facts
On November 20, 1973, the government, through the Commissioner
of Public Highways, signed a contract with the Construction and
Development Corporation of the Philippines ("CDCP' for brevity) to
reclaim certain foreshore and offshore areas of Manila Bay. The
contract also included the construction of Phases I and II of the
Manila-Cavite Coastal Road. CDCP obligated itself to carry out all the
works in consideration of fifty percent of the total reclaimed land.
On February 4, 1977, then President Ferdinand E. Marcos issued
Presidential Decree No. 1084 creating PEA. PD No. 1084 tasked PEA
"to reclaim land, including foreshore and submerged areas," and "to
develop, improve, acquire, . . . lease and sell any and all kinds of
lands." 1 On the same date, then President Marcos issued
Presidential Decree No. 1085 transferring to PEA the "lands reclaimed

in the foreshore and offshore of the Manila Bay " 2 under the ManilaCavite Coastal Road and Reclamation Project (MCCRRP).
On December 29, 1981, then President Marcos issued a
memorandum directing PEA to amend its contract with CDCP, so that
"[A]ll future works in MCCRRP . . . shall be funded and owned by
PEA." Accordingly, PEA and CDCP executed a Memorandum of
Agreement dated December 29, 1981, which stated:
"(i)
CDCP shall undertake all reclamation, construction, and such
other works in the MCCRRP as may be agreed upon by the parties, to
be paid according to progress of works on a unit price/lump sum basis
for items of work to be agreed upon, subject to price escalation,
retention and other terms and conditions provided for in Presidential
Decree No. 1594. All the financing required for such works shall be
provided by PEA.
xxx

xxx

xxx

(iii)
. . . CDCP shall give up all its development rights and hereby
agrees to cede and transfer in favor of PEA, all of the rights, title,
interest and participation of CDCP in and to all the areas of land
reclaimed by CDCP in the MCCRRP as of December 30, 1981 which
have not yet been sold, transferred or otherwise disposed of by CDCP
as of said date, which areas consist of approximately Ninety-Nine
Thousand Four Hundred Seventy Three (99,473) square meters in the
Financial Center Area covered by land pledge No. 5 and
approximately Three Million Three Hundred Eighty Two Thousand
Eight Hundred Eighty Eight (3,382,888) square meters of reclaimed
areas at varying elevations above Mean Low Water Level located
outside the Financial Center Area and the First Neighborhood Unit." 3
On January 19, 1988, then President Corazon C. Aquino issued
Special Patent No. 3517, granting and transferring to PEA "the
parcels of land so reclaimed under the Manila-Cavite Coastal Road
and Reclamation Project (MCCRRP) containing a total area of one
million nine hundred fifteen thousand eight hundred ninety four
(1,915,894) square meters." Subsequently, on April 9, 1988, the
Register of Deeds of the Municipality of Paraaque issued Transfer
Certificates of Title Nos. 7309, 7311, and 7312, in the name of PEA,
covering the three reclaimed islands known as the "Freedom Islands"
located at the southern portion of the Manila-Cavite Coastal Road,
Paraaque City. The Freedom Islands have a total land area of One

155
Million Five Hundred Seventy Eight Thousand Four Hundred and
Forty One (1,578,441) square meters or 157.841 hectares.

Chairman Arsenio Yulo and retired Navy Officer Sergio Cruz

composed the negotiating panel of PEA.

On April 25, 1995, PEA entered into a Joint Venture Agreement ("JVA"
for brevity) with AMARI, a private corporation, to develop the Freedom
Islands. The JVA also required the reclamation of an additional 250
hectares of submerged areas surrounding these islands to complete
the configuration in the Master Development Plan of the Southern
Reclamation Project-MCCRRP. PEA and AMARI entered into the JVA
through negotiation without public bidding. 4 On April 28, 1995, the
Board of Directors of PEA, in its Resolution No. 1245, confirmed the
JVA. 5 On June 8, 1995, then President Fidel V. Ramos, through then
Executive Secretary Ruben Torres, approved the JVA. 6

On April 13, 1998, Antonio M. Zulueta filed before the Court a Petition
for Prohibition with Application for the Issuance of a Temporary
Restraining Order and Preliminary Injunction docketed as G.R. No.
132994 seeking to nullify the JVA. The Court dismissed the petition
"for unwarranted disregard of judicial hierarchy, without prejudice to
the refiling of the case before the proper court." 12

On November 29, 1996, then Senate President Ernesto Maceda

delivered a privilege speech in the Senate and denounced the JVA as
the "grandmother of all scams." As a result, the Senate Committee on
Government Corporations and Public Enterprises, and the Committee
on Accountability of Public Officers and Investigations, conducted a
joint investigation. The Senate Committees reported the results of
their investigation in Senate Committee Report No. 560 dated
September 16, 1997. 7 Among the conclusions of their report are: (1)
the reclaimed lands PEA seeks to transfer to AMARI under the JVA
are lands of the public domain which the government has not
classified as alienable lands and therefore PEA cannot alienate these
lands; (2) the certificates of title covering the Freedom Islands are
thus void, and (3) the JVA itself is illegal.
On December 5, 1997, then President Fidel V. Ramos issued
Presidential Administrative Order No. 365 creating a Legal Task Force
to conduct a study on the legality of the JVA in view of Senate
Committee Report No. 560. The members of the Legal Task Force
were the Secretary of Justice, 8 the Chief Presidential Legal Counsel,
9 and the Government Corporate Counsel. 10 The Legal Task Force
upheld the legality of the JVA, contrary to the conclusions reached by
the Senate Committees. 11
On April 4 and 5, 1998, the Philippine Daily Inquirer and Today
published reports that there were on-going renegotiations between
PEA and AMARI under an order issued by then President Fidel V.
Ramos. According to these reports, PEA Director Nestor Kalaw, PEA

On April 27, 1998, petitioner Frank I. Chavez ("Petitioner" for brevity)

as a taxpayer, filed the instant Petition for Mandamus with Prayer for
the Issuance of a Writ of Preliminary Injunction and Temporary
Restraining Order. Petitioner contends the government stands to lose
billions of pesos in the sale by PEA of the reclaimed lands to AMARI.
Petitioner prays that PEA publicly disclose the terms of any
renegotiation of the JVA, invoking Section 28, Article II, and Section 7,
Article III, of the 1987 Constitution on the right of the people to
information on matters of public concern. Petitioner assails the sale to
AMARI of lands of the public domain as a blatant violation of Section
3, Article XII of the 1987 Constitution prohibiting the sale of alienable
lands of the public domain to private corporations. Finally, petitioner
asserts that he seeks to enjoin the loss of billions of pesos in
properties of the State that are of public dominion.
After several motions for extension of time, 13 PEA and AMARI filed
their Comments on October 19, 1998 and June 25, 1998, respectively.
Meanwhile, on December 28, 1998, petitioner filed an Omnibus
Motion: (a) to require PEA to submit the terms of the renegotiated
PEA-AMARI contract; (b) for issuance of a temporary restraining
order; and (c) to set the case for hearing on oral argument. Petitioner
filed a Reiterative Motion for Issuance of a TRO dated May 26, 1999,
which the Court denied in a Resolution dated June 22, 1999.
In a Resolution dated March 23, 1999, the Court gave due course to
the petition and required the parties to file their respective
memoranda.
On March 30, 1999, PEA and AMARI signed the Amended Joint
Venture Agreement ("Amended JVA," for brevity). On May 28, 1999,
the Office of the President under the administration of then President
Joseph E. Estrada approved the Amended JVA.

156
Due to the approval of the Amended JVA by the Office of the
President, petitioner now prays that on "constitutional and statutory
grounds the renegotiated contract be declared null and void." 14
The Issues
The issues raised by petitioner, PEA 15 and AMARI 16 are as follows:
I.
WHETHER THE PRINCIPAL RELIEFS PRAYED FOR IN THE
PETITION ARE MOOT AND ACADEMIC BECAUSE OF
SUBSEQUENT EVENTS;
II.
WHETHER THE PETITION MERITS DISMISSAL FOR
FAILING TO OBSERVE THE PRINCIPLE GOVERNING THE
HIERARCHY OF COURTS;
III.
WHETHER THE PETITION MERITS DISMISSAL FOR NONEXHAUSTION OF ADMINISTRATIVE REMEDIES;
IV.
WHETHER PETITIONER HAS LOCUS STANDI TO BRING
THIS SUIT;
V.
WHETHER
THE
CONSTITUTIONAL
RIGHT
TO
INFORMATION INCLUDES OFFICIAL INFORMATION ON ONGOING NEGOTIATIONS BEFORE A FINAL AGREEMENT;
VI.
WHETHER THE STIPULATIONS IN THE AMENDED JOINT
VENTURE AGREEMENT FOR THE TRANSFER TO AMARI OF
CERTAIN LANDS, RECLAIMED AND STILL TO BE RECLAIMED,
VIOLATE THE 1987 CONSTITUTION; AND
VII.
WHETHER THE COURT IS THE PROPER FORUM FOR
RAISING THE ISSUE OF WHETHER THE AMENDED JOINT
VENTURE AGREEMENT IS GROSSLY DISADVANTAGEOUS TO
THE GOVERNMENT.
The Court's Ruling
First issue: whether the principal reliefs prayed for in the petition are
moot and academic because of subsequent events.
The petition prays that PEA publicly disclose the "terms and
conditions of the on-going negotiations for a new agreement." The
petition also prays that the Court enjoin PEA from "privately entering
into, perfecting and/or executing any new agreement with AMARI.

"PEA and AMARI claim the petition is now moot and academic
because AMARI furnished petitioner on June 21, 1999 a copy of the
signed Amended JVA containing the terms and conditions agreed
upon in the renegotiations. Thus, PEA has satisfied petitioner's prayer
for a public disclosure of the renegotiations. Likewise, petitioner's
prayer to enjoin the signing of the Amended JVA is now moot because
PEA and AMARI have already signed the Amended JVA on March 30,
1999. Moreover, the Office of the President has approved the
Amended JVA on May 28, 1999.
Petitioner counters that PEA and AMARI cannot avoid the
constitutional issue by simply fast-tracking the signing and approval of
the Amended JVA before the Court could act on the issue.
Presidential approval does not resolve the constitutional issue or
remove it from the ambit of judicial review.
We rule that the signing and of the Amended JVA by PEA and AMARI
and its approval by the President cannot operate to moot the petition
and divest the Court of its jurisdiction. PEA and AMARI have still to
implement the Amended JVA. The prayer to enjoin the signing of the
Amended JVA on constitutional grounds necessarily includes
preventing its implementation if in the meantime PEA and AMARI
have signed one in violation of the Constitution. Petitioner's principal
basis in assailing the renegotiation of the JVA is its violation of the
Section 3, Article XII of the Constitution, which prohibits the
government from alienating lands of the public domain to private
corporations. If the Amended JVA indeed violates the Constitution, it is
the duty of the Court to enjoin its implementation, and if already
implemented, to annul the effects of such unconstitutional contract.
The Amended JVA is not an ordinary commercial contract but one
which seeks to transfer title and ownership to 367.5 hectares of
reclaimed lands and submerged areas of Manila Bay to a single
private corporation. It now becomes more compelling for the Court to
resolve the issue too insure the government itself does not violate a
provision of the Constitution intended to safeguard the national
patrimony. Supervening events whether intended or accidental,
cannot prevent the Court from rendering a decision if there is a grave
violation of the Constitution. In the instant case, if the Amended JVA
runs counter to the Constitution, the Court can still prevent the
transfer of title and ownership of alienable lands of the public domain
in the name of AMARI. Even in cases where supervening events had

157
made the cases moot, the Court did not hesitate to resolve the legal
or constitutional issues raised to formulate controlling principles to
guide the bench, bar, and the public. 17
Also, the instant petition is a case of first impression. All previous
decisions of the Court involving Section 3, Article XII of the 1987
Constitution, or its counterpart provision in the 1973 Constitution, 18
covered agricultural lands sold to private corporations which acquired
the lands from private parties. The transferors of the private
corporations claimed or could claim the right to judicial confirmation of
their imperfect titles 19 under Title II of Commonwealth Act. 141 ("CA
No. 141" for brevity). In the instant case, AMARI seeks to acquire from
PEA, a public corporation, reclaimed lands and submerged areas for
non-agricultural purposes by purchase under PD No. 1084 (charter of
PEA) and Title III of CA No. 141. Certain undertakings by AMARI
under the Amended JVA constitute the consideration for the purchase.
Neither AMARI nor PEA can claim judicial confirmation of their titles
because the lands covered by the Amended JVA are newly reclaimed
or still to be reclaimed. Judicial confirmation of imperfect title requires
open, continuous, exclusive and notorious occupation of agricultural
lands of the public domain for at least thirty years since June 12, 1945
or earlier. Besides, the deadline for filing applications for judicial
confirmation of imperfect title expired on December 31, 1987. 20
Lastly, there is a need to resolve immediately the constitutional issue
raised in this petition because of the possible transfer at any time by
PEA to AMARI of title and ownership to portions of the reclaimed
lands. Under the Amended JVA, PEA is obligated to transfer to AMARI
the latter's seventy percent proportionate share in the reclaimed areas
as the reclamation progresses, The Amended JVA even allows AMARI
to mortgage at any time the entire reclaimed area to raise financing
for the reclamation project. 21
Second issue: whether the petition merits dismissal for failing to
observe the principle governing the hierarchy of courts.
PEA and AMARI claim petitioner ignored the judicial hierarchy by
seeking relief directly from the Court. The principle of hierarchy of
courts applies generally to cases involving factual questions. As it is
not a trier of facts, the Court cannot entertain cases involving factual
issues. The instant case, however, raises constitutional issues of
transcendental importance to the public. 22 The Court can resolve this

case without determining any factual issue related to the case. Also,
the instant case is a petition for mandamus which falls under the
original jurisdiction of the Court under Section 5, Article VIII of the
Constitution. We resolve to exercise primary jurisdiction over the
instant case.
Third issue: whether the petition merits dismissal for non-exhaustion
of administrative remedies.
PEA faults petitioner for seeking judicial intervention in compelling
PEA to disclose publicly certain information without first asking PEA
the needed information. PEA claims petitioner's direct resort to the
Court violates the principle of exhaustion of administrative remedies. It
also violates the rule that mandamus may issue only if there is no
other plain, speedy and adequate remedy in the ordinary course of
law.
PEA distinguishes the instant case from Taada v. Tuvera 23 where
the Court granted the petition for mandamus even if the petitioners
there did not initially demand from the Office of the President the
publication of the presidential decrees. PEA points out that in Taada,
the Executive Department had an affirmative statutory duty under
Article 2 of the Civil Code 24 and Section 1 of Commonwealth Act No.
638 25 to publish the presidential decrees. There was, therefore, no
need for the petitioners in Taada to make an initial demand from the
Office of the President. In the instant case, PEA claims it has no
affirmative statutory duty to disclose publicly information about its
renegotiation of the JVA. Thus, PEA asserts that the Court must apply
the principle of exhaustion of administrative remedies to the instant
case in view of the failure of petitioner here to demand initially from
PEA the needed information.
The original JVA sought to dispose to AMARI public lands held by
PEA, a government corporation. Under Section 79 of the Government
Auditing Code, 26 the disposition of government lands to private
parties requires public bidding. PEA was under a positive legal duty to
disclose to the public the terms and conditions for the sale of its lands.
The law obligated PEA make this public disclosure even without
demand from petitioner or from anyone. PEA failed to make this public
disclosure because the original JVA, like the Amended JVA, was the
result of a negotiated contract, not of a public bidding. Considering
that PEA had an affirmative statutory duty to make the public

158
disclosure, and was even in breach of this legal duty, petitioner had
the right to seek direct judicial intervention.
Moreover, and this alone, is determinative of this issue, the principle
of exhaustion of administrative remedies does not apply when the
issue involved is a purely legal or constitutional question. 27 The
principal issue in the instant case is the capacity of AMARI to acquire
lands held by PEA in view of the constitutional ban prohibiting the
alienation of lands of the public domain to private corporations. We
rule that the principle of exhaustion of administrative remedies does
not apply in the instant case.

the public.' He asserts that ordinary taxpayers have a right to initiate

and prosecute actions questioning the validity of acts or orders of
government agencies or instrumentalities, if the issues raised are of
'paramount public interest,' and if they 'immediately affect the social,
economic and moral well being of the people.'
Moreover, the mere fact that he is a citizen satisfies the requirement
of personal interest, when the proceeding involves the assertion of a
public right, such as in this case. He invokes several decisions of this
Court which have set aside the procedural matter of locus standi,
when the subject of the case involved public interest.

Fourth issue: whether petitioner has locus standi to bring this suit

xxx

PEA argues that petitioner has no standing to institute mandamus

proceedings to enforce his constitutional right to information without a
showing that PEA refused to perform an affirmative duty imposed on
PEA by the Constitution. PEA also claims that petitioner has not
shown that he will suffer any concrete injury because of the signing or
implementation of the Amended JVA. Thus, there is no actual
controversy requiring the exercise of the power of judicial review.

In Taada v. Tuvera, the Court asserted that when the issue concerns
a public right and the object of mandamus is to obtain the
enforcement of a public duty, the people are regarded as the real
parties in interest; and because it is sufficient that petitioner is a
citizen and as such is interested in the execution of the laws, he need
not show that he has any legal or special interest in the result of the
action. In the aforesaid case, the petitioners sought to enforce their
right to be informed on matters of public concern, a right then
recognized in Section 6, Article IV of the 1973 Constitution, in
connection with the rule that laws in order to be valid and enforceable
must be published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners' legal standing, the Court
declared that the right they sought to be enforced 'is a public right
recognized by no less than the fundamental law of the land.'

The petitioner has standing to bring this taxpayer's suit because the
petition seeks to compel PEA to comply with its constitutional duties.
There are two constitutional issues involved here. First is the right of
citizens to information on matters of public concern. Second is the
application of a constitutional provision intended to insure the
equitable distribution of alienable lands of the public domain among
Filipino citizens. The thrust of the first issue is to compel PEA to
disclose publicly information on the sale of government lands worth
billions of pesos, information which the Constitution and statutory law
mandate PEA to disclose. The thrust of the second issue is to prevent
PEA from alienating hundreds of hectares of alienable lands of the
public domain in violation of the Constitution, compelling PEA to
comply with a constitutional duty to the nation.
Moreover, the petition raises matters of transcendental importance to
the public. In Chavez v. PCGG, 28 the Court upheld the right of a
citizen to bring a taxpayer's suit on matters of transcendental
importance to the public, thus
"Besides, petitioner emphasizes, the matter of recovering the ill-gotten
wealth of the Marcoses is an issue of 'transcendental importance to

xxx

xxx

Legaspi v. Civil Service Commission, while reiterating Taada, further

declared that 'when a mandamus proceeding involves the assertion of
a public right, the requirement of personal interest is satisfied by the
mere fact that petitioner is a citizen and, therefore, part of the general
'public' which possesses the right.'
Further, in Albano v. Reyes, we said that while expenditure of public
funds may not have been involved under the questioned contract for
the development, management and operation of the Manila
International Container Terminal, 'public interest [was] definitely
involved considering the important role [of the subject contract] . . . in
the economic development of the country and the magnitude of the
financial consideration involved.' We concluded that, as a

159
consequence, the disclosure provision in the Constitution would
constitute sufficient authority for upholding the petitioner's standing.
Similarly, the instant petition is anchored on the right of the people to
information and access to official records, documents and papers a
right guaranteed under Section 7, Article III of the 1987 Constitution.
Petitioner, a former solicitor general, is a Filipino citizen. Because of
the satisfaction of the two basic requisites laid down by decisional law
to sustain petitioner's legal standing, i.e. (1) the enforcement of a
public right (2) espoused by a Filipino citizen, we rule that the petition
at bar should be allowed."
We rule that since the instant petition, brought by a citizen, involves
the enforcement of constitutional rights to information and to the
equitable diffusion of natural resources matters of transcendental
public importance, the petitioner has the requisite locus standi.
Fifth issue: whether the constitutional right to information includes
official information on on-going negotiations before a final agreement.
Section 7, Article III of the Constitution explains the people's right to
information on matters of public concern in this manner:
"Sec. 7.
The right of the people to information on matters of
public concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or,
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law." (Emphasis supplied)
The State policy of full transparency in all transactions involving public
interest reinforces the people's right to information on matters of
public concern. This State policy is expressed in Section 28, Article II
of the Constitution, thus:
"Sec. 28.
Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all its
transactions involving public interest." (Emphasis supplied)
These twin provisions of the Constitution seek to promote
transparency in policy-making and in the operations of the
government, as well as provide the people sufficient information to
exercise effectively other constitutional rights. These twin provisions
are essential to the exercise of freedom of expression. If the

government does not disclose its official acts, transactions and

decisions to citizens, whatever citizens say, even if expressed without
any restraint, will be speculative and amount to nothing. These twin
provisions are also essential to hold public officials "at all times . . .
accountable to the people," 29 for unless citizens have the proper
information, they cannot hold public officials accountable for anything.
Armed with the right information, citizens can participate in public
discussions leading to the formulation of government policies and
their effective implementation. An informed citizenry is essential to the
existence and proper functioning of any democracy. As explained by
the Court in Valmonte v. Belmonte, Jr. 30
"An essential element of these freedoms is to keep open a continuing
dialogue or process of communication between the government and
the people. It is in the interest of the State that the channels for free
political discussion be maintained to the end that the government may
perceive and be responsive to the people's will. Yet, this open
dialogue can be effective only to the extent that the citizenry is
informed and thus able to formulate its will intelligently. Only when the
participants in the discussion are aware of the issues and have
access to information relating thereto can such bear fruit."
PEA asserts, citing Chavez v. PCGG, 31 that in cases of on-going
negotiations the right to information is limited to "definite propositions
of the government." PEA maintains the right does not include access
to "intra-agency or inter-agency recommendations or communications
during the stage when common assertions are still in the process of
being formulated or are in the 'exploratory stage'."
Also AMARI contends that petitioner cannot invoke the right at the
pre-decisional stage or before the closing of the transaction. To
support its contention, AMARI cites the following discussion in the
1986 Constitutional Commission:
"Mr. Suarez. And when we say 'transactions' which should be
distinguished from contracts, agreements, or treaties or whatever,
does the Gentleman refer to the steps leading to the consummation of
the contract, or does he refer to the contract itself?
Mr. Ople: The 'transactions' used here, I suppose is generic and
therefore, it can cover both steps leading to a contract and already
consummated contract, Mr. Presiding Officer.

160
Mr. Suarez: This contemplates inclusion of negotiations leading to the
consummation of the transaction.
Mr. Ople: Yes, subject only to reasonable safeguards on the national
interest.
Mr. Suarez: Thank you." 32 (Emphasis supplied)
AMARI argues there must first be a consummated contract before
petitioner can invoke the right. Requiring government officials to
reveal their deliberations at the pre-decisional stage will degrade the
quality of decision-making in government agencies. Government
officials will hesitate to express their real sentiments during
deliberations if there is immediate public dissemination of their
discussions, putting them under all kinds of pressure before they
decide.
We must first distinguish between information the law on public
bidding requires PEA to disclose publicly, and information the
constitutional right to information requires PEA to release to the
public. Before the consummation of the contract, PEA must, on its
own and without demand from anyone, disclose to the public matters
relating to the disposition of its property. These include the size,
location, technical description and nature of the property being
disposed of, the terms and conditions of the disposition, the parties
qualified to bid, the minimum price and similar information. PEA must
prepare all these data and disclose them to the public at the start of
the disposition process, long before the consummation of the contract,
because the Government Auditing Code requires public bidding. If
PEA fails to make this disclosure, any citizen can demand from PEA
this information at any time during the bidding process.
Information, however, on on-going evaluation or review of bids or
proposals being undertaken by the bidding or review committee is not
immediately accessible under the right to information. While the
evaluation or review is still on-going, there are no "official acts,
transactions, or decisions" on the bids or proposals. However, once
the committee makes its official recommendation, there arises a
"definite proposition" on the part of the government. From this
moment, the public's right to information attaches, and any citizen can
access all the non-proprietary information leading to such definite
proposition. In Chavez v. PCGG, 33 the Court ruled as follows:

"Considering the intent of the framers of the Constitution, we believe

that it is incumbent upon the PCGG and its officers, as well as other
government representatives, to disclose sufficient public informations
on any proposed settlement they have decided to take up with the
ostensible owners and holders of ill-gotten wealth. Such information
though, must pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations or
communications during the stage when common assertions are still in
the process of being formulated or are in the "exploratory" stage.
There is need, of course, to observe the same restrictions on
disclosure of information in general, as discussed earlier such as
on matters involving national security, diplomatic or foreign relations,
intelligence and other classified information." (Emphasis supplied)
Contrary to AMARI's contention, the commissioners of the 1986
Constitutional Commission understood that the right to information
"contemplates inclusion of negotiations leading to the consummation
of the transaction." Certainly, a consummated contract is not a
requirement for the exercise of the right to information. Otherwise, the
people can never exercise the right if no contract is consummated,
and if one is consummated, it may be too late for the public to expose
its defects.
Requiring a consummated contract will keep the public in the dark
until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes a fait accompli. This negates the
State policy of full transparency on matters of public concern, a
situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a
retreat by the State of its avowed "policy of full disclosure of all its
transactions involving public interest."
The right covers three categories of information which are "matters of
public concern," namely: (1) official records; (2) documents and
papers pertaining to official acts, transactions and decisions; and (3)
government research data used in formulating policies. The first
category refers to any document that is part of the public records in
the custody of government agencies or officials. The second category
refers to documents and papers recording, evidencing, establishing,

161
confirming, supporting, justifying or
transactions or decisions of government
third category refers to research data,
processed, owned by the government
government policies.

explaining official acts,

agencies or officials. The
whether raw, collated or
and used in formulating

The information that petitioner may access on the renegotiation of the

JVA includes evaluation reports, recommendations, legal and expert
opinions, minutes of meetings, terms of reference and other
documents attached to such reports or minutes, all relating to the JVA.
However, the right to information does not compel PEA to prepare
lists, abstracts, summaries and the like relating to the renegotiation of
the JVA. 34 The right only affords access to records, documents and
papers, which means the opportunity to inspect and copy them. One
who exercises the right must copy the records, documents and papers
at his expense. The exercise of the right is also subject to reasonable
regulations to protect the integrity of the public records and to
minimize disruption to government operations, like rules specifying
when and how to conduct the inspection and copying. 35
The right to information, however, does not extend to matters
recognized as privileged information under the separation of powers.
36 The right does not also apply to information on military and
diplomatic secrets, information affecting national security, and
information on investigations of crimes by law enforcement agencies
before the prosecution of the accused, which courts have long
recognized as confidential. 37 The right may also be subject to other
limitations that Congress may impose by law.
There is no claim by PEA that the information demanded by petitioner
is privileged information rooted in the separation of powers. The
information
does
not
cover
Presidential
conversations,
correspondence, or discussions during closed-door Cabinet meetings
which, like internal deliberations of the Supreme Court and other
collegiate courts, or executive sessions of either house of Congress
38 are recognized as confidential. This kind of information cannot be
pried open by a co-equal branch of government. A frank exchange of
exploratory ideas and assessments, free from the glare of publicity
and pressure by interested parties, is essential to protect the
independence of decision-making of those tasked to exercise
Presidential, Legislative and Judicial Power. 39 This is not the
situation in the instant case.

We rule, therefore, that the constitutional right to information includes

official information on on-going negotiations before a final contract.
The information, however, must constitute definite propositions by the
government and should not cover recognized exceptions like
privileged information, military and diplomatic secrets and similar
matters affecting national security and public order. 40 Congress has
also prescribed other limitations on the right to information in several
legislations. 41
Sixth issue: whether stipulations in the Amended JVA for the transfer
to AMARI of lands, reclaimed or to be reclaimed, violate the
Constitution.
The Regalian Doctrine
The ownership of lands reclaimed from foreshore and submerged
areas is rooted in the Regalian doctrine which holds that the State
owns all lands and waters of the public domain. Upon the Spanish
conquest of the Philippines, ownership of all "lands, territories and
possessions" in the Philippines passed to the Spanish Crown. 42 The
King, as the sovereign ruler and representative of the people,
acquired and owned all lands and territories in the Philippines except
those he disposed of by grant or sale to private individuals.
The 1935, 1973 and 1987 Constitutions adopted the Regalian
doctrine substituting, however, the State, in lieu of the King, as the
owner of all lands and waters of the public domain. The Regalian
doctrine is the foundation of the time-honored principle of land
ownership that "all lands that were not acquired from the Government,
either by purchase or by grant, belong to the public domain." 43
Article 339 of the Civil Code of 1889, which is now Article 420 of the
Civil Code of 1950, incorporated the Regalian doctrine.
Ownership and Disposition of Reclaimed Lands
The Spanish Law of Waters of 1866 was the first statutory law
governing the ownership and disposition of reclaimed lands in the
Philippines. On May 18, 1907, the Philippine Commission enacted Act
No. 1654 which provided for the lease, but not the sale, of reclaimed
lands of the government to corporations and individuals. Later, on
November 29, 1919, the Philippine Legislature approved Act No.
2874, the Public Land Act, which authorized the lease, but not the
sale, of reclaimed lands of the government to corporations and

162
individuals. On November 7, 1936, the National Assembly passed
Commonwealth Act No. 141, also known as the Public Land Act,
which authorized the lease, but not the sale, of reclaimed lands of the
government to corporations and individuals. CA No. 141 continues to
this day as the general law governing the classification and disposition
of lands of the public domain.
The Spanish Law of Waters of 1866 and the Civil Code of 1889
Under the Spanish Law of Waters of 1866, the shores, bays, coves,
inlets and all waters within the maritime zone of the Spanish territory
belonged to the public domain for public use. 44 The Spanish Law of
Waters of 1866 allowed the reclamation of the sea under Article 5,
which provided as follows:
"Article 5.
Lands reclaimed from the sea in consequence of works
constructed by the State, or by the provinces, pueblos or private
persons, with proper permission, shall become the property of the
party constructing such works, unless otherwise provided by the terms
of the grant of authority."
Under the Spanish Law of Waters, land reclaimed from the sea
belonged to the party undertaking the reclamation, provided the
government issued the necessary permit and did not reserve
ownership of the reclaimed land to the State.
Article 339 of the Civil Code of 1889 defined property of public
dominion as follows:
"Art. 339.

Property of public dominion is

1.
That devoted to public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State, riverbanks,
shores, roadsteads, and that of a similar character;
2.
That belonging exclusively to the State which, without being of
general public use, is employed in some public service, or in the
development of the national wealth, such as walls, fortresses, and
other works for the defense of the territory, and mines, until granted to
private individuals.
Property devoted to public use referred to property open for use by
the public. In contrast, property devoted to public service referred to
property used for some specific public service and open only to those
authorized to use the property.

Property of public dominion referred not only to property devoted to

public use, but also to property not so used but employed to develop
the national wealth. This class of property constituted property of
public dominion although employed for some economic or commercial
activity to increase the national wealth.
Article 341 of the Civil Code of 1889 governed the re-classification of
property of public dominion into private property, to wit:
"Art. 341.
Property of public dominion, when no longer devoted to
public use or to the defense of the territory, shall become a part of the
private property of the State."
This provision, however, was not self-executing. The legislature, or
the executive department pursuant to law, must declare the property
no longer needed for public use or territorial defense before the
government could lease or alienate the property to private parties. 45
Act No. 1654 of the Philippine Commission
On May 8, 1907, the Philippine Commission enacted Act No. 1654
which regulated the lease of reclaimed and foreshore lands. The
salient provisions of this law were as follows:
"Section 1.
The control and disposition of the foreshore as defined
in existing law, and the title to all Government or public lands made or
reclaimed by the Government by dredging or filling or otherwise
throughout the Philippine Islands, shall be retained by the
Government without prejudice to vested rights and without prejudice
to rights conceded to the City of Manila in the Luneta Extension.
Section 2.
(a) The Secretary of the Interior shall cause all
Government or public lands made or reclaimed by the Government by
dredging or filling or otherwise to be divided into lots or blocks, with
the necessary streets and alleyways located thereon, and shall cause
plats and plans of such surveys to be prepared and filed with the
Bureau of Lands.
(b)
Upon completion of such plats and plans the GovernorGeneral shall give notice to the public that such parts of the lands so
made or reclaimed as are not needed for public purposes will be
leased for commercial and business purposes, . . .
xxx

xxx

xxx

163
(e)
The leases above provided for shall be disposed of to the
highest and best bidder therefore, subject to such regulations and
safeguards as the Governor-General may by executive order
prescribe." (Emphasis supplied)
Act No. 1654 mandated that the government should retain title to all
lands reclaimed by the government. The Act also vested in the
government control and disposition of foreshore lands. Private parties
could lease lands reclaimed by the government only if these lands
were no longer needed for public purpose. Act No. 1654 mandate
public bidding in the lease of government reclaimed lands. Act No.
1654 made government reclaimed lands sui generis in that unlike
other public lands which the government could sell to private parties,
these reclaimed lands were available only for lease to private parties.

xxx

xxx

xxx

Sec. 55.
Any tract of land of the public domain which, being
neither timber nor mineral land, shall be classified as suitable for
residential purposes or for commercial, industrial, or other productive
purposes other than agricultural purposes, and shall be open to
disposition or concession, shall be disposed of under the provisions of
this chapter, and not otherwise.
Sec. 56.
as follows:

The lands disposable under this title shall be classified

(a)
Lands reclaimed by the Government by dredging, filling, or
other means;
(b)

Foreshore;

Act No. 1654, however did not repeal Section 5 of the Spanish Law of
Waters of 1866. Act No. 1654 did not prohibit private parties from
reclaiming parts of the sea under Section 5 of the Spanish Law of
Waters. Lands reclaimed from the sea by private parties with
government permission remained private lands.

(c)
Marshy lands or lands covered with water bordering upon the
shores or banks of navigable lakes or rivers;

Act No. 2874 of the Philippine Legislature

Sec. 58.
The lands comprised in classes (a), (b), and (c) of
section fifty-six shall be disposed of to private parties by lease only
and not otherwise, as soon as the Governor-General, upon
recommendation by the Secretary of Agriculture and Natural
Resources, shall declare that the same are not necessary for the
public service and are open to disposition under this chapter. The
lands included in class (d) may be disposed of by sale or lease under
the provisions of this Act." (Emphasis supplied)

On November 29, 1919, the Philippine Legislature enacted Act No.

2874, the Public Land Act. 46 The salient provisions of Act No. 2874,
on reclaimed lands, were as follows:
"Sec. 6.
The Governor-General, upon the recommendation of
the Secretary of Agriculture and Natural Resources, shall from time to
time classify the lands of the public domain into
(a)

Alienable or disposable,

(b)

Timber, and

(c)

Mineral lands, . . .

Sec. 7. For the purposes of the government and disposition of

alienable or disposable public lands, the Governor-General, upon
recommendation by the Secretary of Agriculture and Natural
Resources, shall from time to time declare what lands are open to
disposition or concession under this Act."
Sec. 8. Only those lands shall be declared open to disposition or
concession which have been officially delimited or classified. . .

(d)
xxx

Lands not included in any of the foregoing classes.

xxx

xxx

Section 6 of Act No. 2874 authorized the Governor-General to

"classify lands of the public domain into . . . alienable or disposable"
47 lands. Section 7 of the Act empowered the Governor-General to
"declare what lands are open to disposition or concession." Section 8
of the Act limited alienable or disposable lands only to those lands
which have been "officially delimited and classified."
Section 56 of Act No. 2874 stated that lands "disposable under this
title 48 shall be classified" as government reclaimed, foreshore and
marshy lands, as well as other lands. All these lands, however, must
be suitable for residential, commercial, industrial or other productive
non-agricultural purposes. These provisions vested upon the

164
Governor-General the power to classify inalienable lands of the public
domain into disposable lands of the public domain. These provisions
also empowered the Governor-General to classify further such
disposable lands of the public domain into government reclaimed,
foreshore or marshy lands of the public domain, as well as other nonagricultural lands.
Section 58 of Act No. 2874 categorically mandated that disposable
lands of the public domain classified as government reclaimed,
foreshore and marshy lands "shall be disposed of to private parties by
lease only and not otherwise." The Governor-General, before allowing
the lease of these lands to private parties, must formally declare that
the lands were "not necessary for the public service." Act No. 2874
reiterated the State policy to lease and not to sell government
reclaimed, foreshore and marshy lands of the public domain, a policy
first enunciated in 1907 in Act No. 1654. Government reclaimed,
foreshore and marshy lands remained sui generis, as the only
alienable or disposable lands of the public domain that the
government could not sell to private parties.
The rationale behind this State policy is obvious. Government
reclaimed, foreshore and marshy public lands for non-agricultural
purposes retain their inherent potential as areas for public service.
This is the reason the government prohibited the sale, and only
allowed the lease, of these lands to private parties. The State always
reserved these lands for some future public service.
Act No. 2874 did not authorize the reclassification of government
reclaimed, foreshore and marshy lands into other non-agricultural
lands under Section 56 (d). Lands falling under Section 56 (d) were
the only lands for non-agricultural purposes the government could sell
to private parties. Thus, under Act No. 2874, the government could
not sell government reclaimed, foreshore and marshy lands to private
parties, unless the legislature passed a law allowing their sale. 49
Act No. 2874 did not prohibit private parties from reclaiming parts of
the sea pursuant to Section 5 of the Spanish Law of Waters of 1866.
Lands reclaimed from the sea by private parties with government
permission remained private lands.
Dispositions under the 1935 Constitution

On May 14, 1935, the 1935 Constitution took effect upon its
ratification by the Filipino people. The 1935 Constitution, in adopting
the Regalian doctrine, declared in Section 1, Article XIII, that
"Section 1.
All agricultural, timber, and mineral lands of the public
domain, waters, minerals, coal, petroleum, and other mineral oils, all
forces of potential energy and other natural resources of the
Philippines belong to the State, and their disposition, exploitation,
development, or utilization shall be limited to citizens of the
Philippines or to corporations or associations at least sixty per centum
of the capital of which is owned by such citizens, subject to any
existing right, grant, lease, or concession at the time of the
inauguration of the Government established under this Constitution.
Natural resources, with the exception of public agricultural land, shall
not be alienated, and no license, concession, or lease for the
exploitation, development, or utilization of any of the natural resources
shall be granted for a period exceeding twenty-five years, renewable
for another twenty-five years, except as to water rights for irrigation,
water supply, fisheries, or industrial uses other than the development
of water power, in which cases beneficial use may be the measure
and limit of the grant." (Emphasis supplied)
The 1935 Constitution barred the alienation of all natural resources
except public agricultural lands, which were the only natural resources
the State could alienate. Thus, foreshore lands, considered part of the
State's natural resources, became inalienable by constitutional fiat,
available only for. lease for 25 years, renewable for another 25 years.
The government could alienate foreshore lands only after these lands
were reclaimed and classified as alienable agricultural lands of the
public domain. Government reclaimed and marshy lands of the public
domain, being neither timber nor mineral lands, fell under the
classification of public agricultural lands. 50 However, government
reclaimed and marshy lands, although subject to classification as
disposable public agricultural lands, could only be leased and not sold
to private parties because of Act No. 2874.
The prohibition on private parties from acquiring ownership of
government reclaimed and marshy lands of the public domain was
only a statutory prohibition and the legislature could therefore remove
such prohibition. The 1935 Constitution did not prohibit individuals and
corporations from acquiring government reclaimed and marshy lands
of the public domain that were classified as agricultural lands under

165
existing public land laws. Section 2, Article XIII of the 1935
Constitution provided as follows:
"Section 2.
No private corporation or association may acquire,
lease, or hold public agricultural lands in excess of one thousand and
twenty four hectares, nor may any individual acquire such lands by
purchase in excess of one hundred and forty hectares, or by lease in
excess of one thousand and twenty-four hectares, or by homestead in
excess of twenty-four hectares. Lands adapted to grazing, not
exceeding two thousand hectares, may be leased to an individual,
private corporation, or association." (Emphasis supplied)
Still, after the effectivity of the 1935 Constitution, the legislature did
not repeal Section 58 of Act No. 2874 to open for sale to private
parties government reclaimed and marshy lands of the public domain.
On the contrary, the legislature continued the long established State
policy of retaining for the government title and ownership of
government reclaimed and marshy lands of the public domain.
Commonwealth Act No. 141 of the Philippine National Assembly
On November 7, 1936, the National Assembly approved
Commonwealth Act No. 141, also known as the Public Land Act,
which compiled the then existing laws on lands of the public domain.
CA No. 141, as amended, remains to this day the existing general law
governing the classification and disposition of lands of the public
domain other than timber and mineral lands. 51
Section 6 of CA No. 141 empowers the President to classify lands of
the public domain into "alienable or disposable" 52 lands of the public
domain, which prior to such classification are inalienable and outside
the commerce of man. Section 7 of CA No. 141 authorizes the
President to "declare what lands are open to disposition or
concession." Section 8 of CA No. 141 states that the government can
declare open for disposition or concession only lands that are
"officially delimited and classified." Sections 6, 7 and 8 of CA No. 141
read as follows:
"Sec. 6.
The President, upon the recommendation of the
Secretary of Agriculture and Commerce, shall from time to time
classify the lands of the public domain into
(a)

Alienable or disposable,

(b)

Timber and

(c)

Mineral lands,

and may at any time and in like manner transfer such lands from one
class to another, 53 for the purpose of their administration and
disposition.
"Sec. 7.
For the purposes of the administration and disposition
of alienable or disposable public lands, the President, upon
recommendation by the Secretary of Agriculture and Commerce, shall
from time to time declare what lands are open to disposition or
concession under this Act.
Sec. 8. Only those lands shall be declared open to disposition or
concession which have been officially delimited and classified and,
when practicable, surveyed, and which have not been reserved for
public or quasi-public uses, nor appropriated by the Government, nor
in any manner become private property, nor those on which a private
right authorized and recognized by this Act or any other valid law may
be claimed, or which, having been reserved or appropriated, have
ceased to be so. . . . "
Thus, before the government could alienate or dispose of lands of the
public domain, the President must first officially classify these lands as
alienable or disposable, and then declare them open to disposition or
concession. There must be no law reserving these lands for public or
quasi-public uses.
The salient provisions of CA No. 141, on government reclaimed,
foreshore and marshy lands of the public domain, are as follows:"
"Sec. 58.
Any tract of land of the public domain which, being
neither timber nor mineral land, is intended to be used for residential
purposes or for commercial, industrial, or other productive purposes
other than agricultural, and is open to disposition or concession, shall
be disposed of under the provisions of this chapter and not otherwise.
Sec. 59.
as follows:

The lands disposable under this title shall be classified

(a)
Lands reclaimed by the Government by dredging, filling, or
other means;
(b)

Foreshore;

166
(c)
Marshy lands or lands covered with water bordering upon the
shores or banks of navigable lakes rivers;
(d)

Lands not included in any of the foregoing classes.

Sec. 60.
Any tract of land comprised under this title may be
leased or sold, as the case may be, to any person, corporation, or
association authorized to purchase or lease public lands for
agricultural purposes. . .
Sec. 61.
The lands comprised in classes (a), (b), and (c) of
section fifty-nine shall be disposed of to private parties by lease only
and not otherwise, as soon as the President, upon recommendation
by the Secretary of Agriculture, shall declare that the same are not
necessary for the public service and are open to disposition under this
chapter. The lands included in class (d) may be disposed of by sale or
lease under the provisions of this Act." (Emphasis supplied)
Section 61 of CA No. 141 readopted, after the effectivity of the 1935
Constitution, Section 58 of Act No. 2874 prohibiting the sale of
government reclaimed, foreshore and marshy disposable lands of the
public domain. All these lands are intended for residential,
commercial, industrial or other non-agricultural purposes. As before,
Section 61 allowed only the lease of such lands to private parties. The
government could sell to private parties only lands falling under
Section 59 (d) of CA No. 141, or those lands for non-agricultural
purposes not classified as government reclaimed, foreshore and
marshy disposable lands of the public domain. Foreshore lands,
however, became inalienable under the 1935 Constitution which only
allowed the lease of these lands to qualified private parties.
Section 58 of CA No. 141 expressly states that disposable lands of
the public domain intended for residential, commercial, industrial or
other productive purposes other than agricultural "shall be disposed of
under the provisions of this chapter and not otherwise." Under Section
10 of CA No. 141, the term "disposition" includes lease of the land.
Any disposition of government reclaimed, foreshore and marshy
disposable lands for non-agricultural purposes must comply with
Chapter IX, Title III of CA No. 141, 54 unless a subsequent law
amended or repealed these provisions.

In his concurring opinion in the landmark case of Republic Real Estate

Corporation v. Court of Appeals, 55 Justice Reynato S. Puno
summarized succinctly the law on this matter, as follows:
"Foreshore lands are lands of public dominion intended for public use.
So too are lands reclaimed by the government by dredging, filling, or
other means. Act 1654 mandated that the control and disposition of
the foreshore and lands under water remained in the national
government. Said law allowed only the 'leasing' of reclaimed land. The
Public Land Acts of 1919 and 1936 also declared that the foreshore
and lands reclaimed by the government were to be "disposed of to
private parties by lease only and not otherwise." Before leasing,
however, the Governor-General, upon recommendation of the
Secretary of Agriculture and Natural Resources, had first to determine
that the land reclaimed was not necessary for the public service. This
requisite must have been met before the land could be disposed of.
But even then, the foreshore and lands under water were not to be
alienated and sold to private parties. The disposition of the reclaimed
land was only by lease. The land remained property of the State."
(Emphasis supplied)
As observed by Justice Puno in his concurring opinion,
"Commonwealth Act No. 141 has remained in effect at present."
The State policy prohibiting the sale to private parties of government
reclaimed, foreshore and marshy alienable lands of the public domain,
first implemented in 1907 was thus reaffirmed in CA No. 141 after the
1935 Constitution took effect. The prohibition on the sale of foreshore
lands, however, became a constitutional edict under the 1935
Constitution, Foreshore lands became inalienable as natural
resources of the State, unless reclaimed by the government and
classified as agricultural lands of the public domain, in which case
they would fall under the classification of government reclaimed lands.
After the effectivity of the 1935 Constitution, government reclaimed
and marshy disposable lands of the public domain continued to be
only leased and not sold to private parties. 56 These lands remained
sui generis, as the only alienable or disposable lands of the public
domain the government could not sell to private parties.
Since then and until now, the only way the government can sell to
private parties government reclaimed and marshy disposable lands of
the public domain is for the legislature to pass a law authorizing such

167
sale. CA No. 141 does not authorize the President to reclassify
government reclaimed and marshy lands into other non-agricultural
lands under Section 59 (d). Lands classified under Section 59 (d) are
the only alienable or disposable lands for non-agricultural purposes
that the government could sell to private parties.
Moreover, Section 60 of CA No. 141 expressly requires congressional
authority before lands under Section 59 that the government
previously transferred to government units or entities could be sold to
private parties. Section 60 of CA No. 141 declares that
"Sec. 60.
. . . The area so leased or sold shall be such as shall,
in the judgment of the Secretary of Agriculture and Natural Resources,
be reasonably necessary for the purposes for which such sale or
lease is requested, and shall not exceed one hundred and forty-four
hectares: Provided, however, That this limitation shall not apply to
grants, donations, or transfers made to a province, municipality or
branch or subdivision of the Government for the purposes deemed by
said entities conducive to the public interest; but the land so granted,
donated, or transferred to a province, municipality or branch or
subdivision of the Government shall not be alienated, encumbered, or
otherwise disposed of in a manner affecting its title, except when
authorized by Congress: . . . " (Emphasis supplied)
The congressional authority required in Section 60 of CA No. 141
mirrors the legislative authority required in Section 56 of Act No. 2874.
One reason for the congressional authority is that Section 60 of CA
No. 141 exempted government units and entities from the maximum
area of public lands that could be acquired from the State. These
government units and entities should not just turn around and sell
these lands to private parties in violation of constitutional or statutory
limitations. Otherwise, the transfer of lands for non-agricultural
purposes to government units and entities could be used to
circumvent constitutional limitations on ownership of alienable or
disposable lands of the public domain. In the same manner, such
transfers could also be used to evade the statutory prohibition in CA
No. 141 on the sale of government reclaimed and marshy lands of the
public domain to private parties. Section 60 of CA No. 141 constitutes
by operation of law a lien on these lands. 57

In case of sale or lease of disposable lands of the public domain

falling under Section 59 of CA No. 141, Sections 63 and 67 require a
public bidding. Sections 63 and 67 of CA No. 141 provide as follows:
"Sec. 63.
Whenever it is decided that lands covered by this
chapter are not needed for public purposes, the Director of Lands
shall ask the Secretary of Agriculture and Commerce (now the
Secretary of Natural Resources) for authority to dispose of the same.
Upon receipt of such authority, the Director of Lands shall give notice
by public advertisement in the same manner as in the case of leases
or sales of agricultural public land, . . .
Sec. 67.
The lease or sale shall be made by oral bidding; and
adjudication shall be made to the highest bidder. . . " (Emphasis
supplied)
Thus, CA No. 141 mandates the Government to put to public auction
all leases or sales of alienable or disposable lands of the public
domain. 58
Like Act No. 1654 and Act No. 2874 before it, CA No. 141 did not
repeal Section 5 of the Spanish Law of Waters of 1866. Private parties
could still reclaim portions of the sea with government permission.
However, the reclaimed land could become private land only if
classified as alienable agricultural land of the public domain open to
disposition under CA No. 141. The 1935 Constitution prohibited the
alienation of all natural resources except public agricultural lands.
The Civil Code of 1950
The Civil Code of 1950 readopted substantially the definition of
property of public dominion found in the Civil Code of 1889. Articles
420 and 422 of the Civil Code of 1950 state that
"Art. 420.

The following things are property of public dominion:

(1)
Those intended for public use, such as roads, canals, rivers,
torrents, ports and bridges constructed by the State, banks, shores,
roadsteads, and others of similar character;
(2)
Those which belong to the State, without being for public use,
and are intended for some public service or for the development of the
national wealth.
xxx

xxx

xxx.

168
Art. 422.
Property of public dominion, when no longer intended
for public use or for public service, shall form part of the patrimonial
property of the State."
Again, the government must formally declare that the property of
public dominion is no longer needed for public use or public service,
before the same could be classified as patrimonial property of the
State. 59 In the case of government reclaimed and marshy lands of
the public domain, the declaration of their being disposable, as well as
the manner of their disposition, is governed by the applicable
provisions of CA No. 141.
Like the Civil Code of 1889, the Civil Code of 1950 included as
property of public dominion those properties of the State which,
without being for public use, are intended for public service or the
"development of the national wealth." Thus, government reclaimed
and marshy lands of the State, even if not employed for public use or
public service, if developed to enhance the national wealth, are
classified as property of public dominion.
Dispositions under the 1973 Constitution
The 1973 Constitution, which took effect on January 17, 1973,
likewise adopted the Regalian doctrine. Section 8, Article XIV of the
1973 Constitution stated that
"Sec. 8.
All lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy,
fisheries, wildlife, and other natural resources of the Philippines
belong to the State. With the exception of agricultural, industrial or
commercial, residential, and resettlement lands of the public domain,
natural resources shall not be alienated, and no license, concession,
or lease for the exploration, development, exploitation, or utilization of
any of the natural resources shall be granted for a period exceeding
twenty-five years, renewable for not more than twenty-five years,
except as to water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, in which
cases, beneficial use may be the measure and the limit of the grant."
(Emphasis supplied)
The 1973 Constitution prohibited the alienation of all natural resources
with the exception of "agricultural, industrial or commercial,
residential, and resettlement lands of the public domain." In contrast,

the 1935 Constitution barred the alienation of all natural resources

except "public agricultural lands." However, the term "public
agricultural lands" in the 1935 Constitution encompassed industrial,
commercial, residential and resettlement lands of the public domain.
60 If the land of public domain were neither timber nor mineral land, it
would fall under the classification of agricultural land of the public
domain. Both the 1935 and 1973 Constitutions, therefore, prohibited
the alienation of all natural resources except agricultural lands of the
public domain.
The 1973 Constitution, however, limited the alienation of lands of the
public domain to individuals who were citizens of the Philippines.
Private corporations, even if wholly owned by Philippine citizens, were
no longer allowed to acquire alienable lands of the public domain
unlike in the 1935 Constitution. Section 11, Article XIV of the 1973
Constitution declared that
"Sec. 11.
The Batasang Pambansa, taking into account
conservation, ecological, and development requirements of the
natural resources, shall determine by law the size of land of the public
domain which may be developed, held or acquired by, or leased to,
any qualified individual, corporation, or association, and the conditions
therefor. No private corporation or association may hold alienable
lands of the public domain except by lease not to exceed one
thousand hectares in area nor may any citizen hold such lands by
lease in excess of five hundred hectares or acquire by purchase,
homestead or grant, in excess of twenty-four hectares. No private
corporation or association may hold by lease, concession, license or
permit, timber or forest lands and other timber or forest resources in
excess of one hundred thousand hectares. However, such area may
be increased by the Batasang Pambansa upon recommendation of
the National Economic and Development Authority." (Emphasis
supplied)
Thus, under the 1973 Constitution, private corporations could hold
alienable lands of the public domain only through lease. Only
individuals could now acquire alienable lands of the public domain,
and private corporations became absolutely barred from acquiring any
kind of alienable land of the public domain. The constitutional ban
extended to all kinds of alienable lands of the public domain, while the
statutory ban under CA No. 141 applied only to government
reclaimed, foreshore and marshy alienable lands of the public domain.

169
PD No. 1084 Creating the Public Estates Authority
On February 4, 1977, then President Ferdinand Marcos issued
Presidential Decree No. 1084 creating PEA, a wholly government
owned and controlled corporation with a special charter. Sections 4
and 8 of PD No. 1084, vests PEA with the following purposes and
powers:
"Sec. 4.
Purpose. The Authority is hereby created for the
following purposes:
(a)
To reclaim land, including foreshore and submerged areas, by
dredging, filling or other means, or to acquire reclaimed land;
(b)
To develop, improve, acquire, administer, deal in, subdivide,
dispose, lease and sell any and all kinds of lands, buildings, estates
and other forms of real property, owned, managed, controlled and/or
operated by the government;
(c)
To provide for, operate or administer such service as may be
necessary for the efficient, economical and beneficial utilization of the
above properties.
Sec. 5. Powers and functions of the Authority. The Authority shall, in
carrying out the purposes for which it is created, have the following
powers and functions:
(a)
xxx

To prescribe its by-laws.

xxx

xxx

(i)
To hold lands of the public domain in excess of the area
permitted to private corporations by statute.
(j)
To reclaim lands and to construct work across, or otherwise,
any stream, watercourse, canal, ditch, flume . . .
xxx

xxx

xxx

(o)
To perform such acts and exercise such functions as may be
necessary for the attainment of the purposes and objectives herein
specified." (Emphasis supplied)
PD No. 1084 authorizes PEA to reclaim both foreshore and
submerged areas of the public domain. Foreshore areas are those
covered and uncovered by the ebb and flow of the tide. 61
Submerged areas are those permanently under water regardless of

the ebb and flow of the tide. 62 Foreshore and submerged areas
indisputably belong to the public domain 63 and are inalienable unless
reclaimed, classified as alienable lands open to disposition, and
further declared no longer needed for public service.
The ban in the 1973 Constitution on private corporations from
acquiring alienable lands of the public domain did not apply to PEA
since it was then, and until today, a fully owned government
corporation. The constitutional ban applied then, as it still applies now,
only to "private corporations and associations." PD No. 1084
expressly empowers PEA "to hold lands of the public domain" even "in
excess of the area permitted to private corporations by statute." Thus,
PEA can hold title to private lands, as well as title to lands of the
public domain.
In order
alienable
authority
authority
states

for PEA to sell its reclaimed foreshore and submerged

lands of the public domain, there must be legislative
empowering PEA to sell these lands. This legislative
is necessary in view of Section 60 of CA No. 141, which

"Sec. 60.
. . .; but the land so granted, donated or transferred to
a province, municipality, or branch or subdivision of the Government
shall not be alienated, encumbered or otherwise disposed of in a
manner affecting its title, except when authorized by Congress; . . . "
(Emphasis supplied)
Without such legislative authority, PEA could not sell but only lease its
reclaimed foreshore and submerged alienable lands of the public
domain. Nevertheless, any legislative authority granted to PEA to sell
its reclaimed alienable lands of the public domain would be subject to
the constitutional ban on private corporations from acquiring alienable
lands of the public domain. Hence, such legislative authority could
only benefit private individuals.
Dispositions under the 1987 Constitution
The 1987 Constitution, like the 1935 and 1973 Constitutions before it,
has adopted the Regalian doctrine. The 1987 Constitution declares
that all natural resources are "owned by the State," and except for
alienable agricultural lands of the public domain, natural resources
cannot be alienated. Sections 2 and 3, Article XII of the 1987
Constitution state that

170
"Section 2.
All lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural
lands, all other natural resources shall not be alienated. The
exploration, development, and utilization of natural resources shall be
under the full control and supervision of the State. . .
Section 3.
Lands of the public domain are classified into
agricultural, forest or timber, mineral lands, and national .parks.
Agricultural lands of the public domain may be further classified by
law according to the uses which they may be devoted. Alienable lands
of the public domain shall be limited to agricultural lands. Private
corporations or associations may not hold such alienable lands of the
public domain except by lease, for a period not exceeding twenty-five
years, renewable for not more than twenty-five years, and not to
exceed one thousand hectares in area. Citizens of the Philippines
may lease not more than five hundred hectares, or acquire not more
than twelve hectares thereof by purchase, homestead, or grant.
Taking into account the requirements of conservation, ecology, and
development, and subject to the requirements of agrarian reform, the
Congress shall determine, by law, the size of lands of the public
domain which may be acquired, developed, held, or leased and the
conditions therefor." (Emphasis supplied)
The 1987 Constitution continues the State policy in the 1973
Constitution banning private corporations from acquiring any kind of
alienable land of the public domain. Like the 1973 Constitution, the
1987 Constitution allows private corporations to hold alienable lands
of the public domain only through lease. As in the 1935 and 1973
Constitutions, the general law governing the lease to private
corporations of reclaimed, foreshore and marshy alienable lands of
the public domain is still CA No. 141.
The Rationale behind the Constitutional Ban
The rationale behind the constitutional ban on corporations from
acquiring, except through lease, alienable lands of the public domain
is not well understood. During the deliberations of the 1986
Constitutional Commission, the commissioners probed the rationale
behind this ban, thus:

"FR. BERNAS:
Mr. Vice-President,
reference to page 3, line 5 which says:

my

questions

have

'No private corporation or association may hold alienable lands of the

public domain except by lease, not to exceed one thousand hectares
in area.'
If we recall, this provision did not exist under the 1935 Constitution,
but this was introduced in the 1973 Constitution. In effect, it prohibits
private corporations from acquiring alienable public lands. But it has
not been very clear in jurisprudence what the reason for this is. In
some of the cases decided in 1982 and 1983, it was indicated that the
purpose of this is to prevent large landholdings. Is that the intent of
this provision?
MR. VILLEGAS:

I think that is the spirit of the provision.

FR. BERNAS: In existing decisions involving the Iglesia ni Cristo,

there were instances where the Iglesia ni Cristo was not allowed to
acquire a mere 313-square meter land where a chapel stood because
the Supreme Court said it would be in violation of this." (Emphasis
supplied)
In Ayog v. Cusi, 64 the Court explained the rationale behind this
constitutional ban in this way:
"Indeed, one purpose of the constitutional prohibition against
purchases of public agricultural lands by private corporations is to
equitably diffuse land ownership or to encourage 'owner-cultivatorship
and the economic family-size farm' and to prevent a recurrence of
cases like the instant case. Huge landholdings by corporations or
private persons had spawned social unrest."
However, if the constitutional intent is to prevent huge landholdings,
the Constitution could have simply limited the size of alienable lands
of the public domain that corporations could acquire. The Constitution
could have followed the limitations on individuals, who could acquire
not more than 24 hectares of alienable lands of the public domain
under the 1973 Constitution, and not more than 12 hectares under the
1987 Constitution.
If the constitutional intent is to encourage economic family-size farms,
placing the land in the name of a corporation would be more effective
in preventing the break-up of farmlands. If the farmland is registered

171
in the name of a corporation, upon the death of the owner, his heirs
would inherit shares in the corporation instead of subdivided parcels
of the farmland. This would prevent the continuing break-up of
farmlands into smaller and smaller plots from one generation to the
next.
In actual practice, the constitutional ban strengthens the constitutional
limitation on individuals from acquiring more than the allowed area of,
alienable lands of the public domain. Without the constitutional ban,
individuals who already acquired the maximum area of alienable lands
of the public domain could easily set up corporations to acquire more
alienable public lands. An individual could own as many corporations
as his means would allow him. An individual could even hide his
ownership of a corporation by putting his nominees as stockholders of
the corporation. The corporation is a convenient vehicle to circumvent
the constitutional limitation on acquisition by individuals of alienable
lands of the public domain.
The constitutional intent, under the 1973 and 1987 Constitutions, is to
transfer ownership of only a limited area of alienable land of the public
domain to a qualified individual. This constitutional intent is
safeguarded by the provision prohibiting corporations from acquiring
alienable lands of the public domain, since the vehicle to circumvent
the constitutional intent is removed. The available alienable public
lands are gradually decreasing in the face of an ever-growing
population. The most effective way to insure faithful adherence to this
constitutional intent is to grant or sell alienable lands of the public
domain only to individuals. This, it would seem, is the practical benefit
arising from the constitutional ban.
The Amended Joint Venture Agreement
The subject matter of the Amended JVA, as stated in its second
Whereas clause, consists of three properties, namely:
1.
"[T]hree partially reclaimed and substantially eroded islands
along Emilio Aguinaldo Boulevard in Paraaque and Las Pias, Metro
Manila, with a combined titled area of 1,578,441 square meters;"
2.
"[A]nother area of 2,421,559 square meters contiguous to the
three islands;" and

3.
"[A]t AMARI's option as approved by PEA, an additional 350
hectares more or less to regularize the configuration of the reclaimed
area." 65
PEA confirms that the Amended JVA involves "the development of the
Freedom Islands and further reclamation of about 250 hectares . . .,"
plus an option "granted to AMARI to subsequently reclaim another
350 hectares . . . " 66
In short, the Amended JVA covers a reclamation area of 750 hectares.
Only 157.84 hectares of the 750-hectare reclamation project have
been reclaimed, and the rest of the 592.15 hectares are still
submerged areas forming part of Manila Bay.
Under the Amended JVA, AMARI will reimburse PEA the sum of
P1,894,129,200.00 for PEA's "actual cost" in partially reclaiming the
Freedom Islands. AMARI will also complete, at its own expense, the
reclamation of the Freedom Islands. AMARI will further shoulder all
the reclamation costs of all the other areas, totaling 592.15 hectares,
still to be reclaimed. AMARI and PEA will share, in the proportion of
70 percent and 30 percent, respectively, the total net usable area
which is defined in the Amended JVA as the total reclaimed area less
30 percent earmarked for common areas. Title to AMARI's share in
the net usable area, totaling 367.5 hectares, will be issued in the
name of AMARI. Section 5.2 (c) of the Amended JVA provides that
". . . , PEA shall have the duty to execute without delay the necessary
deed of transfer or conveyance of the title pertaining to AMARI's Land
share based on the Land Allocation Plan. PEA, when requested in
writing by AMARI, shall then cause the issuance and delivery of the
proper certificates of title covering AMARI's Land Share in the name
of AMARI, . . . ; provided, that if more than seventy percent (70%) of
the titled area at any given time pertains to AMARI, PEA shall deliver
to AMARI only seventy percent (70%) of the titles pertaining to
AMARI, until such time when a corresponding proportionate area of
additional land pertaining to PEA has been titled." (Emphasis
supplied)
Indisputably, under the Amended JVA AMARI will acquire and own a
maximum of 367.5 hectares of reclaimed land which will be titled in its
name.

172
To implement the Amended JVA, PEA delegated to the unincorporated
PEA-AMARI joint venture PEA's statutory authority, rights and
privileges to reclaim foreshore and submerged areas in Manila Bay.
Section 3.2.a of the Amended JVA states that
"PEA hereby contributes to the joint venture its rights and privileges to
perform Rawland Reclamation and Horizontal Development as well as
own the Reclamation Area, thereby granting the Joint Venture the full
and exclusive right, authority and privilege to undertake the Project in
accordance with the Master Development Plan."
The Amended JVA is the product of a renegotiation of the original JVA
dated April 25, 1995 and its supplemental agreement dated August 9,
1995.
The Threshold Issue
The threshold issue is whether AMARI, a private corporation, can
acquire and own under the Amended JVA 367.5 hectares of reclaimed
foreshore and submerged areas in Manila Bay in view of Sections 2
and 3, Article XII of the 1987 Constitution which state that:
"Section 2.
All lands of the public domain, waters, minerals, coal,
petroleum, and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural
lands, all other natural resources shall not be alienated. . .
xxx

xxx

xxx

Section 3.
. . . Alienable lands of the public domain shall be limited
to agricultural lands. Private corporations or associations may not hold
such alienable lands of the public domain except by lease, . . . ."
(Emphasis supplied)
Classification of Reclaimed Foreshore and Submerged Areas
PEA readily concedes that lands reclaimed from foreshore or
submerged areas of Manila Bay are alienable or disposable lands of
the public domain, In its Memorandums 67 PEA admits that
"Under the Public Land Act (CA 141, as amended), reclaimed lands
are classified as alienable and disposable lands of the public domain:
'Sec. 59.
as follows:

The lands disposable under this title shall be classified

(a)
Lands reclaimed by the government by dredging, filling, or
other means;
xxx

xxx

xxx." (Emphasis supplied)

Likewise, the Legal Task Force 68 constituted under Presidential

Administrative Order No. 365 admitted in its Report and
Recommendation to then President Fidel V. Ramos, "[R]eclaimed
lands are classified as alienable and disposable lands of the public
domain." 69 The Legal Task Force concluded that
"D. Conclusion
Reclaimed lands are lands of the public domain. However, by
statutory authority, the rights of ownership and disposition over
reclaimed lands have been transferred to PEA, by virtue of which
PEA, as owner, may validly convey the same to any qualified person
without violating the Constitution or any statute.
The constitutional provision prohibiting private corporations from
holding public land, except by lease (Sec. 3, Art. XVII, 70 1987
Constitution), does not apply to reclaimed lands whose ownership has
passed on to PEA by statutory grant."
Under Section 2, Article XII of the 1987 Constitution, the foreshore
and submerged areas of Manila Bay are part of the "lands of the
public domain, waters . . . and other natural resources" and
consequently "owned by the State." As such, foreshore and
submerged areas "shall not be alienated," unless they are classified
as "agricultural lands" of the public domain. The mere reclamation of
these areas by PEA does not convert these inalienable natural
resources of the State into alienable or disposable lands of the public
domain. There must be a law or presidential proclamation officially
classifying these reclaimed lands as alienable or disposable and open
to disposition or concession. Moreover, these reclaimed lands cannot
be classified as alienable or disposable if the law has reserved them
for some public or quasi-public use. 71
Section 8 of CA No. 141 provides that "only those lands shall be
declared open to disposition or concession which have been officially
delimited and classified." 72 The President has the authority to
classify inalienable lands of the public domain into alienable or
disposable lands of the public domain, pursuant to Section 6 of CA
No. 141. In Laurel vs. Garcia, 73 the Executive Department attempted

173
to sell the Roppongi property in Tokyo, Japan, which was acquired by
the Philippine Government for use as the Chancery of the Philippine
Embassy. Although the Chancery had transferred to another location
thirteen years earlier, the Court still ruled that, under Article 422 74 of
the Civil Code, a property of public dominion retains such character
until formally declared otherwise. The Court ruled that
"The fact that the Roppongi site has not been used for a long time for
actual Embassy service does not automatically convert it to
patrimonial property. Any such conversion happens only if the
property is withdrawn from public use (Cebu Oxygen and Acetylene
Co. v. Bercilles, 66 SCRA 481 [1975]. A property continues to be part
of the public domain, not available for private appropriation or
ownership `until there is a formal declaration on the part of the
government to withdraw it from being such' (Ignacio v. Director of
Lands, 108 Phil. 335 [1960]." (Emphasis supplied)
PD No. 1085, issued on February 4, 1977, authorized the issuance of
special land patents for lands reclaimed by PEA from the foreshore or
submerged areas of Manila Bay. On January 19, 1988 then President
Corazon C. Aquino issued Special Patent No. 3517 in the name of
PEA for the 157.84 hectares comprising the partially reclaimed
Freedom Islands. Subsequently, on April 9, 1999 the Register of
Deeds of the Municipality of Paraaque issued TCT Nos. 7309, 7311
and 7312 in the name of PEA pursuant to Section 103 of PD No. 1529
authorizing the issuance of certificates of title corresponding to land
patents. To this day, these certificates of title are still in the name of
PEA.
PD No. 1085, coupled with President Aquino's actual issuance of a
special patent covering the Freedom Islands, is equivalent to an
official proclamation classifying the Freedom Islands as alienable or
disposable lands of the public domain. PD No. 1085 and President
Aquino's issuance of a land patent also constitute a declaration that
the Freedom Islands are no longer needed for public service. The
Freedom Islands are thus alienable or disposable lands of the public
domain, open to disposition or concession to qualified parties.
At the time then President Aquino issued Special Patent No. 3517,
PEA had already reclaimed the Freedom Islands although
subsequently there were partial erosion on some areas. The
government had also completed the necessary surveys on these

islands. Thus, the Freedom Islands were no longer part of Manila Bay
but part of the land mass. Section 3, Article XII of the 1987
Constitution classifies lands of the public domain into "agricultural,
forest or timber, mineral lands, and national parks." Being neither
timber, mineral, nor national park lands, the reclaimed Freedom
Islands necessarily fall under the classification of agricultural lands of
the public domain. Under the 1987 Constitution, agricultural lands of
the public domain are the only natural resources that the State may
alienate to qualified private parties. All other natural resources, such
as the seas or bays, are "waters . . . owned by the State" forming part
of the public domain, and are inalienable pursuant to Section 2, Article
XII of the 1987 Constitution.
AMARI claims that the Freedom Islands are private lands because
CDCP, then a private corporation, reclaimed the islands under a
contract dated November 20, 1973 with the Commissioner of Public
Highways. AMARI, citing Article 5 of the Spanish Law of Waters of
1866, argues that "if the ownership of reclaimed lands may be given
to the party constructing the works, then it cannot be said that
reclaimed lands are lands of the public domain which the State may
not alienate." 75 Article 5 of the Spanish Law of Waters reads as
follows:
"Article 5.
Lands reclaimed from the sea in consequence of works
constructed by the State, or by the provinces, pueblos or private
persons, with proper permission shall become the property of the
party constructing such works, unless otherwise provided by the terms
of the grant of authority." (Emphasis supplied)
Under Article 5 of the Spanish Law of Waters of 1866, private parties
could reclaim from the sea only with "proper permission" from the
State. Private parties could own the reclaimed land only if not
"otherwise provided by the terms of the grant of authority." This clearly
meant that no one could reclaim from the sea without permission from
the State because the sea is property of public dominion. It also
meant that the State could grant or withhold ownership of the
reclaimed land because any reclaimed land, like the sea from which it
emerged, belonged to the State. Thus, a private person reclaiming
from the sea without permission from the State could not acquire
ownership of the reclaimed land which would remain property of
public dominion like the sea it replaced. 76 Article 5 of the Spanish
Law of Waters of 1866 adopted the time-honored principle of land

174
ownership that "all lands that were not acquired from the government,
either by purchase or by grant, belong to the public domain." 77
Article 5 of the Spanish Law of Waters must be read together with
laws subsequently enacted on the disposition of public lands. In
particular, CA No. 141 requires that lands of the public domain must
first be classified as alienable or disposable before the government
can alienate them. These land must not be reserved for public or
quasi-public purposes. 78 Moreover, the contract between CDCP and
the government was executed after the effectivity of the 1973
Constitution which barred private corporations from acquiring any kind
of alienable land of the public domain. This contract could not have
converted the Freedom Islands into private lands of a private
corporation.
Presidential Decree No. 3-A, issued on January 11, 1973, revoked all
laws authorizing the reclamation of areas under water and revested
solely in the National Government the power to reclaim lands. Section
1 of PD No. 3-A declared that
"The provisions of any law to the contrary notwithstanding, the
reclamation of areas under water, whether foreshore or inland, shall
be limited to the National Government or any person authorized by it
under a proper contract. (Emphasis supplied)
xxx

xxx

xxx

PD No. 3-A repealed Section 5 of the Spanish Law of Waters of 1866

because reclamation of areas under water could now be undertaken
only by the National Government or by a person contracted by the
National Government. Private parties may reclaim from the sea only
under a contract with the National Government, and no longer by
grant or permission as provided in Section 5 of the Spanish Law of
Waters of 1866.
Executive Order No. 525, issued on February 14, 1979, designated
PEA as the National Government's implementing arm to undertake "all
reclamation projects of the government," which "shall be undertaken
by the PEA or through a proper contract executed by it with any
person or entity." Under such contract, a private party receives
compensation for reclamation services rendered to PEA. Payment to
the contractor may be in cash, or in kind consisting of portions of the
reclaimed land, subject to the constitutional ban on private

corporations from acquiring alienable lands of the public domain. The

reclaimed land can be used as payment in kind only if the reclaimed
land is first classified as alienable or disposable land open to
disposition, and then declared no longer needed for public service.
The Amended JVA covers not only the Freedom Islands, but also an
additional 592.15 hectares which are still submerged and forming part
of Manila Bay. There is no legislative or Presidential act classifying
these submerged areas as alienable or disposable lands of the public
domain open to disposition. These submerged areas are not covered
by any patent or certificate of title. There can be no dispute that these
submerged areas form part of the public domain, and in their present
state are inalienable and outside the commerce of man. Until
reclaimed from the sea, these submerged areas are, under the
Constitution, "waters . . . owned by the State," forming part of the
public domain and consequently inalienable. Only when actually
reclaimed from the sea can these submerged areas be classified as
public agricultural lands, which under the Constitution are the only
natural resources that the State may alienate. Once reclaimed and
transformed into public agricultural lands, the government may then
officially classify these lands as alienable or disposable lands open to
disposition. Thereafter, the government may declare these lands no
longer needed for public service. Only then can these reclaimed lands
be considered alienable or disposable lands of the public domain and
within the commerce of man.
The classification of PEA's reclaimed foreshore and submerged lands
into alienable or disposable lands open to disposition is necessary
because PEA is tasked under its charter to undertake public services
that require the use of lands of the public domain. Under Section 5 of
PD No. 1084, the functions of PEA include the following: "[T]o own or
operate railroads, tramways and other kinds of land transportation, . . .
; [T]o construct, maintain and operate such systems of sanitary
sewers as may be necessary; [T]o construct, maintain and operate
such storm drains as may be necessary." PEA is empowered to issue
"rules and regulations as may be necessary for the proper use by
private parties of any or all of the highways, roads, utilities, buildings
and/or any of its properties and to impose or collect fees or tolls for
their use." Thus, part of the reclaimed foreshore and submerged lands
held by the PEA would actually be needed for public use or service

175
since many of the functions imposed on PEA by its charter constitute
essential public services.
Moreover, Section 1 of Executive Order No. 525 provides that PEA
"shall be primarily responsible for integrating, directing, and
coordinating all reclamation projects and on behalf of the National
Government." The same section also states that "[A]ll reclamation
projects shall be approved by the President upon the recommendation
of the PEA, and shall be undertaken by the PEA or through a proper
contract executed by it with any person or entity; . . . " thus, under EO
No. 525, in relation to PD No. 3-A and PD No. 1084, PEA became the
primary implementing agency of the National Government to reclaim
foreshore and submerged lands of the public domain. EO No. 525
recognized PEA as the entity "to undertake the reclamation of lands
and ensure their maximum utilization in promoting public welfare and
interests." 79 Since large portions of these reclaimed lands would
obviously be needed for public service, there must be a formal
declaration segregating reclaimed lands no longer needed for public
service from those still needed for public service.
Section 3 of EO No. 525, by declaring that all lands reclaimed by PEA
"shall belong to or be owned by the PEA," could not automatically
operate to classify inalienable lands into alienable or disposable lands
of the public domain. Otherwise, reclaimed foreshore and submerged
lands of the public domains would automatically become alienable
once reclaimed by PEA, whether or not classified as alienable or
disposable.
The Revised Administrative Code of 1987, a later law than either PD
No. 1084 or EO No. 525, vests in the Department of Environment and
Natural Resources ("DENR" for brevity) the following powers and
functions:
"Sec. 4.
(1)
xxx

Powers and Functions. The Department shall:

...
xxx

xxx

(4)
Exercise supervision and control over forest lands, alienable
and disposable public lands, mineral resources and, in the process of
exercising such control, impose appropriate taxes, fees, charges,
rentals and any such form of levy and collect such revenues for the
exploration, development, utilization or gathering of such resources;

xxx

xxx

xxx

(14) Promulgate rules, regulations and guidelines on the issuance

of licenses, permits, concessions, lease agreements and such other
privileges concerning the development, exploration and utilization of
the country's marine, freshwater, and brackish water and over all
aquatic resources of the country and shall continue to oversee,
supervise and police our natural resources; cancel or cause to cancel
such privileges upon failure, non-compliance or violations of any
regulation, order, and for all other causes which are in furtherance of
the conservation of natural resources and supportive of the national
interest;
(15) Exercise exclusive jurisdiction on the management and
disposition of all lands of the public domain and serve as the sole
agency responsible for classification, sub-classification, surveying and
titling of lands in consultation with appropriate agencies." 80
(Emphasis supplied)
As manager, conservator and overseer of the natural resources of the
State, DENR exercises "supervision and control over alienable and
disposable public lands." DENR also exercises "exclusive jurisdiction
on the management and disposition of all lands of the public domain."
Thus, DENR decides whether areas under water, like foreshore or
submerged areas of Manila Bay, should be reclaimed or not. This
means that PEA needs authorization from DENR before PEA can
undertake reclamation projects in Manila Bay, or in any part of the
country.
DENR also exercises exclusive jurisdiction over the disposition of all
lands of the public domain. Hence, DENR decides whether reclaimed
lands of PEA should be classified as alienable under Sections 6 81
and 7 82 of CA No. 141.
Once DENR decides that the reclaimed lands should be so classified,
it then recommends to the President the issuance of a proclamation
classifying the lands as alienable or disposable lands of the public
domain open to disposition. We note that then DENR Secretary
Fulgencio S. Factoran, Jr. countersigned Special Patent No. 3517 in
compliance with the Revised Administrative Code and Sections 6 and
7 of CA No. 141.

176
In short, DENR is vested with the power to authorize the reclamation
of areas under water, while PEA is vested with the power to undertake
the physical reclamation of areas under water whether directly or
through private contractors. DENR is also empowered to classify
lands of the public domain into alienable or disposable lands subject
to the approval of the President. On the other hand, PEA is tasked to
develop, sell or lease the reclaimed alienable lands of the public
domain.
Clearly, the mere physical act of reclamation by PEA of foreshore or
submerged areas does not make the reclaimed lands alienable or
disposable lands of the public domain, much less patrimonial lands of
PEA. Likewise, the mere transfer by the National Government of lands
of the public domain to PEA does not make the lands alienable or
disposable lands of the public domain, much less patrimonial lands of
PEA.
Absent two official acts a classification that these lands are
alienable or disposable and open to disposition and a declaration that
these lands are not needed for public service, lands reclaimed by PEA
remain inalienable lands of the public domain. Only such an official
classification and formal declaration can convert reclaimed lands into
alienable or disposable lands of the public domain, open to disposition
under the Constitution, Title I and Title III 83 of CA No. 141 and other
applicable laws. 84
PEA's Authority to Sell Reclaimed Lands
PEA, like the Legal Task Force, argues that as alienable or disposable
lands of the public domain, the reclaimed lands shall be disposed of in
accordance with CA No. 141, the Public Land Act. PEA, citing Section
60 of CA No. 141, admits that reclaimed lands transferred to a branch
or subdivision of the government "shall not be alienated, encumbered,
or otherwise disposed of in a manner affecting its title, except when
authorized by Congress: . . . " 85 (Emphasis by PEA)
In Laurel vs. Garcia, 86 the Court cited Section 48 of the Revised
Administrative Code of 1987, which states that
"Sec. 48.
Official Authorized to Convey Real Property. Whenever
real property of the Government is authorized by law to be conveyed,

the deed of conveyance shall be executed in behalf of the government

by the following:. . . ."
Thus, the Court concluded that a law is needed to convey any real
property belonging to the Government. The Court declared that
"It is not for the President to convey real property of the government
on his or her own sole will. Any such conveyance must be authorized
and approved by a law enacted by the Congress. It requires executive
and legislative concurrence." (Emphasis supplied)
PEA contends that PD No. 1085 and EO No. 525 constitute the
legislative authority allowing PEA to sell its reclaimed lands. PD No.
1085, issued on February 4, 1977, provides that
"The land reclaimed in the foreshore and offshore area of Manila Bay
pursuant to the contract for the reclamation and construction of the
Manila-Cavite Coastal Project between the Republic of the Philippines
and the Construction and Development Corporation of the Philippines
dated November 20, 1973 and/or any other contract or reclamation
covering the same area is hereby transferred, conveyed and assigned
to the ownership and administration of the Public Estates Authority
established pursuant to PD No. 1084; Provided, however, That the
rights and interests of the Construction and Development Corporation
of the Philippines pursuant to the aforesaid contract shall be
recognized and respected.
Henceforth, the Public Estates Authority shall exercise the rights and
assume the obligations of the Republic of the Philippines (Department
of Public Highways) arising from, or incident to, the aforesaid contract
between the Republic of the Philippines and the Construction and
Development Corporation of the Philippines.
In consideration of the foregoing transfer and assignment, the Public
Estates Authority shall issue in favor of the Republic of the Philippines
the corresponding shares of stock in said entity with an issued value
of said shares of stock (which) shall be deemed fully paid and nonassessable.
The Secretary of Public Highways and the General Manager of the
Public Estates Authority shall execute such contacts or agreements
with the Construction and Development Corporation of the
Philippines, as may be necessary to implement the above.

177
Special land patent/patents shall be issued by the Secretary of
Natural Resources in favor of the Public Estates Authority without
prejudice to the subsequent transfer to the contractor or his assignees
of such portion or portions of the land reclaimed or to be reclaimed as
provided for in the above-mentioned contract. On the basis of such
patents, the Land Registration Commission shall issue the
corresponding certificate of title." (Emphasis supplied)
On the other hand, Section 3 of EO No. 525, issued on February 14,
1979, provides that
"Sec. 3.
All lands reclaimed by PEA shall belong to or be owned
by the PEA which shall be responsible for its administration,
development, utilization or disposition in accordance with the
provisions of Presidential Decree No. 1084. Any and all income that
the PEA may derive from the sale, lease or use of reclaimed lands
shall be used in accordance with the provisions of Presidential Decree
No. 1084."
There is no express authority under either PD No. 1085 or EO No.
525 for PEA to sell its reclaimed lands. PD No. 1085 merely
transferred "ownership and administration" of lands reclaimed from
Manila Bay to PEA, while EO No. 525 declared that lands reclaimed
by PEA "shall belong to or be owned by PEA." EO No. 525 expressly
states that PEA should dispose of its reclaimed lands "in accordance
with the provisions of Presidential Decree No. 1084," the charter of
PEA.
PEA's charter, however, expressly tasks PEA "to develop, improve,
acquire, administer, deal in, subdivide, dispose, lease and sell any
and all kinds of lands . . . owned, managed, controlled and/or
operated by the government." 87 (Emphasis supplied) There is,
therefore, legislative authority granted to PEA to sell its lands, whether
patrimonial or alienable lands of the public domain. PEA may sell to
private parties its patrimonial properties in accordance with the PEA
charter free from constitutional limitations. The constitutional ban on
private corporations from acquiring alienable lands of the public
domain does not apply to the sale of PEA's patrimonial lands.
PEA may also sell its alienable or disposable lands of the public
domain to private individuals since, with the legislative authority, there
is no longer any statutory prohibition against such sales and the
constitutional ban does not apply to individuals. PEA, however, cannot

sell any of its alienable or disposable lands of the public domain to

private corporations since Section 3, Article XII of the 1987
Constitution expressly prohibits such sales. The legislative authority
benefits only individuals. Private corporations remain barred from
acquiring any kind of alienable land of the public domain, including
government reclaimed lands.
The provision in PD No. 1085 stating that portions of the reclaimed
lands could be transferred by PEA to the "contractor or his assignees"
(Emphasis supplied) would not apply to private corporations but only
to individuals because of the constitutional ban. Otherwise, the
provisions of PD No. 1085 would violate both the 1973 and 1987
Constitutions.
The requirement of public auction in the sale of reclaimed lands
Assuming the reclaimed lands of PEA are classified as alienable or
disposable lands open to disposition, and further declared no longer
needed for public service, PEA would have to conduct a public bidding
in selling or leasing these lands. PEA must observe the provisions of
Sections 63 and 67 of CA No. 141 requiring public auction, in the
absence of a law exempting PEA from holding a public auction. 88
Special Patent No. 3517 expressly states that the patent is issued by
authority of the Constitution and PD No. 1084, "supplemented by
Commonwealth Act No. 141, as amended." This is an
acknowledgment that the provisions of CA No. 141 apply to the
disposition of reclaimed alienable lands of the public domain unless
otherwise provided by law. Executive Order No. 654, 89 which
authorizes PEA "to determine the kind and manner of payment for the
transfer" of its assets and properties, does not exempt PEA from the
requirement of public auction. EO No. 654 merely authorizes PEA to
decide the mode of payment, whether in kind and in installment, but
does not authorize PEA to dispense with public auction.
Moreover, under Section 79 of PD No. 1445, otherwise known as the
Government Auditing Code, the government is required to sell
valuable government property through public bidding. Section 79 of
PD No. 1445 mandates that
"Section 79. When government property has become unserviceable
for any cause, or is no longer needed, it shall, upon application of the
officer accountable therefor, be inspected by the head of the agency
or his duly authorized representative in the presence of the auditor

178
concerned and, if found to be valueless or unsaleable, it may be
destroyed in their presence. If found to be valuable, it may be sold at
public auction to the highest bidder under the supervision of the
proper committee on award or similar body in the presence of the
auditor concerned or other authorized representative of the
Commission, after advertising by printed notice in the Official Gazette,
or for not less than three consecutive days in any newspaper of
general circulation, or where the value of the property does not
warrant the expense of publication, by notices posted for a like period
in at least three public places in the locality where the property is to be
sold. In the event that the public auction fails, the property may be
sold at a private sale at such price as may be fixed by the same
committee or body concerned and approved by the Commission."
It is only when the public auction fails that a negotiated sale is
allowed, in which case the Commission on Audit must approve the
selling price. 90 The Commission on Audit implements Section 79 of
the Government Auditing Code through Circular No. 89-296 91 dated
January 27, 1989. This circular emphasizes that government assets
must be disposed of only through public auction, and a negotiated
sale can be resorted to only in case of "failure of public auction."
At the public auction sale, only Philippine citizens are qualified to bid
for PEA's reclaimed foreshore and submerged alienable lands of the
public domain. Private corporations are barred from bidding at the
auction sale of any kind of alienable land of the public domain.
PEA originally scheduled a public bidding for the Freedom Islands on
December 10, 1991. PEA imposed a condition that the winning bidder
should reclaim another 250 hectares of submerged areas to
regularize the shape of the Freedom Islands, under a 60-40 sharing of
the additional reclaimed areas in favor of the winning bidder. 92 No
one, however, submitted a bid. On December 23, 1994, the
Government Corporate Counsel advised PEA it could sell the
Freedom Islands through negotiation, without need of another public
bidding, because of the failure of the public bidding on December 10,
1991. 93
However, the original JVA dated April 25, 1995 covered not only the
Freedom Islands and the additional 250 hectares still to be reclaimed,
it also granted an option to AMARI to reclaim another 350 hectares.
The original JVA, a negotiated contract, enlarged the reclamation area

to 750 hectares. 94 The failure of public bidding on December 10,

1991, involving only 407.84 hectares, 95 is not a valid justification for
a negotiated sale of 750 hectares, almost double the area publicly
auctioned. Besides, the failure of public bidding happened on
December 10, 1991, more than three years before the signing of the
original JVA on April 25, 1995. The economic situation in the country
had greatly improved during the intervening period.
Reclamation under the BOT Law and the Local Government Code
The constitutional prohibition in Section 3, Article XII of the 1987
Constitution is absolute and clear: "Private corporations or
associations may not hold such alienable lands of the public domain
except by lease, . . . " Even Republic Act No. 6957 ("BOT Law," for
brevity), cited by PEA and AMARI as legislative authority to sell
reclaimed lands to private parties, recognizes the constitutional ban.
Section 6 of RA No. 6957 states
"Sec. 6.
Repayment Scheme. For the financing,
construction, operation and maintenance of any infrastructure projects
undertaken through the build-operate-and-transfer arrangement or
any of its variations pursuant to the provisions of this Act, the project
proponent . . . may likewise be repaid in the form of a share in the
revenue of the project or other non-monetary payments, such as, but
not limited to, the grant of a portion or percentage of the reclaimed
land, subject to the constitutional requirements with respect to the
ownership of the land: . . . ." (Emphasis supplied)
A private corporation, even one that undertakes the physical
reclamation of a government BOT project, cannot acquire reclaimed
alienable lands of the public domain in view of the constitutional ban.
Section 302 of the Local Government Code, also mentioned by PEA
and AMARI, authorizes local governments in land reclamation projects
to pay the contractor or developer in kind consisting of a percentage
of the reclaimed land, to wit:
"Section 302. Financing, Construction, Maintenance, Operation, and
Management of Infrastructure Projects by the Private Sector. . . .
xxx

xxx

xxx

179
In case of land reclamation or construction of industrial estates, the
repayment plan may consist of the grant of a portion or percentage of
the reclaimed land or the industrial estate constructed."
Although Section 302 of the Local Government Code does not contain
a proviso similar to that of the BOT Law, the constitutional restrictions
on land ownership automatically apply even though not expressly
mentioned in the Local Government Code.
Thus, under either the BOT Law or the Local Government Code, the
contractor or developer, if a corporate entity, can only be paid with
leaseholds on portions of the reclaimed land. If the contractor or
developer is an individual, portions of the reclaimed land, not
exceeding 12 hectares 96 of non-agricultural lands, may be conveyed
to him in ownership in view of the legislative authority allowing such
conveyance. This is the only way these provisions of the BOT Law
and the Local Government Code can avoid a direct collision with
Section 3, Article XII of the 1987 Constitution.
Registration of lands of the public domain
Finally, PEA theorizes that the "act of conveying the ownership of the
reclaimed lands to public respondent PEA transformed such lands of
the public domain to private lands." This theory is echoed by AMARI
which maintains that the "issuance of the special patent leading to the
eventual issuance of title takes the subject land away from the land of
public domain and converts the property into patrimonial or private
property." In short, PEA and AMARI contend that with the issuance of
Special Patent No. 3517 and the corresponding certificates of titles,
the 157.84 hectares comprising the Freedom Islands have become
private lands of PEA. In support of their theory, PEA and AMARI cite
the following rulings of the Court:
1.

Sumail v. Judge of CFI of Cotabato, 97 where the Court held

"Once the patent was granted and the corresponding certificate of title
was issued, the land ceased to be part of the public domain and
became private property over which the Director of Lands has neither
control nor jurisdiction."
2.

Lee Hong Hok v. David, 98 where the Court declared

"After the registration and issuance of the certificate and duplicate

certificate of title based on a public land patent, the land covered
thereby automatically comes under the operation of Republic Act 496
subject to all the safeguards provided therein."
3.
Heirs of Gregorio Tengco v. Heirs of Jose Aliwalas, 99 where
the Court ruled
"While the Director of Lands has the power to review homestead
patents, he may do so only so long as the land remains part of the
public domain and continues to be under his exclusive control; but
once the patent is registered and a certificate of title is issued, the
land ceases to be part of the public domain and becomes private
property over which the Director of Lands has neither control nor
jurisdiction."
4.
Manalo v. Intermediate Appellate Court, 100 where the Court
held
"When the lots in dispute were certified as disposable on May 19,
1971, and free patents were issued covering the same in favor of the
private respondents, the said lots ceased to be part of the public
domain and, therefore, the Director of Lands lost jurisdiction over the
same."
5.

Republic v. Court of Appeals, 101 where the Court stated

"Proclamation No. 350, dated October 9, 1956, of President

Magsaysay legally effected a land grant to the Mindanao Medical
Center, Bureau of Medical Services, Department of Health, of the
whole lot, validly sufficient for initial registration under the Land
Registration Act. Such land grant is constitutive of a 'fee simple' title or
absolute title in favor of petitioner Mindanao Medical Center. Thus,
Section 122 of the Act, which governs the registration of grants or
patents involving public lands, provides that 'Whenever public lands in
the Philippine Islands belonging to the Government of the United
States or to the Government of the Philippines are alienated, granted
or conveyed to persons or to public or private corporations, the same
shall be brought forthwith under the operation of this Act (Land
Registration Act, Act 496) and shall become registered lands."

180
The first four cases cited involve petitions to cancel the land patents
and the corresponding certificates of titles issued to private parties.
These four cases uniformly hold that the Director of Lands has no
jurisdiction over private lands or that upon issuance of the certificate
of title the land automatically comes under the Torrens System. The
fifth case cited involves the registration under the Torrens System of a
12.8-hectare public land granted by the National Government to
Mindanao Medical Center, a government unit under the Department of
Health. The National Government transferred the 12.8-hectare public
land to serve as the site for the hospital buildings and other facilities of
Mindanao Medical Center, which performed a public service. The
Court affirmed the registration of the 12.8-hectare public land in the
name of Mindanao Medical Center under Section 122 of Act No. 496.
This fifth case is an example of a public land being registered under
Act No. 496 without the land, losing its character as a property of
public dominion.
In the instant case, the only patent and certificates of title issued are
those in the name of PEA, a wholly government owned corporation
performing public as well as proprietary functions. No patent or
certificate of title has been issued to any private party. No one is
asking the Director of Lands to cancel PEA's patent or certificates of
title. In fact, the thrust of the instant petition is that PEA's certificates
of title should remain with PEA, and the land covered by these
certificates, being alienable lands of the public domain, should not be
sold to a private corporation.
Registration of land under Act No. 496 or PD No. 1529 does not vest
in the registrant private or public ownership of the land. Registration is
not a mode of acquiring ownership but is merely evidence of
ownership previously conferred by any of the recognized modes of
acquiring ownership. Registration does not give the registrant a better
right than what the registrant had prior to the registration. 102 The
registration of lands of the public domain under the Torrens system,
by itself, cannot convert public lands into private lands. 103
Jurisprudence holding that upon the grant of the patent or issuance of
the certificate of title the alienable land of the public domain
automatically becomes private land cannot apply to government units
and entities like PEA. The transfer of the Freedom Islands to PEA was
made subject to the provisions of CA No. 141 as expressly stated in
Special Patent No. 3517 issued by then President Aquino, to wit:

"NOW, THEREFORE, KNOW YE, that by authority of the Constitution

of the Philippines and in conformity with the provisions of Presidential
Decree No. 1084, supplemented by Commonwealth Act No. 141, as
amended, there are hereby granted and conveyed unto the Public
Estates Authority the aforesaid tracts of land containing a total area of
one million nine hundred fifteen thousand eight hundred ninety four
(1,915,894) square meters; the technical description of which are
hereto attached and made an integral part hereof." (Emphasis
supplied)
Thus, the provisions of CA No. 141 apply to the Freedom Islands on
matters not covered by PD No. 1084. Section 60 of CA No. 141
prohibits, "except when authorized by Congress," the sale of alienable
lands of the public domain that are transferred to government units or
entities. Section 60 of CA No. 141 constitutes, under Section 44 of PD
No. 1529, a "statutory lien affecting title" of the registered land even if
not annotated on the certificate of title. 104 Alienable lands of the
public domain held by government entitles under Section 60 of CA No.
141 remain public lands because they cannot be alienated or
encumbered unless Congress passes a law authorizing their
disposition. Congress, however, cannot authorize the sale to private
corporations of reclaimed alienable lands of the public domain
because of the constitutional ban. Only individuals can benefit from
such law.
The grant of legislative authority to sell public lands in accordance
with Section 60 of CA No. 141 does not automatically convert
alienable lands of the public domain into private or patrimonial lands.
The alienable lands of the public domain must be transferred to
qualified private parties, or to government entities not tasked to
dispose of public lands, before these lands can become private or
patrimonial lands. Otherwise, the constitutional ban will become
illusory if Congress can declare lands of the public domain as private
or patrimonial lands in the hands of a government agency tasked to
dispose of public lands. This will allow private corporations to acquire
directly from government agencies limitless areas of lands which, prior
to such law, are concededly public lands.
Under EO No. 525, PEA became the central implementing agency of
the National Government to reclaim foreshore and submerged areas
of the public domain. Thus, EO No. 525 declares that

181
"EXECUTIVE ORDER NO. 525

xxx

Designating the Public Estates Authority as the Agency Primarily

Responsible for all Reclamation Projects

As the central implementing agency tasked to undertake reclamation

projects nationwide, with authority to sell reclaimed lands, PEA took
the place of DENR as the government agency charged with leasing or
selling reclaimed lands of the public domain. The reclaimed lands
being leased or sold by PEA are not private lands, in the same
manner that DENR, when it disposes of other alienable lands does
not dispose of private lands but alienable lands of the public domain.
Only when qualified private parties acquire these lands will the lands
become private lands. In the hands of the government agency tasked
and authorized to dispose of alienable of disposable lands of the
public domain, these lands are still public, not private lands.

Whereas, there are several reclamation projects which are ongoing or

being proposed to be undertaken in various parts of the country which
need to be evaluated for consistency with national programs;
Whereas, there is a need to give further institutional support to the
Government's declared policy to provide for a coordinated,
economical and efficient reclamation of lands;
Whereas, Presidential Decree No. 3-A requires that all reclamation of
areas shall be limited to the National Government or any person
authorized by it under proper contract;
Whereas, a central authority is needed to act on behalf of the National
Government which shall ensure a coordinated and integrated
approach in the reclamation of lands;
Whereas, Presidential Decree No. 1084 creates the Public Estates
Authority as a government corporation to undertake reclamation of
lands and ensure their maximum utilization in promoting public
welfare and interests; and
Whereas, Presidential Decree No. 1416 provides the President with
continuing authority to reorganize the national government including
the transfer, abolition, or merger of functions and offices.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution
and pursuant to Presidential Decree No. 1416, do hereby order and
direct the following:
Section 1.
The Public Estates Authority (PEA) shall be primarily
responsible for integrating, directing, and coordinating all reclamation
projects for and on behalf of the National Government. All reclamation
projects shall be approved by the President upon recommendation of
the PEA, and shall be undertaken by the PEA or through a proper
contract executed by it with any person or entity; Provided, that,
reclamation projects of any national government agency or entity
authorized under its charter shall be undertaken in consultation with
the PEA upon approval of the President.

xxx

xxx."

Furthermore, PEA's charter expressly states that PEA "shall hold

lands of the public domain" as well as "any and all kinds of lands."
PEA can hold both lands of the public domain and private lands. Thus,
the mere fact that alienable lands of the public domain like the
Freedom Islands are transferred to PEA and issued land patents or
certificates of title in PEA's name does not automatically make such
lands private.
To allow vast areas of reclaimed lands of the public domain to be
transferred to PEA as private lands will sanction a gross violation of
the constitutional ban on private corporations from acquiring any kind
of alienable land of the public domain. PEA will simply turn around, as
PEA has now done under the Amended JVA, and transfer several
hundreds of hectares of these reclaimed and still to be reclaimed
lands to a single private corporation in only one transaction. This
scheme will effectively nullify the constitutional ban in Section 3,
Article XII of the 1987 Constitution which was intended to diffuse
equitably the ownership of alienable lands of the public domain
among Filipinos, now numbering over 80 million strong.
This scheme, if allowed, can even be applied to alienable agricultural
lands of the public domain since PEA can "acquire . . . any and all
kinds of lands." This will open the floodgates to corporations and even
individuals acquiring hundreds of hectares of alienable lands of the
public domain under the guise that in the hands of PEA these lands
are private lands. This will result in corporations amassing huge
landholdings never before seen in this country creating the very
evil that the constitutional ban was designed to prevent. This will

182
completely reverse the clear direction of constitutional development in
this country. The 1935 Constitution allowed private corporations to
acquire not more than 1,024 hectares of public lands. 105 The 1973
Constitution prohibited private corporations from acquiring any kind of
public land, and the 1987 Constitution has unequivocally reiterated
this prohibition.
The contention of PEA and AMARI that public lands, once registered
under Act No. 496 or PD No. 1529, automatically become private
lands is contrary to existing laws. Several laws authorize lands of the
public domain to be registered under the Torrens System or Act No.
496, now PD No. 1529, without losing their character as public lands.
Section 122 of Act No. 496, and Section 103 of PD No. 1529,
respectively, provide as follows:
Act No. 496
"Sec. 122.
Whenever public lands in the Philippine Islands
belonging to the . . . Government of the Philippine Islands are
alienated, granted, or conveyed to persons or the public or private
corporations, the same shall be brought forthwith under the operation
of this Act and shall become registered lands.
PD No. 1529
"Sec. 103.
Certificate of Title to Patents. Whenever public land is
by the Government alienated, granted or conveyed to any person, the
same shall be brought forthwith under the operation of this Decree."
(Emphasis supplied)
Based on its legislative history, the phrase "conveyed to any person"
in Section 103 of PD No. 1529 includes conveyances of public lands
to public corporations.
Alienable lands of the public domain "granted, donated, or transferred
to a province, municipality, or branch or subdivision of the
Government," as provided in Section 60 of CA No. 141, may be
registered under the Torrens System pursuant to Section 103 of PD
No. 1529. Such registration, however, is expressly subject to the
condition in Section 60 of CA No. 141 that the land "shall not be
alienated, encumbered or otherwise disposed of in a manner affecting
its title, except when authorized by Congress." This provision refers to
government reclaimed, foreshore and marshy lands of the public
domain that have been titled but still cannot be alienated or

encumbered unless expressly authorized by Congress. The need for

legislative authority prevents the registered land of the public domain
from becoming private land that can be disposed of to qualified private
parties.
The Revised Administrative Code of 1987 also recognizes that lands
of the public domain may be registered under the Torrens System.
Section 48, Chapter 12, Book I of the Code states
"Sec. 48
Official Authorized to Convey Real Property. Whenever
real property of the government is authorized by law to be conveyed ,
the deed of conveyance shall be executed in behalf of the government
by the following:
(1)

...

(2)
For property belonging to the Republic of the Philippines, but
titled in the name of any political subdivision or of any corporate
agency or instrumentality, by the executive head of the agency or
instrumentality." (Emphasis supplied)
Thus, private property purchased by the National Government for
expansion of a public wharf may be titled in the name of a government
corporation regulating port operations in the country. Private property
purchased by the National Government for expansion of an airport
may also be titled in the name of the government agency tasked to
administer the airport. Private property donated to a municipality for
use as a town plaza or public school site may likewise be titled in the
name of the municipality. 106 All these properties become properties
of the public domain, and if already registered under Act No. 496 or D
No. 1529, remain registered land. There is no requirement or
provision in any existing law for the de-registration of land from the
Torrens System.
Private lands taken by the Government for public use under its own
power of eminent domain become unquestionably part of the public
domain. Nevertheless, Section 85 of PD No. 1529 authorizes the
Register of Deeds to issue in the name of the National government
new certificates of title covering such expropriated lands. Section 85
of PD No. 1529 states

183
"Sec. 85
Land taken by eminent domain. Whenever any
registered land, or interest therein, is expropriated or taken by
eminent domain, the National Government, province, city or
municipality, or any other agency or instrumentality exercising such
right shall file for registration in the proper Registry a certified copy of
the judgment which shall state definitely by an adequate description,
the particular property or interest expropriated, the number of
certificate of title, and the nature of the public use. A memorandum of
the right or interest taken shall be made on each certificate of title by
the Register of Deeds, and where the fee simple is taken, a new
certificate shall be issued in favor of the National Government,
province, city, municipality, or any other agency or instrumentality
exercising such right for the land so taken. The legal expenses
incident to the memorandum of registration or issuance of a new
certificate of title shall be for the account of the authority taking the
land or interest therein." (Emphasis supplied)
Consequently, lands registered under Act No. 496 or PD No. 1529 are
not exclusively private or patrimonial lands. Lands of the public
domain may also be registered pursuant to existing laws.
AMARI makes a parting shot that the Amended JVA is not a sale to
AMARI of the Freedom Islands or of the lands to be reclaimed from
submerged areas of Manila Bay. In the words of AMARI, the Amended
JVA "is not a sale but a joint venture with a stipulation for
reimbursement of the original cost incurred by PEA for the earlier
reclamation and construction works performed by the CDCP under its
1973 contract with the Republic." Whether the Amended JVA is a sale
or a joint venture, the fact remains that the Amended JVA requires
PEA to "cause the issuance and delivery of the certificates of title
conveying AMARI's Land Share on the name of AMARI." 107
This stipulation still contravenes Section 3, Article XII of the 1987
Constitution which provides that private corporations "shall not hold
such alienable lands of the public domain except by lease." the
transfer of title and ownership to AMARI clearly means that AMARI will
"hold' the reclaimed lands other than by lease. The transfer of title and
ownership is a "disposition" of the reclaimed lands, a transaction
considered a sale or alienation under CA No. 141, 108 the
Government Auditing Code, 109 and Section 3, Article XII of the 1987
Constitution.

The Regalian doctrine is deeply implanted in our legal system.

Foreshore and submerged areas form part of the public domain and
are inalienable. Lands reclaimed from foreshore and submerged
areas also form part of the public domain and are also inalienable,
unless converted pursuant to law into alienable or disposable lands of
the public domain. historically, lands reclaimed by the government are
sui generis, not available for sale to private parties unlike other
alienable public lands. Reclaimed lands retain their inherent potential
as areas for public use or public service. Alienable lands of the public
domain, increasingly becoming scarce natural resources, are to be
distributed equitably among our ever-growing population. To insure
such equitable distribution, the 1973 and 1987 Constitutions have
barred private corporations from acquiring any kind of alienable land
of the public domain. those who attempt to dispose of inalienable
natural resources of the state, or seek to circumvent the conditional
ban on alienation of lands of the public domain to private corporations,
do so at their own risks.
We can now summarize our conclusions as follows;
1.
The 157.84 hectares of reclaimed lands comprising the
Freedom Islands, now covered by certificates of title in the name of
PEA, are alienable lands of the public domain. PEA may lease these
lands to private corporations but may not sell or transfer ownership of
these lands to private corporations. PEA may only sell these lands to
Philippine citizens, subject to the ownership limitations in the 1987
Constitution and existing laws.
2.
The 592.15 hectares of submerged areas of Manila Bay
remain inalienable natural resources of the public domain until
classified as alienable or disposable lands open to disposition and
declared no longer needed for public service. The government can
make such classification and declaration only after PEA has reclaimed
these submerged areas. Only then can these lands qualify as
agricultural lands of the public domain, which are the only natural
resources the government can alienate. In their present state, the
592.15 hectares of submerged areas are inalienable and outside the
commerce of man.
3.
Since the Amended JVA seeks to transfer to AMARI, a private
corporation, ownership of 77.34 hectares 110 of the Freedom Islands,
such transfer is void for being contrary to Section 3, Article XII of the

184
1987 Constitution which prohibits private corporations from acquiring
any kind of alienable land of the public domain.
4.
Since the Amended JVA also seeks to transfer to AMARI
ownership of 290.156 hectares 111 of still submerged areas of Manila
Bay, such transfer is void for being contrary to Section 2, Article XII of
the 1987 Constitution which prohibits the alienation of natural
resources other than agricultural lands of the public domain. PEA may
reclaim these submerged areas. Thereafter, the government can
classify the reclaimed lands as alienable or disposable, and further
declare them no longer needed for public service. Still, the transfer of
such reclaimed alienable lands of the public domain to AMARI will be
void in view of Section 3, Article XII of the 1987 Constitution which
prohibits private corporations from acquiring any kind of alienable land
of the public domain.
Clearly the Amended JVA violates glaringly Sections 2 and 3, Article
XII of the 1987 Constitution. under Article 1409 112 of the Civil Code,
contracts whose "object or purpose is contrary to law," or whose
"object is outside the commerce of men," are "inexistent and void from
the beginning." the Court must perform its duty to defend and uphold
the Constitution ,and therefore declares the Amended JVA null and
void ab initio. EcICDT
Seventh issue: whether the Court is the proper forum to raise the
issue of whether the Amended JVA is grossly disadvantageous to the
government.
Considering that the Amended JVA is null and void ab initio, there is
no necessity to rule on this last issue. Besides, the Court is not the
trier of facts, and this last issue involves a determination of factual
matters.
WHEREFORE, the petition is GRANTED. The Public Estates
Authority and Amari Coastal Bay Development Corporation are
PERMANENTLY ENJOINED from implementing the Amended Joint
Venture Agreement which is hereby declared NULL and VOID ab
initio. HSIaAT
SO ORDERED.

185
[G.R. No. 115381. December 23, 1994.]
KILUSANG MAYO UNO LABOR CENTER, petitioner, vs. HON.
JESUS B. GARCIA, JR., the LAND TRANSPORTATION
FRANCHISING AND REGULATORY BOARD, and the PROVINCIAL
BUSES OPERATORS ASSOCIATION OF THE PHILIPPINES,
respondents.
DECISION
KAPUNAN, J p:
Public utilities are privately owned and operated businesses whose
service are essential to the general public. They are enterprises which
specially cater to the needs of the public and conduce to their comfort
and convenience. As such, public utility services are impressed with
public interest and concern. The same is true with respect to the
business of common carrier which holds such a peculiar relation to
the public interest that there is superinduced upon it the right of public
regulation when private properties are affected with public interest,
hence, they cease to be juris privati only. When, therefore, one
devotes his property to a use in which the public has an interest, he,
in effect grants to the public an interest in that use, and must submit to
the control by the public for the common good, to the extent of the
interest he has thus created. 1
An abdication of the licensing and regulatory government agencies of
their functions as the instant petition seeks to show, is indeed
lamentable. Not only is it an unsound administrative policy but it is
inimical to public trust and public interest as well.
The instant petition for certiorari assails the constitutionality and
validity of certain memoranda, circulars and/or orders of the
Department of Transportation and Communications (DOTC) and the
Land Transportation Franchising and Regulatory Board LTFRB) 2
which, among others, (a) authorize provincial bus and jeepney
operators to increase or decrease the prescribed transportation fares

without application therefor with the LTFRB and without hearing and
approval thereof by said agency in violation of Sec. 16(c) of
Commonwealth Act No. 146, as amended, otherwise known as the
Public Service Act, and in derogation of LTFRB's duty to fix and
determine just and reasonable fares by delegating that function to bus
operators, and (b) establish a presumption of public need in favor of
applicants for certificates of public convenience (CPC) and place on
the oppositor the burden of proving that there is no need for the
proposed service, in patent violation not only of Sec. 16(c) of CA 146,
as amended, but also of Sec. 20(a) of the same Act mandating that
fares should be "just and reasonable." It is, likewise, violative of the
Rules of Court which places upon each party the burden to prove his
own affirmative allegations. 3 The offending provisions contained in
the questioned issuances pointed out by petitioner, have resulted in
the introduction into our highways and thoroughfares thousands of old
and smoke-belching buses, many of which are right-hand driven, and
have exposed our consumers to the burden of spiraling costs of public
transportation without hearing and due process. cdrep
The following memoranda, circulars and/or orders are sought to be
nullified by the instant petition, viz: (a) DOTC Memorandum Order 90395, dated June 26, 1990 relative to the implementation of a fare
range scheme for provincial bus services in the country; (b) DOTC
Department Order No. 92-587, dated March 30, 1992, defining the
policy framework on the regulation of transport services; (c) DOTC
Memorandum dated October 8, 1992, laying down rules and
procedures to implement Department Order No. 92-587; (d) LTFRB
Memorandum Circular No. 92-009, providing implementing guidelines
on the DOTC Department Order No. 92-587; and (e) LTFRB Order
dated March 24, 1994 in Case No. 94-3112.
The relevant antecedents are as follows:
On June 26, 1990; then Secretary of DOTC, Oscar M. Orbos, issued
Memorandum Circular No. 90-395 to then LTFRB Chairman,
Remedios A.S. Fernando allowing provincial bus operators to charge
passengers rates within a range of 15% above and 15% below the
LTFRB official rate for a period of one (1) year. The text of the
memorandum order reads in full:
One of the policy reforms and measures that is in line with the thrusts
and the priorities set out in the Medium-Term Philippine Development

186
Plan (MTPDP) 1987 1992) is the liberalization of regulations in the
transport sector. Along this line, the Government intends to move
away gradually from regulatory policies and make progress towards
greater reliance on free market forces.

the territory affected; (c) a public hearing should be held for the fixing
of the rates; hence, implementation of the proposed fare range
scheme on August 6 without complying with the requirements of the
Public Service Act may not be legally feasible.

Based on several surveys and observations, bus companies are

already charging passenger rates above and below the official fare
declared by LTFRB on many provincial routes. It is in this context that
some form of liberalization on public transport fares is to be tested on
a pilot basis.

2.
To allow bus operators in the country to charge fares fifteen
(15%) above the present LTFRB fares in the wake of the devastation,
death and suffering caused by the July 16 earthquake will not be
socially warranted and will be politically unsound; most likely public
criticism against the DOTC and the LTFRB will be triggered by the
untimely motu propio implementation of the proposal by the mere
expedient of publicizing the fare range scheme without calling a public
hearing, which scheme many as early as during the Secretary's
predecessor know through newspaper reports and columnists'
comments to be Asian Development Bank and World Bank inspired.

In view thereof, the LTFRB is hereby directed to immediately publicize

a fare range scheme for all provincial bus routes in country (except
those operating within Metro Manila). Transport operators shall be
allowed to charge passengers within a range of fifteen percent (15%)
above and fifteen percent (15%) below the LTFRB official rate for a
period of one year.
Guidelines and procedures for the said scheme shall be prepared by
LTFRB in coordination with the DOTC Planning Service.
The implementation of the said fare range scheme shall start on 6
August 1990.
For compliance. (Emphasis ours.)
Finding the implementation of the fare range scheme "not legally
feasible," Remedios A.S. Fernando submitted the following
memorandum to Oscar M. Orbos on July 24, 1990, to wit:
With reference to DOTC Memorandum Order No. 90-395 dated 26
June 1990 which the LTFRB received on 19 July 1990, directing the
Board "to immediately publicize a fare range scheme for all provincial
bus routes in the country (except those operating within Metro
Manila)" that will allow operators "to charge passengers within a range
of fifteen percent (15%) above and fifteen percent (15%) below the
LTFRB official rate for a period of one year" the undersigned is
respectfully adverting the Secretary's attention to the following for his
consideration:
1.
Section 16 (c) of the Public Service Act prescribes the
following for the fixing and determination of rates -- (a) the rates to be
approved should be proposed by public service operators; (b) there
should be a publication and notice to concerned or affected parties in

3.
More than inducing a reduction in bus fares by fifteen percent
(15%) the implementation of the proposal will instead trigger an
upward adjustment in bus fares by fifteen percent (15%) at a time
when hundreds of thousands of people in Central and Northern
Luzon, particularly in Central Pangasinan, La Union, Baguio City,
Nueva Ecija, and the Cagayan Valley are suffering from the
devastation and havoc caused by the recent earthquake.
4.
In lieu of the said proposal, the DOTC with its agencies
involved in public transportation can consider measures and reforms
in the industry that will be socially uplifting, especially for the people in
the areas devastated by the recent earthquake.
In view of the foregoing considerations, the undersigned respectfully
suggests that the implementation of the proposed fare range scheme
this year be further studied and evaluated.
On December 5, 1990, private respondent Provincial Bus Operators
Association of the Philippines, Inc. (PBOAP) filed an application for
fare rate increase. An across-the-board increase of eight and a half
centavos (P0.085) per kilometer for all types of provincial buses with a
minimum-maximum fare range of fifteen (15%) percent over and
below the proposed basic per kilometer fare rate, with the said
minimum-maximum fare range applying only to ordinary, first class
and premium class buses and a fifty-centavo (P0.50) minimum per
kilometer fare for aircon buses, was sought.

187
On December 6, 1990, private respondent PBOAP reduced its applied
proposed fare to an across-the-board increase of six and a half
(P0.065) centavos per kilometer for ordinary buses. The decrease
was due to the drop in the expected price of diesel. llcd
The application was opposed by the Philippine Consumers
Foundation, Inc. and Perla C. Bautista alleging that the proposed
rates were exorbitant and unreasonable and that the application
contained no allegation on the rate of return of the proposed increase
in rates.
On December 14, 1990, public respondent LTFRB rendered a
decision granting the fare rate increase in accordance with the
following schedule of fares on a straight computation method, viz:
AUTHORIZED FARES
LUZON
MIN. OF 5 KMS.
REGULAR

P1.50 P0.37

STUDENT

P1.15 P0.28

SUCCEEDING KM.

P1.60 P0.375

STUDENT

P1.20 P0.285
P0.385

PREMIERE CLASS (PER KM.)

P0.395

VISAYAS/ MINDANAO

WHEREAS, the government proposes to build on the successful

liberalization measures pursued over the last five years and bring the
transport sector nearer to a balanced longer term regulatory
framework;
NOW, THEREFORE, pursuant to the powers granted by laws to the
DOTC, the following policies and principles in the economic regulation
of land, air, and water transportation services are hereby adopted:

In determining public need, the presumption of need for a service

shall be deemed in favor of the applicant. The burden of proving that
there is no need for a proposed service shall be with the oppositor(s).

VISAYAS/MINDANAOP0.395
LUZON

WHEREAS, to achieve the objective of a viable, efficient, and

dependable transportation system, the transportation regulatory
agencies under or attached to the DOTC have to harmonize their
decisions and adopt a common philosophy and direction;

The requirements to grant a certificate to operate, or certificate of

public convenience, shall be: proof of Filipino citizenship, financial
capability, public need, and sufficient insurance cover to protect the
riding public.

FIRST CLASS (PER KM.)

LUZON

WHEREAS, Executive Order No. 125 as amended, designates the

Department of Transportation and Communications (DOTC) as the
primary policy, planning, regulating and implementing agency on
transportation;

1.
Entry into and exit out of the industry. Following the
Constitutional dictum against monopoly, no franchise holder shall be
permitted to maintain a monopoly on any route. A minimum of two
franchise holders shall be permitted to operate on any route.

VISAYAS/MINDANAO
REGULAR

regulation of transport services. The full text of the said order is

reproduced below in view of the importance of the provisions
contained therein:

P0.405

AIRCON (PER KM.) P0.415. 4

On March 30, 1992, then Secretary of the Department of
Transportation and Communications Pete Nicomedes Prado issued
Department Order No. 92-587 defining the policy framework on the

In the interest of providing efficient public transport services, the use

of the 'prior operator' and the 'priority of filing' rules shall be
discontinued. The route measured capacity test or other similar tests
of demand for vehicle/vessel fleet on any route shall be used only as
a guide in weighing the merits of each franchise application and not
as a limit to the services offered.

188
Where there are limitations in facilities, such as congested road space
in urban areas, or at airports and ports, the use of demand
management measures in conformity with market principles may be
considered.
The right of an operator to leave the industry is recognized as a
business decision, subject only to the filing of appropriate notice and
following a phase-out period, to inform the public and to minimize
disruption of services.
2.
Rate and Fare Setting. Freight rates shall be freed gradually
from government controls. Passenger fares shall also be deregulated,
except for the lowest class of passenger service (normally third class
passenger transport) for which the government will fix indicative or
reference fares. Operators of particular services may fix their own
fares within a range 15% above and below the indicative or reference
rate.
Where there is lack of effective competition for services, or on specific
routes, or for the transport of particular commodities, maximum
mandatory freight rates or passenger fares shall be set temporarily by
the government pending actions to increase the level of competition.
For unserved or single operator routes, the government shall contract
such services in the most advantageous terms to the public and the
government, following public bids for the services. The advisability of
bidding out the services or using other kinds of incentives on such
routes shall be studied by the government.
3.
Special Incentives and Financing for Fleet Acquisition. As a
matter of policy, the government shall not engage in special financing
and incentive programs, including direct subsidies for fleet acquisition
and expansion. Only when the market situation warrants government
intervention shall programs of this type be considered. Existing
programs shall be phased out gradually.
The Land Transportation Franchising and Regulatory Board, the Civil
Aeronautics Board, the Maritime Industry Authority are hereby
directed to submit to the office of the Secretary, within forty-five (45)
days of this Order, the detailed rules and procedures for the
Implementation of the policies herein set forth. In the formulation of
such rules, the concerned agencies shall be guided by the most
recent studies on the subjects, such as the Provincial Road

Passenger Transport Study, the Civil Aviation Master Plan, the

Presidential Task Force on the Inter-island Shipping Industry, and the
Inter-island Liner Shipping Rate Rationalization Study.
For the compliance of all concerned. (Emphasis ours)
On October 8, 1992, public respondent Secretary of the Department
of Transportation and Communications Jesus B. Garcia, Jr. issued a
memorandum to the Acting Chairman of the LTFRB suggesting swift
action on the adoption of rules and procedures to implement abovequoted Department Order No. 92-587 that laid down deregulation and
other liberalization policies for the transport sector. Attached to the
said memorandum was a revised draft of the required rules and
procedures covering (i) Entry Into and Exit Out of the Industry and (ii)
Rate and Fare Setting, with comments and suggestions from the
World Bank incorporated therein. Likewise, resplendent from the said
memorandum is the statement of the DOTC Secretary that the
adoption of the rules and procedures is a pre-requisite to the approval
of the Economic Integration Loan from the World Bank. 5
On February 17, 1993, the LTFRB issued Memorandum Circular No.
92-009 promulgating the guidelines for the implementation of DOTC
Department Order No. 92-587. The Circular provides, among others,
the following challenged portions:
xxx

xxx

xxx

IV.
Policy Guidelines on the Issuance of Certificate of Public
Convenience:
The issuance of a Certificate of Public Convenience is determined by
public need. The presumption of public need for a service shall be
deemed in favor of the applicant, while burden of proving that there is
no need for the proposed service shall be the oppositor's.
xxx
V.

xxx

xxx

Rate and Fare Setting

The control in pricing shall be liberalized to introduce price

competition complementary with the quality of service, subject to prior
notice and public hearing. Fares shall not be provisionally authorized
without public hearing.
A.

On the General Structure of Rates

189
1.
The existing authorized fare range system of plus or minus 15
per cent for provincial buses and jeepneys shall be widened to 20%
and -25% limit in 1994 with the authorized fare to be replaced by an
indicative or reference rate as the basis for the expanded fare range.
2.
Fare systems for aircon buses are liberalized to cover first
class and premier services.
xxx

xxx

xxx

(Emphasis ours).
Sometime in March, 1994, private respondent PBOAP, availing itself
of the deregulation policy of the DOTC allowing provincial bus
operators to collect plus 20% and minus 25% of the prescribed fare
without first having filed a petition for the purpose and without the
benefit of a public hearing, announced a fare increase of twenty (20%)
percent of the existing fares. Said increased fares were to be made
effective on March 16, 1994.
On March 16, 1994, petitioner KMU filed a petition before the LTFRB
opposing the upward adjustment of bus fares.
On March 24, 1994, the LTFRB issued one of the assailed orders
dismissing the petition for lack of merit. The dispositive portion reads:

Petitioner KMU anchors its claim on two (2) grounds. First, the
authority given by respondent LTFRB to provincial bus operators to
set a fare range of plus or minus fifteen (15) percent, later increased
to plus twenty (20%) and minus twenty-five (-25%) percent, over and
above the existing authorized fare without having to file a petition for
the purpose, is unconstitutional, invalid and illegal. Second, the
establishment of a presumption of public need in favor of an applicant
for a proposed transport service without having to prove public
necessity, is illegal for being violative of the Public Service Act and the
Rules of Court.
In its Comment, private respondent PBOAP, while not actually
touching upon the issues raised by the petitioner, questions the
wisdom and the manner by which the instant petition was filed. It
asserts that the petitioner has no legal standing to sue or has no real
interest in the case at bench and in obtaining the reliefs prayed for.
In their Comment filed by the Office of the Solicitor General, public
respondents DOTC Secretary Jesus B. Garcia, Jr. and the LTFRB
asseverate that the petitioner does not have the standing to maintain
the instant suit. They further claim that it is within DOTC and LTFRB's
authority to set a fare range scheme and establish a presumption of
public need in applications for certificates of public convenience.

PREMISES CONSIDERED, this Board after considering the

arguments of the parties, hereby DISMISSES FOR LACK OF MERIT
the petition filed in the above-entitled case. This petition in this case
was resolved with dispatch at the request of petitioner to enable it to
immediately avail of the legal remedies or options it is entitled under
existing laws.

We find the instant petition impressed with merit.

SO ORDERED. 6

xxx

Hence, the instant petition for certiorari with an urgent prayer for
issuance of a temporary restraining order.

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

The Court, on June 20, 1994, issued a temporary restraining order

enjoining, prohibiting and preventing respondents from implementing
the bus fare rate increase as well as the questioned orders and
memorandum circulars. This meant that provincial bus fares were
rolled back to the levels duly authorized by the LTFRB prior to March
16, 1994. A moratorium was likewise enforced on the issuance of
franchises for the operation of buses, jeepneys, and taxicabs.

At the outset, the threshold issue of locus standi must be struck.

Petitioner KMU has the standing to sue.
The requirement of locus standi inheres from the definition of judicial
power. Section 1 of Article VIII of the Constitution provides:
xxx

xxx

In Lamb v. Phipps, 7 we ruled that judicial power is the power to hear

and decide causes pending between parties who have the right to sue
in the courts of law and equity. Corollary to this provision is the
principle of locus standi of a party litigant. One who is directly affected

190
by and whose interest is immediate and substantial in the controversy
has the standing to sue. The rule therefore requires that a party must
show a personal stake in the outcome of the case or an injury to
himself that can be redressed by a favorable decision so as to warrant
an invocation of the court's jurisdiction and to justify the exercise of
the court's remedial powers in his behalf. 8
In the case at bench, petitioner, whose members had suffered and
continue to suffer grave and irreparable injury and damage from the
implementation of the questioned memoranda, circulars and/or
orders, has shown that it has a clear legal right that was violated and
continues to be violated with the enforcement of the challenged
memoranda, circulars and/or orders. KMU members, who avail of the
use of buses, trains and jeepneys everyday, are directly affected by
the burdensome cost of arbitrary increase in passenger fares. They
are part of the millions of commuters who comprise the riding public.
Certainly, their rights must be protected, not neglected nor ignored.
cdll
Assuming arguendo that petitioner is not possessed of the standing to
sue, this court is ready to brush aside this barren procedural infirmity
and recognize the legal standing of the petitioner in view of the
transcendental importance of the issues raised. And this act of
liberality is not without judicial precedent. As early as the Emergency
Powers Cases, this Court had exercised its discretion and waived the
requirement of proper party. In the recent case of Kilosbayan, Inc., et
al. v. Teofisto Guingona, Jr., et al., 9 we ruled in the same lines and
enumerated some of the cases where the same policy was adopted,
viz:
. . . A party's standing before this Court is a procedural technicality
which it may, in the exercise of its discretion, set aside in view of the
importance of the issues raised. In the landmark Emergency Powers
Cases, [G.R. No. L-2044 (Araneta v. Dinglasan); G.R. No. L-2756
(Araneta v. Angeles); G.R. No. L-3054 (Rodriguez v. Tesorero de
Filipinas); G.R. No. L-3055 (Guerrero v. Commissioner of Customs);
and G.R. No. L-3056 (Barredo v. Commission on Elections), 84 Phil.
368 (1949)], this Court brushed aside this technicality because 'the
transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must,
technicalities of procedure. (Avelino vs. Cuenco, G.R. No. L-2621).'
Insofar as taxpayers' suits are concerned, this Court had declared that

it 'is not devoid of discretion as to whether or not it should be

entertained,' (Tan v. Macapagal, 43 SCRA 677, 680 [1972]) or that it
'enjoys an open discretion to entertain the same or not.' [Sanidad v.
COMELEC, 73 SCRA 333 (1976)].
xxx

xxx

xxx

In line with the liberal policy of this Court on locus standi, ordinary
taxpayers, members of Congress, and even association of planters,
and non-profit civic organizations were allowed to initiate and
prosecute actions before this court to question the constitutionality or
validity of laws, acts, decisions, rulings, or orders of various
government agencies or instrumentalities. Among such cases were
those assailing the constitutionality of (a) R.A. No. 3836 insofar as it
allows retirement gratuity and commutation of vacation and sick leave
to Senators and Representatives and to elective officials of both
Houses of Congress (Philippine Constitution Association, Inc. v.
Gimenez, 15 SCRA 479 [1965]); (b) Executive Order No. 284, issued
by President Corazon C. Aquino on 25 July 1987, which allowed
members of the cabinet, their undersecretaries, and assistant
secretaries to hold other government offices or positions (Civil
Liberties Union v. Executive Secretary, 194 SCRA 317 [1991]); (c) the
automatic appropriation for debt service in the General Appropriations
Act (Guingona v. Carague, 196 SCRA 221 [1991]; (d) R.A. No. 7056
on the holding of desynchronized elections (Osmea v. Commission
on Elections, 199 SCRA 750 [1991]; (e) P.D. No. 1869 (the charter of
the Philippine Amusement and Gaming Corporation) on the ground
that it is contrary to morals, public policy, and order (Basco v.
Philippine Gaming and Amusement Corp., 197 SCRA 52 [1991]); and
(f) R.A. No. 6975, establishing the Philippine National Police. (Carpio
v. Executive Secretary, 206 SCRA 290 [1992]).
Other cases where we have followed a liberal policy regarding locus
standi include those attacking the validity or legality of (a) an order
allowing the importation of rice in the light of the prohibition imposed
by R.A. No. 3452 (Iloilo Palay and Corn Planters Association, Inc. v.
Feliciano, 13 SCRA 377 [1965]; (b) P.D. Nos. 991 and 1033 insofar as
they proposed amendments to the Constitution and P.D. No. 1031
insofar as it directed the COMELEC to supervise, control, hold, and
conduct the referendum-plebiscite on 16 October 1976 (Sanidad v.
Commission on Elections, supra); (c) the bidding for the sale of the
3,179 square meters of land at Roppongi, Minato-ku, Tokyo, Japan

191
(Laurel v. Garcia, 187 SCRA 797 [1990]); (d) the approval without
hearing by the Board of Investments of the amended application of
the Bataan Petrochemical Corporation to transfer the site of its plant
from Bataan to Batangas and the validity of such transfer and the shift
of feedstock from naphtha only to naphtha and/or liquefied petroleum
gas (Garcia v. Board of Investments, 177 SCRA 374 [1989]; Garcia v.
Board of Investments, 191 SCRA 288 [1990]); (e) the decisions,
orders, rulings, and resolutions of the Executive Secretary, Secretary
of Finance, Commissioner of Internal Revenue, Commissioner of
Customs, and the Fiscal Incentives Review Board exempting the
National Power Corporation from indirect tax and duties (Maceda v.
Macaraig, 197 SCRA 771 [1991]); (f) the orders of the Energy
Regulatory Board of 5 and 6 December 1990 on the ground that the
hearings conducted on the second provisional increase in oil prices
did not allow the petitioner substantial cross-examination; (Maceda v.
Energy Regulatory Board, 199 SCRA 454 [1991]); (g) Executive Order
No. 478 which levied a special duty of P0.95 per liter of imported oil
products (Garcia v. Executive Secretary, 211 SCRA 219 [1992]); (h)
resolutions of the Commission on Elections concerning the
apportionment, by district, of the number of elective members of
Sanggunians (De Guia vs. Commission on Elections, 208 SCRA 420
[1992]); and (i) memorandum orders issued by a Mayor affecting the
Chief of Police of Pasay City (Pasay Law and Conscience Union, Inc.
v. Cuneta, 101 SCRA 662 [1980]).
In the 1975 case of Aquino v. Commission on Elections (62 SCRA 275
[1975]), this Court, despite its unequivocal ruling that the petitioners
therein had no personality to file the petition, resolved nevertheless to
pass upon the issues raised because of the far-reaching implications
of the petition. We did no less in De Guia v. COMELEC (Supra)
where, although we declared that De Guia 'does not appear to have
locus standi, a standing in law, a personal or substantial interest,' we
brushed aside the procedural infirmity 'considering the importance of
the issue involved, concerning as it does the political exercise of
qualified voters affected by the apportionment, and petitioner alleging
abuse of discretion and violation of the Constitution by respondent.'
Now on the merits of the case.
On the fare range scheme.
Section 16 (c) of the Public Service Act, as amended, reads:

Sec. 16.
Proceedings of the Commission, upon notice and
hearing. The Commission shall have power, upon proper notice
and hearing in accordance with the rules and provisions of this Act,
subject to the limitations and exceptions mentioned and saving
provisions to the contrary:
xxx

xxx

xxx

(c)
To fix and determine individual or joint rates, tolls, charges,
classifications, or schedules thereof, as well as commutation, mileage
kilometrage, and other special rates which shall be imposed,
observed, and followed thereafter by any public service: Provided,
That the Commission may, in its discretion, approve rates proposed
by public services provisionally and without necessity of any hearing;
but it shall call a hearing thereon within thirty days thereafter, upon
publication and notice to the concerns operating in the territory
affected: Provided, further, That in case the public service equipment
of an operator is used principally or secondarily for the promotion of a
private business, the net profits of said private business shall be
considered in relation with the public service of such operator for the
purpose of fixing the rates. (Emphasis ours).
xxx

xxx

xxx

Under the foregoing provision, the Legislature delegated to the

defunct Public Service Commission the power of fixing the rates of
public services. Respondent LTFRB, the existing regulatory body
today, is likewise vested with the same under Executive Order No.
202 dated June 19, 1987. Section 5 (c) of the said executive order
authorizes LTFRB "to determine, prescribe, approve and periodically
review and adjust, reasonable fares, rates and other related charges,
relative to the operation of public land transportation services provided
by motorized vehicles."
Such delegation of legislative power to an administrative agency is
permitted in order to adapt to the increasing complexity of modern life.
As subjects for governmental regulation multiply, so does the difficulty
of administering the laws. Hence, specialization even in legislation
has become necessary. Given the task of determining sensitive and
delicate matters as route-fixing and rate-making for the transport
sector, the responsible regulatory body is entrusted with the power of
subordinate legislation. With this authority, an administrative body and
in this case, the LTFRB, may implement broad policies laid down in a

192
statute by "filling in" the details which the Legislature may neither
have time or competence to provide. However, nowhere under the
aforesaid provisions of law are the regulatory bodies, the PSC and
LTFRB alike, authorized to delegate that power to a common carrier, a
transport operator, or other public service.
In the case at bench, the authority given by the LTFRB to the
provincial bus operators to set a fare range over and above the
authorized existing fare, is illegal and invalid as it is tantamount to an
undue delegation of legislative authority. Potestas delegata non
delegari potest. What has been delegated cannot be delegated. This
doctrine is based on the ethical principle that such as delegated
power constitutes not only a right but a duty to be performed by the
delegate through the instrumentality of his own judgment and not
through the intervening mind of another. 10 A further delegation of
such power would indeed constitute a negation of the duty in violation
of the trust reposed in the delegate mandated to discharge it directly.
11 The policy of allowing the provincial bus operators to change and
increase their fares at will would result not only to a chaotic situation
but to an anarchic state of affairs. This would leave the riding public at
the mercy of transport operators who may increase fares every hour,
every day, every month or every year, whenever it pleases them or
whenever they deem it "necessary" to do so. In Panay Autobus Co. v.
Philippine Railway Co., 12 where respondent Philippine Railway Co.
was granted by the Public Service Commission the authority to
change its freight rates at will, this Court categorically declared that:
In our opinion, the Public Service Commission was not authorized by
law to delegate to the Philippine Railway Co. the power of altering its
freight rates whenever it should find it necessary to do so in order to
meet the competition of road trucks and autobuses, or to change its
freight rates at will, or to regard its present rates as maximum rates,
and to fix lower rates whenever in the opinion of the Philippine
Railway Co. it would be to its advantage to do so.
The mere recital of the language of the application of the Philippine
Railway Co. is enough to show that it is untenable. The Legislature
has delegated to the Public Service Commission the power of fixing
the rates of public services, but it has not authorized the Public
Service Commission to delegate that power to a common carrier or
other public service. The rates of public services like the Philippine
Railway Co. have been approved or fixed by the Public Service

Commission, and any change in such rates must be authorized or

approved by the Public Service Commission after they have been
shown to be just and reasonable. The public service may, of course,
propose new rates, as the Philippine Railway Co. did in case No.
31827, but it cannot lawfully make said new rates effective without the
approval of the Public Service Commission, and the Public Service
Commission itself cannot authorize a public service to enforce new
rates without the prior approval of said rates by the commission. The
commission must approve new rates when they are submitted to it, if
the evidence shows them to be just and reasonable, otherwise it must
disapprove them. Clearly, the commission cannot determine in
advance whether or not the new rates of the Philippine Railway Co.
will be just and reasonable, because it does not know what those
rates will be.
In the present case the Philippine Railway Co. in effect asked for
permission to change its freight rates at will. It may change them
every day or every hour, whenever it deems it necessary to do so in
order to meet competition or whenever in its opinion it would be to its
advantage. Such a procedure would create a most unsatisfactory
state of affairs and largely defeat the purposes of the public service
law. 13 (Emphasis ours).
One veritable consequence of the deregulation of transport fares is a
compounded fare. If transport operators will be authorized to impose
and collect an additional amount equivalent to 20% over and above
the authorized fare over a period of time, this will unduly prejudice a
commuter who will be made to pay a fare that has been computed in
a manner similar to those of compounded bank interest rates.
Picture this situation. On December 14, 1990, the LTFRB authorized
provincial bus operators to collect a thirty-seven (P0.37) centavo per
kilometer fare for ordinary buses. At the same time, they were allowed
to impose and collect a fare range of plus or minus 15% over the
authorized rate. Thus P0.37 centavo per kilometer authorized fare
plus P0.05 centavos (which is 15% of P0.37 centavo) is equivalent to
P0.42 centavos, the allowed rate in 1990. Supposing the LTFRB
grants another five (P0.05) centavo increase per kilometer in 1994,
then, the base or reference for computation would have to be P0.47
centavos (which is P0.42 + P0.05 centavos). If bus operators will
exercise their authority to impose an additional 20% over and above
the authorized fare, then the fare to be collected shall amount to

193
P0.56 (that is, P0.47 authorized LTFRB rate plus 20% of P0.47 which
is P0.29). In effect, commuters will be continuously subject, not only to
a double fare adjustment but to a compounding fare as well. On their
part, transport operators shall enjoy a bigger chunk of the pie. Aside
from fare increase applied for, they can still collect an additional
amount by virtue of the authorized fare range. Mathematically, the
situation translates into the following:
Year * LTFRB

Fare Range

Fare to be

authorized

collected

rate **

per kilometer

1990

P0.37 15% (P0.05) P0.42

1994

P0.42 + 0.05 = 0.47

20% (P0.09) P0.56

1998

P0.56 + 0.05 = 0.61

20% (P0.12) P0.73

2002

P0.73 + 0.05 = 0.78

20% (P0.16) P0.94

Moreover, rate making or rate fixing is not an easy task. It is a delicate

and sensitive government function that requires dexterity of judgment
and sound discretion with the settled goal of arriving at a just and
reasonable rate acceptable to both the public utility and the public.
Several factors, in fact, have to be taken into consideration before a
balance could be achieved. A rate should not be confiscatory as would
place an operator in a situation where he will continue to operate at a
loss. Hence, the rate should enable public utilities to generate
revenues sufficient to cover operational costs and provide reasonable
return on the investments. On the other hand, a rate which is too high
becomes discriminatory. It is contrary to public interest. A rate,
therefore, must be reasonable and fair and must be affordable to the
end user who will utilize the services.
Given the complexity of the nature of the function of rate-fixing and its
far-reaching effects on millions of commuters, government must not
relinquish this important function in favor of those who would benefit
and profit from the industry. Neither should the requisite notice and
hearing be done away with. The people, represented by reputable
oppositors, deserve to be given full opportunity to be heard in their
opposition to any fare increase.

The present administrative procedure, 14 to our mind, already mirrors

an orderly and satisfactory arrangement for all parties involved. To do
away with such a procedure and allow just one party, an interested
party at that, to determine what the rate should be will undermine the
right of the other parties to due process. The purpose of a hearing is
precisely to determine what a just and reasonable rate is. 15
Discarding such procedural and constitutional right is certainly inimical
to our fundamental law and to public interest.
On the presumption of public need.
A certificate of public convenience (CPC) is an authorization granted
by the LTFRB for the operation of land transportation services for
public use as required by law. Pursuant to Section 16(a) of the Public
Service Act, as amended, the following requirements must be met
before a CPC may be granted, to wit: (i) the applicant must be a
citizen of the Philippines, or a corporation or co-partnership,
association or joint-stock company constituted and organized under
the laws of the Philippines, at least 60 per centum of its stock or paidup capital must belong entirely to citizens of the Philippines; (ii) the
applicant must be financially capable of undertaking the proposed
service and meeting the responsibilities incident to its operation; and
(iii) the applicant must prove that the operation of the public service
proposed and the authorization to do business will promote the public
interest in a proper and suitable manner. It is understood that there
must be proper notice and hearing before the PSC can exercise its
power to issue a CPC.
While adopting in toto the foregoing requisites for the issuance of a
CPC, LTFRB Memorandum Circular No. 92-009, Part IV, provides for
yet incongruous and contradictory policy guideline on the issuance of
a CPC. The guidelines states:
The issuance of a Certificate of Public Convenience is determined by
public need. The presumption of public need for a service shall be
deemed in favor of the applicant, while the burden of proving that
there is no need for the proposed service shall be the oppositor's.
(Emphasis ours).
The above-quoted provision is entirely incompatible and inconsistent
with Section 16(c)(iii) of the Public Service Act which requires that
before a CPC will be issued, the applicant must prove by proper
notice and hearing that the operation of the public service proposed

194
will promote public interest in a proper and suitable manner. On the
contrary, the policy guideline states that the presumption of public
need for a public service shall be deemed in favor of the applicant. In
case of conflict between a statute and an administrative order, the
former must prevail.
By its terms, public convenience or necessity generally means
something fitting or suited to the public need. 16 As one of the basic
requirements for the grant of a CPC, public convenience and
necessity exists when the proposed facility or service meets a
reasonable want of the public and supply a need which the existing
facilities do not adequately supply. The existence or non-existence of
public convenience and necessity is therefore a question of fact that
must be established by evidence, real and/or testimonial; empirical
data; statistics and such other means necessary, in a public hearing
conducted for that purpose. The object and purpose of such
procedure, among other things, is to look out for, and protect, the
interests of both the public and the existing transport operators.
Verily, the power of a regulatory body to issue a CPC is founded on
the condition that after full-dress hearing and investigation, it shall
find, as a fact, that the proposed operation is for the convenience of
the public. 17 Basic convenience is the primary consideration for
which a CPC is issued, and that fact alone must be consistently borne
in mind. Also, existing operators is subject routes must be given an
opportunity to offer proof and oppose the application. Therefore, an
applicant must, at all times, be required to prove his capacity and
capability to furnish the service which he has undertaken to render.
18 And all this will be possible only if a public hearing were conducted
for that purpose. LLjur
Otherwise stated, the establishment of public need in favor of an
applicant reverses well-settled and institutionalized judicial, quasijudicial and administrative procedures. It allows the party who initiates
the proceedings to prove, by mere application, his affirmative
allegations. Moreover, the offending provisions of the LTFRB
memorandum circular in question would in effect amend the Rules of
Court by adding another disputable presumption in the enumeration of
37 presumptions under Rule 131, Section 5 of the Rules of Court.
Such usurpation of this Court's authority cannot be countenanced as
only this Court is mandated by law to promulgate rules concerning
pleading, practice and procedure. 19

Deregulation, while it may be ideal in certain situations, may not be

ideal at all in our country given the present circumstances. Advocacy
of liberalized franchising and regulatory process is tantamount to an
abdication by the government of its inherent right to exercise police
power, that is, the right of government to regulate public utilities for
protection of the public and the utilities themselves.
While we recognize the authority of the DOTC and the LTFRB to issue
administrative orders to regulate the transport sector, we find that they
committed grave abuse of discretion in issuing DOTC Department
Order No. 92-587 defining the policy framework on the regulation of
transport services and LTFRB Memorandum Circular No. 92-009
promulgating the implementing guidelines on DOTC Department
Order No. 92-587, the said administrative issuances being
amendatory and violative of the Public Service Act and the Rules of
Court. Consequently, we rule that the twenty (20%) per centum fare
increase imposed by respondent PBOAP on March 16, 1994 without
the benefit of a petition and a public hearing is null and void and of no
force and effect. No grave abuse of discretion however was
committed in the issuance of DOTC Memorandum Order No. 90-395
and DOTC Memorandum dated October 8, 1992, the same being
merely internal communications between administrative officers.
WHEREFORE, in view of the foregoing, the instant petition is hereby
GRANTED and the challenged administrative issuances and orders,
namely: DOTC Department Order No. 92-587, LTFRB Memorandum
Circular No. 92-009, and the order dated March 24, 1994 issued by
respondent LTFRB are hereby DECLARED contrary to law and invalid
insofar as they affect provisions therein (a) delegating to provincial
bus and jeepney operators the authority to increase or decrease the
duly prescribed transportation fares; and (b) creating a presumption of
public need for a service in favor of the applicant for a certificate of
public convenience and placing the burden of proving that there is no
need for the proposed service to the oppositor. LexLib
The Temporary Restraining Order issued on June 20, 1994 is hereby
MADE PERMANENT insofar as it enjoined the bus fare rate increase
granted under the provisions of the aforementioned administrative
circulars, memoranda and/or orders declared invalid.
No pronouncement as to costs.
SO ORDERED.

195
[G.R. No. 141284. August 15, 2000.]
INTEGRATED BAR OF THE PHILIPPINES, petitioner, vs. HON.
RONALDO B. ZAMORA, GEN. PANFILO M. LACSON, GEN.
EDGAR B. AGLIPAY, and GEN. ANGELO REYES, respondents.
DECISION
KAPUNAN, J p:
At bar is a special civil action for certiorari and prohibition with prayer
for issuance of a temporary restraining order seeking to nullity on
constitutional grounds the order of President Joseph Ejercito Estrada
commanding the deployment of the Philippine Marines (the Marines)
to join the Philippine National Police (the "PNP") in visibility patrols
around the metropolis. IDATCE
In view of the alarming increase in violent crimes in Metro Manila, like
robberies, kidnappings and carnappings, the President, in a verbal
directive, ordered the PNP and the Marines to conduct joint visibility
patrols for the purpose of crime prevention and suppression. The
Secretary of National Defense, the Chief of Staff of the Armed Forces
of the Philippines (the "AFP"), the Chief of the PNP and the Secretary
of the Interior and Local Government were tasked to execute and
implement the said order. In compliance with the presidential
mandate, the PNP Chief, through Police Chief Superintendent Edgar
B. Aglipay, formulated Letter of Instruction 02/2000 1 (the "LOI") which
detailed the manner by which the joint visibility patrols, called Task
Force Tulungan, would be conducted. 2 Task Force Tulungan was
placed under the leadership of the Police Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on the
deployment of the Marines in a Memorandum, dated 24 January
2000, addressed to the Chief of Staff of the AFP and the PNP Chief. 3
In the Memorandum, the President expressed his desire to improve
the peace and order situation in Metro Manila through a more
effective crime prevention program including increased police patrols.
4 The President further stated that to heighten police visibility in the

metropolis, augmentation from the AFP is necessary. 5 Invoking his

powers as Commander-in-Chief under Section 18, Article VII of the
Constitution, the President directed the AFP Chief of Staff and PNP
Chief to coordinate with each other for the proper deployment and
utilization of the Marines to assist the PNP in preventing or
suppressing criminal or lawless violence. 6 Finally, the President
declared that the services of the Marines in the anti-crime campaign
are merely temporary in nature and for a reasonable period only, until
such time when the situation shall have improved. 7
The LOI explains the concept of the PNP-Philippine Marines joint
visibility patrols as follows:
xxx
2.

xxx

xxx

PURPOSE:

The Joint Implementing Police Visibility Patrols between the PNP

NCRPO and the Philippine Marines partnership in the conduct of
visibility patrols in Metro Manila for the suppression of crime
prevention and other serious threats to national security
3.

SITUATION:

Criminal incidents in Metro Manila have been perpetrated not only by

ordinary criminals but also by organized syndicates whose members
include active and former police/military personnel whose training,
skill, discipline and firepower prove well-above the present capability
of the local police alone to handle. The deployment of a joint PNP
NCRPO-Philippine Marines in the conduct of police visibility patrol in
urban areas will reduce the incidence of crimes specially those
perpetrated by active or former police/military personnel. aAHTDS
4.

MISSION:

The PNP NCRPO will organize a provisional Task Force to conduct

joint NCRPO-PM visibility patrols to keep Metro Manila streets crimefree, through a sustained street patrolling to minimize or eradicate all
forms of high-profile crimes especially those perpetrated by organized
crime syndicates whose members include those that are well-trained,
disciplined and well-armed active or former PNP/Military personnel.
5.

CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:

196
a.
The visibility patrols shall be conducted jointly by the NCRPO
[National Capital Regional Police Office] and the Philippine Marines to
curb criminality in Metro Manila and to preserve the internal security of
the state against insurgents and other serious threat to national
-security, although the primary responsibility over Internal Security
Operations still rests upon the AFP.
b.
The principle of integration of efforts shall be applied to
eradicate all forms of high-profile crimes perpetrated by organized
crime syndicates operating in Metro Manila. This concept requires the
military and police to work cohesively and unify efforts to ensure a
focused, effective and holistic approach in addressing crime
prevention. Along this line, the role of the military and police aside
from neutralizing crime syndicates is to bring a wholesome
atmosphere wherein delivery of basic services to the people and
development is achieved Hand-in-hand with this joint NCRPOPhilippine Marines visibility patrols, local Police Units are responsible
for the maintenance of peace and order in their locality.
c.
To ensure the effective implementation of this project, a
provisional Task Force "TULUNGAN" shall be organized to provide
the mechanism, structure, and procedures for the integrated planning,
coordinating, monitoring and assessing the security situation.
xxx

xxx

xxx 8

The selected areas of deployment under the LOI are: Monumento

Circle, North Edsa (SM City), Araneta Shopping Center, Greenhills,
SM Megamall, Makati Commercial Center, LRT/MRT Stations and the
NAIA and Domestic Airport. 9
On 17 January 2000, the Integrated Bar of the Philippines (the "IBP")
filed the instant petition to annul LOI 02/2000 and to declare the
deployment of the Philippine Marines, null and void and
unconstitutional, arguing that:
I
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO
MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT:
A)
NO EMERGENCY SITUATION OBTAINS IN METRO MANILA
AS WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT
OF SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID

DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF

THE CONSTITUTION; ADTCaI
B)
SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS
INCURSION BY THE MILITARY IN A CIVILIAN FUNCTION OF
GOVERNMENT (LAW ENFORCEMENT) IN DEROGATION OF
ARTICLE XVI, SECTION 5 (4), OF THE CONSTITUTION;
C)
SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY
TO RELY ON THE MILITARY TO PERFORM THE CIVILIAN
FUNCTIONS OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY
MORE POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER
THE CONSTITUTION. 10
Asserting itself as the official organization of Filipino lawyers tasked
with the bounden duty to uphold the rule of law and the Constitution,
the IBP questions the validity of the deployment and utilization of the
Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a Resolution,
11 dated 25 January 2000, required the Solicitor General to file his
Comment on the petition. On 8 February 2000, the Solicitor General
submitted his Comment. TADIHE
The Solicitor General vigorously defends the constitutionality of the
act of the President in deploying the Marines, contending, among
others, that petitioner has no legal standing; that the question of
deployment of the Marines is not proper for judicial scrutiny since the
same involves a political question; that the organization and conduct
of police visibility patrols, which feature the team-up of one police
officer and one Philippine Marine soldier, does not violate the civilian
supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not
petitioner has legal standing; (2) Whether or not the President's
factual determination of the necessity of calling the armed forces is
subject to judicial review, and, (3) Whether or not the calling of the
armed forces to assist the PNP in joint visibility patrols violates the

197
constitutional provisions on civilian supremacy over the military and
the civilian character of the PNP.

upon which the court depends for illumination of difficult constitutional

questions. 15

The petition has no merit.

In the case at bar, the IBP primarily anchors its standing on its alleged
responsibility to uphold the rule of law and the Constitution. Apart from
this declaration, however, the IBP asserts no other basis in support of
its locus standi The mere invocation by the IBP of its duty to preserve
the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry.
Based on the standards above-stated, the IBP has failed to present a
specific and substantial interest in the resolution of the case. Its
fundamental purpose which, under Section 2, Rule 139-A of the Rules
of Court, is to elevate the standards of the law profession and to
improve the administration of justice is alien to, and cannot be
affected by the deployment of the Marines. It should also be noted
that the interest of the National President of the IBP who signed the
petition, is his alone, absent a formal board resolution authorizing him
to file the present action. To be sure, members of the BAR, those in
the judiciary included, have varying opinions on the issue. Moreover,
the IBP, assuming that it has duly authorized the National President to
file the petition, has not shown any specific injury which it has suffered
or may suffer by virtue of the questioned governmental act. Indeed,
none of its members, whom the IBP purportedly represents, has
sustained any form of injury as a result of the operation of the joint
visibility patrols. Neither is it alleged that any of its members has been
arrested or that their civil liberties have been violated by the
deployment of the Marines. What the IBP projects as injurious is the
supposed "militarization" of law enforcement which might threaten
Philippine democratic institutions and may cause more harm than
good in the long run. Not only is the presumed "injury" not personal in
character, it is likewise too vague, highly speculative and uncertain to
satisfy the requirement of standing. Since petitioner has not
successfully established a direct and personal injury as a
consequence of the questioned act, it does not possess the
personality to assail the validity of the deployment of the Marines. This
Court, however, does not categorically rule that the IBP has absolutely
no standing to raise constitutional issues now or in the future. The IBP
must, by way of allegations and proof, satisfy this Court that it has
sufficient stake to obtain judicial resolution of the controversy.
ASDCaI

First, petitioner failed to sufficiently show that it is in possession of the

requisites of standing to raise the issues in the petition. Second, the
President did not commit grave abuse of discretion amounting to lack
or excess of jurisdiction nor did he commit a violation of the civilian
supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of the
Constitution, to wit:
SECTION 1. The judicial power Shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
When questions of constitutional significance are raised, the Court
can exercise its power of judicial review only if the following requisites
are complied with, namely: (1J the existence of an actual and
appropriate case; (2) a personal and substantial interest of the party
raising the constitutional question; (3) the exercise of judicial review is
pleaded at the earliest opportunity; and (4) the constitutional question
is the lis mota of the case. 12
The IBP has not sufficiently complied with the requisites of standing in
this case.
"Legal standing" or locus standi has been defined as a personal and
substantial interest in the case such that the party has sustained or
will sustain direct injury as a result of the governmental act that is
being challenged. 13 The term "interest" means a material interest, an
interest in issue affected by the decree, as distinguished from mere
interest in the question involved, or a mere incidental interest. 14 The
gist of the question of standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues

198
Having stated the foregoing, it must be emphasized that this Court
has the discretion to take cognizance of a suit which does not satisfy
the requirement of legal standing when paramount interest is involved.
16 In not a few cases, the Court has adopted a liberal attitude on the
locus standi of a petitioner where the petitioner is able to craft an
issue of transcendental significance to the people. 17 Thus, when the
issues raised are of paramount importance to the public, the Court
may brush aside technicalities of procedure. 18 In this case, a reading
of the petition shows that the IBP has advanced constitutional issues
which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Moreover, because peace and
order are under constant threat and lawless violence occurs in
increasing tempo, undoubtedly aggravated by the Mindanao
insurgency problem, the legal controversy raised in the petition almost
certainly will not go away. It will stare us in the face again. It,
therefore, behooves the Court to relax the rules on standing and to
resolve the issue now, rather than later.
The President did not commit grave abuse of discretion in calling out
the Marines.
In the case at bar, the bone of contention concerns the factual
determination of the President of the necessity of calling the armed
forces, particularly the Marines, to aid the PNP in visibility patrols. In
this regard, the IBP admits that the deployment of the military
personnel falls under the Commander-in-Chief powers of the
President as stated in Section 18, Article VII of the Constitution,
specifically, the power to call out the armed forces to prevent or
suppress lawless violence, invasion or rebellion. What the IBP
questions, however, is the basis for the calling of the Marines under
the aforestated provision. According to the IBP, no emergency exists
that would justify the need for the calling of the military to assist the
police force. It contends that no lawless violence, invasion or rebellion
exist to warrant the calling of the Marines. Thus, the IBP prays that
this Court "review the sufficiency of the factual basis for said troop
[Marine] deployment." 19
The Solicitor General, on the other hand, contends that the issue
pertaining to the necessity of calling the armed forces is not proper for
judicial scrutiny since it involves a political question and the resolution
of factual issues which are beyond the review powers of this Court.
DTAESI

As framed by the parties, the underlying issues are the scope of

presidential powers and limits, and the extent of judicial review. But,
while this Court gives considerable weight to the parties' formulation
of the issues, the resolution of the controversy may warrant a creative
approach that goes beyond the narrow confines of the issues raised.
Thus, while the parties are in agreement that the power exercised by
the President is the power to call out the armed forces, the Court is of
the view that the power involved may be no more than the
maintenance of peace and order and promotion of the general
welfare. 20 For one, the realities on the ground do not show that there
exist a state of warfare, widespread civil unrest or anarchy. Secondly,
the full brunt of the military is not brought upon the citizenry, a point
discussed in the latter part of this decision. In the words of the late
Justice Irene Cortes in Marcos v. Manglapus:
More particularly, this case calls for the exercise of the President's
powers as protector of the peace. [Rossiter, The American
Presidency]. The power of the President to keep the peace is not
limited merely to exercising the commander-in-chief powers in times
of emergency or to leading the State against external and internal
threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with
attending to the day-to-day problems of maintaining peace and order
and ensuring domestic tranquility in times when no foreign foe
appears on the horizon. Wide discretion, within the bounds of law, in
fulfilling presidential duties in times of peace is not in any way
diminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President
commander-in-chief the enumeration of powers that follow cannot be
said to exclude the President's exercising as Commander-in-Chief
powers short of the calling of the armed forces, or suspending the
privilege of the writ of habeas corpus or declaring martial law, in order
to keep the peace, and maintain public order and security.
xxx

xxx

xxx 21

Nonetheless, even if it is conceded that the power involved is the

President's power to call out the armed forces to prevent or suppress
lawless violence, invasion or rebellion, the resolution of the
controversy will reach a similar result.

199
We now address the Solicitor General's argument that the issue
involved is not susceptible to review by the judiciary because it
involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a
matter which is appropriate for court review. 22 It pertains to issues
which are inherently susceptible of being decided on grounds
recognized by law. Nevertheless, the Court does not automatically
assume jurisdiction over actual constitutional cases brought before it
even in instances that are ripe for resolution. One class of cases
wherein the Court hesitates to rule on are ''political questions." The
reason is that political questions are concerned with issues dependent
upon the wisdom, not the legality, of a particular act or measure being
assailed. Moreover, the political question being a function of the
separation of powers, the courts will not normally interfere with the
workings of another co-equal branch unless the case shows a clear
need for the courts to step in to uphold the law and the Constitution.
As Taada v. Cuenco, 23 puts it, political questions refer "to those
questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or
executive branch of government. Thus, if an issue is clearly identified
by the text of the Constitution as matters for discretionary action by a
particular branch of government or to the people themselves then it is
held to be a political question. In the classic formulation of Justice
Brennan in Baker v. Carr, 24 [p]rominent on the surface of any case
held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial discretion;
or the impossibility of a court's undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on the one
question. AaECSH
The 1987 Constitution expands the concept of judicial review by
providing that [T]he Judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law. Judicial

power includes the duty of the courts of justice to settle actual

controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government." 25 Under
this definition, the Court cannot agree with the Solicitor General that
the issue involved is a political question beyond the jurisdiction of this
Court to review. When the grant of power is qualified, conditional or
subject to limitations, the issue of whether the prescribed
qualifications or conditions have been met or the limitations
respected, is justiciable the problem being one of legality or validity,
not its wisdom. 26 Moreover, the jurisdiction to delimit constitutional
boundaries has been given to this Court. 27 When political questions
are involved, the Constitution limits the determination as to whether or
not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the official whose action is being
questioned. 28 DaTEIc
By grave abuse of discretion is meant simply capricious or whimsical
exercise of judgment that is patent and gross as to amount to an
evasion of positive duty or a virtual refusal to perform a duty enjoined
by law, or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion or
hostility. 29 Under this definition, a court is without power to directly
decide matters over which full discretionary authority has been
delegated. But while this Court has no power to substitute its
judgment for that of Congress or of the President, it may look into the
question of whether such exercise has been made in grave abuse of
discretion. 30 A showing that plenary power is granted either
department of government, may not be an obstacle to judicial inquiry,
for the improvident exercise or abuse thereof may give rise to
justiciable controversy. 31
When the President calls the armed forces to prevent or suppress
lawless violence, invasion or rebellion, he necessarily exercises a
discretionary power solely vested in his wisdom. This is clear from the
intent of the framers and from the text of the Constitution itself. The
Court, thus, cannot be called upon to overrule the President's wisdom
or substitute its own. However, this does not prevent an examination
of whether such power was exercised within permissible constitutional
limits or whether it was exercised in a manner constituting grave

200
abuse of discretion. In view of the constitutional intent to give the
President full discretionary power to determine the necessity of calling
out the armed forces, it is incumbent upon the petitioner to show that
the President's decision is totally bereft of factual basis. The present
petition fails to discharge such heavy burden as there is no evidence
to support the assertion that there exist no justification for calling out
the armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to
call was exercised in such a manner as to violate the constitutional
provision on civilian supremacy over the military. In the performance
of this Court's duty of purposeful hesitation" 32 before declaring an act
of another branch as unconstitutional, only where such grave abuse of
discretion is clearly shown shall the Court interfere with the
President's judgment. To doubt is to sustain.

or suspension, which revocation shall not be set aside by the

President. Upon the initiative of the President, the Congress may, in
the same manner, extend such proclamation or suspension for a
period to be determined by the Congress, if the invasion or rebellion
shall persist and public safety requires it.

There is a clear textual commitment under the Constitution to bestow

on the President full discretionary power to call out the armed forces
and to determine the necessity for the exercise of such power. Section
18, Article VII of the Constitution, which embodies the powers of the
President as Commander-in-Chief, provides in part: ETDaIC

A state of martial law does not suspend the operation of the

Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction on
military courts and agencies over civilians where civil courts are able
to function, nor automatically suspend the privilege of the writ.

The President shall be the Commander-in-Chief of all armed forces of

the Philippines and whenever it becomes necessary, he may call out
such armed forces to prevent or suppress lawless violence, invasion
or rebellion. In case of invasion or rebellion, when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus, or place the Philippines or any
part thereof under martial law.

The suspension of the privilege of the writ shall apply only to persons
judicially charged for rebellion or offenses inherent in or directly
connected with invasion.

xxx

xxx

xxx

The full discretionary power of the President to determine the factual

basis for the exercise of the calling out power is also implied and
further reinforced in the rest of Section 18, Article VII which reads,
thus:
xxx

xxx

xxx

Within forty-eight hours from the proclamation of martial law or the

suspension of the privilege of the writ of habeas corpus, the President
shall submit a report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a majority of all its
Members in regular or special session, may revoke such proclamation

The Congress, if not in session, shall within twenty-four hours

following such proclamation or suspension, convene in accordance
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed by
any citizen, the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ or the
extension thereof, and must promulgate its decision thereon within
thirty days from its filing. EcICSA

During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such
proclamation or suspension and the Court may review the sufficiency
of the factual basis thereof. However, there is no such equivalent
provision dealing with the revocation or review of the President's
action to call out the armed forces. The distinction places the calling
out power in a different category from the power to declare martial law
and the power to suspend the privilege of the writ of habeas corpus,
otherwise, the framers of the Constitution would have simply lumped
together the three powers and provided for their revocation and
review without any qualification. Expressio unius est exclusio alterius.
Where the terms are expressly limited to certain matters, it may not,
by interpretation or construction, be extended to other matters. 33
That the intent of the Constitution is exactly what its letter says, i.e.,

201
that the power to call is fully discretionary to the President, is extant in
the deliberation of the Constitutional Commission, to wit:

suppression of certain basic civil rights and individual freedoms, and

thus necessitating safeguards by Congress and review by this Court.

FR. BERNAS. It will not make any difference. I may add that there is a
graduated power of the President as Commander-in-Chief. First, he
can call out such Armed Forces as may be necessary to suppress
lawless violence; then he can suspend the privilege of the writ of
habeas corpus, then he can impose martial law. This is a graduated
sequence.

Moreover, under Section 18, Article VII of the Constitution, in the

exercise of the power to suspend the privilege of the writ of habeas
corpus or to impose martial law, two conditions must concur: (1) there
must be an actual invasion or rebellion and, (2) public safety must
require it. These conditions are not required in the case of the power
to call out the armed forces. The only criterion is that "whenever it
becomes necessary," the President may call the armed forces to
prevent or suppress lawless violence, invasion or rebellion." The
implication is that the President is given full discretion and wide
latitude in the exercise of the power to call as compared to the two
other powers.

When he judges that it is necessary to impose martial law or suspend

the privilege of the writ of habeas corpus, his judgment is subject to
review. We are making it subject to review by the Supreme Court and
subject to concurrence by the National Assembly. But when he
exercises this lesser power of calling on the Armed Forces, when he
says it is necessary, it is my opinion that his judgment cannot be
reviewed by anybody.
xxx

xxx

xxx

FR. BERNAS. Let me just add that when we only have imminent
danger, the matter can be handled by the first sentence: "The
President...may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion." So we feel that that is
sufficient for handling imminent danger. SAHITC
MR. DE LOS REYES. So actually, if a President feels that there is
imminent danger, the matter can be handled by the First Sentence:
"The President . . . may call out such Armed Forces to prevent or
suppress lawless violence, invasion or rebellion. So we feel that that
is sufficient for handling imminent danger, of invasion or rebellion,
instead of imposing martial law or suspending the writ of habeas
corpus, he must necessarily have to call the Armed Forces of the
Philippines as their Commander-in-Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the
legislature nor is it subject to judicial review. 34
The reason for the difference in the treatment of the aforementioned
powers highlights the intent to grant the President the widest leeway
and broadest discretion in using the power to call out because it is
considered as the lesser and more benign power compared to the
power to suspend the privilege of the writ of habeas corpus and the
power to impose martial law, both of which involve the curtailment and

If the petitioner fails, by way of proof, to support the assertion that the
President acted without factual basis, then this Court cannot
undertake an independent investigation beyond the pleadings. The
factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters
considered for satisfying the same is a combination of several factors
which are not always accessible to the courts. Besides the absence of
textual standards that the court may use to judge necessity,
information necessary to arrive at such judgment might also prove
unmanageable for the courts. Certain pertinent information might be
difficult to verify, or wholly unavailable to the courts. In many
instances, the evidence upon which the President might decide that
there is a need to call out the armed forces may be of a nature not
constituting technical proof. CDHaET
On the other hand, the President as Commander-in-Chief has a vast
intelligence network to gather information, some of which may be
classified as highly confidential or affecting the security of the state. In
the exercise of the power to call, on-the-spot decisions may be
imperatively necessary in emergency situations to avert great loss of
human lives and mass destruction of property. Indeed, the decision to
call out the military to prevent or suppress lawless violence must be
done swiftly and decisively if it were to have any effect at all. Such a
scenario is not farfetched when we consider the present situation in
Mindanao, where the insurgency problem could spill over the other
parts of the country. The determination of the necessity for the calling
out power if subjected to unfettered judicial scrutiny could be a

202
veritable prescription for disaster, as such power may be unduly
straitjacketed by an injunction or a temporary restraining order every
time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the
President, as Commander-in-Chief of the Armed Forces, full discretion
to call forth the military when in his judgment it is necessary to do so
in order to prevent or suppress lawless violence, invasion or rebellion.
Unless the petitioner can show that the exercise of such discretion
was gravely abused, the President's exercise of judgment deserves to
be accorded respect from this Court.
The President has already determined the necessity and factual basis
for calling the armed forces. In his Memorandum, he categorically
asserted that, [V]iolent crimes like bank/store robberies, holdups,
kidnappings and carnappings continue to occur in Metro Manila. . ."
35 We do not doubt the veracity of the President's assessment of the
situation, especially in the light of present developments. The Court
takes judicial notice of the recent bombings perpetrated by lawless
elements in the shopping malls, public utilities, and other public
places. These are among the areas of deployment described in the
LOI 2000. Considering all these facts, we hold that the President has
sufficient factual basis to call for military aid in law enforcement and in
the exercise of this constitutional power.
The deployment of the Marines does not violate the civilian
supremacy clause nor does it infringe the civilian character of the
police force.
Prescinding from its argument that no emergency situation exists to
justify the calling of the Marines, the IBP asserts that by the
deployment of the Marines, the civilian task of law enforcement is
"militarized" in violation of Section 3, Article II 36 of the Constitution.
TSacCH
We disagree. The deployment of the Marines does not constitute a
breach of the civilian supremacy clause. The calling of the Marines in
this case constitutes permissible use of military assets for civilian law
enforcement. The participation of the Marines in the conduct of joint
visibility patrols is appropriately circumscribed. The limited
participation of the Marines is evident in the provisions of the LOI
itself, which sufficiently provides the metes and bounds of the
Marines' authority. It is noteworthy that the local police forces are the

ones in charge of the visibility patrols at all times, the real authority
belonging to the PNP. In fact, the Metro Manila Police Chief is the
overall leader of the PNP-Philippine Marines joint visibility patrols. 37
Under the LOI, the police forces are tasked to brief or orient the
soldiers on police patrol procedures. 38 It is their responsibility to
direct and manage the deployment of the Marines. 39 It is, likewise,
their duty to provide the necessary equipment to the Marines and
render logistical support to these soldiers. 40 In view of the foregoing,
it cannot be properly argued that military authority is supreme over
civilian authority.
Moreover, the deployment of the Marines to assist the PNP does not
unmake the civilian character of the police force. Neither does it
amount to an "insidious incursion" of the military in the task of law
enforcement in violation of Section 5(4), Article XVI of the
Constitution. 41
In this regard, it is not correct to say that General Angelo Reyes, Chief
of Staff of the AFP, by his alleged involvement in civilian law
enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these
operations, as stated in the LOI, is lodged with the head of a civilian
institution, the PNP, and not with the military. Such being the case, it
does not matter whether the AFP Chief actually participates in the
Task Force Tulungan since he does not exercise any authority or
control over the same. Since none of the Marines was incorporated or
enlisted as members of the PNP, there can be no appointment to a
civilian position to speak of. Hence, the deployment of the Marines in
the joint visibility patrols does not destroy the civilian character of the
PNP.
Considering the above circumstances, the Marines render nothing
more than assistance required in conducting the patrols. As such,
there can be no "insidious incursion" of the military in civilian affairs
nor can there be a violation of the civilian supremacy clause in the
Constitution.
It is worth mentioning that military assistance to civilian authorities in
various forms persists in Philippine jurisdiction. The Philippine
experience reveals that it is not averse to requesting the assistance of
the military in the implementation and execution of certain traditionally
"civil" functions. As correctly pointed out by the Solicitor General,

203
some of the multifarious activities wherein military aid has been
rendered, exemplifying the activities that bring both the civilian and
the military together in a relationship of cooperation, are:

the power to call, the use of military personnel by civilian law

enforcement officers is allowed under circumstances similar to those
surrounding the present deployment of the Philippine Marines.

1.

Elections; 42

2.

Administration of the Philippine National Red Cross; 43

3.
44

Relief and rescue operations during calamities and disasters;

Under the Posse Comitatus Act 61 of the US, the use of the military in
civilian law enforcement is generally prohibited, except in certain
allowable circumstances. A provision of the Act states:

4.

Amateur sports promotion and development; 45

5.

Development of the culture and the arts; 46

6.

Conservation of natural resources; 47

7.

Implementation of the agrarian reform program; 48

8.

Enforcement of customs laws; 49 DCIEac

9.

Composite civilian-military law enforcement activities; 50

10.

Conduct of licensure examinations; 51

1385.

Use of Army and Air Force as posse comitatus

Whoever, except in cases and under circumstances expressly

authorized by the Constitution or Act of Congress, willfully uses any
part of the Army or the Air Force as posse comitatus or otherwise to
execute the laws shall be fined not more than $10,000 or imprisoned
not more than two years, or both. 62
To determine whether there is a violation of the Posse Comitatus Act
in the use of military personnel, the US courts 63 apply the following
standards, to wit:

12.

Anti-drug enforcement activities; 53

Were Army or Air Force personnel used by the civilian law

enforcement officers at Wounded Knee in such a manner that the
military personnel subjected the citizens to the exercise of military
power which was regulatory, proscriptive, or compulsory 64 in nature,
either presently or prospectively?

13.

Sanitary inspections; 54

xxx

14.

Conduct of census work; 55

15.

Administration of the Civil Aeronautics Board; 56

16.

Assistance in installation of weather forecasting devices; 57

17.
58

Peace and order policy formulation in local government units.

When this concept is transplanted into the present legal context, we

take it to mean that military involvement, even when not expressly
authorized by the Constitution or a statute, does not violate the Posse
Comitatus Act unless it actually regulates, forbids or compels some
conduct on the part of those claiming relief. A mere threat of some
future injury would be insufficient. (emphasis supplied)

This unquestionably constitutes a gloss on executive power resulting

from a systematic, unbroken, executive practice, long pursued to the
knowledge of Congress and, yet, never before questioned. 59 What
we have here is mutual support and cooperation between the military
and civilian authorities, not derogation of civilian supremacy. EHaDIC

Even if the Court were to apply the above rigid standards to the
present case to determine whether there is permissible use of the
military in civilian law enforcement, the conclusion is inevitable that no
violation of the civilian supremacy clause in the Constitution is
committed. On this point, the Court agrees with the observation of the
Solicitor General:

In the United States, where a long tradition of suspicion and hostility

towards the use of military force for domestic purposes has persisted,
60 and whose Constitution, unlike ours, does not expressly provide for

3.
The designation of tasks in Annex A 65 does not constitute the
exercise of regulatory, proscriptive, or compulsory military power.
First, the soldiers do not control or direct the operation. This is evident

11.
Conduct of nationwide tests for elementary and high school
students; 52

xxx

xxx

204
from Nos. 6, 66 8(k) 67 and 9(a) 68 of Annex A. These soldiers,
second, also have no power to prohibit or condemn. In No. 9(d) 69 of
Annex A, all arrested persons are brought to the nearest police
stations for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as shown
in No. 8(c) 70 of Annex A, are all low impact and defensive in
character. The conclusion is that there being no exercise of regulatory,
proscriptive or compulsory military power, the deployment of a handful
of Philippine Marines constitutes no impermissible use of military
power for civilian law enforcement. 71
It appears that the present petition is anchored on fear that once the
armed forces are deployed, the military will gain ascendancy, and thus
place in peril our cherished liberties. Such apprehensions, however,
are unfounded. The power to call the armed forces is just that
calling out the armed forces. Unless, petitioner IBP can show, which it
has not, that in the deployment of the Marines, the President has
violated the fundamental law, exceeded his authority or jeopardized
the civil liberties of the people, this Court is not inclined to overrule the
President's determination of the factual basis for the calling of the
Marines to prevent or suppress lawless violence. EATcHD
One last point. Since the institution of the joint visibility patrol in
January, 2000, not a single citizen has complained that his political or
civil rights have been violated as a result of the deployment of the
Marines. It was precisely to safeguard peace, tranquility and the civil
liberties of the people that the joint visibility patrol was conceived.
Freedom and democracy will be in full bloom only when people feel
secure in their homes and in the streets, not when the shadows of
violence and anarchy constantly lurk in their midst.
WHEREFORE,
DISMISSED.

premises

considered,

the

petition

is

hereby

205
[G.R. No. 131719. May 25, 2004.]
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE,
THE SECRETARY OF LABOR AND EMPLOYMENT, AND THE
SECRETARY OF FOREIGN AFFAIRS, OWWA ADMINISTRATOR,
and POEA ADMINISTRATOR, petitioners, vs. THE HON. COURT
OF APPEALS and ASIAN RECRUITMENT COUNCIL PHILIPPINE
CHAPTER (ARCO-PHIL.), INC., representing its members:
Worldcare Services Internationale, Inc., Steadfast International
Recruitment Corporation, Dragon International Manpower
Services
Corporation,
Verdant
Manpower
Mobilization
Corporation, Brent Overseas Personnel, Inc., ARL Manpower
Services, Inc., Dahlzhen International Services, Inc., Interworld
Placement Center, Inc., Lakas Tao Contract Services, Ltd. Co.,
and SSC Multiservices, respondents.
DECISION
CALLEJO, SR., J p:
In this petition for review on certiorari, the Executive Secretary of the
President of the Philippines, the Secretary of Justice, the Secretary of
Foreign Affairs, the Secretary of Labor and Employment, the POEA
Administrator and the OWWA Administrator, through the Office of the
Solicitor General, assail the Decision 1 of the Court of Appeals in CAG.R. SP No. 38815 affirming the Order 2 of the Regional Trial Court of
Quezon City dated August 21, 1995 in Civil Case No. Q-95-24401,
granting the plea of the petitioners therein for a writ of preliminary
injunction and of the writ of preliminary injunction issued by the trial
court on August 24, 1995. AcSHCD
The Antecedents
Republic Act No. 8042, otherwise known as the Migrant Workers and
Overseas Filipinos Act of 1995, took effect on July 15, 1995. The
Omnibus Rules and Regulations Implementing the Migrant Workers
and Overseas Filipino Act of 1995 was, thereafter, published in the

April 7, 1996 issue of the Manila Bulletin. However, even before the
law took effect, the Asian Recruitment Council Philippine Chapter, Inc.
(ARCO-Phil.) filed, on July 17, 1995, a petition for declaratory relief
under Rule 63 of the Rules of Court with the Regional Trial Court of
Quezon City to declare as unconstitutional Section 2, paragraph (g),
Section 6, paragraphs (a) to (j), (l) and (m), Section 7, paragraphs (a)
and (b), and Sections 9 and 10 of the law, with a plea for the issuance
of a temporary restraining order and/or writ of preliminary injunction
enjoining the respondents therein from enforcing the assailed
provisions of the law.
In a supplement to its petition, the ARCO-Phil. alleged that Rep. Act
No. 8042 was self-executory and that no implementing rules were
needed. It prayed that the court issue a temporary restraining order to
enjoin the enforcement of Section 6, paragraphs (a) to (m) on illegal
recruitment, Section 7 on penalties for illegal recruitment, and Section
9 on venue of criminal actions for illegal recruitments, viz:
Viewed in the light of the foregoing discussions, there appears to be
urgent an imperative need for this Honorable Court to maintain the
status quo by enjoining the implementation or effectivity of the
questioned provisions of RA 8042, by way of a restraining order
otherwise, the member recruitment agencies of the petitioner will
suffer grave or irreparable damage or injury. With the effectivity of RA
8042, a great majority of the duly licensed recruitment agencies have
stopped or suspended their operations for fear of being prosecuted
under the provisions of a law that are unjust and unconstitutional. This
Honorable Court may take judicial notice of the fact that processing of
deployment papers of overseas workers for the past weeks have
come to a standstill at the POEA and this has affected thousands of
workers everyday just because of the enactment of RA 8042. Indeed,
this has far reaching effects not only to survival of the overseas
manpower supply industry and the active participating recruitment
agencies, the country's economy which has survived mainly due to
the dollar remittances of the overseas workers but more importantly,
to the poor and the needy who are in dire need of income-generating
jobs which can only be obtained from abroad. The loss or injury that
the recruitment agencies will suffer will then be immeasurable and
irreparable. As of now, even foreign employers have already reduced
their manpower requirements from the Philippines due to their

206
knowledge that RA 8042 prejudiced and adversely affected the local
recruitment agencies. 3
On August 1, 1995, the trial court issued a temporary restraining order
effective for a period of only twenty (20) days therefrom.
After the petitioners filed their comment on the petition, the ARCOPhil. filed an amended petition, the amendments consisting in the
inclusion in the caption thereof eleven (11) other corporations which it
alleged were its members and which it represented in the suit, and a
plea for a temporary restraining order enjoining the respondents from
enforcing Section 6 subsection (i), Section 6 subsection (k) and
paragraphs 15 and 16 thereof, Section 8, Section 10, paragraphs 1
and 2, and Sections 11 and 40 of Rep. Act No. 8042.

or non-holder who, in any manner, offers or promises for a fee

employment abroad to two or more persons shall be deemed so
engaged. It shall, likewise, include the following acts, whether
committed by any person, whether a non-licensee, non-holder,
licensee or holder of authority:
(a)
To charge or accept directly or indirectly any amount greater
than that specified in the schedule of allowable fees prescribed by the
Secretary of Labor and Employment, or to make a worker pay any
amount greater than that actually received by him as a loan or
advance;
(b)
To furnish or publish any false notice or information or
document in relation to recruitment or employment;

The respondent ARCO-Phil. assailed Section 2(g) and (i), Section 6

subsection (a) to (m), Section 7(a) to (b), and Section 10 paragraphs
(1) and (2), quoted as follows:

(c)
To give any false notice, testimony, information or document or
commit any act of misrepresentation for the purpose of securing a
license or authority under the Labor Code;

(g)
THE STATE RECOGNIZES THAT THE ULTIMATE
PROTECTION TO ALL MIGRANT WORKERS IS THE POSSESSION
OF SKILLS. PURSUANT TO THIS AND AS SOON AS
PRACTICABLE, THE GOVERNMENT SHALL DEPLOY AND/OR
ALLOW THE DEPLOYMENT ONLY OF SKILLED FILIPINO
WORKERS. 4

(d)
To induce or attempt to induce a worker already employed to
quit his employment in order to offer him another unless the transfer is
designed to liberate a worker from oppressive terms and conditions of
employment;

Sec. 2 subsection (i, 2nd par.)

Nonetheless, the deployment of Filipino overseas workers, whether
land-based or sea-based, by local service contractors and manning
agents employing them shall be encourages (sic). Appropriate
incentives may be extended to them.
xxx
II.

xxx

xxx

ILLEGAL RECRUITMENT

SEC. 6.
Definition. For purposes of this Act, illegal
recruitment shall mean any act of canvassing, enlisting, contracting,
transporting, utilizing, hiring, or procuring workers and includes
referring, contract services, promising or advertising for employment
abroad, whether for profit or not, when undertaken by a non-licensee
or non-holder of authority contemplated under Article 13(f) of
Presidential Decree No. 442, as amended, otherwise known as the
Labor Code of the Philippines: Provided, That any such non-licensee

(e)
To influence or attempt to influence any person or entity not to
employ any worker who has not applied for employment through his
agency;
(f)
To engage in the recruitment or placement of workers in jobs
harmful to public health or morality or to the dignity of the Republic of
the Philippines;
(g)
To obstruct or attempt to obstruct inspection by the Secretary
of Labor and Employment or by his duly authorized representative;
(h)
To fail to submit reports on the status of employment,
placement vacancies, remittance of foreign exchange earnings,
separation from jobs, departures and such other matters or
information as may be required by the Secretary of Labor and
Employment;
(i)
To substitute or alter to the prejudice of the worker,
employment contracts approved and verified by the Department of
Labor and Employment from the time of actual signing thereof by the

207
parties up to and including the period of the expiration of the same
without the approval of the Department of Labor and Employment;

pesos (P1,000,000.00) shall be imposed if illegal recruitment

constitutes economic sabotage as defined herein.

(j)
For an officer or agent of a recruitment or placement agency to
become an officer or member of the Board of any corporation
engaged in travel agency or to be engaged directly or indirectly in the
management of a travel agency;

Provided, however, That the maximum penalty shall be imposed if the

person illegally recruited is less than eighteen (18) years of age or
committed by a non-licensee or non-holder of authority.

(k)
To withhold or deny travel documents from applicant workers
before departure for monetary or financial considerations other than
those authorized under the Labor Code and its implementing rules
and regulations;
(l)
Failure to actually deploy without valid reason as determined
by the Department of Labor and Employment; and
(m)
Failure to reimburse expenses incurred by the worker in
connection with his documentation and processing for purposes of
deployment, in cases where the deployment does not actually take
place without the worker's fault. Illegal recruitment when committed by
a syndicate or in large scale shall be considered an offense involving
economic sabotage.
Illegal recruitment is deemed committed by a syndicate if carried out
by a group of three (3) or more persons conspiring or confederating
with one another. It is deemed committed in large scale if committed
against three (3) or more persons individually or as a group.
The persons criminally liable for the above offenses are the principals,
accomplices and accessories. In case of juridical persons, the officers
having control, management or direction of their business shall be
liable.
xxx
SEC. 7.

xxx

xxx

Penalties.

(a)
Any person found guilty of illegal recruitment shall suffer the
penalty of imprisonment of not less than six (6) years and one (1) day
but not more than twelve (12) years and a fine of not less than two
hundred thousand pesos (P200,000.00) nor more than five hundred
thousand pesos (P500,000.00).
(b)
The penalty of life imprisonment and a fine of not less than five
hundred thousand pesos (P500,000.00) nor more than one million

Sec. 8.
Prohibition on Officials and Employees. It shall be unlawful for any
official or employee of the Department of Labor and Employment, the
Philippine Overseas Employment Administration (POEA), or the
Overseas Workers Welfare Administration (OWWA), or the
Department of Foreign Affairs, or other government agencies involved
in the implementation of this Act, or their relatives within the fourth civil
degree of consanguinity or affinity, to engage, directly or indirectly, in
the business of recruiting migrant workers as defined in this Act. The
penalties provided in the immediate preceding paragraph shall be
imposed upon them. (emphasis supplied)
xxx

xxx

xxx

Sec. 10, pars. 1 & 2.

Money Claims. Notwithstanding any provision of law to the
contrary, the Labor Arbiters of the National Labor Relations
Commission (NLRC) shall have the original and exclusive jurisdiction
to hear and decide, within ninety (90) calendar days after the filing of
the complaint, the claims arising out of an employer-employee
relationship or by virtue of any law or contract involving Filipino
workers for overseas deployment including claims for actual, moral,
exemplary and other forms of damages.
The liability of the principal/employer and the recruitment/placement
agency for any and all claims under this section shall be joint and
several. This provision shall be incorporated in the contract for
overseas employment and shall be a condition precedent for its
approval. The performance bond to be filed by the
recruitment/placement agency, as provided by law, shall be
answerable for all money claims or damages that may be awarded to
the workers. If the recruitment/placement agency is a juridical being,
the corporate officers and directors and partners as the case may be,
shall themselves be jointly and solidarily liable with the corporation or
partnership for the aforesaid claims and damages.

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xxx

xxx

xxx

SEC. 11.
Mandatory Periods for Resolution of Illegal Recruitment
Cases. The preliminary investigations of cases under this Act shall
be terminated within a period of thirty (30) calendar days from the
date of their filing. Where the preliminary investigation is conducted by
a prosecution officer and a prima facie case is established, the
corresponding information shall be filed in court within twenty-four (24)
hours from the termination of the investigation. If the preliminary
investigation is conducted by a judge and a prima facie case is found
to exist, the corresponding information shall be filed by the proper
prosecution officer within forty-eight (48) hours from the date of
receipt of the records of the case.
The respondent averred that the aforequoted provisions of Rep. Act
No. 8042 violate Section 1, Article III of the Constitution. 5 According
to the respondent, Section 6(g) and (i) discriminated against unskilled
workers and their families and, as such, violated the equal protection
clause, as well as Article II, Section 12 6 and Article XV, Sections 1 7
and 3(3) of the Constitution. 8 As the law encouraged the deployment
of skilled Filipino workers, only overseas skilled workers are granted
rights. The respondent stressed that unskilled workers also have the
right to seek employment abroad. According to the respondent, the
right of unskilled workers to due process is violated because they are
prevented from finding employment and earning a living abroad. It
cannot be argued that skilled workers are immune from abuses by
employers, while unskilled workers are merely prone to such abuses.
It was pointed out that both skilled and unskilled workers are
subjected to abuses by foreign employers. Furthermore, the
prohibition of the deployment of unskilled workers abroad would only
encourage fly-by-night illegal recruiters. AHEDaI
According to the respondent, the grant of incentives to service
contractors and manning agencies to the exclusion of all other
licensed and authorized recruiters is an invalid classification. Licensed
and authorized recruiters are thus deprived of their right to property
and due process and to the "equality of the person." It is
understandable for the law to prohibit illegal recruiters, but to
discriminate against licensed and registered recruiters is
unconstitutional.

The respondent, likewise, alleged that Section 6, subsections (a) to

(m) is unconstitutional because licensed and authorized recruitment
agencies are placed on equal footing with illegal recruiters. It
contended that while the Labor Code distinguished between recruiters
who are holders of licenses and non-holders thereof in the imposition
of penalties, Rep. Act No. 8042 does not make any distinction. The
penalties in Section 7(a) and (b) being based on an invalid
classification are, therefore, repugnant to the equal protection clause,
besides being excessive; hence, such penalties are violative of
Section 19(1), Article III of the Constitution. 9 It was also pointed out
that the penalty for officers/officials/employees of recruitment
agencies who are found guilty of economic sabotage or large-scale
illegal recruitment under Rep. Act No. 8042 is life imprisonment. Since
recruitment agencies usually operate with a manpower of more than
three persons, such agencies are forced to shut down, lest their
officers and/or employees be charged with large scale illegal
recruitment or economic sabotage and sentenced to life
imprisonment. Thus, the penalty imposed by law, being
disproportionate to the prohibited acts, discourages the business of
licensed and registered recruitment agencies.
The respondent also posited that Section 6(m) and paragraphs (15)
and (16), Sections 8, 9 and 10, paragraph 2 of the law violate Section
22, Article III of the Constitution 10 prohibiting ex-post facto laws and
bills of attainder. This is because the provisions presume that a
licensed and registered recruitment agency is guilty of illegal
recruitment involving economic sabotage, upon a finding that it
committed any of the prohibited acts under the law. Furthermore,
officials, employees and their relatives are presumed guilty of illegal
recruitment involving economic sabotage upon such finding that they
committed any of the said prohibited acts.
The respondent further argued that the 90-day period in Section 10,
paragraph (1) within which a labor arbiter should decide a money
claim is relatively short, and could deprive licensed and registered
recruiters of their right to due process. The period within which the
summons and the complaint would be served on foreign employees
and, thereafter, the filing of the answer to the complaint would take
more than 90 days. This would thereby shift on local licensed and
authorized recruiters the burden of proving the defense of foreign
employers. Furthermore, the respondent asserted, Section 10,

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paragraph 2 of the law, which provides for the joint and several liability
of the officers and employees, is a bill of attainder and a violation of
the right of the said corporate officers and employees to due process.
Considering that such corporate officers and employees act with prior
approval of the board of directors of such corporation, they should not
be liable, jointly and severally, for such corporate acts.

the petition was premature as the rules implementing Rep. Act No.
8042 not having been released as yet; (c) the assailed provisions do
not violate any provisions of the Constitution; and, (d) the law was
approved by Congress in the exercise of the police power of the
State. In opposition to the respondent's plea for injunctive relief, the
petitioners averred that:

The respondent asserted that the following provisions of the law are
unconstitutional:

As earlier shown, the amended petition for declaratory relief is devoid

of merit for failure of petitioner to demonstrate convincingly that the
assailed law is unconstitutional, apart from the defect and impropriety
of the petition. One who attacks a statute, alleging unconstitutionality
must prove its invalidity beyond reasonable doubt (Caleon v. Agus
Development Corporation, 207 SCRA 748). All reasonable doubts
should be resolved in favor of the constitutionality of a statute (People
v. Vera, 65 Phil. 56). This presumption of constitutionality is based on
the doctrine of separation of powers which enjoin upon each
department a becoming respect for the acts of the other departments
(Garcia vs. Executive Secretary, 204 SCRA 516 [1991]). Necessarily,
the ancillary remedy of a temporary restraining order and/or a writ of
preliminary injunction prayed for must fall. Besides, an act of
legislature approved by the executive is presumed to be within
constitutional bounds (National Press Club v. Commission on
Elections, 207 SCRA 1). 12

SEC. 9.
Venue. A criminal action arising from illegal
recruitment as defined herein shall be filed with the Regional Trial
Court of the province or city where the offense was committed or
where the offended party actually resides at the time of the
commission of the offense: Provided, That the court where the
criminal action is first filed shall acquire jurisdiction to the exclusion of
other courts: Provided, however, That the aforestated provisions shall
also apply to those criminal actions that have already been filed in
court at the time of the effectivity of this Act.
xxx

xxx

xxx

SEC. 10.
Money Claims. Notwithstanding any provision of law
to the contrary, the Labor Arbiters of the National Labor Relations
Commission (NLRC) shall have the original and exclusive jurisdiction
to hear and decide, within ninety (90) calendar days after the filing of
the complaint, the claims arising out of an employer-employee
relationship or by virtue of any law or contract involving Filipino
workers for overseas deployment including claims for actual, moral,
exemplary and other forms of damages.
Sec. 40.
The departments and agencies charged with carrying out the
provisions of this Act shall, within ninety (90) days after the effectiviy
of this Act, formulate the necessary rules and regulations for its
effective implementation.
According to the respondent, the said provisions violate Section 5(5).
Article VIII of the Constitution 11 because they impair the power of the
Supreme Court to promulgate rules of procedure.
In their answer to the petition, the petitioners alleged, inter alia, that
(a) the respondent has no cause of action for a declaratory relief; (b)

After the respective counsels of the parties were heard on oral

arguments, the trial court issued on August 21, 1995, an order
granting the petitioner's plea for a writ of preliminary injunction upon a
bond of P50,000. The petitioner posted the requisite bond and on
August 24, 1995, the trial court issued a writ of preliminary injunction
enjoining the enforcement of the following provisions of Rep. Act No.
8042 pending the termination of the proceedings:
. . . Section 2, subsections (g) and (i, 2nd par.); Section 6, subsections
(a) to (m), and pars. 15 & 16; Section 7, subsections (a) & (b); Section
8; Section 9; Section 10; pars. 1 & 2; Section 11; and Section 40 of
Republic Act No. 8042, otherwise known as the Migrant Workers and
Overseas Filipinos Act of 1995. . . . 13
The petitioners filed a petition for certiorari with the Court of Appeals
assailing the order and the writ of preliminary injunction issued by the
trial court on the following grounds:

210
1.
Respondent ARCO-PHIL. had utterly failed to show its clear
right/s or that of its member-agencies to be protected by the injunctive
relief and/or violation of said rights by the enforcement of the assailed
sections of R.A. 8042;
2.
Respondent Judge fixed a P50,000 injunction bond which is
grossly inadequate to answer for the damage which petitioner-officials
may sustain, should respondent ARCO-PHIL. be finally adjudged as
not being entitled thereto. 14
The petitioners asserted that the respondent is not the real party-ininterest as petitioner in the trial court. It is inconceivable how the
respondent, a non-stock and non-profit corporation, could sustain
direct injury as a result of the enforcement of the law. They argued
that if, at all, any damage would result in the implementation of the
law, it is the licensed and registered recruitment agencies and/or the
unskilled Filipino migrant workers discriminated against who would
sustain the said injury or damage, not the respondent. The
respondent, as petitioner in the trial court, was burdened to adduce
preponderant evidence of such irreparable injury, but failed to do so.
The petitioners further insisted that the petition a quo was premature
since the rules and regulations implementing the law had yet to be
promulgated when such petition was filed. Finally, the petitioners
averred that the respondent failed to establish the requisites for the
issuance of a writ of preliminary injunction against the enforcement of
the law and the rules and regulations issued implementing the same.
On December 5, 1997, the appellate court came out with a four-page
decision dismissing the petition and affirming the assailed order and
writ of preliminary injunction issued by the trial court. The appellate
court, likewise, denied the petitioners' motion for reconsideration of
the said decision.
The petitioners now come to this Court in a petition for review on
certiorari on the following grounds:
1.
Private respondent ARCO-PHIL. had utterly failed to show its
clear right/s or that of its member-agencies to be protected by the
injunctive relief and/or violation of said rights by the enforcement of
the assailed sections of R.A. 8042;
2.
The P50,000 injunction bond fixed by the court a quo and
sustained by the Court of Appeals is grossly inadequate to answer for

the damage which petitioners-officials may sustain, should private

respondent ARCO-PHIL. be finally adjudged as not being entitled
thereto. 15
On February 16, 1998, this Court issued a temporary restraining order
enjoining the respondents from enforcing the assailed order and writ
of preliminary injunction.
The Issues
The core issue in this case is whether or not the trial court committed
grave abuse of its discretion amounting to excess or lack of
jurisdiction in issuing the assailed order and the writ of preliminary
injunction on a bond of only P50,000 and whether or not the appellate
court erred in affirming the trial court's order and the writ of preliminary
injunction issued by it.
The petitioners contend that the respondent has no locus standi. It is
a non-stock, non-profit organization; hence, not the real party-ininterest as petitioner in the action. Although the respondent filed the
petition in the Regional Trial Court in behalf of licensed and registered
recruitment agencies, it failed to adduce in evidence a certified copy
of its Articles of Incorporation and the resolutions of the said members
authorizing it to represent the said agencies in the proceedings.
Neither is the suit of the respondent a class suit so as to vest in it a
personality to assail Rep. Act No. 8042; the respondent is serviceoriented while the recruitment agencies it purports to represent are
profit-oriented. The petitioners assert that the law is presumed
constitutional and, as such, the respondent was burdened to make a
case strong enough to overcome such presumption and establish a
clear right to injunctive relief.
The petitioners bewail the P50,000 bond fixed by the trial court for the
issuance of a writ of preliminary injunction and affirmed by the
appellate court. They assert that the amount is grossly inadequate to
answer for any damages that the general public may suffer by reason
of the non-enforcement of the assailed provisions of the law. The trial
court committed a grave abuse of its discretion in granting the
respondent's plea for injunctive relief, and the appellate court erred in
affirming the order and the writ of preliminary injunction issued by the
trial court.

211
The respondent, for its part, asserts that it has duly established its
locus standi and its right to injunctive relief as gleaned from its
pleadings and the appendages thereto. Under Section 5, Rule 58 of
the Rules of Court, it was incumbent on the petitioners, as
respondents in the RTC, to show cause why no injunction should
issue. It avers that the injunction bond posted by the respondent was
more than adequate to answer for any injury or damage the
petitioners may suffer, if any, by reason of the writ of preliminary
injunction issued by the RTC. In any event, the assailed provisions of
Rep. Act No. 8042 exposed its members to the immediate and
irreparable damage of being deprived of their right to a livelihood
without due process, a property right protected under the Constitution.
The respondent contends that the commendable purpose of the law to
eradicate illegal recruiters should not be done at the expense and to
the prejudice of licensed and authorized recruitment agencies. The
writ of preliminary injunction was necessitated by the great number of
duly licensed recruitment agencies that had stopped or suspended
their business operations for fear that their officers and employees
would be indicted and prosecuted under the assailed oppressive
penal provisions of the law, and meted excessive penalties. The
respondent, likewise, urges that the Court should take judicial notice
that the processing of deployment papers of overseas workers have
come to a virtual standstill at the POEA.
The Court's Ruling
The petition is meritorious.
The Respondent Has Locus Standi
To File the Petition in the RTC in
Representation of the Eleven
Licensed and Registered
Recruitment Agencies Impleaded
in the Amended Petition
The modern view is that an association has standing to complain of
injuries to its members. This view fuses the legal identity of an
association with that of its members. 16 An association has standing
to file suit for its workers despite its lack of direct interest if its

members are affected by the action. An organization has standing to

assert the concerns of its constituents. 17
In Telecommunications and Broadcast Attorneys of the Philippines v.
Commission on Elections, 18 we held that standing jus tertii would be
recognized only if it can be shown that the party suing has some
substantial relation to the third party, or that the right of the third party
would be diluted unless the party in court is allowed to espouse the
third party's constitutional claims. SADECI
In this case, the respondent filed the petition for declaratory relief
under Rule 64 of the Rules of Court for and in behalf of its eleven (11)
licensed and registered recruitment agencies which are its members,
and which approved separate resolutions expressly authorizing the
respondent to file the said suit for and in their behalf. We note that,
under its Articles of Incorporation, the respondent was organized for
the purposes inter alia of promoting and supporting the growth and
development of the manpower recruitment industry, both in the local
and international levels; providing, creating and exploring employment
opportunities for the exclusive benefit of its general membership;
enhancing and promoting the general welfare and protection of
Filipino workers; and, to act as the representative of any individual,
company, entity or association on matters related to the manpower
recruitment industry, and to perform other acts and activities
necessary to accomplish the purposes embodied therein. The
respondent is, thus, the appropriate party to assert the rights of its
members, because it and its members are in every practical sense
identical. The respondent asserts that the assailed provisions violate
the constitutional rights of its members and the officers and
employees thereof. The respondent is but the medium through which
its individual members seek to make more effective the expression of
their voices and the redress of their grievances. 19
However, the respondent has no locus standi to file the petition for
and in behalf of unskilled workers. We note that it even failed to
implead any unskilled workers in its petition. Furthermore, in failing to
implead, as parties-petitioners, the eleven licensed and registered
recruitment agencies it claimed to represent, the respondent failed to
comply with Section 2 of Rule 63 20 of the Rules of Court.
Nevertheless, since the eleven licensed and registered recruitment
agencies for which the respondent filed the suit are specifically named

212
in the petition, the amended petition is deemed amended to avoid
multiplicity of suits. 21
The Assailed Order and Writ of
Preliminary Injunction Is Mooted
By Case Law
The respondent justified its plea for injunctive relief on the allegation
in its amended petition that its members are exposed to the
immediate and irreparable danger of being deprived of their right to a
livelihood and other constitutional rights without due process, on its
claim that a great number of duly licensed recruitment agencies have
stopped or suspended their operations for fear that (a) their officers
and employees would be prosecuted under the unjust and
unconstitutional penal provisions of Rep. Act No. 8042 and meted
equally unjust and excessive penalties, including life imprisonment, for
illegal recruitment and large scale illegal recruitment without regard to
whether the recruitment agencies involved are licensed and/or
authorized; and, (b) if the members of the respondent, which are
licensed and authorized, decide to continue with their businesses,
they face the stigma and the curse of being labeled "illegal recruiters."
In granting the respondent's plea for a writ of preliminary injunction,
the trial court held, without stating the factual and legal basis therefor,
that the enforcement of Rep. Act No. 8042, pendente lite, would cause
grave and irreparable injury to the respondent until the case is
decided on its merits.
We note, however, that since Rep. Act No. 8042 took effect on July
15, 1995, the Court had, in a catena of cases, applied the penal
provisions in Section 6, including paragraph (m) thereof, and the last
two paragraphs therein defining large scale illegal recruitment
committed by officers and/or employees of recruitment agencies by
themselves and in connivance with private individuals, and imposed
the penalties provided in Section 7 thereof, including the penalty of life
imprisonment. 22 The Informations therein were filed after preliminary
investigations as provided for in Section 11 of Rep. Act No. 8042 and
in venues as provided for in Section 9 of the said act. In People v.
Chowdury, 23 we held that illegal recruitment is a crime of economic
sabotage and must be enforced.

In People v. Diaz, 24 we held that Rep. Act No. 8042 is but an

amendment of the Labor Code of the Philippines and is not an ex-post
facto law because it is not applied retroactively. In JMM Promotion
and Management, Inc. v. Court of Appeals, 25 the issue of the extent
of the police power of the State to regulate a business, profession or
calling vis--vis the equal protection clause and the non-impairment
clause of the Constitution were raised and we held, thus:
A profession, trade or calling is a property right within the meaning of
our constitutional guarantees. One cannot be deprived of the right to
work and the right to make a living because these rights are property
rights, the arbitrary and unwarranted deprivation of which normally
constitutes an actionable wrong.
Nevertheless, no right is absolute, and the proper regulation of a
profession, calling, business or trade has always been upheld as a
legitimate subject of a valid exercise of the police power by the state
particularly when their conduct affects either the execution of
legitimate governmental functions, the preservation of the State, the
public health and welfare and public morals. According to the maxim,
sic utere tuo ut alienum non laedas, it must of course be within the
legitimate range of legislative action to define the mode and manner in
which every one may so use his own property so as not to pose injury
to himself or others.
In any case, where the liberty curtailed affects at most the rights of
property, the permissible scope of regulatory measures is certainly
much wider. To pretend that licensing or accreditation requirements
violates the due process clause is to ignore the settled practice, under
the mantle of the police power, of regulating entry to the practice of
various trades or professions. Professionals leaving for abroad are
required to pass rigid written and practical exams before they are
deemed fit to practice their trade. Seamen are required to take tests
determining their seamanship. Locally, the Professional Regulation
Commission has begun to require previously licensed doctors and
other professionals to furnish documentary proof that they had either
re-trained or had undertaken continuing education courses as a
requirement for renewal of their licenses. It is not claimed that these
requirements pose an unwarranted deprivation of a property right
under the due process clause. So long as professionals and other
workers meet reasonable regulatory standards no such deprivation
exists.

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Finally, it is a futile gesture on the part of petitioners to invoke the nonimpairment clause of the Constitution to support their argument that
the government cannot enact the assailed regulatory measures
because they abridge the freedom to contract. In Philippine
Association of Service Exporters, Inc. vs. Drilon, we held that "[t]he
non-impairment clause of the Constitution . . . must yield to the loftier
purposes targeted by the government." Equally important, into every
contract is read provisions of existing law, and always, a reservation
of the police power for so long as the agreement deals with a subject
impressed with the public welfare.
A last point. Petitioners suggest that the singling out of entertainers
and performing artists under the assailed department orders
constitutes class legislation which violates the equal protection clause
of the Constitution. We do not agree.
The equal protection clause is directed principally against undue favor
and individual or class privilege. It is not intended to prohibit
legislation which is limited to the object to which it is directed or by the
territory in which it is to operate. It does not require absolute equality,
but merely that all persons be treated alike under like conditions both
as to privileges conferred and liabilities imposed. We have held, time
and again, that the equal protection clause of the Constitution does
not forbid classification for so long as such classification is based on
real and substantial differences having a reasonable relation to the
subject of the particular legislation. If classification is germane to the
purpose of the law, concerns all members of the class, and applies
equally to present and future conditions, the classification does not
violate the equal protection guarantee. 26
The validity of Section 6 of R.A. No. 8042 which provides that
employees of recruitment agencies may be criminally liable for illegal
recruitment has been upheld in People v. Chowdury: 27
As stated in the first sentence of Section 6 of RA 8042, the persons
who may be held liable for illegal recruitment are the principals,
accomplices and accessories. An employee of a company or
corporation engaged in illegal recruitment may be held liable as
principal, together with his employer, if it is shown that he actively and
consciously participated in illegal recruitment. It has been held that the
existence of the corporate entity does not shield from prosecution the
corporate agent who knowingly and intentionally causes the

corporation to commit a crime. The corporation obviously acts, and

can act, only by and through its human agents, and it is their conduct
which the law must deter. The employee or agent of a corporation
engaged in unlawful business naturally aids and abets in the carrying
on of such business and will be prosecuted as principal if, with
knowledge of the business, its purpose and effect, he consciously
contributes his efforts to its conduct and promotion, however slight his
contribution may be. . . . 28
By its rulings, the Court thereby affirmed the validity of the assailed
penal and procedural provisions of Rep. Act No. 8042, including the
imposable penalties therefor. Until the Court, by final judgment,
declares that the said provisions are unconstitutional, the enforcement
of the said provisions cannot be enjoined.
The RTC Committed Grave Abuse
of Its Discretion Amounting to
Excess or Lack of Jurisdiction in
Issuing the Assailed Order and the
Writ of Preliminary Injunction
The matter of whether to issue a writ of preliminary injunction or not is
addressed to the sound discretion of the trial court. However, if the
court commits grave abuse of its discretion in issuing the said writ
amounting to excess or lack of jurisdiction, the same may be nullified
via a writ of certiorari and prohibition.
In Social Security Commission v. Judge Bayona, 29 we ruled that a
law is presumed constitutional until otherwise declared by judicial
interpretation. The suspension of the operation of the law is a matter
of extreme delicacy because it is an interference with the official acts
not only of the duly elected representatives of the people but also of
the highest magistrate of the land.
In Younger v. Harris, Jr., 30 the Supreme Court of the United States
emphasized, thus:
Federal injunctions against state criminal statutes, either in their
entirety or with respect to their separate and distinct prohibitions, are
not to be granted as a matter of course, even if such statutes are
unconstitutional. No citizen or member of the community is immune

214
from prosecution, in good faith, for his alleged criminal acts. The
imminence of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone ground for relief in
equity which exerts its extraordinary powers only to prevent
irreparable injury to the plaintiff who seeks its aid. 752 Beal v. Missouri
Pacific Railroad Corp., 312 U.S. 45, 49, 61 S.Ct. 418, 420, 85 L.Ed.
577.
And similarly, in Douglas, supra, we made clear, after reaffirming this
rule, that:
"It does not appear from the record that petitioners have been
threatened with any injury other than that incidental to every criminal
proceeding brought lawfully and in good faith . . ." 319 U.S., at 164, 63
S.Ct., at 881. 31
The possible unconstitutionality of a statute, on its face, does not of
itself justify an injunction against good faith attempts to enforce it,
unless there is a showing of bad faith, harassment, or any other
unusual circumstance that would call for equitable relief. 32 The "on
its face" invalidation of statutes has been described as "manifestly
strong medicine," to be employed "sparingly and only as a last resort,"
and is generally disfavored. 33
To be entitled to a preliminary injunction to enjoin the enforcement of a
law assailed to be unconstitutional, the party must establish that it will
suffer irreparable harm in the absence of injunctive relief and must
demonstrate that it is likely to succeed on the merits, or that there are
sufficiently serious questions going to the merits and the balance of
hardships tips decidedly in its favor. 34 The higher standard reflects
judicial deference toward "legislation or regulations developed through
presumptively reasoned democratic processes." Moreover, an
injunction will alter, rather than maintain, the status quo, or will provide
the movant with substantially all the relief sought and that relief cannot
be undone even if the defendant prevails at a trial on the merits. 35
Considering that injunction is an exercise of equitable relief and
authority, in assessing whether to issue a preliminary injunction, the
courts must sensitively assess all the equities of the situation,
including the public interest. 36 In litigations between governmental
and private parties, courts go much further both to give and withhold
relief in furtherance of public interest than they are accustomed to go
when only private interests are involved. 37 Before the plaintiff may be

entitled to injunction against future enforcement, he is burdened to

show some substantial hardship. 38
The fear or chilling-effect of the assailed penal provisions of the law
on the members of the respondent does not by itself justify prohibiting
the State from enforcing them against those whom the State believes
in good faith to be punishable under the laws: EScaIT
. . . Just as the incidental "chilling effect" of such statutes does not
automatically render them unconstitutional, so the chilling effect that
admittedly can result from the very existence of certain laws on the
statute books does not in itself justify prohibiting the State from
carrying out the important and necessary task of enforcing these laws
against socially harmful conduct that the State believes in good faith
to be punishable under its laws and the Constitution. 39
It must be borne in mind that subject to constitutional limitations,
Congress is empowered to define what acts or omissions shall
constitute a crime and to prescribe punishments therefor. 40 The
power is inherent in Congress and is part of the sovereign power of
the State to maintain peace and order. Whatever views may be
entertained regarding the severity of punishment, whether one
believes in its efficiency or its futility, these are peculiarly questions of
legislative policy. 41 The comparative gravity of crimes and whether
their consequences are more or less injurious are matters for the
State and Congress itself to determine. 42 Specification of penalties
involves questions of legislative policy. 43
Due process prohibits criminal stability from shifting the burden of
proof to the accused, punishing wholly passive conduct, defining
crimes in vague or overbroad language and failing to grant fair
warning of illegal conduct. 44 Class legislation is such legislation
which denies rights to one which are accorded to others, or inflicts
upon one individual a more severe penalty than is imposed upon
another in like case offending. 45 Bills of attainder are legislative acts
which inflict punishment on individuals or members of a particular
group without a judicial trial. Essential to a bill of attainder are a
specification of certain individuals or a group of individuals, the
imposition of a punishment, penal or otherwise, and the lack of judicial
trial. 46
Penalizing unlicensed and licensed recruitment agencies and their
officers and employees and their relatives employed in government

215
agencies charged with the enforcement of the law for illegal
recruitment and imposing life imprisonment for those who commit
large scale illegal recruitment is not offensive to the Constitution. The
accused may be convicted of illegal recruitment and large scale illegal
recruitment only if, after trial, the prosecution is able to prove all the
elements of the crime charged. 47

The respondent even failed to adduce any evidence to prove

irreparable injury because of the enforcement of Section 10(1)(2) of
Rep. Act No. 8042. Its fear or apprehension that, because of time
constraints, its members would have to defend foreign employees in
cases before the Labor Arbiter is based on speculations. Even if true,
such inconvenience or difficulty is hardly irreparable injury.

The possibility that the officers and employees of the recruitment

agencies, which are members of the respondent, and their relatives
who are employed in the government agencies charged in the
enforcement of the law, would be indicted for illegal recruitment and, if
convicted sentenced to life imprisonment for large scale illegal
recruitment, absent proof of irreparable injury, is not sufficient on
which to base the issuance of a writ of preliminary injunction to
suspend the enforcement of the penal provisions of Rep. Act No. 8042
and avert any indictments under the law. 48 The normal course of
criminal prosecutions cannot be blocked on the basis of allegations
which amount to speculations about the future. 49

The trial court even ignored the public interest involved in suspending
the enforcement of Rep. Act No. 8042 vis--vis the eleven licensed
and registered recruitment agencies represented by the respondent.
In People v. Gamboa, 50 we emphasized the primary aim of Rep. Act
No. 8042:

There is no allegation in the amended petition or evidence adduced

by the respondent that the officers and/or employees of its members
had been threatened with any indictments for violations of the penal
provisions of Rep. Act No. 8042. Neither is there any allegation
therein that any of its members and/or their officers and employees
committed any of the acts enumerated in Section 6(a) to (m) of the
law for which they could be indicted. Neither did the respondent
adduce any evidence in the RTC that any or all of its members or a
great number of other duly licensed and registered recruitment
agencies had to stop their business operations because of fear of
indictments under Sections 6 and 7 of Rep. Act No. 8042. The
respondent merely speculated and surmised that licensed and
registered recruitment agencies would close shop and stop business
operations because of the assailed penal provisions of the law. A writ
of preliminary injunction to enjoin the enforcement of penal laws
cannot be based on such conjectures or speculations. The Court
cannot take judicial notice that the processing of deployment papers
of overseas workers have come to a virtual standstill at the POEA
because of the assailed provisions of Rep. Act No. 8042. The
respondent must adduce evidence to prove its allegation, and the
petitioners accorded a chance to adduce controverting evidence.

Preliminarily, the proliferation of illegal job recruiters and syndicates

preying on innocent people anxious to obtain employment abroad is
one of the primary considerations that led to the enactment of The
Migrant Workers and Overseas Filipinos Act of 1995. Aimed at
affording greater protection to overseas Filipino workers, it is a
significant improvement on existing laws in the recruitment and
placement of workers for overseas employment. Otherwise known as
the Magna Carta of OFWs, it broadened the concept of illegal
recruitment under the Labor Code and provided stiffer penalties
thereto, especially those that constitute economic sabotage, i.e.,
Illegal Recruitment in Large Scale and Illegal Recruitment Committed
by a Syndicate. 51
By issuing the writ of preliminary injunction against the petitioners
sans any evidence, the trial court frustrated, albeit temporarily, the
prosecution of illegal recruiters and allowed them to continue
victimizing hapless and innocent people desiring to obtain
employment abroad as overseas workers, and blocked the attainment
of the salutary policies 52 embedded in Rep. Act No. 8042. It bears
stressing that overseas workers, land-based and sea-based, had
been remitting to the Philippines billions of dollars which over the
years had propped the economy.
In issuing the writ of preliminary injunction, the trial court considered
paramount the interests of the eleven licensed and registered
recruitment agencies represented by the respondent, and capriciously
overturned the presumption of the constitutionality of the assailed
provisions on the barefaced claim of the respondent that the assailed
provisions of Rep. Act No. 8042 are unconstitutional. The trial court

216
committed a grave abuse of its discretion amounting to excess or lack
of jurisdiction in issuing the assailed order and writ of preliminary
injunction. It is for this reason that the Court issued a temporary
restraining order enjoining the enforcement of the writ of preliminary
injunction issued by the trial court.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The
assailed decision of the appellate court is REVERSED AND SET
ASIDE. The Order of the Regional Trial Court dated August 21, 1995
in Civil Case No. Q-95-24401 and the Writ of Preliminary Injunction
issued by it in the said case on August 24, 1995 are NULLIFIED. No
costs.

217
EN BANC
[G.R. No. 113375. May 5, 1994.]
KILOSBAYAN, INCORPORATED, JOVITO R. SALONGA, CIRILO A.
RIGOS, ERME CAMBA, EMILIO C. CAPULONG, JR., JOSE T.
APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE
ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G.
FERNANDO, RAOUL V. VICTORINO, JOSE CUNANAN, QUINTIN S.
DOROMAL, SEN. FREDDIE WEBB, SEN. WIGBERTO TAADA, and
REP. JOKER P. ARROYO, petitioners, vs.
TEOFISTO GUINGONA, JR., in his capacity as Executive Secretary,
Office of the President; RENATO CORONA, in his capacity as
Assistant Executive Secretary and Chairman of the Presidential
Review Committee on the Lotto, Office of the President; PHILIPPINE
CHARITY SWEEPSTAKES OFFICE; and PHILIPPINE GAMING
CORPORATION, respondent.
DECISION
DAVIDE, JR., J p:
This is a special civil action for prohibition and injunction, with a prayer
for a temporary restraining order and preliminary injunction, which
seeks to prohibit and restrain the implementation of the "Contract of
Lease" executed by the Philippine Charity Sweepstakes Office
(PCSO) and the Philippine Gaming Management Corporation (PGMC)
in connection with the on-line lottery system, also known as "lotto."
Petitioner Kilosbayan, Incorporated (KILOSBAYAN) avers that it is a
non-stock domestic corporation composed of civic-spirited citizens,
pastors, priests, nuns, and lay leaders who are committed to the
cause of truth, justice, and national renewal. The rest of the
petitioners, except Senators Freddie Webb and Wigberto Taada and
Representative Joker P. Arroyo, are suing in their capacities as
members of the Board of Trustees of KILOSBAYAN and as taxpayers
and concerned citizens. Senators Webb and Taada and
Representative Arroyo are suing in their capacities as members of
Congress and as taxpayers and concerned citizens of the Philippines.

The pleadings of the parties disclose the factual antecedents which

triggered off the filing of this petition.
Pursuant to Section 1 of the charter of the PCSO (R.A. No. 1169, as
amended by B.P. Blg. 42) which grants it the authority to hold and
conduct "charity sweepstakes races, lotteries and other similar
activities," the PCSO decided to establish an on-line lottery system for
the purpose of increasing its revenue base and diversifying its
sources of funds. Sometime before March 1993, after learning that the
PCSO was interested in operating an on-line lottery system, the
Berjaya Group Berhad, "a multinational company and one of the ten
largest public companies in Malaysia," long "engaged in, among
others, successful lottery operations in Asia, running both Lotto and
Digit games, thru its subsidiary, Sports Toto Malaysia," with its
"affiliate, the International Totalizator Systems, Inc., . . . an American
public company engaged in the international sale or provision of
computer systems, softwares, terminals, training and other technical
services to the gaming industry," "became interested to offer its
services and resources to PCSO." As an initial step, Berjaya Group
Berhad (through its individual nominees) organized with some Filipino
investors in March 1993 a Philippine corporation known as the
Philippine Gaming Management Corporation (PGMC), which "was
intended to be the medium through which the technical and
management services required for the project would be offered and
delivered to PCSO." 1
Before August 1993, the PCSO formally issued a Request for
Proposal (RFP) for the Lease Contract of an on-line lottery system for
the PCSO. 2 Relevant provisions of the RFP are the following:
"1.
xxx

EXECUTIVE SUMMARY
xxx

xxx

1.2
PCSO is seeking a suitable contractor which shall build, at its
own expense, all the facilities ('Facilities') needed to operate and
maintain a nationwide on-line lottery system. PCSO shall lease the
Facilities for a fixed percentage of quarterly gross receipts. All receipts
from ticket sales shall be turned over directly to PCSO. All capital,
operating expenses and expansion expenses and risks shall be for
the exclusive account of the Lessor.
xxxx

xxx

xxx

218
1.4
The lease shall be for a period not exceeding fifteen (15)
years.
1.5
The Lessor is expected to submit a comprehensive nationwide
lottery development plan ('Development Plan') which will include the
game, the marketing of the games, and the logistics to introduce the
games to all the cities and municipalities of the country within five (5)
years.
xxx

xxx

xxx

1.7
The Lessor shall be selected based on its technical expertise,
hardware and software capability, maintenance support, and financial
resources. The Development Plan shall have a substantial bearing on
the choice of the Lessor. The Lessor shall be a domestic corporation,
with at least sixty percent (60%) of its shares owned by Filipino
shareholders. . .
The office of the President, the National Disaster Control
Coordinating Council, the Philippine National Police, and the National
Bureau of Investigation shall be authorized to use the nationwide
telecommunications system of the Facilities Free of Charge.
1.8
Upon expiration of the lease, the Facilities shall be owned by
PCSO without any additional consideration. 3

the communications network and sales offices under a build-lease

basis. The printing of tickets shall be undertaken under the
supervision and control of PCSO. The Facilities shall enable PCSO to
computerize the entire gaming system.
The Proponent is expected to formulate and design consumeroriented Master Games Plan suited to the marketplace, especially
geared to Filipino gaming habits and preferences. In addition, the
Master Games Plan is expected to include to Product Plan for each
game and explain how each will be introduced into the market. This
will be an integral part of the Development Plan which PCSO will
require from the Proponent.
xxx

xxx

xxx

The Proponent is expected to provide upgrades to modernize

the entire gaming over the life of the lease contract.
The Proponent is expected to provide technology transfer to
PCSO personnel. 4
xxx
7.
xxx

xxx

xxx

GENERAL GUIDELINES FOR PROPONENTS

xxx

xxx

The objectives of PCSO in leasing the Facilities from a private

entity are as follows:

Finally, the Proponent must be able to stand the acid test of

proving that it is an entity able to take on the role of responsible
maintainer of the on-line lottery system, and able to achieve PCSO's
goal of formalizing an on-line lottery system to achieve its mandated
objective. 5

xxx

xxx

xxx
2.2

xxx

xxx

OBJECTIVES

xxx

xxx

2.2.2 Enable PCSO to operate a nationwide on-line lottery system at

no expense or risk to the government.
xxx
2.4
xxx
2.4.2

xxx

xxx

DUTIES AND RESPONSIBILITIES OF THE LESSOR

xxx

xxx

THE LESSOR

The Proponent is expected to furnish and maintain the

Facilities, including the personnel needed to operate the computers,

16.

xxx

xxx

DEFINITION OF TERMS

Facilities: All capital equipment, computers, terminals,

software, nationwide telecommunication network, ticket sales offices,
furnishings, and fixtures; printing costs; costs of salaries and wages;
advertising and promotion expenses; maintenance costs; expansion
and replacement costs; security and insurance, and all other related
expenses needed to operate nationwide on-line lottery system." 6
Considering the above citizenship requirement, the PGMC claims that
the Berjaya Group "undertook to reduce its equity stakes in PGMC to

219
40%," by selling 35% out of the original 75% foreign stockholdings to
local investors.

In view of their materiality and relevance, we quote the following

salient provisions of the Contract of Lease:

On 15 August 1993, PGMC submitted its bid to the PCSO. 7

"1.

The bids were evaluated by the Special Pre-Qualification Bids and

Awards Committee (SPBAC) for the on-line lottery and its Bid Report
was thereafter submitted to the Office of the President.
8 The
submission was preceded by complaints by the Committee's
Chairperson, Dr. Mita Pardo de Tavera. 9

The following words and terms shall have the following

respective meaning:

On 21 October 1993, the Office of the President announced that it had

given the respondent PGMC the go-signal to operate the country's online lottery system and that the corresponding implementing contract
would be submitted not later than 8 November 1993 "for final
clearance and approval by the Chief Executive."
10 This
announcement was published in the Manila Standard, Philippine Daily
Inquirer, and the Manila Times on 29 October 1993. 11
On 4 November 1993, KILOSBAYAN sent an open letter to President
Fidel V. Ramos strongly opposing the setting up of the on-line lottery
system on the basis of serious moral and ethical considerations. 12
At the meeting of the Committee on Games and Amusements of the
Senate on 12 November 1993, KILOSBAYAN reiterated its vigorous
opposition to the on-line lottery on account of its immorality and
illegality. 13
On 19 November 1993, the media reported that despite the
opposition, "Malacaang will push through with the operation of an
on-line lottery system nationwide" and that it is actually the
respondent PCSO which will operate the lottery while the winning
corporate bidders are merely "lessors." 14
On 1 December 1993, KILOSBAYAN requested copies of all
decuments pertaining to the lottery award from Executive Secretary
Teofisto Guingona, Jr. In his answer of 17 December 1993, the
Executive Secretary informed KILOSBAYAN that the requested
documents would be duly transmitted before the end of the month.
15 However, on that same date, an agreement denominated as
"Contract of Lease" was finally executed by respondent PCSO and
respondent PGMC.
16 The President, per the press statement
issued by the Office of the President, approved it on 20 December
1993. 17

DEFINITIONS

1.1
Rental Fee Amount to be paid by PCSO to the LESSOR as
compensation for the fulfillment of the obligations of the LESSOR
under this Contract, including, but not limited to the Lease of the
Facilities.
xxx

xxx

xxx

1.3
Facilities All capital equipment, computers, terminals,
software (including source codes for the On-Line Lottery application
software for the terminals, telecommunications and central systems),
technology, intellectual property rights, telecommunications network,
and furnishings and fixtures.
1.4
Maintenance and Other Costs All costs and expenses
relating to printing, manpower, salaries and wages, advertising and
promotion, maintenance expansion and replacement, security and
insurance, and all other related expenses needed to operate an OnLine Lottery System, which shall be for the account of the LESSOR.
All expenses relating to the setting-up, operation and maintenance of
ticket sales offices of dealers and retailers shall be borne by PCSO's
dealers and retailers.
1.5
Development Plan The detailed plan of all games, the
marketing thereof, number of players, value of winnings and the
logistics required to introduce the games, including the Master Games
Plan as approved by PCSO, attached hereto as Annex "A", modified
as necessary by the provisions of this Contract.
xxx

xxx

xxx

1.8
Escrow Deposit The proposal deposit in the sum of Three
Hundred Million Pesos (P300,000,000.00) submitted by the LESSOR
to PCSO pursuant to the requirements of the Request for Proposals.
2.

SUBJECT MATTER OF THE LEASE

The LESSOR shall build, furnish and maintain at its own

expense and risk the Facilities for the On-Line Lottery System of

220
PCSO in the Territory on an exclusive basis. The LESSOR shall bear
all Maintenance and Other Costs as defined herein.
xxx
3.

xxx

xxx

RENTAL FEE

dealers and retailers in a timely manner with due regard to the

implementation timetable of the On-Line Lottery System. Nothing
herein shall preclude the LESSOR from recommending dealers or
retailers for appointment by PCSO, which shall act on said
recommendation within forty-eight (48) hours.

For and in consideration of the performance by the LESSOR

of its obligations herein, PCSO shall pay LESSOR a fixed Rental Fee
equal to four point nine percent (4.9%) of gross receipts from ticket
sales, payable net of taxes required by law to be withheld, on a semimonthly basis. Goodwill, franchise and similar fees shall belong to
PCSO.

5.5
PCSO shall designate the necessary personnel to monitor and
audit the daily performance of the On-Line Lottery System. For this
purpose, PCSO designees shall be given, free of charge, suitable and
adequate space, furniture and fixtures, in all offices of the LESSOR,
including but not limited to its headquarters, alternate site, regional
and area offices.

4.

5.6
PCSO shall have the responsibility to resolve, and exclusive
jurisdiction over, all matters involving the operation of the On-Line
Lottery System not otherwise provided in this Contract.

LEASE PERIOD

The period of the lease shall commence ninety (90) days from
the date of effectivity of this Contract and shall run for a period of eight
(8) years thereafter, unless sooner terminated in accordance with this
Contract.
5.
RIGHTS AND OBLIGATIONS OF PCSO AS OPERATOR OF
THE ON-LINE LOTTERY SYSTEM
PCSO shall be the sole and individual operator of the On-Line
Lottery System. Consequently:
5.1
PCSO shall have sole responsibility to decide whether to
implement, fully or partially, the Master Games Plan of the LESSOR.
PCSO shall have the sole responsibility to determine the time for
introducing new games to the market. The Master Games Plan
included in Annex "A" hereof is hereby approved by PCSO.
5.2
PCSO shall have control over revenues and receipts of
whatever nature from the On-Line Lottery System. After paying the
Rental Fee to the LESSOR, PCSO shall have exclusive responsibility
to determine the Revenue Allocation Plan; Provided, that the same
shall be consistent with the requirement of R.A. No. 1169, as
amended, which fixes a prize fund of fifty five percent (55%) on the
average.
5.3
PCSO shall have exclusive control over the printing of tickets,
including but not limited to the design, text, and contents thereof.
5.4
PCSO shall have sole responsibility over the appointment of
dealers or retailers throughout the country. PCSO shall appoint the

5.7
PCSO shall promulgate procedural and coordinating rules
governing all activities relating to the On-Line Lottery System.
5.8
PCSO will be responsible for the payment of prize monies,
commissions to agents and dealers, and taxes and levies (if any)
chargeable to the operator of the On-Line Lottery System. The
LESSOR will bear all other Maintenance and Other Costs, except as
provided in Section 1.4.
5.9

PCSO shall assist the LESSOR in the following:

5.9.1

Work permits for the LESSOR's staff;

5.9.2

Approvals for importation of the Facilities;

5.9.3

Approvals and consents for the On-Line Lottery System; and

5.9.4 Business and premises licenses for all officers of the LESSOR
and licenses for the telecommunications network.
5.10 In the event that PCSO shall pre-terminate this Contract or
suspend the operation of the On-Line Lottery System, in breach of this
Contract and through no fault of the LESSOR, PCSO shall promptly,
and in any event not later than sixty (60) days, reimburse the
LESSOR the amount of its total investment cost associated with the
On-Line Lottery System, including but not limited to the cost of the
Facilities, and further compensate the LESSOR for loss of expected
net profit after tax, computed over the unexpired term of the lease.

221
6.

DUTIES AND RESPONSIBILITIES OF THE LESSOR

The LESSOR is one of not more than three (3) lessors of

similar facilities for the nationwide On-Line Lottery System of PCSO. It
is understood that the rights of the LESSOR are primarily those of a
lessor of the Facilities, and consequently, all rights involving the
business aspects of the use of the Facilities are within the jurisdiction
of PCSO. During the term of the lease, the LESSOR shall:
6.1
Maintain and preserve its corporate existence, rights and
privileges, and conduct its business in an orderly, efficient, and
customary manner.
6.2
Maintain insurance coverage with insurers acceptable to
PCSO on all Facilities.
6.3
Comply with all laws, statues, rules and regulations, orders
and directives, obligations and duties by which it is legally bound.
6.4
Duly pay and discharge all taxes, assessments and
government charges now and hereafter imposed of whatever nature
that may be legally levied upon it.
6.5
Keep all the Facilities in fail safe condition and, if necessary,
upgrade, replace and improve the Facilities from time to time as new
technology develops, in order to make the On-Line Lottery System
more cost-effective and/or competitive, and as may be required by
PCSO. PCSO shall not impose such requirements unreasonably nor
arbitrarily.
6.6
Provide PCSO with management terminals which will allow
real-time monitoring of the On-Line Lottery System.
6.7
Upon effectivity of this Contract, commence the training of
PCSO and other local personnel and the transfer of technology and
expertise, such that at the end of the term of this Contract, PCSO will
be able to effectively take-over the Facilities and efficiently operate the
On-Line Lottery System.
6.8
Undertake a positive advertising and promotions campaign for
both institutional and product lines without engaging in negative
advertising against other lessors.
6.9
Bear all expenses and risks relating to the Facilities including,
but not limited to, Maintenance and Other Costs and;

xxx

xxx

xxx

6.10 Bear all risks if the revenues from ticket sales, on an

annualized basis, are insufficient to pay the entire prize money.
6.11 Be, and is hereby, authorized to collect and retain for its own
account, a security deposit from dealers and retailers, in an amount
determined with the approval of PCSO, in respect of equipment
supplied by the LESSOR. PCSO's approval shall not be unreasonably
withheld . . .
6.12 Comply with procedural and coordinating rules issued by
PCSO.
7.

REPRESENTATIONS AND WARRANTIES

The LESSOR represents and warrants that:

7.1
The LESSOR is a corporation duly organized and existing
under the laws of the Republic of the Philippines, at least sixty percent
(60%) of the outstanding capital stock of which is owned by Filipino
shareholders. The minimum required Filipino equity participation shall
not be impaired through voluntary or involuntary transfer, disposition,
or sale of shares of stock by the present stockholders.
7.2
The LESSOR and its Affiliates have the full corporate and legal
power and authority to own and operate their properties and to carry
on their business in the place where such properties are now or may
be conducted. . .
7.3
The LESSOR has or has access to all the financing and
funding requirements to promptly and effectively carry out the terms of
this Contract. . .
7.4
The LESSOR has or has access to all the managerial and
technical expertise to promptly and effectively carry out the terms of
this Contract. . .
xxx
10.

xxx

xxx

TELECOMMUNICATIONS NETWORK

The LESSOR shall establish a telecommunications network

that will connect all municipalities and cities in the Territory in
accordance with, at the LESSOR's option, either of the LESSOR's

222
proposals (or a combinations of both such proposals) attached hereto
as Annex "B," and under the following PCSO schedule:
xxx

xxx

xxx

PCSO may, at its option, require the LESSOR to establish the

telecommunications network in accordance with the above Timetable
in provinces where the LESSOR has not yet installed terminals.
Provided, that such provinces have existing nodes. Once a
municipality or city is serviced by land lines of a licensed public
telephone company, and such lines are connected to Metro Manila,
then the obligation of the LESSOR to connect such municipality or city
through a telecommunications network shall cease with respect to
such municipality or city.
The voice facility will cover the four offices of the Office of the
President, National Disaster Control Coordinating Council, Philippine
National Police and the National Bureau of Investigation, and each
city and municipality in the Territory except Metro Manila, and those
cities and municipalities which have easy telephone access from
these four offices. Voices calls from the four offices shall be
transmitted via radio or VSAT to the remote municipalities which will
be connected to this voice facility through wired network or by radio.
The facility shall be designed to handle four private conversations at
any one time.
xxx
13.

xxx

xxx

STOCK DISPERSAL PLAN

Within two (2) years from the effectivity of this Contract, the
LESSOR shall cause itself to be listed in the local stock exchange and
offer at least twenty five percent (25%) of its equity to the public.
14.

NON-COMPETITION

The LESSOR shall not, directly or indirectly, undertake any

activity or business in competition with or adverse to the On-Line
Lottery System of PCSO unless it obtains the latter's prior written
consent thereto.
15.

HOLD HARMLESS CLAUSE

15.1 The LESSOR shall at all times protect and defend, at its cost
and expense, PCSO from and against any and all liabilities and claims

for damages and/or suits for or by reason of any deaths of, or any
injury or injuries to any person or persons, or damages to property of
any kind whatsoever, caused by the LESSOR, its subcontractors, its
authorized agents or employees, from any cause or causes
whatsoever.
15.2 The LESSOR hereby covenants and agrees to indemnify and
hold PCSO harmless from all liabilities, charges, expenses (including
reasonable counsel fees) and costs on account of or by reason of any
such death or deaths, injury or injuries, liabilities, claims, suits or
losses caused by the LESSOR's fault or negligence.
15.3 The LESSOR at all times protect and defend, at its own cost
and expense, its title to the facilities and PCSO's interest therein from
and against any and all claims for the duration of the Contract until
transfer to PCSO of ownership of the serviceable Facilities.
16.

SECURITY

16.1 To ensure faithful compliance by the LESSOR with the terms

of the Contract, the LESSOR shall secure a Performance Bond from a
reputable insurance company or companies acceptable to PCSO.
16.2 The Performance Bond shall be in the initial amount of Three
Hundred Million Pesos (P300,000,000.00), to its U.S. dollar
equivalent, and shall be renewed to cover the duration of the
Contract. However, the Performance Bond shall be reduced
proportionately to the percentage of unencumbered terminals
installed; Provided, that the Performance Bond shall in no case be
less than One Hundred Fifty Million Pesos (P150,000,000.00).
16.3 The LESSOR may at its option maintain its Escrow Deposit as
the Performance Bond. . .
17.

PENALTIES

17.1 Except as may be provided in Section 17.2, should the

LESSOR fail to take remedial measures within seven (7) days, and
rectify the breach within thirty (30) days, from written notice by PCSO
of any wilfull or grossly negligent violation of the material terms and
conditions of this Contract, all unencumbered Facilities shall
automatically become the property of PCSO without consideration
and without need for further notice or demand by PCSO. The
Performance Bond shall likewise be forfeited in favor of PCSO.

223
17.2 Should the LESSOR fail to comply with the terms of the
Timetables provided in Section 9 and 10, it shall be subject to an initial
Penalty of Twenty Thousand Pesos (P20,000.00), per city or
municipality per every month of delay; Provided, that the Penalty shall
increase, every ninety (90) days, by the amount of Twenty Thousand
Pesos (P20,000.00) per city or municipality per month, whilst shall
failure to comply persists. The penalty shall be deducted by PCSO
from the rental fee.
xxx
20.

xxx

xxx

OWNERSHIP OF THE FACILITIES

After expiration of the term of the lease as provided in Section

4, the Facilities directly required for the On-Line Lottery System
mentioned in Section 1.3 shall automatically belong in full ownership
to PCSO without any further consideration other than the Rental Fees
already paid during the effectivity of the lease.
21.

TERMINATION OF THE LEASE

PCSO may terminate this Contract for any breach of the

material provisions of this Contract, including the following:
21.1 The LESSOR is insolvent or bankrupt or unable to pay its
debts, stops or suspends or threatens to stop or suspend payment of
all or a material part of its debts, or proposes or makes a general
assignment or an arrangement or compositions with or for the benefit
of its creditors; or
21.2 An order is made or an effective resolution passed for the
winding up or dissolution of the LESSOR or when it cease or
threatens to cease to carry on all or a material part of its operations or
business; or

Any suspension, cancellation or termination of this Contract

shall not relieve the LESSOR of any liability that may have already
accrued hereunder."
xxx

xxx

xxx

Considering the denial by the Office of the President of its protest and
the statement of Assistant Executive Secretary Renato Corona that
"only a court injunction can stop Malacaang," and the imminent
implementation of the Contract of Lease in February 1994,
KILOSBAYAN, with its co-petitioners, filed on 28 January 1994 this
petition.
In support of the petition, the petitioners claim that:
". . . THE OFFICE OF THE PRESIDENT, ACTING THROUGH
RESPONDENTS EXECUTIVE SECRETARY AND/OR ASSISTANT
EXECUTIVE SECRETARY FOR LEGAL AFFAIRS, AND THE PCSO
GRAVELY ABUSE[D] THEIR DISCRETION AND/OR FUNCTIONS
TANTAMOUNT TO LACK OF JURISDICTION AND/OR AUTHORITY
IN RESPECTIVELY: (A) APPROVING THE AWARD OF THE
CONTRACT TO, AND (B) ENTERING INTO THE SO-CALLED
'CONTRACT OF LEASE' WITH, RESPONDENT PGMC FOR THE
INSTALLATION, ESTABLISHMENT AND OPERATION OF THE ONLINE
LOTTERY
AND
TELECOMMUNICATION
SYSTEMS
REQUIRED AND/OR AUTHORIZED UNDER THE SAID CONTRACT,
CONSIDERING THAT:
a)
Under Section 1 of the Charter of the PCSO, the PCSO is
prohibited from holding and conducting Lotteries 'in collaboration,
association or joint venture with any person, association, company or
entity';

21.3 Any material statement, representation or warranty made or

furnished by the LESSOR proved to be materially false or misleading;

b)
Under Act No. 3846 and established jurisprudence, a
Congressional franchise is required before any person may be
allowed to establish and operate said telecommunications system;

said termination to take effect upon receipt of written notice of

termination by the LESSOR and failure to take remedial action within
seven (7) days and cure or remedy the same within thirty (30) days
from notice.

c)
Under Section 11, Article XII of the Constitution, a less than
60% Filipino-owned and/or controlled corporation, like the PGMC, is
disqualified from operating a public service, like the said
telecommunications system; and

224
d)
Respondent PGMC is not authorized by its charter and under
the Foreign Investment Act (R.A. No. 7042) to install, establish and
operate the on-line Lotto and telecommunications systems." 18
Petitioners submit that the PCSO cannot validly enter into the assailed
Contract of Lease with the PGMC because it is an arrangement
wherein the PCSO would hold and conduct the on-line lottery system
in "collaboration" or "association" with the PGMC, in violation of
Section 1 (B) of R.A. No. 1169, as amended by B.P. Blg. 42, which
prohibits the PCSO from holding and conducting charity sweepstakes
races, lotteries, and other similar activities "in collaboration,
association or joint venture with any person, association, company or
entity, foreign or domestic." Even granting arguendo that a lease of
facilities is not within the contemplation of "collaboration" or
"association," an analysis, however, of the Contract of Lease clearly
shows that there is a "collaboration, association, or joint venture
between respondents PCSO and PGMC in the holding of the On-Line
Lottery System," and that there are terms and conditions of the
Contract "showing that respondent PGMC is the actual lotto operator
and not respondent PCSO." 19
The petitioners also point out that paragraph 10 of the Contract of
Lease
requires
or
authorizes
PGMC
to
establish
a
telecommunications network that will connect all the municipalities
and cities in the territory. However, PGMC cannot do that because it
has no franchise from Congress to construct, install, establish, or
operate the network pursuant to Section 1 of Act No. 3846, as
amended. Moreover, PGMC is a 75% foreign-owned or controlled
corporation and cannot, therefore, be granted a franchise for that
purpose because of Section 11, Article XII of the 1987 Constitution.
Furthermore, since, "the subscribed foreign capital" of the PGMC
"comes to about 75%, as shown by paragraph EIGHT of its Articles of
Incorporation," it cannot lawfully enter into the contract in question
because all forms of gambling and lottery is one of them are
included in the so-called foreign investments negative list under the
Foreign Investments Act (R.A. No. 7042) where only up to 40%
foreign capital is allowed. 20
Finally, the petitioners insist that the Articles of Incorporation of PGMC
do not authorize it to establish and operate an on-line lottery and
telecommunications systems. 21

Accordingly, the petitioners pray that we issue a temporary restraining

order and a writ of preliminary injunction commanding the
respondents or any person acting in their places or upon their
instructions to cease and desist from implementing the challenged
Contract of Lease and, after hearing the merits of the petition, that we
render judgment declaring the Contract of Lease void and without
effect and making the injunction permanent. 22
We required the respondents to comment on the petition.
In its Comment filed on 1 March 1994, private respondent PGMC
asserts that "(1) [it] is merely an independent contractor for a piece of
work, (i.e., the building and maintenance of a lottery system to be
used by PCSO in the operation of its lottery franchise); and (2) as
such independent contractor, PGMC is not a co-operator of the lottery
franchise with PCSO, nor is PCSO sharing its franchise, 'in
collaboration, association or joint venture' with PGMC as such
statutory limitation is viewed from the context, intent, and spirit of
Republic Act 1169, as amended by Batas Pambansa 42." It further
claims that as an independent contractor for a piece of work, it is
neither engaged in "gambling" nor in "public service" relative to the
telecommunications network, which the petitioners even consider as
an "indispensable requirement" of an on-line lottery system. Finally, it
states that the execution and implementation of the contract does not
violate the Constitution and the laws; that the issue on the "morality"
of the lottery franchise granted to the PCSO is political and not judicial
or legal, which should be ventilated in another forum; and that the
"petitioners do not appear to have the legal standing or real interest in
the subject contract and in obtaining the reliefs sought." 23
In their Comment filed by the Office of the Solicitor General, public
respondents Executive Secretary Teofisto Guingona, Jr., Assistant
Executive Secretary Renato Corona, and the PCSO maintain that the
contract of lease in question does not violate Section 1 of R.A. No.
1169, as amended by B.P. Blg. 42, and that the petitioners'
interpretation of the phrase "in collaboration, association or joint
venture" in Section 1 is "much too narrow, strained and utterly devoid
of logic" for it "ignores the reality that PCSO, as a corporate entity, is
vested with the basic and essential prerogative to enter into all kinds
of transactions or contracts as may be necessary for the attainment of
its purposes and objectives." What the PCSO charter "seeks to
prohibit is that arrangement akin to a 'joint venture' or partnership

225
where there is 'community of interest in the business, sharing of
profits and losses, and a mutual right of control,' a characteristic which
does not obtain in a contract of lease." With respect to the challenged
Contract of Lease, the "role of PGMC is limited to that of a lessor of
the facilities" for the on-line lottery system; in "strict technical and legal
sense," said contract "can be categorized as a contract for a piece of
work as defined in Articles 1467, 1713 and 1644 of the Civil Code."
They further claim that the establishment of the telecommunications
system stipulated in the Contract of Lease does not require a
congressional franchise because PGMC will not operate a public
utility; moreover, PGMC's "establishment of a telecommunications
system is not intended to establish a telecommunications business,"
and it has been held that where the facilities are operated "not for
business purposes but for its own use," a legislative franchise is not
required before a certificate of public convenience can be granted.
24 Even granting arguendo that PGMC is a public utility, pursuant to
Albano s. Reyes, 25 "it can establish a telecommunications system
even without a legislative franchise because not every public utility is
required to secure a legislative franchise before it could establish,
maintain, and operate the service"; and, in any case, "PGMC's
establishment of the telecommunications system stipulated in its
contract of lease with PCSO falls within the exceptions under Section
1 of Act No. 3846 where a legislative franchise is not necessary for
the establishment of radio stations."
They also argue that the contract does not violate the Foreign
Investment Act of 1991; that the Articles of Incorporation of PGMC
authorize it to enter into the Contract of Lease; and that the issues of
"wisdom, morality and propriety of acts of the executive department
are beyond the ambit of judicial review."
Finally, the public respondents allege that the petitioners have no
standing to maintain the instant suit, citing our resolution in Valmonte
vs. Philippine Charity Sweepstakes Office. 26
Several parties filed motions to intervene as petitioners in this case,
27 but only the motion of Senators Alberto Romulo, Arturo Tolentino,
Francisco Tatad, Gloria Macapagal-Arroyo, Vicente Sotto III, John
Osmena, Ramon Revilla, and Jose Lina 28 was granted, and the
respondents were required to comment on their petition in
intervention, which the public respondents and PGMC did.

In the meantime, the petitioners filed with the Securities and

Exchange Commission on 29 March 1994 a petition against PGMC
for the nullification of the latter's General Information Sheets. That
case, however, has no bearing in this petition.
On 11 April 1994, we heard the parties in oral arguments. Thereafter,
we resolved to consider the matter submitted for resolution and
pending resolution of the major issues in this case, to issue a
temporary restraining order commanding the respondents or any
person acting in their place or upon their instructions to cease and
desist from implementing the challenged Contract of Lease.
In the deliberation on this case on 26 April 1994, we resolved to
consider only these issues: (a) the locus standi of the petitioners, and
(b) the legality and validity of the Contract of Lease in the light of
Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, which
prohibits the PCSO from holding and conducting lotteries "in
collaboration, association or joint venture with any person,
association, company or entity, whether domestic or foreign." On the
first issue, seven Justices voted to sustain the locus standi of the
petitioners, while six voted not to. On the second issue, the seven
Justice were of the opinion that the Contract of Lease violates the
exception to Section 1(B) of R.A. No. 1169, as amended by B.P. Blg.
42, and is, therefore, invalid and contrary to law. The six Justices
stated that they wished to express no opinion thereon in view of their
stand on the first issue. The Chief Justice took no part because one of
the Directors of the PCSO is his brother-in-law.
This case was then assigned to this ponente for the writing of the
opinion of the Court.
The preliminary issue on the locus standi of the petitioners should,
indeed, be resolved in their favor. A party's standing before this Court
is a procedural technicality which it may, in the exercise of its
discretion, set aside in view of the importance of the issues raised. In
the landmark Emergency Powers Cases,
29 this Court brushed
aside this technicality because "the transcendental importance to the
public of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of procedure.
(Avelino vs. Cuenco, G.R. No. L-2821)." Insofar as taxpayers' suits
are concerned, this Court had declared that it "is not devoid of
discretion as to whether or not it should be entertained," 30 or that it

226
"enjoys an open discretion to entertain the same or not." 31 In De La
Llana vs. Alba, 32 this Court declared:
"1.
The argument as to the lack of standing of petitioners is easily
resolved. As far as Judge de la Llana is concerned, he certainly falls
within the principle set forth in Justice Laurel's opinion in People vs.
Vera [65 Phil. 56 (1937)]. Thus: 'The unchallenged rule is that the
person who impugns the validity of a statute must have a personal
and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement [Ibid, 89].' The other
petitioners as members of the bar and officers of the court cannot be
considered as devoid of 'any personal and substantial interest' on the
matter. There is relevance to this excerpt form a separate opinion in
Aquino, Jr. v. Commission on Elections [L-40004, January 31, 1975,
62 SCRA 275]: 'Then there is the attack on the standing of petitioners,
as vindicating at most what they consider a public right and not
protecting their rights as individuals. This is to conjure the specter of
the public right dogma as an inhibition to parties intent on keeping
public officials staying on the path of constitutionalism. As was so well
put by Jaffe: "The protection of private rights is an essential
constituent of public interest and, conversely, without a well-ordered
state there could be no enforcement of private rights. Private and
public interests are, both in a substantive and procedural sense,
aspects of the totality of the legal order." Moreover, petitioners have
convincingly shown that in their capacity as taxpayers, their standing
to sue has been amply demonstrated. There would be a retreat from
the liberal approach followed in Pascual v. Secretary of Public Works,
foreshadowed by the very decision of People v. Vera where the
doctrine was first fully discussed, if we act differently now. I do not
think we are prepared to take that step. Respondents, however, would
hark back to the American Supreme Court doctrine in Mellon v.
Frothingham, with their claim that what petitioners possess "is an
interest which is shared in common by other people and is
comparatively so minute and indeterminate as to afford any basis and
assurance that the judicial process can act on it." That is to speak in
the language of a bygone era, even in the United States. For as Chief
Justice Warren clearly pointed out in the later case of Flast v. Cohen,
the barrier thus set up if not breached has definitely been lowered."

In Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs.

Tan, 33 reiterated in Basco vs. Philippine Amusements and Gaming
Corporation, 34 this Court stated:
"Objections to taxpayers' suits for lack of sufficient personality
standing or interest are, however, in the main procedural matters.
Considering the importance to the public of the cases at bar, and in
keeping with the Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of government have kept
themselves within the limits of the Constitution and the laws and that
they have not abused the discretion given to them, this Court has
brushed aside technicalities of procedure and has taken cognizance
of these petitions."
and in Association of Small Landowners in the Philippines, Inc. vs.
Secretary of Agrarian Reform, 35 it declared:
"With particular regard to the requirement of proper party as applied in
the cases before us, we hold that the same is satisfied by the
petitioners and intervenors because each of them has sustained or is
in danger of sustaining an immediate injury as a result of the acts or
measures complained of. [Ex Parte Levitt, 303 US 633]. And even if,
strictly speaking, they are not covered by the definition, it is still within
the wide discretion of the Court to waive the requirement and so
remove the impediment to its addressing and resolving the serious
constitutional questions raised.
In the first Emergency Powers Cases, ordinary citizens and taxpayers
were allowed to question the constitutionality of several executive
orders issued by President Quirino although they were invoking only
an indirect and general interest shared in common with the public.
The Court dismissed the objective that they were not proper parties
and ruled that the transcendental importance to the public of these
cases demands that they be settled promptly and definitely, brushing
aside, if we must, technicalities of procedure. We have since then
applied this exception in many other cases." (Emphasis supplied)
In Daza vs. Singson, 36 this Court once more said:
". . . For another, we have early as in the Emergency Powers Cases
that where serious constitutional questions are involved, 'the
transcendental importance to the public of these cases demands that
they be settled promptly and definitely, brushing aside, if we must,

227
technicalities of procedure.' The same policy has since then been
consistently followed by the Court, as in Gonzales vs. Commission on
Elections [21 SCRA 774] . . . ."
The Federal Supreme Court of the United States of America has also
expressed its discretionary power to liberalize the rule on locus standi.
In United States vs. Federal Power Commission and Virginia Rea
Association vs. Federal Power Commission, 37 it held:
"We hold that petitioners have standing. Differences of view, however,
preclude a single opinion of the Court as to both petitioners. It would
not further clarification of this complicated specialty of federal
jurisdiction, the solution of whose problems is in any event more or
less determined by the specific circumstances of individual situations,
to set out the divergent grounds in support of standing in these
cases."
In line with the liberal policy of this Court on locus standi, ordinary
taxpayers, members of Congress, and even association of planters,
and non-profit civic organizations were allowed to initiate and
prosecute actions before this Court to question the constitutionality or
validity of laws, acts, decisions, rulings, or orders of various
government agencies or instrumentalities. Among such cases were
those assailing the constitutionality of (a) R.A. No. 3836 insofar as it
allows retirement gratuity and commutation of vacation and sick leave
to Senators and Representatives and to elective officials of both
Houses of Congress; 38 (b) Executive Order No. 284, issued by
President Corazon C. Aquino on 25 July 1987, which allowed
members of the cabinet, their undersecretaries, and assistant
secretaries to hold other government offices or positions; 39 (c) the
automatic appropriation for debt service in the General Appropriations
Act;
40 (d) R.A. No. 7056 on the holding of desynchronized
elections;
41 (e) P.D. No. 1869 (the charter of the Philippine
Amusement and Gaming Corporation) on the ground that it is contrary
to morals, public policy, and order;
42 and (f) R.A. No. 6975,
establishing the Philippine National Police. 43
Other cases where we have followed a liberal policy regarding locus
standi include those attacking the validity or legality of (a) an order
allowing the importation of rice in the light of the prohibition imposed
by R.A. No. 3452; 44 (b) P.D. Nos. 991 and 1033 insofar as they
proposed amendments to the Constitution and P.D. No. 1031 insofar

as it directed the COMELEC to supervise, control, hold, and conduct

the referendum-plebiscite on 16 October 1976; 45 (c) the bidding for
the sale of the 3,179 square meters of land at Roppongi, Minato-ku,
Tokyo, Japan; 46 (d) the approval without hearing by the Board of
Investments of the amended application of the Bataan Petrochemical
Corporation to transfer the site of its plant from Bataan to Batangas
and the validity of such transfer and the shift of feedstock from
naphtha only to naphtha and/or liquefied petroleum gas; 47 (e) the
decisions, orders, rulings, and resolutions of the Executive Secretary,
Secretary of Finance, Commissioner of Internal Revenue,
Commissioner of Customs, and the Fiscal Incentives Review Board
exempting the National Power Corporation from indirect tax and
duties; 48 (f) the orders of the Energy Regulatory Board of 5 and 6
December 1990 on the ground that the hearings conducted on the
second provisional increase in oil prices did not allow the petitioner
substantial cross-examination; 49 (g) Executive Order No. 478 which
levied a special duty of P0.95 per liter or P151.05 per barrel of
imported crude oil and P1.00 per liter of imported oil products; 50 (h)
resolutions of the Commission on Elections concerning the
apportionment, by district, of the number of elective members of
Sanggunians; 51 and (i) memorandum orders issued by a Mayor
affecting the Chief of Police of Pasay City. 52
In the 1975 case of Aquino vs. Commission on Elections, 53 this
Court, despite its unequivocal ruling that the petitioners therein had no
personality to file the petition, resolved nevertheless to pass upon the
issues raised because of the far-reaching implications of the petition.
We did no less in De Guia vs. COMELEC 54 where, although we
declared that De Guia "does not appear to have locus standi, a
standing in law, a personal or substantial interest," we brushed aside
the procedural infirmity "considering the importance of the issue
involved, concerning as it does the political exercise of qualified voters
affected by the apportionment, and petitioner alleging abuse of
discretion and violation of the Constitution by respondent."
We find the instant petition to be of transcendental importance to the
public. The issues it raised are of paramount public interest and of a
category even higher than those involved in many of the aforecited
cases. The ramifications of such issues immeasurably affect the
social, economic, and moral well-being of the people even in the
remotest barangays of the country and the counter-productive and

228
retrogressive effects of the envisioned on-line lottery system are as
staggering as the billions in pesos it is expected to raise. The legal
standing then of the petitioners deserves recognition and, in the
exercise of its sound discretion, this Court hereby brushes aside the
procedural barrier which the respondents tried to take advantage of.
And now on the substantive issue.
Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42, prohibits the
PCSO from holding and conducting lotteries "in collaboration,
association or joint venture with any person, association, company or
entity, whether domestic or foreign." Section 1 provides:
"Sec. 1.
The Philippine Charity Sweepstakes Office. The
Philippine Charity Sweepstakes Office, hereinafter designated the
Office, shall be the principal government agency for raising and
providing for funds for health programs, medical assistance and
services and charities of national character, and as such shall have
the general powers conferred in section thirteen of Act Numbered One
thousand four hundred fifty-nine, as amended, and shall have the
authority:
A.
To hold and conduct charity sweepstakes races, lotteries and
other similar activities, in such frequency and manner, as shall be
determined, and subject to such rules and regulations as shall be
promulgated by the Board of Directors.
B.
Subject to the approval of the Minister of Human Settlements,
to engage in health and welfare-related investments, programs,
projects and activities which may be profit-oriented, by itself or in
collaboration, association or joint venture with any person,
association, company or entity, whether domestic or foreign, except
for the activities mentioned in the preceding paragraph (A), for the
purpose of providing for permanent and continuing sources of funds
for health programs, including the expansion of existing ones, medical
assistance and services, and/or charitable grants: Provided, That
such investments will not compete with the private sector in areas
where investments are adequate as may be determined by the
National Economic and Development Authority." (emphasis supplied)
The language of the section is indisputably clear that with respect to
its franchise or privilege "to hold and conduct charity sweepstakes
races, lotteries and other similar activities," the PCSO cannot exercise

it "in collaboration, association, or joint venture" with any other party.

This is the unequivocal meaning and import of the phrase "except for
the activities mentioned in the preceding paragraph (A)," namely,
"charity sweepstakes races, lotteries and other similar activities."
B.P. Blg. 42 originated from Parliamentary Bill No. 622, which was
covered by Committee Report No. 103 as reported out by the
Committee on Socio-Economic Planning and Development of the
Interim Batasang Pambansa. The original text of paragraph B, Section
1 of Parliamentary Bill No. 622 reads as follows:
"To engage in any and all investments and related profit-oriented
projects or programs and activities by itself or in collaboration,
association or joint venture with any person, association, company or
entity, whether domestic or foreign, for the main purpose of raising
funds for health and medical assistance and services and charitable
grants." 55
During the period of committee amendments, the Committee on
Socio-Economic Planning and Development, through Assemblyman
Ronaldo B. Zamora, introduced an amendment by substitution to the
said paragraph B such that, as amended, it should read as follows:
"Subject to the approval of the Minister of Human Settlements, to
engage in health-oriented investments, programs, projects and
activities which may be profit-oriented, by itself or in collaboration,
association, or joint venture with any person, association, company or
entity, whether domestic or foreign, for the purpose of providing for
permanent and continuing sources of funds for health programs,
including the expansion of existing ones, medical assistance and
services and/or charitable grants." 56
Before the motion of Assemblyman Zamora for the approval of the
amendment could be acted upon, Assemblyman Davide introduced an
amendment to the amendment:
"MR. DAVIDE.
Mr. Speaker.
THE SPEAKER.
The gentleman from Cebu is recognized.
MR. DAVIDE.

229
May I introduce an amendment to the committee amendment?
The amendment would be to insert after 'foreign' in the amendment
just read the following: EXCEPT FOR THE ACTIVITY IN LETTER (A)
ABOVE.
When it is a joint venture or in collaboration with any entity
such collaboration or joint venture must not include activity letter (a)
which is the holding and conducting of sweepstakes races, lotteries
and other similar acts.
MR. ZAMORA.
We accept the amendment, Mr. Speaker.
MR. DAVIDE.
Thank you, Mr. Speaker.
THE SPEAKER.
Is there any objection to the amendment? (Silence) The
amendment, as amended, is approved." 57
Further amendments to paragraph B were introduced and approved.
When Assemblyman Zamora read the final text of paragraph B as
further amended, the earlier approved amendment of Assemblyman
Davide became "EXCEPT FOR THE ACTIVITIES MENTIONED IN
PARAGRAPH (A)"; and by virtue of the amendment introduced by
Assemblyman Emmanuel Pelaez, the word PRECEDING was
inserted before PARAGRAPH. Assemblyman Pelaez introduced other
amendments. Thereafter, the new paragraph B was approved. 58
This is now paragraph B, Section 1 of R.A. No. 1169, as amended by
B.P. Blg. 42.
No interpretation of the said provisions to relax or circumvent the
prohibition can be allowed since the privilege to hold or conduct
charity sweepstakes races, lotteries, or other similar activities is a
franchise granted by the legislature to the PCSO. It is a settled rule
that "in all grants by the government to individuals or corporations of
rights, privileges and franchises, the words are to be taken most
strongly against the grantee . . . . [o]ne who claims a franchise or
privilege in derogation of the common rights of the public must prove
his title thereto by a grant which is clearly and definitely expressed,
and he cannot enlarge it by equivocal or doubtful provisions or by

probable inferences. Whatever is not unequivocably granted is

withheld. Nothing passes by mere implication." 59
In short then, by the exception explicitly made in paragraph B, Section
1 of this charter, the PCSO cannot share its franchise with another by
way of collaboration, association or joint venture. Neither can it
assign, transfer, or lease such franchise. It has been said that "the
rights and privileges conferred under a franchise may, without doubt,
be assigned or transferred when the grant is to the grantee and
assigns, or is authorized by statute. On the other hand, the right of
transfer or assignment may be restricted by statute or the constitution,
or be made subject to the approval of the grantor or a governmental
agency, such as a public utilities commission, except that an existing
right of assignment cannot be impaired by subsequent legislation."
60
It may also be pointed out that the franchise granted to the PCSO to
hold and conduct lotteries allows it to hold and conduct a species of
gambling. It is settled that "a statute which authorizes the carrying on
of a gambling activity or business should be strictly construed and
every reasonable doubt so resolved as to limit the powers and rights
claimed under its authority." 61
Does the challenged Contract of Lease violate or contravene the
exception in Section 1 of R.A. No. 1169, as amended by B.P. Blg. 42,
which prohibits the PCSO from holding and conducting lotteries "in
collaboration, association or joint venture with" another?
We agree with the petitioners that it does, notwithstanding its
denomination or designation as a Contract of Lease. We are neither
convinced nor moved or fazed by the insistence and forceful
arguments of the PGMC that it does not because in reality it is only an
independent contractor for a piece of work, i.e., the building and
maintenance of a lottery system to be used by the PCSO in the
operation of its lottery franchise. Whether the contract in question is
one of lease or whether the PGMC is merely an independent
contractor should not be decided on the basis of the title or
designation of the contract but by the intent of the parties, which may
be gathered from the provisions of the contract itself. Animus hominis
est anima scripti. The intention of the party is the soul of the
instrument. In order to give life or effect to an instrument, it is essential
to look to the intention of the individual who executed it. 62 And,

230
pursuant to Article 1371 of the Civil Code, "to determine the intention
of the contracting parties, their contemporaneous and subsequent
acts shall be principally considered." To put it more bluntly, no one
should be deceived by the title or designation of a contract.
A careful analysis and evaluation of the provisions of the contract and
a consideration of the contemporaneous acts of the PCSO and PGMC
indubitably disclose that the contract is not in reality a contract of
lease under which the PGMC is merely an independent contractor for
a piece of work, but one where the statutorily proscribed collaboration
or association, in the least, or joint venture, at the most, exists
between the contracting parties. Collaboration is defined as the acts
of working together in a joint project. 63 Association means the act of
a number of persons in uniting together for some special purpose or
business. 64 Joint venture is defined as an association of persons or
companies jointly undertaking some commercial enterprise; generally
all contribute assets and share risks. It requires a community of
interest in the performance of the subject matter, a right to direct and
govern the policy in connection therewith, and duty, which may be
altered by agreement to share both in profit and losses. 65
The contemporaneous acts of the PCSO and the PGMC reveal that
the PCSO had neither funds of its own nor the expertise to operate
and manage an on-line lottery system, and that although it wished to
have the system, it would have it "at no expense or risks to the
government." Because of these serious constraints and unwillingness
to bear expenses and assume risks, the PCSO was candid enough to
state in its RFP that it is seeking for "a suitable contractor which shall
build, at its own expense, all the facilities needed to operate and
maintain" the system; exclusively bear "all capital, operating expenses
and expansion expenses and risks"; and submit "a comprehensive
nationwide lottery development plan . . . which will include the game,
the marketing of the games, and the logistics to introduce the game to
all the cities and municipalities of the country within five (5) years";
and that the operation of the on-line lottery system should be "at no
expense or risk to the government" meaning itself , since it is a
government-owned and controlled agency. The facilities referred to
means "all capital equipment, computers, terminals, software,
nationwide telecommunications network, ticket sales offices,
furnishings and fixtures, printing costs, costs of salaries and wages,
advertising and promotions expenses, maintenance costs, expansion

and replacement costs, security and insurance, and all other related
expenses needed to operate a nationwide on-line lottery system."
In short, the only contribution the PCSO would have is its franchise or
authority to operate the on-line lottery system; with the rest, including
the risks of the business, being borne by the proponent or bidder. It
could be for this reason that it warned that "the proponent must be
able to stand to the acid test of proving that it is an entity able to take
on the role of responsible maintainer of the on-line lottery systems."
The PCSO however, makes it clear in its RFP that the proponent can
propose a period of the contract which shall not exceed fifteen years,
during which time it is assured of a "rental" which shall not exceed
12% of gross receipts. As admitted by the PGMC, upon learning of the
PCSO's decision, the Berjaya Group Berhad, with its affiliates, wanted
to offer its services and resources to the PCSO. Forthwith, it
organized the PGMC as "a medium through which the technical and
management services required for the project would be offered and
delivered to PCSO." 66
Undoubtedly, then, the Berjaya Group Berhad knew all along that in
connection with an on-line lottery system, the PCSO had nothing but
its franchise, which it solemnly guaranteed it had in the General
Information of the RFP. 67 Howsoever viewed then, from the very
inception, the PCSO and the PGMC mutually understood that any
arragement between them would necessarily leave to the PGMC the
technical, operatrions, and management aspects of the on-line lottery
system while the PSCO would, primarily, provide the franchise. The
words Gaming and Management in the corporate name of respondent
Philippine Gaming Management Corporation could not have been
conceived just for euphemistic purposes. Of course, the RFP cannot
substitute for the Contract of Lease which was subsequently executed
by the PCSO and the PGMC. Nevertheless, the Contract of Lease
incorporates their intention and understanding.
The so-called Contract of Lease is not, therefore, what it purports to
be. Its denomination as such is a crafty device, carefully conceived, to
provide a built-in defense in the event that the agreement is
questioned as violative of the exception in Section 1 (B) of the
PCSO's charter. The acuity or skill of its draftsmen to accomplish that
purpose easily manifests itself in the Contract of Lease. It is
outstanding for its careful and meticulous drafting designed to give an
immediate impression that it is a contract of lease. Yet, woven therein

231
are provisions which negate its title and betray the true intention of the
parties to be in or to have a joint venture for a period of eight years in
the operation and maintenance of the on-line lottery system.

and retain, for its own account, security deposit from dealers and
retailers in respect of equipment supplied by it. This joint venture is
further established by the following:

Consistent with the above observations on the RFP, the PCSO has
only its franchise to offer, while the PGMC represents and warrants
that it has access to all managerial and technical expertise to promptly
and effectively carry out the terms of the contract. And, for a period of
eight years, the PGMC is under obligation to keep all the Facilities in
the safe condition and if necessary, upgrade, replace, and improve
them from time to time as new technology develops to make the online lottery system more cost-effective and competitive; exclusively
bear all costs and expenses relating to the printing, manpower,
salaries and wages, advertising and promotion, maintenance,
expansion and replacement, security and insurance, and all other
related expenses needed to operate the on-line lottery system;
undertake a positive advertising and promotions campaign for both
institutional and product lines without engaging in negative advertising
against other lessors; bear the salaries and related costs of skilled
and qualified personnel for administrative and technical operations;
comply with procedural and coordinating rules issued by the PCSO;
and to train PCSO and other local personnel and to effect the transfer
of technology and other expertise, such that at the end of the term of
the contract, the PCSO will be able to effectively take over the
Facilities and efficiently operate the on-line lottery system. The latter
simply means that, indeed, the managers, technicians or employees
who shall operate the on-line lottery system are not managers,
technicians or employees of the PCSO, but of the PGMC and that it is
only after the expiration of the contract that the PCSO will operate the
system. After eight years, the PCSO would automatically become the
owner of the Facilities without any other further consideration.

(a)
Rent is defined in the lease contract as the amount to be paid
to the PGMC as compensation for the fulfillment of its obligations
under the contract, including but not limited to the lease of the
Facilities. However, this rent is not actually a fixed amount. Although it
is stated to be 4.9% of gross receipts from ticket sales, payable net of
taxes required by law to be withheld, it may be drastically reduced or,
in extreme cases, nothing may be due or demandable at all because
the PGMC binds itself to "bear all risks if the revenue from the ticket
sales, on an annualized basis, are insufficient to pay the entire prize
money." This risk-bearing provision is unusual in a lessor-lessee
relationship, but inherent in a joint venture.

For these reasons, too, the PGMC has the initial prerogative to
prepare the detailed plan of all games and the marketing thereof, and
determine the number of players, value of winnings, and the logistics
required to introduce the games, including the Master Games Plan. Of
course, the PCSO has the reserved authority to disapprove them. 68
And, while the PCSO has the sole responsibility over the appointment
of dealers and retailers throughout the country, the PGMC may,
nevertheless, recommend for appointment dealers and retailers which
shall be acted upon by the PCSO within forty-eight hours and collect

(b)
In the event of pre-termination of the contract by the PCSO, or
its suspension of operation of the on-line lottery system in breach of
the contract and through no fault of the PGMC, the PCSO binds itself
"to promptly, and in any event not later than sixty (60) days, reimburse
the LESSOR the amount of its total investment cost associated with
the On-Line Lottery System, including but not limited to the cost of the
Facilities, and further compensate the LESSOR for loss of expected
net profit after tax, computed over the unexpired term of the lease." If
the contract were indeed one of lease, the payment of the expected
profits or rentals for the unexpired portion of the term of the contract
would be enough.
(c)
The PGMC cannot "directly or indirectly undertake any activity
or business in competition with or adverse to the On-Line Lottery
System of PCSO unless it obtains the latter's prior written consent." If
the PGMC is engaged in the business of leasing equipment and
technology for an on-line lottery system, we fail to see any acceptable
reason why it should allow a restriction on the pursuit of such
business.
(d)
The PGMC shall provide the PCSO the audited Annual Report
sent to its stockholders, and within two years from the effectivity of
the contract, cause itself to be listed in the local stock exchange and
offer at least 25% of its equity to the public. If the PGMC is merely a
lessor, this imposition is unreasonable and whimsical, and could only
be tied up to the fact that the PGMC will actually operate and manage

232
the system; hence, increasing public participation in the corporation
would enhance public interest.

to law. This conclusion renders unnecessary further discussion on the

other issues raised by the petitioners.

(e)
The PGMC shall put an Escrow Deposit of P300,000,000.00
pursuant to the requirements of the RFP, which it may, at its option,
maintain as its initial performance bond required to ensure its faithful
compliance with the terms of the contract.

WHEREFORE, the instant petition is hereby GRANTED and the

challenged Contract of Lease executed on 17 December 1993 by
respondent Philippine Charity Sweepstakes Office (PCSO) and
respondent Philippine Gaming Management Corporation (PGMC) is
hereby DECLARED contrary to law and invalid.

(f)
The PCSO shall designate the necessary personnel to monitor
and audit the daily performance of the on-line lottery system; and
promulgate procedural and coordinating rules governing all activities
relating to the on-line lottery system. The first further confirms that it is
the PGMC which will operate the system and the PCSO may, for the
protection of its interest, monitor and audit the daily performance of
the system. The second admits the coordinating and cooperative
powers and function of the parties.
(g)
The PCSO may validly terminate the contract if the PGMC
becomes insolvent or bankrupt or is unable to pay its debts, or if it
stops or suspends or threatens to stop or suspend payment of all or a
material part of its debts.
All of the foregoing unmistakably confirm indispensable role of the
PGMC in the pursuit, operation, conduct, and management of the OnLine Lottery System. They exhibit and demonstrate the parties'
indivisible community of interest in the conception, birth and growth of
the on-line lottery, and above all, in its profits, with each having a right
in the formulation and implementation of policies related to the
business and sharing, as well, in the losses with the PGMC bearing
the greatest burden because of its assumption of expenses and risks,
and the PCSO the least, because of its confessed unwillingness to
bear expenses and risks. In a manner of speaking, each is wed to the
other for better or for worse. In the final analysis, however, in the light
of the PCSO's RFP and the above highlighted provisions, as well as
the "Hold Harmless Clause" of the Contract of Lease, it is even safe to
conclude that the actual lessor in this case is the PCSO and the
subject matter thereof is its franchise to hold and conduct lotteries
since it is, in reality, the PGMC which operates and manages the online lottery system for a period of eight years.
We thus declare that the challenged Contract of Lease violates the
exception provided for in paragraph B, Section 1 of R.A. No. 1169, as
amended by B.P. Blg. 42, and is, therefore, invalid for being contrary

The Temporary Restraining Order issued on 11 April 1994 is hereby

MADE PERMANENT.
No pronouncement as to costs.

233

[G.R. No. 159139. January 13, 2004.]

INFORMATION
TECHNOLOGY
FOUNDATION
OF
THE
PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO
H. LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL
HILADO, LEY SALCEDO, and MANUEL ALCUAZ JR., petitioners,
vs. COMMISSION ON ELECTIONS; COMELEC CHAIRMAN
BENJAMIN ABALOS SR.; COMELEC BIDDING and AWARD
COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS
GIDEON DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P.
LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC
eSOLUTIONS, INC.; and MEGA PACIFIC CONSORTIUM,
respondents.
DECISION
PANGANIBAN, J p:
There is grave abuse of discretion (1) when an act is done contrary to
the Constitution, the law or jurisprudence; 1 or (2) when it is executed
whimsically, capriciously or arbitrarily out of malice, ill will or personal
bias. 2 In the present case, the Commission on Elections approved
the assailed Resolution and awarded the subject Contract not only in
clear violation of law and jurisprudence, but also in reckless disregard
of its own bidding rules and procedure. For the automation of the
counting and canvassing of the ballots in the 2004 elections, Comelec
awarded the Contract to "Mega Pacific Consortium" an entity that had
not participated in the bidding. Despite this grant, the poll body signed
the actual automation Contract with "Mega Pacific eSolutions, Inc.," a
company that joined the bidding but had not met the eligibility
requirements. IcHSCT
Comelec awarded this billion-peso undertaking with inexplicable
haste, without adequately checking and observing mandatory
financial, technical and legal requirements. It also accepted the

proferred computer hardware and software even if, at the time of the
award, they had undeniably failed to pass eight critical requirements
designed to safeguard the integrity of elections, especially the
following three items:

They failed to achieve the accuracy rating criteria of 99.9995

percent set-up by the Comelec itself

They were not able to detect previously downloaded results at

various canvassing or consolidation levels and to prevent these from
being inputted again

They were unable to print the statutorily required audit trails of

the count/canvass at different levels without any loss of data
Because of the foregoing violations of law and the glaring grave
abuse of discretion committed by Comelec, the Court has no choice
but to exercise its solemn "constitutional duty" 3 to void the assailed
Resolution and the subject Contract. The illegal, imprudent and hasty
actions of the Commission have not only desecrated legal and
jurisprudential norms, but have also cast serious doubts upon the poll
body's ability and capacity to conduct automated elections. Truly, the
pith and soul of democracy credible, orderly, and peaceful elections
has been put in jeopardy by the illegal and gravely abusive acts of
Comelec.
The Case
Before us is a Petition 4 under Rule 65 of the Rules of Court, seeking
(1) to declare null and void Resolution No. 6074 of the Commission on
Elections (Comelec), which awarded "Phase II of the Modernization
Project of the Commission to Mega Pacific Consortium (MPC);" (2) to
enjoin the implementation of any further contract that may have been
entered into by Comelec "either with Mega Pacific Consortium and/or
Mega Pacific eSolutions, Inc. (MPEI);" and (3) to compel Comelec to
conduct a re-bidding of the project.
The Facts
The following facts are not disputed. They were culled from official
documents, the parties' pleadings, as well as from admissions during
the Oral Argument on October 7, 2003.
On June 7, 1995, Congress passed Republic Act 8046, 5 which
authorized Comelec to conduct a nationwide demonstration of a

234
computerized election system and allowed the poll body to pilot-test
the system in the March 1996 elections in the Autonomous Region in
Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act 8436 6
authorizing Comelec to use an automated election system (AES) for
the process of voting, counting votes and canvassing/consolidating
the results of the national and local elections. It also mandated the
poll body to acquire automated counting machines (ACMs), computer
equipment, devices and materials; and to adopt new electoral forms
and printing materials.
Initially intending to implement the automation during the May 11,
1998 presidential elections, Comelec in its Resolution No. 2985
dated February 9, 1998 7 eventually decided against full national
implementation and limited the automation to the Autonomous Region
in Muslim Mindanao (ARMM). However, due to the failure of the
machines to read correctly some automated ballots in one town, the
poll body later ordered their manual count for the entire Province of
Sulu. 8
In the May 2001 elections, the counting and canvassing of votes for
both national and local positions were also done manually, as no
additional ACMs had been acquired for that electoral exercise
allegedly because of time constraints.
On October 29, 2002, Comelec adopted in its Resolution 02-0170 a
modernization program for the 2004 elections. It resolved to conduct
biddings for the three (3) phases of its Automated Election System;
namely, Phase I Voter Registration and Validation System; Phase II
Automated Counting and Canvassing System; and Phase III
Electronic Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued
Executive Order No. 172, which allocated the sum of P2.5 billion to
fund the AES for the May 10, 2004 elections. Upon the request of
Comelec, she authorized the release of an additional P500 million.
On January 28, 2003, the Commission issued an "Invitation to Apply
for Eligibility and to Bid," which we quote as follows:
"INVITATION TO APPLY FOR ELIGIBILITY AND TO BID

The Commission on Elections (COMELEC), pursuant to the mandate

of Republic Act Nos. 8189 and 8436, invites interested offerors,
vendors, suppliers or lessors to apply for eligibility and to bid for the
procurement by purchase, lease, lease with option to purchase, or
otherwise, supplies, equipment, materials and services needed for a
comprehensive Automated Election System, consisting of three (3)
phases: (a) registration/verification of voters, (b) automated counting
and consolidation of votes, and (c) electronic transmission of election
results, with an approved budget of TWO BILLION FIVE HUNDRED
MILLION (Php2,500,000,000) Pesos. EICDSA
Only bids from the following entities shall be entertained:
a.

Duly licensed Filipino citizens/proprietorships;

b.
Partnerships duly organized under the laws of the Philippines
and of which at least sixty percent (60%) of the interest belongs to
citizens of the Philippines;
c.
Corporations duly organized under the laws of the Philippines,
and of which at least sixty percent (60%) of the outstanding capital
stock belongs to citizens of the Philippines;
d.
Manufacturers,
suppliers
and/or
distributors
forming
themselves into a joint venture, i.e., a group of two (2) or more
manufacturers, suppliers and/or distributors that intend to be jointly
and severally responsible or liable for a particular contract, provided
that Filipino ownership thereof shall be at least sixty percent (60%);
and
e.
Cooperatives duly
Development Authority.

registered

with

the

Cooperatives

Bid documents for the three (3) phases may be obtained starting 10
February 2003, during office hours from the Bids and Awards
Committee (BAC) Secretariat/Office of Commissioner Resurreccion Z.
Borra, 7th Floor, Palacio del Governador, Intramuros, Manila, upon
payment at the Cash Division, Commission on Elections, in cash or
cashier's check, payable to the Commission on Elections, of a nonrefundable amount of FIFTEEN THOUSAND PESOS (Php15,000.00)
for each phase. For this purpose, interested offerors, vendors,
suppliers or lessors have the option to participate in any or all of the
three (3) phases of the comprehensive Automated Election System.

235
A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m.
at the Session Hall, Commission on Elections, Postigo Street,
Intramuros, Manila. Should there be questions on the bid documents,
bidders are required to submit their queries in writing to the BAC
Secretariat prior to the scheduled Pre-Bid Conference.
Deadline for submission to the BAC of applications for eligibility and
bid envelopes for the supply of the comprehensive Automated
Election System shall be at the Session Hall, Commission on
Elections, Postigo Street, Intramuros, Manila on 28 February 2003 at
9:00 a.m.
The COMELEC reserves the right to review the qualifications of the
bidders after the bidding and before the contract is executed. Should
such review uncover any misrepresentation made in the eligibility
statements, or any changes in the situation of the bidder to materially
downgrade the substance of such statements, the COMELEC shall
disqualify the bidder upon due notice without any obligation
whatsoever for any expenses or losses that may be incurred by it in
the preparation of its bid." 9
On February 11, 2003, Comelec issued Resolution No. 5929 clarifying
certain eligibility criteria for bidders and the schedule of activities for
the project bidding, as follows:
"1.)
Open to Filipino and foreign corporation duly registered and
licensed to do business and is actually doing business in the
Philippines, subject to Sec. 43 of RA 9184 (An Act providing in the
Modernization Standardization and Regulation of the Procurement
Activities of the Government and for other purposes etc.)
2.)

Track Record:

a)
For counting machines should have been used in at least
one (1) political exercise with no less than Twenty Million Voters;
b)
For verification of voters the reference site of an existing
data base installation using Automated Fingerprint Identification
System (AFIS) with at least Twenty Million.
3.)
Ten percent (10%) equity requirement shall be based on the
total project cost; and
4.)
offer.

Performance bond shall be twenty percent (20%) of the bid

RESOLVED moreover, that:

1) A. Due to the decision that the eligibility requirements and the
rest of the Bid documents shall be released at the same time, and the
memorandum of Comm. Resurreccion Z. Borra dated February 7,
2003, the documents to be released on Friday, February 14, 2003 at
2:00 o'clock p.m. shall be the eligibility criteria, Terms of Reference
(TOR) and other pertinent documents; EICSTa
B.

Pre-Bid conference shall be on February 18, 2003; and

C.
Deadline for the submission and receipt of the Bids shall be on
March 5, 2003.
2)
The aforementioned documents will be available at the
following offices:
a)

Voters Validation: Office of Comm. Javier

b)

Automated Counting Machines: Office of Comm. Borra

c)

Electronic Transmission: Office of Comm. Tancangco" 10

On February 17, 2003, the poll body released the Request for
Proposal (RFP) to procure the election automation machines. The
Bids and Awards Committee (BAC) of Comelec convened a pre-bid
conference on February 18, 2003 and gave prospective bidders until
March 10, 2003 to submit their respective bids.
Among others, the RFP provided that bids from manufacturers,
suppliers and/or distributors forming themselves into a joint venture
may be entertained, provided that the Philippine ownership thereof
shall be at least 60 percent. Joint venture is defined in the RFP as "a
group of two or more manufacturers, suppliers and/or distributors that
intend to be jointly and severally responsible or liable for a particular
contract." 11
Basically, the public bidding was to be conducted under a twoenvelope/two stage system. The bidder's first envelope or the
Eligibility Envelope should establish the bidder's eligibility to bid and
its qualifications to perform the acts if accepted. On the other hand,
the second envelope would be the Bid Envelope itself. The RFP
outlines the bidding procedures as follows:
"25.

Determination of Eligibility of Prospective Bidders

236
"25.1 The eligibility envelopes of prospective Bidders shall be
opened first to determine their eligibility. In case any of the
requirements specified in Clause 20 is missing from the first bid
envelope, the BAC shall declare said prospective Bidder as ineligible
to bid. Bid envelopes of ineligible Bidders shall be immediately
returned unopened.
"25.2 The eligibility of prospective Bidders shall be determined using
simple 'pass/fail' criteria and shall be determined as either eligible or
ineligible. If the prospective Bidder is rated 'passed' for all the legal,
technical and financial requirements, he shall be considered eligible. If
the prospective Bidder is rated 'failed' in any of the requirements, he
shall be considered ineligible.
"26.

Bid Examination/Evaluation

"26.1 The BAC will examine the Bids to determine whether they are
complete, whether any computational errors have been made,
whether required securities have been furnished, whether the
documents have been properly signed, and whether the Bids are
generally in order.
"26.2 The BAC shall check the submitted documents of each Bidder
against the required documents enumerated under Clause 20, to
ascertain if they are all present in the Second bid envelope (Technical
Envelope). In case one (1) or more of the required documents is
missing, the BAC shall rate the Bid concerned as 'failed' and
immediately return to the Bidder its Third bid envelope (Financial
Envelope) unopened. Otherwise, the BAC shall rate the first bid
envelope as 'passed'.
"26.3 The BAC shall immediately open the Financial Envelopes of
the Bidders whose Technical Envelopes were passed or rated on or
above the passing score. Only Bids that are determined to contain all
the bid requirements for both components shall be rated 'passed' and
shall immediately be considered for evaluation and comparison.
"26.4 In the opening and examination of the Financial Envelope, the
BAC shall announce and tabulate the Total Bid Price as calculated.
Arithmetical errors will be rectified on the following basis: If there is a
discrepancy between words and figures, the amount in words will
prevail. If there is a discrepancy between the unit price and the total
price that is obtained by multiplying the unit price and the quantity, the

unit price shall prevail and the total price shall be corrected
accordingly. If there is a discrepancy between the Total Bid Price and
the sum of the total prices, the sum of the total prices prevail and the
Total Bid Price shall be corrected accordingly. HcSaAD
"26.5 Financial Proposals which do not clearly state the Total Bid
Price shall be rejected. Also, Total Bid Price as calculated that
exceeds the approved budget for the contract shall also be rejected.
27.

Comparison of Bids

"27.1 The bid price shall be deemed to embrace all costs, charges
and fees associated with carrying out all the elements of the proposed
Contract, including but not limited to, license fees, freight charges and
taxes.
"27.2 The BAC shall establish the calculated prices of all Bids rated
'passed' and rank the same in ascending order.
xxx
"29.

xxx

xxx

Postqualification

"29.1 The BAC will determine to its satisfaction whether the Bidder
selected as having submitted the lowest calculated bid is qualified to
satisfactorily perform the Contract.
"29.2 The determination will take into account the Bidder's financial,
technical and production capabilities/resources. It will be based upon
an examination of the documentary evidence of the Bidder's
qualification submitted by the Bidder as well as such other information
as the BAC deems necessary and appropriate.
"29.3 A bid determined as not substantially responsive will be
rejected by the BAC and may not subsequently be made responsive
by the Bidder by correction of the non-conformity.
"29.4 The BAC may waive any informality or non-conformity or
irregularity in a bid which does not constitute a material deviation,
provided such waiver does not prejudice or affect the relative ranking
of any Bidder.
"29.5 Should the BAC find that the Bidder complies with the legal,
financial and technical requirements, it shall make an affirmative
determination which shall be a prerequisite for award of the Contract
to the Bidder. Otherwise, it will make a negative determination which

237
will result in rejection of the Bidder's bid, in which event the BAC will
proceed to the next lowest calculated bid to make a similar
determination of that Bidder's capabilities to perform satisfactorily." 12
Out of the 57 bidders, 13 the BAC found MPC and the Total
Information Management Corporation (TIMC) eligible. For technical
evaluation, they were referred to the BAC's Technical Working Group
(TWG) and the Department of Science and Technology (DOST).
In its Report on the Evaluation of the Technical Proposals on Phase II,
DOST said that both MPC and TIMC had obtained a number of failed
marks in the technical evaluation. Notwithstanding these failures,
Comelec en banc, on April 15, 2003, promulgated Resolution No.
6074 awarding the project to MPC. The Commission publicized this
Resolution and the award of the project to MPC on May 16, 2003.
On May 29, 2003, five individuals and entities (including the herein
Petitioners Information Technology Foundation of the Philippines,
represented by its president, Alfredo M. Torres; and Ma. Corazon
Akol) wrote a letter 14 to Comelec Chairman Benjamin Abalos Sr.
They protested the award of the Contract to Respondent MPC "due to
glaring irregularities in the manner in which the bidding process had
been conducted." Citing therein the noncompliance with eligibility as
well as technical and procedural requirements (many of which have
been discussed at length in the Petition), they sought a re-bidding.
In a letter-reply dated June 6, 2003, 15 the Comelec chairman
speaking through Atty. Jaime Paz, his head executive assistant
rejected the protest and declared that the award "would stand up to
the strictest scrutiny."
Hence, the present Petition. 16
The Issues
In their Memorandum, petitioners raise the following issues for our
consideration:
"1.
The COMELEC awarded and contracted with a non-eligible
entity; . . .
"2.
Private respondents failed to pass the Technical Test as
required in the RFP. Notwithstanding, such failure was ignored. In
effect, the COMELEC changed the rules after the bidding in effect
changing the nature of the contract bidded upon. ADCEcI

"3.

Petitioners have locus standi.

"4.
Instant Petition is not premature. Direct resort to the Supreme
Court is justified." 17
In the main, the substantive issue is whether the Commission on
Elections, the agency vested with the exclusive constitutional
mandate to oversee elections, gravely abused its discretion when, in
the exercise of its administrative functions, it awarded to MPC the
contract for the second phase of the comprehensive Automated
Election System.
Before discussing the validity of the award to MPC, however, we
deem it proper to first pass upon the procedural issues: the legal
standing of petitioners and the alleged prematurity of the Petition.
This Court's Ruling
The Petition is meritorious.
First Procedural Issue:
Locus Standi of Petitioners
Respondents chorus that petitioners do not possess locus standi,
inasmuch as they are not challenging the validity or constitutionality of
RA 8436. Moreover, petitioners supposedly admitted during the Oral
Argument that no law had been violated by the award of the Contract.
Furthermore, they allegedly have no actual and material interest in the
Contract and, hence, do not stand to be injured or prejudiced on
account of the award.
On the other hand, petitioners suing in their capacities as
taxpayers, registered voters and concerned citizens respond that
the issues central to this case are "of transcendental importance and
of national interest." Allegedly, Comelec's flawed bidding and
questionable award of the Contract to an unqualified entity would
impact directly on the success or the failure of the electoral process.
Thus, any taint on the sanctity of the ballot as the expression of the
will of the people would inevitably affect their faith in the democratic
system of government. Petitioners further argue that the award of any
contract for automation involves disbursement of public funds in
gargantuan amounts; therefore, public interest requires that the laws
governing the transaction must be followed strictly.

238
We agree with petitioners. Our nation's political and economic future
virtually hangs in the balance, pending the outcome of the 2004
elections. Hence, there can be no serious doubt that the subject
matter of this case is "a matter of public concern and imbued with
public interest"; 18 in other words, it is of "paramount public interest"
19 and "transcendental importance." 20 This fact alone would justify
relaxing the rule on legal standing, following the liberal policy of this
Court whenever a case involves "an issue of overarching significance
to our society." 21 Petitioners' legal standing should therefore be
recognized and upheld.
Moreover, this Court has held that taxpayers are allowed to sue when
there is a claim of "illegal disbursement of public funds," 22 or if public
money is being "deflected to any improper purpose"; 23 or when
petitioners seek to restrain respondent from "wasting public funds
through the enforcement of an invalid or unconstitutional law." 24 In
the instant case, individual petitioners, suing as taxpayers, assert a
material interest in seeing to it that public funds are properly and
lawfully used. In the Petition, they claim that the bidding was
defective, the winning bidder not a qualified entity, and the award of
the Contract contrary to law and regulation. Accordingly, they seek to
restrain respondents from implementing the Contract and, necessarily,
from making any unwarranted expenditure of public funds pursuant
thereto. Thus, we hold that petitioners possess locus standi.
Second Procedural Issue:
Alleged Prematurity Due to Non-Exhaustion of Administrative
Remedies
Respondents claim that petitioners acted prematurely, since they had
not first utilized the protest mechanism available to them under RA
9184, the Government Procurement Reform Act, for the settlement of
disputes pertaining to procurement contracts.
Section 55 of RA 9184 states that protests against decisions of the
Bidding and Awards Committee in all stages of procurement may be
lodged with the head of the procuring entity by filing a verified position
paper and paying a protest fee. Section 57 of the same law mandates
that in no case shall any such protest stay or delay the bidding
process, but it must first be resolved before any award is made.

On the other hand, Section 58 provides that court action may be

resorted to only after the protests contemplated by the statute shall
have been completed. Cases filed in violation of this process are to be
dismissed for lack of jurisdiction. Regional trial courts shall have
jurisdiction over final decisions of the head of the procuring entity, and
court actions shall be instituted pursuant to Rule 65 of the 1997 Rules
of Civil Procedure. cECTaD
Respondents assert that throughout the bidding process, petitioners
never questioned the BAC Report finding MPC eligible to bid and
recommending the award of the Contract to it (MPC). According to
respondents, the Report should have been appealed to the Comelec
en banc, pursuant to the aforementioned sections of RA 9184. In the
absence of such appeal, the determination and recommendation of
the BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No. 6074
dated April 15, 2003, awarding the project to Respondent MPC even
before the BAC managed to issue its written report and
recommendation on April 21, 2003. Thus, how could petitioners have
appealed the BAC's recommendation or report to the head of the
procuring entity (the chairman of Comelec), when the Comelec en
banc had already approved the award of the contract to MPC even
before petitioners learned of the BAC recommendation?
It is claimed 25 by Comelec that during its April 15, 2003 session, it
received and approved the verbal report and recommendation of the
BAC for the award of the Contract to MPC, and that the BAC
subsequently re-affirmed its verbal report and recommendation by
submitting it in writing on April 21, 2003. Respondents insist that the
law does not require that the BAC Report be in writing before
Comelec can act thereon; therefore, there is allegedly nothing
irregular about the Report as well as the en banc Resolution.
However, it is obvious that petitioners could have appealed the BAC's
report and recommendation to the head of the procuring entity (the
Comelec chair) only upon their discovery thereof, which at the very
earliest would have been on April 21, 2003, when the BAC actually
put its report in writing and finally released it. Even then, what would
have been the use of protesting/appealing the report to the Comelec
chair, when by that time the Commission en banc (including the

239
chairman himself) had already approved the BAC Report and
awarded the Contract to MPC?
And even assuming arguendo that petitioners had somehow gotten
wind of the verbal BAC report on April 15, 2003 (immediately after the
en banc session), at that point the Commission en banc had already
given its approval to the BAC Report along with the award to MPC. To
put it bluntly, the Comelec en banc itself made it legally impossible for
petitioners to avail themselves of the administrative remedy that the
Commission is so impiously harping on. There is no doubt that they
had not been accorded the opportunity to avail themselves of the
process provided under Section 55 of RA 9184, according to which a
protest against a decision of the BAC may be filed with the head of
the procuring entity. Nemo tenetur ad impossible, 26 to borrow private
respondents' favorite Latin excuse. 27
Some Observations on the BAC Report to the Comelec
We shall return to this issue of alleged prematurity shortly, but at this
interstice, we would just want to put forward a few observations
regarding the BAC Report and the Comelec en banc's approval
thereof.
First, Comelec contends that there was nothing unusual about the fact
that the Report submitted by the BAC came only after the former had
already awarded the Contract, because the latter had been asked to
render its report and recommendation orally during the Commission's
en banc session on April 15, 2003. Accordingly, Comelec supposedly
acted upon such oral recommendation and approved the award to
MPC on the same day, following which the recommendation was
subsequently reduced into writing on April 21, 2003. While not entirely
outside the realm of the possible, this interesting and unique spiel
does not speak well of the process that Comelec supposedly went
through in making a critical decision with respect to a multi-billionpeso contract.
We can imagine that anyone else standing in the shoes of the
Honorable Commissioners would have been extremely conscious of
the overarching need for utter transparency. They would have
scrupulously avoided the slightest hint of impropriety, preferring to
maintain an exacting regularity in the performance of their duties,
instead of trying to break a speed record in the award of multi-billionpeso contracts. After all, between April 15 and April 21 were a mere

six (6) days. Could Comelec not have waited out six more days for the
written report of the BAC, instead of rushing pell-mell into the arms of
MPC? Certainly, respondents never cared to explain the nature of the
Commission's dire need to act immediately without awaiting the
formal, written BAC Report.
In short, the Court finds it difficult to reconcile the uncommon dispatch
with which Comelec acted to approve the multi-billion-peso deal, with
its claim of having been impelled by only the purest and most noble of
motives.
At any rate, as will be discussed later on, several other factors
combine to lend negative credence to Comelec's tale.
Second, without necessarily ascribing any premature malice or
premeditation on the part of the Comelec officials involved, it should
nevertheless be conceded that this cart-before-the-horse maneuver
(awarding of the Contract ahead of the BAC's written report) would
definitely serve as a clever and effective way of averting and
frustrating any impending protest under Section 55. CIDTcH
Having made the foregoing observations, we now go back to the
question of exhausting administrative remedies. Respondents may
not have realized it, but the letter addressed to Chairman Benjamin
Abalos Sr. dated May 29, 2003 28 serves to eliminate the prematurity
issue as it was an actual written protest against the decision of the
poll body to award the Contract. The letter was signed by/for, inter
alia, two of herein petitioners: the Information Technology Foundation
of the Philippines, represented by its president, Alfredo M. Torres; and
Ma. Corazon Akol.
Such letter-protest is sufficient compliance with the requirement to
exhaust administrative remedies particularly because it hews closely
to the procedure outlined in Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the Court still holds
that petitioners need not exhaust administrative remedies in the light
of Paat v. Court of Appeals. 29 Paat enumerates the instances when
the rule on exhaustion of administrative remedies may be
disregarded, as follows:
"(1)

when there is a violation of due process,

(2)

when the issue involved is purely a legal question,

240
(3)
when the administrative action is patently illegal amounting to
lack or excess of jurisdiction,
(4)
when there is estoppel on the part of the administrative agency
concerned,
(5)

when there is irreparable injury,

(6)
when the respondent is a department secretary whose acts as
an alter ego of the President bears the implied and assumed approval
of the latter,
(7)
when to require exhaustion of administrative remedies would
be unreasonable,
(8)

when it would amount to a nullification of a claim,

(9)
when the subject matter is a private land in land case
proceedings,
(10) when the rule does not provide a plain, speedy and adequate
remedy, and
(11)
when there are circumstances indicating the urgency of judicial
intervention." 30
The present controversy precisely falls within the exceptions listed as
Nos. 7, 10 and 11: "(7) when to require exhaustion of administrative
remedies would be unreasonable; (10) when the rule does not provide
a plain, speedy and adequate remedy, and (11) when there are
circumstances indicating the urgency of judicial intervention." As
already stated, Comelec itself made the exhaustion of administrative
remedies legally impossible or, at the very least, "unreasonable."
In any event, the peculiar circumstances surrounding the
unconventional rendition of the BAC Report and the precipitate
awarding of the Contract by the Comelec en banc plus the fact that
it was racing to have its Contract with MPC implemented in time for
the elections in May 2004 (barely four months away) have
combined to bring about the urgent need for judicial intervention, thus
prompting this Court to dispense with the procedural exhaustion of
administrative remedies in this case.
Main Substantive Issue:
Validity of the Award to MPC

We come now to the meat of the controversy. Petitioners contend that

the award is invalid, since Comelec gravely abused its discretion
when it did the following:
1.
Awarded the Contract to MPC though it did not even
participate in the bidding
2.
Allowed MPEI to participate in the bidding despite its failure to
meet the mandatory eligibility requirements
3.
Issued its Resolution of April 15, 2003 awarding the Contract
to MPC despite the issuance by the BAC of its Report, which formed
the basis of the assailed Resolution, only on April 21, 2003 31
4.
Awarded the Contract, notwithstanding the fact that during the
bidding process, there were violations of the mandatory requirements
of RA 8436 as well as those set forth in Comelec's own Request for
Proposal on the automated election system IHaECA
5.
Refused to declare a failed bidding and to conduct a re-bidding
despite the failure of the bidders to pass the technical tests conducted
by the Department of Science and Technology
6.
Failed to follow strictly the provisions of RA 8436 in the
conduct of the bidding for the automated counting machines
After reviewing the slew of pleadings as well as the matters raised
during the Oral Argument, the Court deems it sufficient to focus
discussion on the following major areas of concern that impinge on
the issue of grave abuse of discretion:
A.
Matters pertaining to the identity, existence and eligibility of
MPC as a bidder
B.
Failure of the automated counting machines (ACMs) to pass
the DOST technical tests
C.
Remedial measures and re-testings undertaken by Comelec
and DOST after the award, and their effect on the present controversy
A.
Failure to Establish the Identity, Existence and Eligibility of the Alleged
Consortium as a Bidder
On the question of the identity and the existence of the real bidder,
respondents insist that, contrary to petitioners' allegations, the bidder

241
was not Mega Pacific eSolutions, Inc. (MPEI), which was incorporated
only on February 27, 2003, or 11 days prior to the bidding itself.
Rather, the bidder was Mega Pacific Consortium (MPC), of which
MPEI was but a part. As proof thereof, they point to the March 7, 2003
letter of intent to bid, signed by the president of MPEI allegedly for
and on behalf of MPC. They also call attention to the official receipt
issued to MPC, acknowledging payment for the bidding documents,
as proof that it was the "consortium" that participated in the bidding
process.
We do not agree. The March 7, 2003 letter, signed by only one
signatory "Willy U. Yu, President, Mega Pacific eSolutions, Inc.,
(Lead Company/Proponent) For: Mega Pacific Consortium" and
without any further proof, does not by itself prove the existence of the
consortium. It does not show that MPEI or its president have been
duly pre-authorized by the other members of the putative consortium
to represent them, to bid on their collective behalf and, more
important, to commit them jointly and severally to the bid
undertakings. The letter is purely self-serving and uncorroborated.
Neither does an official receipt issued to MPC, acknowledging
payment for the bidding documents, constitute proof that it was the
purported consortium that participated in the bidding. Such receipts
are issued by cashiers without any legally sufficient inquiry as to the
real identity or existence of the supposed payor.
To assure itself properly of the due existence (as well as eligibility and
qualification) of the putative consortium, Comelec's BAC should have
examined the bidding documents submitted on behalf of MPC. They
would have easily discovered the following fatal flaws.
Two-Envelope, Two-Stage System
As stated earlier in our factual presentation, the public bidding system
designed by Comelec under its RFP (Request for Proposal for the
Automation of the 2004 Election) mandated the use of a twoenvelope, two-stage system. A bidder's first envelope (Eligibility
Envelope) was meant to establish its eligibility to bid and its
qualifications and capacity to perform the contract if its bid was
accepted, while the second envelope would be the Bid Envelope
itself.

The Eligibility Envelope was to contain legal documents such as

articles of incorporation, business registrations, licenses and permits,
mayor's permit, VAT certification, and so forth; technical documents
containing documentary evidence to establish the track record of the
bidder and its technical and production capabilities to perform the
contract; and financial documents, including audited financial
statements for the last three years, to establish the bidder's financial
capacity.
In the case of a consortium or joint venture desirous of participating in
the bidding, it goes without saying that the Eligibility Envelope would
necessarily have to include a copy of the joint venture agreement, the
consortium agreement or memorandum of agreement or a
business plan or some other instrument of similar import
establishing the due existence, composition and scope of such
aggrupation. Otherwise, how would Comelec know who it was dealing
with, and whether these parties are qualified and capable of delivering
the products and services being offered for bidding? 32
In the instant case, no such instrument was submitted to Comelec
during the bidding process. This fact can be conclusively ascertained
by scrutinizing the two-inch thick "Eligibility Requirements" file
submitted by Comelec last October 9, 2003, in partial compliance with
this Court's instructions given during the Oral Argument. This file
purports to replicate the eligibility documents originally submitted to
Comelec by MPEI allegedly on behalf of MPC, in connection with the
bidding conducted in March 2003. Included in the file are the
incorporation papers and financial statements of the members of the
supposed consortium and certain certificates, licenses and permits
issued to them. caCEDA
However, there is no sign whatsoever of any joint venture agreement,
consortium agreement, memorandum of agreement, or business plan
executed among the members of the purported consortium.
The only logical conclusion is that no such agreement was ever
submitted to the Comelec for its consideration, as part of the bidding
process.
It thus follows that, prior the award of the Contract, there was no
documentary or other basis for Comelec to conclude that a
consortium had actually been formed amongst MPEI, SK C&C and
WeSolv, along with Election.com and ePLDT. 33 Neither was there

242
anything to indicate the exact relationships between and among these
firms; their diverse roles, undertakings and prestations, if any, relative
to the prosecution of the project, the extent of their respective
investments (if any) in the supposed consortium or in the project; and
the precise nature and extent of their respective liabilities with respect
to the contract being offered for bidding. And apart from the selfserving letter of March 7, 2003, there was not even any indication that
MPEI was the lead company duly authorized to act on behalf of the
others.
So, it necessarily follows that, during the bidding process, Comelec
had no basis at all for determining that the alleged consortium really
existed and was eligible and qualified; and that the arrangements
among the members were satisfactory and sufficient to ensure
delivery on the Contract and to protect the government's interest.
Notwithstanding such deficiencies, Comelec still deemed the
"consortium" eligible to participate in the bidding, proceeded to open
its Second Envelope, and eventually awarded the bid to it, even
though per the Comelec's own RFP the BAC should have
declared the MPC ineligible to bid and returned the Second (Bid)
Envelope unopened.
Inasmuch as Comelec should not have considered MPEI et al. as
comprising a consortium or joint venture, it should not have allowed
them to avail themselves of the provision in Section 5.4 (b) (i) of the
IRR for RA 6957 (the Build-Operate-Transfer Law), as amended by
RA 7718. This provision states in part that a joint venture/consortium
proponent shall be evaluated based on the individual or collective
experience of the member-firms of the joint venture or consortium and
of the contractor(s) that it has engaged for the project. Parenthetically,
respondents have uniformly argued that the said IRR of RA 6957, as
amended, have suppletory application to the instant case.
Hence, had the proponent MPEI been evaluated based solely on its
own experience, financial and operational track record or lack thereof,
it would surely not have qualified and would have been immediately
considered ineligible to bid, as respondents readily admit.
At any rate, it is clear that Comelec gravely abused its discretion in
arbitrarily failing to observe its own rules, policies and guidelines with
respect to the bidding process, thereby negating a fair, honest and
competitive bidding.

Commissioners Not Aware of Consortium

In this regard, the Court is beguiled by the statements of
Commissioner Florentino Tuason Jr., given in open court during the
Oral Argument last October 7, 2003. The good commissioner affirmed
that he was aware, of his own personal knowledge, that there had
indeed been a written agreement among the "consortium" members,
34 although it was an internal matter among them, 35 and of the fact
that it would be presented by counsel for private respondent. 36
However, under questioning by Chief Justice Hilario G. Davide Jr. and
Justice Jose C. Vitug, Commissioner Tuason in effect admitted that,
while he was the commissioner-in-charge of Comelec's Legal
Department, he had never seen, even up to that late date, the
agreement he spoke of. 37 Under further questioning, he was likewise
unable to provide any information regarding the amounts invested into
the project by several members of the claimed consortium. 38 A short
while later, he admitted that the Commission had not taken a look at
the agreement (if any). 39
He tried to justify his position by claiming that he was not a member of
the BAC. Neither was he the commissioner-in-charge of the Phase II
Modernization project (the automated election system); but that, in
any case, the BAC and the Phase II Modernization Project Team did
look into the aspect of the composition of the consortium.
It seems to the Court, though, that even if the BAC or the Phase II
Team had taken charge of evaluating the eligibility, qualifications and
credentials of the consortium-bidder, still, in all probability, the former
would have referred the task to Commissioner Tuason, head of
Comelec's Legal Department. That task was the appreciation and
evaluation of the legal effects and consequences of the terms,
conditions, stipulations and covenants contained in any joint venture
agreement, consortium agreement or a similar document assuming
of course that any of these was available at the time. The fact that
Commissioner Tuason was barely aware of the situation bespeaks the
complete absence of such document, or the utter failure or neglect of
the Comelec to examine it assuming it was available at all at the
time the award was made on April 15, 2003. TIaDHE
In any event, the Court notes for the record that Commissioner
Tuason basically contradicted his statements in open court about
there being one written agreement among all the consortium

243
members, when he subsequently referred 40 to the four (4)
Memoranda of Agreement (MOAs) executed by them. 41

former's own bidding rules and procedures contained in its RFP.

Therein lies Comelec's grave abuse of discretion.

At this juncture, one might ask: What, then, if there are four MOAs
instead of one or none at all? Isn't it enough that there are these
corporations coming together to carry out the automation project? Isn't
it true, as respondent aver, that nowhere in the RFP issued by
Comelec is it required that the members of the joint venture execute a
single written agreement to prove the existence of a joint venture.
Indeed, the intention to be jointly and severally liable may be
evidenced not only by a single joint venture agreement, but also by
supplementary documents executed by the parties signifying such
intention. What then is the big deal?

Sufficiency of the Four Agreements

The problem is not that there are four agreements instead of only one.
The problem is that Comelec never bothered to check. It never based
its decision on documents or other proof that would concretely
establish the existence of the claimed consortium or joint venture or
agglomeration. It relied merely on the self-serving representation in an
uncorroborated letter signed by only one individual, claiming that his
company represented a "consortium" of several different corporations.
It concluded forthwith that a consortium indeed existed, composed of
such and such members, and thereafter declared that the entity was
eligible to bid.
True, copies of financial statements and incorporation papers of the
alleged "consortium" members were submitted. But these papers did
not establish the existence of a consortium, as they could have been
provided by the companies concerned for purposes other than to
prove that they were part of a consortium or joint venture. For
instance, the papers may have been intended to show that those
companies were each qualified to be a sub-contractor (and nothing
more) in a major project. Those documents did not by themselves
support the assumption that a consortium or joint venture existed
among the companies.
In brief, despite the absence of competent proof as to the existence
and eligibility of the alleged consortium (MPC), its capacity to deliver
on the Contract, and the members' joint and several liability therefor,
Comelec nevertheless assumed that such consortium existed and
was eligible. It then went ahead and considered the bid of MPC, to
which the Contract was eventually awarded, in gross violation of the

Instead of one multilateral agreement executed by, and effective and

binding on, all the five "consortium members" as earlier claimed by
Commissioner Tuason in open court it turns out that what was
actually executed were four (4) separate and distinct bilateral
Agreements. 42 Obviously, Comelec was furnished copies of these
Agreements only after the bidding process had been terminated, as
these were not included in the Eligibility Documents. These
Agreements are as follows:

A Memorandum of Agreement between MPEI and SK C&C

A Memorandum of Agreement between MPEI and WeSolv

A "Teaming Agreement" between MPEI and Election.com Ltd.

A "Teaming Agreement" between MPEI and ePLDT

In sum, each of the four different and separate bilateral Agreements is

valid and binding only between MPEI and the other contracting party,
leaving the other "consortium" members total strangers thereto. Under
this setup, MPEI dealt separately with each of the "members," and the
latter (WeSolv, SK C&C, Election.com, and ePLDT) in turn had
nothing to do with one another, each dealing only with MPEI.
Respondents assert that these four Agreements were sufficient for the
purpose of enabling the corporations to still qualify (even at that late
stage) as a consortium or joint venture, since the first two Agreements
had allegedly set forth the joint and several undertakings among the
parties, whereas the latter two clarified the parties' respective roles
with regard to the Project, with MPEI being the independent contractor
and Election.com and ePLDT the subcontractors.
Additionally, the use of the phrase "particular contract" in the
Comelec's Request for Proposal (RFP), in connection with the joint
and several liabilities of companies in a joint venture, is taken by them
to mean that all the members of the joint venture need not be
solidarily liable for the entire project or joint venture, because it is
sufficient that the lead company and the member in charge of a
particular contract or aspect of the joint venture agree to be solidarily
liable. SHCaDA

244
At this point, it must be stressed most vigorously that the submission
of the four bilateral Agreements to Comelec after the end of the
bidding process did nothing to eliminate the grave abuse of discretion
it had already committed on April 15, 2003.
Deficiencies Have Not Been "Cured"
In any event, it is also claimed that the automation Contract awarded
by Comelec incorporates all documents executed by the "consortium"
members, even if these documents are not referred to therein. The
basis of this assertion appears to be the passages from Section 1.4 of
the Contract, which is reproduced as follows:
"All Contract Documents shall form part of the Contract even if they or
any one of them is not referred to or mentioned in the Contract as
forming a part thereof. Each of the Contract Documents shall be
mutually complementary and explanatory of each other such that what
is noted in one although not shown in the other shall be considered
contained in all, and what is required by any one shall be as binding
as if required by all, unless one item is a correction of the other.
"The intent of the Contract Documents is the proper, satisfactory and
timely execution and completion of the Project, in accordance with the
Contract Documents. Consequently, all items necessary for the proper
and timely execution and completion of the Project shall be deemed
included in the Contract."
Thus, it is argued that whatever perceived deficiencies there were in
the supplementary contracts those entered into by MPEI and the
other members of the "consortium" as regards their joint and several
undertakings have been cured. Better still, such deficiencies have
supposedly been prevented from arising as a result of the abovequoted provisions, from which it can be immediately established that
each of the members of MPC assumes the same joint and several
liability as the other members.
The foregoing argument is unpersuasive. First, the contract being
referred to, entitled "The Automated Counting and Canvassing Project
Contract," is between Comelec and MPEI, not the alleged consortium,
MPC. To repeat, it is MPEI not MPC that is a party to the
Contract. Nowhere in that Contract is there any mention of a
consortium or joint venture, of members thereof, much less of joint
and several liability. Supposedly executed sometime in May 2003, 43

the Contract bears a notarization date of June 30, 2003, and contains
the signature of Willy U. Yu signing as president of MPEI (not for and
on behalf of MPC), along with that of the Comelec chair. It provides in
Section 3.2 that MPEI (not MPC) is to supply the Equipment and
perform the Services under the Contract, in accordance with the
appendices thereof; nothing whatsoever is said about any consortium
or joint venture or partnership.
Second, the portions of Section 1.4 of the Contract reproduced above
do not have the effect of curing (much less preventing) deficiencies in
the bilateral agreements entered into by MPEI with the other members
of the "consortium," with respect to their joint and several liabilities.
The term "Contract Documents," as used in the quoted passages of
Section 1.4, has a well-defined meaning and actually refers only to the
following documents:

The Contract itself along with its appendices

The Request for Proposal (also known as "Terms of

Reference") issued by the Comelec, including the Tender Inquiries
and Bid Bulletins

The Tender Proposal submitted by MPEI

In other words, the term "Contract Documents" cannot be understood

as referring to or including the MOAs and the Teaming Agreements
entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT.
This much is very clear and admits of no debate. The attempt to use
the provisions of Section 1.4 to shore up the MOAs and the Teaming
Agreements is simply unwarranted.
Third and last, we fail to see how respondents can arrive at the
conclusion that, from the above-quoted provisions, it can be
immediately established that each of the members of MPC assumes
the same joint and several liability as the other members. Earlier,
respondents claimed exactly the opposite that the two MOAs
(between MPEI and SK C&C, and between MPEI and WeSolv) had
set forth the joint and several undertakings among the parties;
whereas the two Teaming Agreements clarified the parties' respective
roles with regard to the Project, with MPEI being the independent
contractor and Election.com and ePLDT the subcontractors.
Obviously, given the differences in their relationships, their respective
liabilities cannot be the same. Precisely, the very clear terms and

245
stipulations contained in the MOAs and the Teaming Agreements
entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT
negate the idea that these "members" are on a par with one
another and are, as such, assuming the same joint and several
liability. IHTASa
Moreover, respondents have earlier seized upon the use of the term
"particular contract" in the Comelec's Request for Proposal (RFP), in
order to argue that all the members of the joint venture did not need to
be solidarily liable for the entire project or joint venture. It was
sufficient that the lead company and the member in charge of a
particular contract or aspect of the joint venture would agree to be
solidarily liable. The glaring lack of consistency leaves us at a loss.
Are respondents trying to establish the same joint and solidary liability
among all the "members" or not?
Enforcement of Liabilities Problematic
Next, it is also maintained that the automation Contract between
Comelec and the MPEI confirms the solidary undertaking of the lead
company and the consortium member concerned for each particular
Contract, inasmuch as the position of MPEI and anyone else
performing the services contemplated under the Contract is described
therein as that of an independent contractor.

concerned for the particular phase of the project. This assertion is an

absolute non sequitur.
Enforcement of Liabilities Under the Civil Code Not Possible
In any event, it is claimed that Comelec may still enforce the liability of
the "consortium" members under the Civil Code provisions on
partnership, reasoning that MPEI et al. represented themselves as
partners and members of MPC for purposes of bidding for the Project.
They are, therefore, liable to the Comelec to the extent that the latter
relied upon such representation. Their liability as partners is solidary
with respect to everything chargeable to the partnership under certain
conditions.
The Court has two points to make with respect to this argument. First,
it must be recalled that SK C&C, WeSolv, Election.com and ePLDT
never represented themselves as partners and members of MPC,
whether for purposes of bidding or for something else. It was MPEI
alone that represented them to be members of a "consortium" it
supposedly headed. Thus, its acts may not necessarily be held
against the other "members."

The Court does not see, however, how this conclusion was arrived at.
In the first place, the contractual provision being relied upon by
respondents is Article 14, "Independent Contractors," which states:
"Nothing contained herein shall be construed as establishing or
creating between the COMELEC and MEGA the relationship of
employee and employer or principal and agent, it being understood
that the position of MEGA and of anyone performing the Services
contemplated under this Contract, is that of an independent
contractor."

Second, this argument of the OSG in its Memorandum 44 might

possibly apply in the absence of a joint venture agreement or some
other writing that discloses the relationship of the "members" with one
another. But precisely, this case does not deal with a situation in
which there is nothing in writing to serve as reference, leaving
Comelec to rely on mere representations and therefore justifying a
falling back on the rules on partnership. For, again, the terms and
stipulations of the MOAs entered into by MPEI with SK C&C and
WeSolv, as well as the Teaming Agreements of MPEI with
Election.com and ePLDT (copies of which have been furnished the
Comelec) are very clear with respect to the extent and the limitations
of the firms' respective liabilities.

Obviously, the intent behind the provision was simply to avoid the
creation of an employer-employee or a principal-agent relationship
and the complications that it would produce. Hence, the Article states
that the role or position of MPEI, or anyone else performing on its
behalf, is that of an independent contractor. It is obvious to the Court
that respondents are stretching matters too far when they claim that,
because of this provision, the Contract in effect confirms the solidary
undertaking of the lead company and the consortium member

In the case of WeSolv and SK C&C, their MOAs state that their
liabilities, while joint and several with MPEI, are limited only to the
particular areas of work wherein their services are engaged or their
products utilized. As for Election.com and ePLDT, their separate
"Teaming Agreements" specifically ascribe to them the role of
subcontractor vis-a-vis MPEI as contractor and, based on the terms of
their particular agreements, neither Election.com nor ePLDT is, with
MPEI, jointly and severally liable to Comelec. 45 It follows then that in

246
the instant case, there is no justification for anyone, much less
Comelec, to resort to the rules on partnership and partners' liabilities.
Eligibility of a Consortium Based on the Collective Qualifications of Its
Members
Respondents declare that, for purposes of assessing the eligibility of
the bidder, the members of MPC should be evaluated on a collective
basis. Therefore, they contend, the failure of MPEI to submit financial
statements (on account of its recent incorporation) should not by itself
disqualify MPC, since the other members of the "consortium" could
meet the criteria set out in the RFP. CASaEc
Thus, according to respondents, the collective nature of the
undertaking of the members of MPC, their contribution of assets and
sharing of risks, and the community of their interest in the
performance of the Contract lead to these reasonable conclusions: (1)
that their collective qualifications should be the basis for evaluating
their eligibility; (2) that the sheer enormity of the project renders it
improbable to expect any single entity to be able to comply with all the
eligibility requirements and undertake the project by itself; and (3)
that, as argued by the OSG, the RFP allows bids from manufacturers,
suppliers and/or distributors that have formed themselves into a joint
venture, in recognition of the virtual impossibility of a single entity's
ability to respond to the Invitation to Bid.
Additionally, argues the Comelec, the Implementing Rules and
Regulations of RA 6957 (the Build-Operate-Transfer Law) as
amended by RA 7718 would be applicable, as proponents of BOT
projects usually form joint ventures or consortiums. Under the IRR, a
joint venture/consortium proponent shall be evaluated based on the
individual or the collective experience of the member-firms of the joint
venture/consortium and of the contractors the proponent has engaged
for the project.
Unfortunately, this argument seems to assume that the "collective"
nature of the undertaking of the members of MPC, their contribution of
assets and sharing of risks, and the "community" of their interest in
the performance of the Contract entitle MPC to be treated as a joint
venture or consortium; and to be evaluated accordingly on the basis
of the members' collective qualifications when, in fact, the evidence
before the Court suggest otherwise.

This Court in Kilosbayan v. Guingona 46 defined joint venture as "an

association of persons or companies jointly undertaking some
commercial enterprise; generally, all contribute assets and share
risks. It requires a community of interest in the performance of the
subject matter, a right to direct and govern the policy in connection
therewith, and [a] duty, which may be altered by agreement to share
both in profit and losses."
Going back to the instant case, it should be recalled that the
automation Contract with Comelec was not executed by the
"consortium" MPC or by MPEI for and on behalf of MPC but by
MPEI, period. The said Contract contains no mention whatsoever of
any consortium or members thereof. This fact alone seems to
contradict all the suppositions about a joint undertaking that would
normally apply to a joint venture or consortium: that it is a commercial
enterprise involving a community of interest, a sharing of risks, profits
and losses, and so on.
Now let us consider the four bilateral Agreements, starting with the
Memorandum of Agreement between MPEI and WeSolv Open
Computing, Inc., dated March 5, 2003. The body of the MOA consists
of just seven (7) short paragraphs that would easily fit in one page! It
reads as follows:
"1.
The parties agree to cooperate in successfully implementing
the Project in the substance and form as may be most beneficial to
both parties and other subcontractors involved in the Project.
"2.
Mega Pacific shall be responsible for any contract negotiations
and signing with the COMELEC and, subject to the latter's approval,
agrees to give WeSolv an opportunity to be present at meetings with
the COMELEC concerning WeSolv's portion of the Project.
"3.
WeSolv shall be jointly and severally liable with Mega Pacific
only for the particular products and/or services supplied by the former
for the Project.
"4.
Each party shall bear its own costs and expenses relative to
this agreement unless otherwise agreed upon by the parties.
"5.
The parties undertake to do all acts and such other things
incidental to, necessary or desirable or the attainment of the
objectives and purposes of this Agreement.

247
"6.
In the event that the parties fail to agree on the terms and
conditions of the supply of the products and services including but not
limited to the scope of the products and services to be supplied and
payment terms, WeSolv shall cease to be bound by its obligations
stated in the aforementioned paragraphs.
"7.
Any dispute arising from this Agreement shall be settled
amicably by the parties whenever possible. Should the parties be
unable to do so, the parties hereby agree to settle their dispute
through arbitration in accordance with the existing laws of the
Republic of the Philippines." (Emphasis supplied.)
Even shorter is the Memorandum of Agreement between MPEI and
SK C&C Co. Ltd., dated March 9, 2003, the body of which consists of
only six (6) paragraphs, which we quote: IDCHTE
"1.
All parties agree to cooperate in achieving the Consortium's
objective of successfully implementing the Project in the substance
and form as may be most beneficial to the Consortium members and
in accordance with the demand of the RFP.
"2.
Mega Pacific shall have full powers and authority to represent
the Consortium with the Comelec, and to enter and sign, for and in
behalf of its members any and all agreement/s which maybe required
in the implementation of the Project.
"3.
Each of the individual members of the Consortium shall be
jointly and severally liable with the Lead Firm for the particular
products and/or services supplied by such individual member for the
project, in accordance with their respective undertaking or sphere of
responsibility.
"4.
Each party shall bear its own costs and expenses relative to
this agreement unless otherwise agreed upon by the parties.
"5.
The parties undertake to do all acts and such other things
incidental to, necessary or desirable for the attainment of the
objectives and purposes of this Agreement.
"6.
Any dispute arising from this Agreement shall be settled
amicably by the parties whenever possible. Should the parties be
unable to do so, the parties hereby agree to settle their dispute
through arbitration in accordance with the existing laws of the
Republic of the Philippines." (Emphasis supplied.)

It will be noted that the two Agreements quoted above are very similar
in wording. Neither of them contains any specifics or details as to the
exact nature and scope of the parties' respective undertakings,
performances and deliverables under the Agreement with respect to
the automation project. Likewise, the two Agreements are quite bereft
of pesos-and-centavos data as to the amount of investments each
party contributes, its respective share in the revenues and/or profit
from the Contract with Comelec, and so forth all of which are
normal for agreements of this nature. Yet, according to public and
private respondents, the participation of MPEI, WeSolv and SK C&C
comprises fully 90 percent of the entire undertaking with respect to the
election automation project, which is worth about P1.3 billion.
As for Election.com and ePLDT, the separate "Teaming Agreements"
they entered into with MPEI for the remaining 10 percent of the entire
project undertaking are ironically much longer and more detailed than
the MOAs discussed earlier. Although specifically ascribing to them
the role of subcontractor vis-a-vis MPEI as contractor, these
Agreements are, however, completely devoid of any pricing data or
payment terms. Even the appended Schedules supposedly containing
prices of goods and services are shorn of any price data. Again, as
mentioned earlier, based on the terms of their particular Agreements,
neither Election.com nor ePLDT with MPEI is jointly and
severally liable to Comelec.
It is difficult to imagine how these bare Agreements especially the
first two could be implemented in practice; and how a dispute
between the parties or a claim by Comelec against them, for instance,
could be resolved without lengthy and debilitating litigations. Absent
any clear-cut statement as to the exact nature and scope of the
parties' respective undertakings, commitments, deliverables and
covenants, one party or another can easily dodge its obligation and
deny or contest its liability under the Agreement; or claim that it is the
other party that should have delivered but failed to.
Likewise, in the absence of definite indicators as to the amount of
investments to be contributed by each party, disbursements for
expenses, the parties' respective shares in the profits and the like, it
seems to the Court that this situation could readily give rise to all
kinds of misunderstandings and disagreements over money matters.

248
Under such a scenario, it will be extremely difficult for Comelec to
enforce the supposed joint and several liabilities of the members of
the "consortium." The Court is not even mentioning the possibility of a
situation arising from a failure of WeSolv and MPEI to agree on the
scope, the terms and the conditions for the supply of the products and
services under the Agreement. In that situation, by virtue of paragraph
6 of its MOA, WeSolv would perforce cease to be bound by its
obligations including its joint and solidary liability with MPEI under
the MOA and could forthwith disengage from the project.
Effectively, WeSolv could at any time unilaterally exit from its MOA
with MPEI by simply failing to agree. Where would that outcome leave
MPEI and Comelec?
To the Court, this strange and beguiling arrangement of MPEI with the
other companies does not qualify them to be treated as a consortium
or joint venture, at least of the type that government agencies like the
Comelec should be dealing with. With more reason is it unable to
agree to the proposal to evaluate the members of MPC on a collective
basis. ECcDAH
In any event, the MPC members claim to be a joint
venture/consortium; and respondents have consistently been arguing
that the IRR for RA 6957, as amended, should be applied to the
instant case in order to allow a collective evaluation of consortium
members. Surprisingly, considering these facts, respondents have not
deemed it necessary for MPC members to comply with Section 5.4 (a)
(iii) of the IRR for RA 6957 as amended.
According to the aforementioned provision, if the project proponent is
a joint venture or consortium, the members or participants thereof are
required to submit a sworn statement that, if awarded the contract,
they shall bind themselves to be jointly, severally and solidarily liable
for the project proponent's obligations thereunder. This provision was
supposed to mirror Section 5 of RA 6957, as amended, which states:
"In all cases, a consortium that participates in a bid must present
proof that the members of the consortium have bound themselves
jointly and severally to assume responsibility for any project. The
withdrawal of any member of the consortium prior to the
implementation of the project could be a ground for the cancellation of
the contract."

The Court has certainly not seen any joint and several undertaking by
the MPC members that even approximates the tenor of that which is
described above. We fail to see why respondents should invoke the
IRR if it is for their benefit, but refuse to comply with it otherwise.
B.
DOST Technical Tests Flunked by the Automated Counting Machines
Let us now move to the second subtopic, which deals with the
substantive issue: the ACM's failure to pass the tests of the
Department of Science and Technology (DOST).
After respondent "consortium" and the other bidder, TIM, had
submitted their respective bids on March 10, 2003, the Comelec's
BAC through its Technical Working Group (TWG) and the DOST
evaluated their technical proposals. Requirements that were highly
technical in nature and that required the use of certain equipment in
the evaluation process were referred to the DOST for testing. The
Department reported thus:
TEST RESULTS MATRIX 47
[Technical Evaluation of Automated Counting Machine]
KEY REQUIREMENTS
INFORMATION

MEGA-PACIFIC

[QUESTIONS] CONSORTIUM
YES
1.

NO

YES

MANAGEMENT

NO

Does the machine have

an accuracy rating of at
least 99.995 percent?
At COLD

environmental
conditions
At NORMAL
environmental
conditions

TOTAL

249
At HARSH

previously counted

environmental

ballots and prevent

conditions

previously counted

2.

Accurately records and

ballots from being

reports the date and time

counted more than

of the start and end of

once?

counting of ballots per

7.

precinct?

votes by precinct in

Note: This

external (removable)

particular

storage device?

requirement

3.

Prints election returns

without any loss of date

Stores results of counted

during generation of

needs further

such reports?

verification

4.

Uninterruptible back-up

power system, that will

8.

Data stored in external

media is encrypted?
particular

allow operation of at

requirement

least 10 minutes after

needs further

outage, power surge or

verification
9.

occurrences?

device allows, limits, or

5.

Machine reads two-

sided ballots in one

pass?

6.

Machine can detect

Note: This

Physical key or similar

machine?
10.

requirement

400mHz?

CPU speed is at least

Note: This

needs further

particular

verification

requirement

restricts operation of the

particular

Note: This

engage immediately to

abnormal electrical

needs further

250
verification
11.

Port to allow use of

Canvassing System

particular

consolidate results from

dot-matrix printers?

all precincts within it

12.

using the encrypted soft

Generates printouts of

the election returns in a

copy of the data

format specified by the

generated by the

COMELEC?

counting machine and

Generates printouts

In format specified by

13.

Does the

City/Municipal

Canvassing System

during generation of

consolidate results from

requirement

14.

all precincts within it

Generates an audit trail

Hard copy

Soft copy

needs further

needs further

verification

verification

counting machine and

media?

particular

17.

requirement

Does the system output

a Zero City/Municipal

needs further

Canvass Report, which

verification

transmitted through an
electronic transmission

Note: This

City/Municipal

requirement

generated by the

and soft copy?

Does the

particular

copy of the data

machine, both hard copy

15.

Note: This

particular

using the encrypted soft

of the counting

Note: This

without any loss of data

such report?

verification

data storage device?

16.

Prints election returns

needs further

stored on the removable

COMELEC

requirement

Note: This

is printed on election
day prior to the conduct
of the actual canvass

Note: This
particular
requirement
needs further
verification

251
operation, that shows

reports and the audit

that all totals for all the

trail without any loss of

votes for all the

data during generation

candidates and other

of the above-mentioned

information, are indeed

reports?

zero or null?
18.

Does the system

Prints specified reports

consolidate results from

Audit Trail

Note: This

Note: This

all precincts in the

particular

particular

city/municipality using

requirement

requirement

the data storage device

needs further

coming from the

verification
22.

Is the machine 100%

accurate?

Can the result of the

city/municipal

Note: This
particular

Note: This

consolidation be stored

particular

in a data storage device?

requirement

requirement

needs further

needs further

verification

verification
20.

needs further

verification

counting machine?
19.

Is the Program able to

23.

Does the system

consolidate results from

Note: This

detect previously

Note: This

all precincts in the

particular

downloaded precinct

particular

provincial/district/

requirement

results and prevent these

from being inputted
again into the System?
21.

The System is able to

print the specified

requirement
needs further
verification

national using the data

needs further

storage device from

verification

different levels of
consolidation?
24.

Is the system 100%

252
accurate?

Note: This

national consolidation

particular

particular

be stored in a data

requirement

requirement

storage device?

needs further

needs further

verification

verification
25.

Is the Program able to

detect previously

Note: This

downloaded precinct

particular

results and prevent these

requirement

from being inputted

needs further

again into the System?

26.

verification

The System is able to

print the specified

reports and the audit
data during generation
of the abovementioned
reports?
Prints specified reports

Note: This
particular
needs further
verification
Can the results of the

provincial/district/

"After incisive analysis of the technical reports of the DOST and the
Technical Working Group for Phase II Automated Counting
Machine, the BAC considers adaptability to advances in modern
technology to ensure an effective and efficient method, as well as the
security and integrity of the system.

"The BAC further noted that both Mega-Pacific and TIM obtained
some 'failed marks' in the technical evaluation. In general, the 'failed
marks' of Total Information Management as enumerated above affect
the counting machine itself which are material in nature, constituting
non-compliance to the RFP. On the other hand, the 'failed marks' of
Mega-Pacific are mere formalities on certain documentary
requirements which the BAC may waive as clearly indicated in the
Invitation to Bid.
"In the DOST test, TIM obtained 12 failed marks and mostly attributed
to the counting machine itself as stated earlier. These are
requirements of the RFP and therefore the BAC cannot disregard the
same.

requirement

27.

The BAC, in its Report dated April 21, 2003, recommended that the
Phase II project involving the acquisition of automated counting
machines be awarded to MPEI. It said:

"The results of the evaluation conducted by the TWG and that of the
DOST (14 April 2003 report), would show the apparent advantage of
Mega-Pacific over the other competitor, TIM.

trail without any loss of

Audit Trail

According to respondents, it was only after the TWG and the DOST
had conducted their separate tests and submitted their respective
reports that the BAC, on the basis of these reports formulated its
comments/recommendations on the bids of the consortium and TIM.
HaTSDA

Note: This

"Mega-Pacific failed in 8 items however these are mostly on the

software which can be corrected by reprogramming the software and
therefore can be readily corrected.

253
"The BAC verbally inquired from DOST on the status of the retest of
the counting machines of the TIM and was informed that the report
will be forthcoming after the holy week. The BAC was informed that
the retest is on a different parameters they're being two different
machines being tested. One purposely to test if previously read ballots
will be read again and the other for the other features such as two
sided ballots.
"The said machine and the software therefore may not be considered
the same machine and program as submitted in the Technical
proposal and therefore may be considered an enhancement of the
original proposal.
"Advance information relayed to the BAC as of 1:40 PM of 15 April
2003 by Executive Director Ronaldo T. Viloria of DOST is that the
result of the test in the two counting machines of TIM contains
substantial errors that may lead to the failure of these machines
based on the specific items of the RFP that DOST has to certify.
OPENING OF FINANCIAL BIDS
"The BAC on 15 April 2003, after notifying the concerned bidders
opened the financial bids in their presence and the results were as
follows:
Mega-Pacific:
Option 1 Outright purchase: Bid Price if Php1,248,949,088.00
Option 2 Lease option:
70%
Down
Php642,755,757.07

payment

Remainder payable
Php642,755,757.07

over

of
50

cost

of

months

hardware
or

total

or
of

Discount rate of 15% p.a. or 1.2532% per month.

Total Number of Automated Counting Machine 1,769 ACMs
(Nationwide)
TIM:
Total Bid Price Php1,297,860,560.00

Total Number of Automated Counting Machine 2,272 ACMs

(Mindanao and NCR only)
"Premises considered, it appears that the bid of Mega Pacific is the
lowest calculated responsive bid, and therefore, the Bids and Awards
Committee (BAC) recommends that the Phase II project re Automated
Counting Machine be awarded to Mega Pacific eSolutions, Inc." 48
The BAC, however, also stated on page 4 of its Report: "Based on the
14 April 2003 report (Table 6) of the DOST, it appears that both MegaPacific and TIM (Total Information Management Corporation) failed to
meet some of the requirements. Below is a comparative presentation
of the requirements wherein Mega-Pacific or TIM or both of them
failed: . . .." What followed was a list of "key requirements," referring to
technical requirements, and an indication of which of the two bidders
had failed to meet them. STHDAc
Failure to Meet the Required Accuracy Rating
The first of the key requirements was that the counting machines were
to have an accuracy rating of at least 99.9995 percent. The BAC
Report indicates that both Mega Pacific and TIM failed to meet this
standard.
The key requirement of accuracy rating happens to be part and parcel
of the Comelec's Request for Proposal (RFP). The RFP, on page 26,
even states that the ballot counting machines and ballot counting
software "must have an accuracy rating of 99.9995% (not merely
99.995%) or better as certified by a reliable independent testing
agency."
When questioned on this matter during the Oral Argument,
Commissioner Borra tried to wash his hands by claiming that the
required accuracy rating of 99.9995 percent had been set by a private
sector group in tandem with Comelec. He added that the Commission
had merely adopted the accuracy rating as part of the group's
recommended bid requirements, which it had not bothered to amend
even after being advised by DOST that such standard was
unachievable. This excuse, however, does not in any way lessen
Comelec's responsibility to adhere to its own published bidding rules,
as well as to see to it that the consortium indeed meets the accuracy
standard. Whichever accuracy rating is the right standard whether
99.995 or 99.9995 percent the fact remains that the machines of

254
the so-called "consortium" failed to even reach the lesser of the two.
On this basis alone, it ought to have been disqualified and its bid
rejected outright.
At this point, the Court stresses that the essence of public bidding is
violated by the practice of requiring very high standards or unrealistic
specifications that cannot be met like the 99.9995 percent accuracy
rating in this case only to water them down after the bid has been
award. Such scheme, which discourages the entry of prospective
bona fide bidders, is in fact a sure indication of fraud in the bidding,
designed to eliminate fair competition. Certainly, if no bidder meets
the mandatory requirements, standards or specifications, then no
award should be made and a failed bidding declared.
Failure of Software to Detect Previously Downloaded Data
Furthermore, on page 6 of the BAC Report, it appears that the
"consortium" as well as TIM failed to meet another key requirement
for the counting machine's software program to be able to detect
previously downloaded precinct results and to prevent these from
being entered again into the counting machine. This same deficiency
on the part of both bidders reappears on page 7 of the BAC Report,
as a result of the recurrence of their failure to meet the said key
requirement.
That the ability to detect previously downloaded data at different
canvassing or consolidation levels is deemed of utmost importance
can be seen from the fact that it is repeated three times in the RFP.
On page 30 thereof, we find the requirement that the city/municipal
canvassing system software must be able to detect previously
downloaded precinct results and prevent these from being "inputted"
again into the system. Again, on page 32 of the RFP, we read that the
provincial/district canvassing system software must be able to detect
previously downloaded city/municipal results and prevent these from
being "inputted" again into the system. And once more, on page 35 of
the RFP, we find the requirement that the national canvassing system
software must be able to detect previously downloaded
provincial/district results and prevent these from being "inputted"
again into the system.
Once again, though, Comelec chose to ignore this crucial deficiency,
which should have been a cause for the gravest concern. Come May
2004, unscrupulous persons may take advantage of and exploit such

deficiency by repeatedly downloading and feeding into the computers

results favorable to a particular candidate or candidates. We are thus
confronted with the grim prospect of election fraud on a massive scale
by means of just a few key strokes. The marvels and woes of the
electronic age!
Inability to Print the Audit Trail
But that grim prospect is not all. The BAC Report, on pages 6 and 7,
indicate that the ACMs of both bidders were unable to print the audit
trail without any loss of data. In the case of MPC, the audit trail
system was "not yet incorporated" into its ACMs.
This particular deficiency is significant, not only to this bidding but to
the cause of free and credible elections. The purpose of requiring
audit trails is to enable Comelec to trace and verify the identities of the
ACM operators responsible for data entry and downloading, as well as
the times when the various data were downloaded into the canvassing
system, in order to forestall fraud and to identify the perpetrators.
CTIDcA
Thus, the RFP on page 27 states that the ballot counting machines
and ballot counting software must print an audit trail of all machine
operations for documentation and verification purposes. Furthermore,
the audit trail must be stored on the internal storage device and be
available on demand for future printing and verifying. On pages 30
31, the RFP also requires that the city/municipal canvassing system
software be able to print an audit trail of the canvassing operations,
including therein such data as the date and time the canvassing
program was started, the log-in of the authorized users (the identity of
the machine operators), the date and time the canvass data were
downloaded into the canvassing system, and so on and so forth. On
page 33 of the RFP, we find the same audit trail requirement with
respect to the provincial/district canvassing system software; and
again on pages 3536 thereof, the same audit trail requirement with
respect to the national canvassing system software.
That this requirement for printing audit trails is not to be lightly
brushed aside by the BAC or Comelec itself as a mere formality or
technicality can be readily gleaned from the provisions of Section 7 of

255
RA 8436, which authorizes the Commission to use an automated
system for elections.
The said provision which respondents have quoted several times,
provides that ACMs are to possess certain features divided into two
classes: those that the statute itself considers mandatory and other
features or capabilities that the law deems optional. Among those
considered mandatory are "provisions for audit trails"! Section 7 reads
as follows: "The System shall contain the following features: (a) use of
appropriate ballots; (b) stand-alone machine which can count votes
and an automated system which can consolidate the results
immediately; (c) with provisions for audit trails; (d) minimum human
intervention; and (e) adequate safeguard/security measures." (Italics
and emphases supplied.)
In brief, respondents cannot deny that the provision requiring audit
trails is indeed mandatory, considering the wording of Section 7 of RA
8436. Neither can Respondent Comelec deny that it has relied on the
BAC Report, which indicates that the machines or the software was
deficient in that respect. And yet, the Commission simply disregarded
this shortcoming and awarded the Contract to private respondent,
thereby violating the very law it was supposed to implement.
C.
Inadequacy of Post Facto Remedial Measures
Respondents argue that the deficiencies relating to the detection of
previously downloaded data, as well as provisions for audit trails, are
mere shortcomings or minor deficiencies in software or programming,
which can be rectified. Perhaps Comelec simply relied upon the BAC
Report, which states on page 8 thereof that "Mega Pacific failed in 8
items[;] however these are mostly on the software which can be
corrected by re-programming . . . and therefore can be readily
corrected."
The undersigned ponente's questions, some of which were addressed
to Commissioner Borra during the Oral Argument, remain unanswered
to this day. First of all, who made the determination that the eight "fail"
marks of Mega Pacific were on account of the software was it
DOST or TWG? How can we be sure these failures were not the
results of machine defects? How was it determined that the software
could actually be re-programmed and thereby rectified? Did a

qualified technical expert read and analyze the source code 49 for the
programs and conclude that these could be saved and remedied?
(Such determination cannot be done by any other means save by the
examination and analysis of the source code.)
Who was this qualified technical expert? When did he carry out the
study? Did he prepare a written report on his findings? Or did the
Comelec just make a wild guess? It does not follow that all defects in
software programs can be rectified, and the programs saved. In the
information technology sector, it is common knowledge that there are
many badly written programs, with significant programming errors
written into them; hence it does not make economic sense to try to
correct the programs; instead, programmers simply abandon them
and just start from scratch. There's no telling if any of these programs
is unrectifiable, unless a qualified programmer reads the source code.
And if indeed a qualified expert reviewed the source code, did he also
determine how much work would be needed to rectify the programs?
And how much time and money would be spent for that effort? Who
would carry out the work? After the rectification process, who would
ascertain and how would it be ascertained that the programs have
indeed been properly rectified, and that they would work properly
thereafter? And of course, the most important question to ask: could
the rectification be done in time for the elections in 2004?
Clearly, none of the respondents bothered to think the matter through.
Comelec simply took the word of the BAC as gospel truth, without
even bothering to inquire from DOST whether it was true that the
deficiencies noted could possibly be remedied by re-programming the
software. Apparently, Comelec did not care about the software, but
focused only on purchasing the machines. TIAEac
What really adds to the Court's dismay is the admission made by
Commissioner Borra during the Oral Argument that the software
currently being used by Comelec was merely the "demo" version,
inasmuch as the final version that would actually be used in the
elections was still being developed and had not yet been finalized.
It is not clear when the final version of the software would be ready for
testing and deployment. It seems to the Court that Comelec is just
keeping its fingers crossed and hoping the final product would work. Is
there a "Plan B" in case it does not? Who knows? But all these
software programs are part and parcel of the bidding and the Contract

256
awarded to the Consortium. Why is it that the machines are already
being brought in and paid for, when there is as yet no way of knowing
if the final version of the software would be able to run them properly,
as well as canvass and consolidate the results in the manner
required?
The counting machines, as well as the canvassing system, will never
work properly without the correct software programs. There is an old
adage that is still valid to this day: "Garbage in, garbage out." No
matter how powerful, advanced and sophisticated the computers and
the servers are, if the software being utilized is defective or has been
compromised, the results will be no better than garbage. And to think
that what is at stake here is the 2004 national elections the very
basis of our democratic life.
Correction of Defects?
To their Memorandum, public respondents proudly appended 19
Certifications issued by DOST declaring that some 285 counting
machines had been tested and had passed the acceptance testing
conducted by the Department on October 818, 2003. Among those
tested were some machines that had failed previous tests, but had
undergone adjustments and thus passed re-testing.
Unfortunately, the Certifications from DOST fail to divulge in what
manner and by what standards or criteria the condition, performance
and/or readiness of the machines were re-evaluated and re-appraised
and thereafter given the passing mark. Apart from that fact, the
remedial efforts of respondents were, not surprisingly, apparently
focused again on the machines the hardware. Nothing was said or
done about the software the deficiencies as to detection and
prevention of downloading and entering previously downloaded data,
as well as the capability to print an audit trail. No matter how many
times the machines were tested and re-tested, if nothing was done
about the programming defects and deficiencies, the same danger of
massive electoral fraud remains. As anyone who has a modicum of
knowledge of computers would say, "That's elementary!"
And only last December 5, 2003, an Inq7.net news report quoted the
Comelec chair as saying that the new automated poll system would
be used nationwide in May 2004, even as the software for the system
remained unfinished. It also reported that a certain Titus Manuel of the
Philippine Computer Society, which was helping Comelec test the

hardware and software, said that the software for the counting still had
to be submitted on December 15, while the software for the
canvassing was due in early January.
Even as Comelec continues making payments for the ACMs, we keep
asking ourselves: who is going to ensure that the software would be
tested and would work properly?
At any rate, the re-testing of the machines and/or the 100 percent
testing of all machines (testing of every single unit) would not serve to
eradicate the grave abuse of discretion already committed by
Comelec when it awarded the Contract on April 15, 2003, despite the
obvious and admitted flaws in the bidding process, the failure of the
"winning bidder" to qualify, and the inability of the ACMs and the
intended software to meet the bid requirements and rules.
Comelec's Latest "Assurances" Are Unpersuasive
Even the latest pleadings filed by Comelec do not serve to allay our
apprehensions. They merely affirm and compound the serious
violations of law and gravely abusive acts it has committed. Let us
examine them.
The Resolution issued by this Court on December 9, 2003 required
respondents to inform it as to the number of ACMs delivered and paid
for, as well as the total payment made to date for the purchase
thereof. They were likewise instructed to submit a certification from
the DOST attesting to the number of ACMs tested, the number found
to be defective; and "whether the reprogrammed software has been
tested and found to have complied with the requirements under
Republic Act No. 8436." 50
In its "Partial Compliance and Manifestation" dated December 29,
2003, Comelec informed the Court that 1,991 ACMs had already been
delivered to the Commission as of that date. It further certified that it
had already paid the supplier the sum of P849,167,697.41, which
corresponded to 1,973 ACM units that had passed the acceptance
testing procedures conducted by the MIRDC-DOST 51 and which had
therefore been accepted by the poll body. ICTcDA
In the same submission, for the very first time, Comelec also
disclosed to the Court the following:

257
"The Automated Counting and Canvassing Project involves not only
the manufacturing of the ACM hardware but also the development of
three (3) types of software, which are intended for use in the following:
1.

Evaluation of Technical Bids

2.

Testing and Acceptance Procedures

3.

Election Day Use."

Purchase of the First Type of Software Without Evaluation

In other words, the first type of software was to be developed solely
for the purpose of enabling the evaluation of the bidder's technical bid.
Comelec explained thus: "In addition to the presentation of the ACM
hardware, the bidders were required to develop a 'base' software
program that will enable the ACM to function properly. Since the
software program utilized during the evaluation of bids is not the
actual software program to be employed on election day, there being
two (2) other types of software program that will still have to be
developed and thoroughly tested prior to actual election day use,
defects in the 'base' software that can be readily corrected by
reprogramming are considered minor in nature, and may therefore be
waived."
In short, Comelec claims that it evaluated the bids and made the
decision to award the Contract to the "winning" bidder partly on the
basis of the operation of the ACMs running a "base" software. That
software was therefore nothing but a sample or "demo" software,
which would not be the actual one that would be used on election day.
Keeping in mind that the Contract involves the acquisition of not just
the ACMs or the hardware, but also the software that would run them,
it is now even clearer that the Contract was awarded without Comelec
having seen, much less evaluated, the final product the software
that would finally be utilized come election day. (Not even the "nearfinal" product, for that matter).
What then was the point of conducting the bidding, when the software
that was the subject of the Contract was still to be created and could
conceivably undergo innumerable changes before being considered
as being in final form? And that is not all!
No Explanation for Lapses in the Second Type of Software

The second phase, allegedly involving the second type of software, is

simply denominated "Testing and Acceptance Procedures." As best as
we can construe, Comelec is claiming that this second type of
software is also to be developed and delivered by the supplier in
connection with the "testing and acceptance" phase of the acquisition
process. The previous pleadings, though including the DOST
reports submitted to this Court have not heretofore mentioned any
statement, allegation or representation to the effect that a particular
set of software was to be developed and/or delivered by the supplier
in connection with the testing and acceptance of delivered ACMs.
What the records do show is that the imported ACMs were subjected
to the testing and acceptance process conducted by the DOST. Since
the initial batch delivered included a high percentage of machines that
had failed the tests, Comelec asked the DOST to conduct a 100
percent testing; that is, to test every single one of the ACMs delivered.
Among the machines tested on October 8 to 18, 2003, were some
units that had failed previous tests but had subsequently been retested and had passed. To repeat, however, until now, there has never
been any mention of a second set or type of software pertaining to the
testing and acceptance process.
In any event, apart from making that misplaced and uncorroborated
claim, Comelec in the same submission also professes (in response
to the concerns expressed by this Court) that the reprogrammed
software has been tested and found to have complied with the
requirements of RA 8436. It reasoned thus: "Since the software
program is an inherent element in the automated counting system, the
certification issued by the MIRDC-DOST that one thousand nine
hundred seventy-three (1,973) units passed the acceptance test
procedures is an official recognition by the MIRDC-DOST that the
software component of the automated election system, which has
been reprogrammed to comply with the provisions of Republic Act No.
8436 as prescribed in the Ad Hoc Technical Evaluation Committee's
ACM Testing and Acceptance Manual, has passed the MIRDC-DOST
tests."
The facts do not support this sweeping statement of Comelec. A
scrutiny of the MIRDC-DOST letter dated December 15, 2003, 52
which it relied upon, does not justify its grand conclusion. For clarity's
sake, we quote in full the letter-certification, as follows:

258
"15 December 2003
"HON. RESURRECCION Z. BORRA
Commissioner-in-Charge
Phase II, Modernization Project
Commission on Elections
Intramuros, Manila
Attention: Atty. Jose M. Tolentino, Jr.
Project Director

to be successful, that agency would have proudly trumpeted its

singular achievement.
How Comelec came to believe that such reprogramming had been
undertaken is unclear. In any event, the Commission is not forthright
and candid with the factual details. If reprogramming has been done,
who performed it and when? What exactly did the process involve?
How can we be assured that it was properly performed? Since the
facts attendant to the alleged reprogramming are still shrouded in
mystery, the Court cannot give any weight to Comelec's bare
allegations.

"It should be noted that a total of 18 units have failed the test. Out of
these 18 units, only one (1) unit has failed the retest.

The fact that a total of 1,973 of the machines has ultimately passed
the MIRDC-DOST tests does not by itself serve as an endorsement of
the soundness of the software program, much less as a proof that it
has been reprogrammed. In the first place, nothing on record shows
that the tests and re-tests conducted on the machines were intended
to address the serious deficiencies noted earlier. As a matter of fact,
the MIRDC-DOST letter does not even indicate what kinds of tests or
re-tests were conducted, their exact nature and scope, and the
specific objectives thereof. 53 The absence of relevant supporting
documents, combined with the utter vagueness of the letter, certainly
fails to inspire belief or to justify the expansive confidence displayed
by Comelec. In any event, it goes without saying that remedial
measures such as the alleged reprogramming cannot in any way
mitigate the grave abuse of discretion already committed as early as
April 15, 2003.

"Thank you and we hope you will find everything in order. aEIcHA

Rationale of Public Bidding Negated by the Third Type of Software

"Very truly yours,

Respondent Comelec tries to assuage this Court's anxiety in these

words: "The reprogrammed software that has already passed the
requirements of Republic Act No. 8436 during the MIRDC-DOST
testing and acceptance procedures will require further customization
since the following additional elements, among other things, will have
to be considered before the final software can be used on election
day: 1. Final Certified List of Candidates . . . 2. Project of Precincts . . .
3. Official Ballot Design and Security Features . . . 4. Encryption,
digital certificates and digital signatures . . . The certified list of
candidates for national elective positions will be finalized on or before
23 January 2004 while the final list of projects of precincts will be
prepared also on the same date. Once all the above elements are

"Dear Commissioner Borra:

"We are pleased to submit 11 DOST Test Certifications representing
11 lots and covering 158 units of automated counting machines
(ACMs) that we have tested from 0212 December 2003.
"To date, we have tested all the 1,991 units of ACMs, broken down as
follow: (sic)
1st batch 30 units 4th batch 438 units
2nd batch 288 units

5th batch 438 units

3rd batch 414 units6th batch 383 units

"ROLANDO T. VILORIA, CESO III

Executive Director cum
Chairman, DOST-Technical Evaluation Committee"
Even a cursory glance at the foregoing letter shows that it is
completely bereft of anything that would remotely support Comelec's
contention that the "software component of the automated election
system . . . has been reprogrammed to comply with" RA 8436, and
"has passed the MIRDC-DOST tests." There is no mention at all of
any software reprogramming. If the MIRDC-DOST had indeed
undertaken the supposed reprogramming and the process turned out

259
incorporated in the software program, the Test Certification Group
created by the Ad Hoc Technical Evaluation Committee will conduct
meticulous testing of the final software before the same can be used
on election day. In addition to the testing to be conducted by said Test
Certification Group, the Comelec will conduct mock elections in
selected areas nationwide not only for purposes of public information
but also to further test the final election day program. Public
respondent Comelec, therefore, requests that it be given up to 16
February 2004 to comply with this requirement."
The foregoing passage shows the imprudent approach adopted by
Comelec in the bidding and acquisition process. The Commission
says that before the software can be utilized on election day, it will
require "customization" through addition of data like the list of
candidates, project of precincts, and so on. And inasmuch as such
data will become available only in January 2004 anyway, there is
therefore no perceived need on Comelec's part to rush the supplier
into producing the final (or near-final) version of the software before
that time. In any case, Comelec argues that the software needed for
the electoral exercise can be continuously developed, tested, adjusted
and perfected, practically all the way up to election day, at the same
time that the Commission is undertaking all the other distinct and
diverse activities pertinent to the elections.
Given such a frame of mind, it is no wonder that Comelec paid little
attention to the counting and canvassing software during the entire
bidding process, which took place in FebruaryMarch 2003. Granted
that the software was defective, could not detect and prevent the reuse of previously downloaded data or produce the audit trail aside
from its other shortcomings nevertheless, all those deficiencies
could still be corrected down the road. At any rate, the software used
for bidding purposes would not be the same one that will be used on
election day, so why pay any attention to its defects? Or to the
Comelec's own bidding rules for that matter? HcTIDC
Clearly, such jumbled ratiocinations completely negate the rationale
underlying the bidding process mandated by law.
At the very outset, the Court has explained that Comelec flagrantly
violated the public policy on public biddings (1) by allowing MPC/MPEI
to participate in the bidding even though it was not qualified to do so;
and (2) by eventually awarding the Contract to MPC/MPEI. Now, with

the latest explanation given by Comelec, it is clear that the

Commission further desecrated the law on public bidding by
permitting the winning bidder to change and alter the subject of the
Contract (the software), in effect allowing a substantive amendment
without public bidding.
This stance is contrary to settled jurisprudence requiring the strict
application of pertinent rules, regulations and guidelines for public
bidding for the purpose of placing each bidder, actual or potential, on
the same footing. The essence of public bidding is, after all, an
opportunity for fair competition, and a fair basis for the precise
comparison of bids. In common parlance, public bidding aims to "level
the playing field." That means each bidder must bid under the same
conditions; and be subject to the same guidelines, requirements and
limitations, so that the best offer or lowest bid may be determined, all
other things being equal.
Thus, it is contrary to the very concept of public bidding to permit a
variance between the conditions under which bids are invited and
those under which proposals are submitted and approved; or, as in
this case, the conditions under which the bid is won and those under
which the awarded Contract will be complied with. The substantive
amendment of the contract bidded out, without any public bidding
after the bidding process had been concluded is violative of the
public policy on public biddings, as well as the spirit and intent of RA
8436. The whole point in going through the public bidding exercise
was completely lost. The very rationale of public bidding was totally
subverted by the Commission.
From another perspective, the Comelec approach also fails to make
sense. Granted that, before election day, the software would still have
to be customized to each precinct, municipality, city, district, and so
on, there still was nothing at all to prevent Comelec from requiring
prospective suppliers/bidders to produce, at the very start of the
bidding process, the "next-to-final" versions of the software (the best
software the suppliers had) pre-tested and ready to be customized
to the final list of candidates and project of precincts, among others,
and ready to be deployed thereafter. The satisfaction of such
requirement would probably have provided far better bases for
evaluation and selection, as between suppliers, than the so-called
demo software.

260
Respondents contend that the bidding suppliers' counting machines
were previously used in at least one political exercise with no less
than 20 million voters. If so, it stands to reason that the software used
in that past electoral exercise would probably still be available and, in
all likelihood, could have been adopted for use in this instance. Paying
for machines and software of that category (already tried and proven
in actual elections and ready to be adopted for use) would definitely
make more sense than paying the same hundreds of millions of pesos
for demo software and empty promises of usable programs in the
future.
But there is still another gut-level reason why the approach taken by
Comelec is reprehensible. It rides on the perilous assumption that
nothing would go wrong; and that, come election day, the Commission
and the supplier would have developed, adjusted and "reprogrammed" the software to the point where the automated system
could function as envisioned. But what if such optimistic projection
does not materialize? What if, despite all their herculean efforts, the
software now being hurriedly developed and tested for the automated
system performs dismally and inaccurately or, worse, is hacked and/or
manipulated? 54 What then will we do with all the machines and
defective software already paid for in the amount of P849 million of
our tax money? Even more important, what will happen to our country
in case of failure of the automation?
The Court cannot grant the plea of Comelec that it be given until
February 16, 2004 to be able to submit a "certification relative to the
additional elements of the software that will be customized," because
for us to do so would unnecessarily delay the resolution of this case
and would just give the poll body an unwarranted excuse to postpone
the 2004 elections. On the other hand, because such certification will
not cure the gravely abusive actions complained of by petitioners, it
will be utterly useless.
Is this Court being overly pessimistic and perhaps even engaging in
speculation? Hardly. Rather, the Court holds that Comelec should not
have gambled on the unrealistic optimism that the supplier's software
development efforts would turn out well. The Commission should have
adopted a much more prudent and judicious approach to ensure the
delivery of tried and tested software, and readied alternative courses

of action in case of failure. Considering that the nation's future is at

stake here, it should have done no less. ITcCSA
Epilogue
Once again, the Court finds itself at the crossroads of our nation's
history. At stake in this controversy is not just the business of a
computer supplier, or a questionable proclamation by Comelec of one
or more public officials. Neither is it about whether this country should
switch from the manual to the automated system of counting and
canvassing votes. At its core is the ability and capacity of the
Commission on Elections to perform properly, legally and prudently its
legal mandate to implement the transition from manual to automated
elections.
Unfortunately, Comelec has failed to measure up to this historic task.
As stated at the start of this Decision, Comelec has not merely gravely
abused its discretion in awarding the Contract for the automation of
the counting and canvassing of the ballots. It has also put at grave
risk the holding of credible and peaceful elections by shoddily
accepting electronic hardware and software that admittedly failed to
pass legally mandated technical requirements. Inadequate as they
are, the remedies it proffers post facto do not cure the grave abuse of
discretion it already committed (1) on April 15, 2003, when it illegally
made the award; and (2) "sometime" in May 2003 when it executed
the Contract for the purchase of defective machines and non-existent
software from a non-eligible bidder.
For these reasons, the Court finds it totally unacceptable and
unconscionable to place its imprimatur on this void and illegal
transaction that seriously endangers the breakdown of our electoral
system. For this Court to cop-out and to close its eyes to these illegal
transactions, while convenient, would be to abandon its constitutional
duty of safeguarding public interest.
As a necessary consequence of such nullity and illegality, the
purchase of the machines and all appurtenances thereto including the
still-to-be-produced (or in Comelec's words, to be "reprogrammed")
software, as well as all the payments made therefor, have no basis
whatsoever in law. The public funds expended pursuant to the void
Resolution and Contract must therefore be recovered from the payees
and/or from the persons who made possible the illegal disbursements,
without prejudice to possible criminal prosecutions against them.

261
Furthermore, Comelec and its officials concerned must bear full
responsibility for the failed bidding and award, and held accountable
for the electoral mess wrought by their grave abuse of discretion in
the performance of their functions. The State, of course, is not bound
by the mistakes and illegalities of its agents and servants.
True, our country needs to transcend our slow, manual and archaic
electoral process. But before it can do so, it must first have a diligent
and competent electoral agency that can properly and prudently
implement a well-conceived automated election system.
At bottom, before the country can hope to have a speedy and fraudfree automated election, it must first be able to procure the proper
computerized hardware and software legally, based on a transparent
and valid system of public bidding. As in any democratic system, the
ultimate goal of automating elections must be achieved by a legal,
valid and above-board process of acquiring the necessary tools and
skills therefor. Though the Philippines needs an automated electoral
process, it cannot accept just any system shoved into its bosom
through improper and illegal methods. As the saying goes, the end
never justifies the means. Penumbral contracting will not produce
enlightened results.
WHEREFORE, the Petition is GRANTED. The Court hereby declares
NULL and VOID Comelec Resolution No. 6074 awarding the contract
for Phase II of the CAES to Mega Pacific Consortium (MPC). Also
declared null and void is the subject Contract executed between
Comelec and Mega Pacific eSolutions (MPEI). 55 Comelec is further
ORDERED to refrain from implementing any other contract or
agreement entered into with regard to this project.
Let a copy of this Decision be furnished the Office of the Ombudsman
which shall determine the criminal liability, if any, of the public officials
(and conspiring private individuals, if any) involved in the subject
Resolution and Contract. Let the Office of the Solicitor General also
take measures to protect the government and vindicate public interest
from the ill effects of the illegal disbursements of public funds made by
reason of the void Resolution and Contract.
SO ORDERED.

262
EN BANC
[G.R. No. 148334. January 21, 2004.]
ARTURO M. TOLENTINO and ARTURO C. MOJICA, petitioners,
vs. COMMISSION ON ELECTIONS, SENATOR RALPH G. RECTO
and SENATOR GREGORIO B. HONASAN, respondents.
DECISION
CARPIO, J p:
The Case
This is a petition for prohibition to set aside Resolution No. NBC 01005 dated 5 June 2001 ("Resolution No. 01-005") and Resolution No.
NBC 01-006 dated 20 July 2001 ("Resolution No. 01-006") of
respondent Commission on Elections ("COMELEC"). Resolution No.
01-005 proclaimed the 13 candidates elected as Senators in the 14
May 2001 elections while Resolution No. 01-006 declared "official and
final" the ranking of the 13 Senators proclaimed in Resolution No. 01005.
The Facts
Shortly after her succession to the Presidency in January 2001,
President Gloria Macapagal-Arroyo nominated then Senator Teofisto
T. Guingona, Jr. ("Senator Guingona") as Vice-President. Congress
confirmed the nomination of Senator Guingona who took his oath as
Vice-President on 9 February 2001.
Following Senator Guingona's confirmation, the Senate on 8 February
2001 passed Resolution No. 84 ("Resolution No. 84") certifying to the
existence of a vacancy in the Senate. Resolution No. 84 called on
COMELEC to fill the vacancy through a special election to be held
simultaneously with the regular elections on 14 May 2001. Twelve
Senators, with a 6-year term each, were due to be elected in that
election. 1 Resolution No. 84 further provided that the "Senatorial

candidate garnering the 13th highest number of votes shall serve only
for the unexpired term of former Senator Teofisto T. Guingona, Jr.,"
which ends on 30 June 2004. 2
On 5 June 2001, after COMELEC had canvassed the election results
from all the provinces but one (Lanao del Norte), COMELEC issued
Resolution No. 01-005 provisionally proclaiming 13 candidates as the
elected Senators. Resolution No. 01-005 also provided that "the first
twelve (12) Senators shall serve for a term of six (6) years and the
thirteenth (13th) Senator shall serve the unexpired term of three (3)
years of Senator Teofisto T. Guingona, Jr. who was appointed VicePresident." 3 Respondents Ralph Recto ("Recto") and Gregorio
Honasan ("Honasan") ranked 12th and 13th, respectively, in
Resolution No. 01-005.
On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica
("petitioners"), as voters and taxpayers, filed the instant petition for
prohibition, impleading only COMELEC as respondent. Petitioners
sought to enjoin COMELEC from proclaiming with finality the
candidate for Senator receiving the 13th highest number of votes as
the winner in the special election for a single three-year term seat.
Accordingly, petitioners prayed for the nullification of Resolution No.
01-005 in so far as it makes a proclamation to such effect.
Petitioners contend that COMELEC issued Resolution No. 01-005
without jurisdiction because: (1) it failed to notify the electorate of the
position to be filled in the special election as required under Section 2
of Republic Act No. 6645 ("R.A. No. 6645"); 4 (2) it failed to require
senatorial candidates to indicate in their certificates of candidacy
whether they seek election under the special or regular elections as
allegedly required under Section 73 of Batas Pambansa Blg. 881; 5
and, consequently, (3) it failed to specify in the Voters Information
Sheet the candidates seeking election under the special or regular
senatorial elections as purportedly required under Section 4,
paragraph 4 of Republic Act No. 6646 ("R.A. No. 6646"). 6 Petitioners
add that because of these omissions, COMELEC canvassed all the
votes cast for the senatorial candidates in the 14 May 2001 elections
without distinction such that "there were no two separate Senate
elections held simultaneously but just a single election for thirteen
seats, irrespective of term." 7

263
Stated otherwise, petitioners claim that if held simultaneously, a
special and a regular election must be distinguished in the
documentation as well as in the canvassing of their results. To support
their claim, petitioners cite the special elections simultaneously held
with the regular elections of 13 November 1951 and 8 November
1955 to fill the seats vacated by Senators Fernando Lopez and Carlos
P. Garcia, respectively, who became Vice-Presidents during their
tenures in the Senate. 8 Petitioners point out that in those elections,
COMELEC separately canvassed the votes cast for the senatorial
candidates running under the regular elections from the votes cast for
the candidates running under the special elections. COMELEC also
separately proclaimed the winners in each of those elections. 9

The Issues

Petitioners sought the issuance of a temporary restraining order

during the pendency of their petition.

The Ruling of the Court

Without issuing any restraining order, we required COMELEC to

Comment on the petition.

On the Preliminary Matters

On 20 July 2001, after COMELEC had canvassed the results from all
the provinces, it issued Resolution No. 01-006 declaring "official and
final" the ranking of the 13 Senators proclaimed in Resolution No. 01005. The 13 Senators took their oaths of office on 23 July 2001.
In view of the issuance of Resolution No. 01-006, the Court required
petitioners to file an amended petition impleading Recto and Honasan
as additional respondents. Petitioners accordingly filed an amended
petition in which they reiterated the contentions raised in their original
petition and, in addition, sought the nullification of Resolution No. 01006.
In their Comments, COMELEC, Honasan, and Recto all claim that a
special election to fill the seat vacated by Senator Guingona was
validly held on 14 May 2001. COMELEC and Honasan further raise
preliminary issues on the mootness of the petition and on petitioners'
standing to litigate. Honasan also claims that the petition, which seeks
the nullity of his proclamation as Senator, is actually a quo warranto
petition and the Court should dismiss the same for lack of jurisdiction.
For his part, Recto, as the 12th ranking Senator, contends he is not a
proper party to this case because the petition only involves the validity
of the proclamation of the 13th placer in the 14 May 2001 senatorial
elections.

The following are the issues presented for resolution:

(1)

Procedurally

(a)
whether the petition is in fact a petition for quo warranto over
which the Senate Electoral Tribunal is the sole judge;
(b)

whether the petition is moot; and

(c)

whether petitioners have standing to litigate.

(2)
On the merits, whether a special election to fill a vacant threeyear term Senate seat was validly held on 14 May 2001.
The petition has no merit.
The Nature of the Petition and the Court's Jurisdiction
A quo warranto proceeding is, among others, one to determine the
right of a public officer in the exercise of his office and to oust him
from its enjoyment if his claim is not well-founded. 10 Under Section
17, Article VI of the Constitution, the Senate Electoral Tribunal is the
sole judge of all contests relating to the qualifications of the members
of the Senate.
A perusal of the allegations contained in the instant petition shows,
however, that what petitioners are questioning is the validity of the
special election on 14 May 2001 in which Honasan was elected.
Petitioners' various prayers are, namely: (1) a "declaration" that no
special election was held simultaneously with the general elections on
14 May 2001; (2) to enjoin COMELEC from declaring anyone as
having won in the special election; and (3) to annul Resolution Nos.
01-005 and 01-006 in so far as these Resolutions proclaim Honasan
as the winner in the special election. Petitioners anchor their prayers
on COMELEC's alleged failure to comply with certain requirements
pertaining to the conduct of that special election. Clearly then, the
petition does not seek to determine Honasan's right in the exercise of
his office as Senator. Petitioners' prayer for the annulment of
Honasan's proclamation and, ultimately, election is merely incidental

264
to petitioners' cause of action. Consequently, the Court can properly
exercise jurisdiction over the instant petition.
On the Mootness of the Petition
COMELEC contends that its proclamation on 5 June 2001 of the 13
Senators and its subsequent confirmation on 20 July 2001 of the
ranking of the 13 Senators render the instant petition to set aside
Resolutions Nos. 01-005 and 01-006 moot and academic.
Admittedly, the office of the writ of prohibition is to command a tribunal
or board to desist from committing an act threatened to be done
without jurisdiction or with grave abuse of discretion amounting to lack
or excess of jurisdiction. 11 Consequently, the writ will not lie to enjoin
acts already done. 12 However, as an exception to the rule on
mootness, courts will decide a question otherwise moot if it is capable
of repetition yet evading review. 13 Thus, in Alunan III v. Mirasol, 14
we took cognizance of a petition to set aside an order canceling the
general elections for the Sangguniang Kabataan ("SK") on 4
December 1992 despite that at the time the petition was filed, the SK
election had already taken place. We noted in Alunan that since the
question of the validity of the order sought to be annulled "is likely to
arise in every SK elections and yet the question may not be decided
before the date of such elections," the mootness of the petition is no
bar to its resolution. This observation squarely applies to the instant
case. The question of the validity of a special election to fill a vacancy
in the Senate in relation to COMELEC's failure to comply with
requirements on the conduct of such special election is likely to arise
in every such election. Such question, however, may not be decided
before the date of the election.
On Petitioners' Standing
Honasan questions petitioners' standing to bring the instant petition as
taxpayers and voters because petitioners do not claim that COMELEC
illegally disbursed public funds. Neither do petitioners claim that they
sustained personal injury because of the issuance of Resolution Nos.
01-005 and 01-006.
"Legal standing" or locus standi refers to a personal and substantial
interest in a case such that the party has sustained or will sustain
direct injury because of the challenged governmental act. 15 The
requirement of standing, which necessarily "sharpens the

presentation of issues," 16 relates to the constitutional mandate that

this Court settle only actual cases or controversies. 17 Thus,
generally, a party will be allowed to litigate only when (1) he can show
that he has personally suffered some actual or threatened injury
because of the allegedly illegal conduct of the government; (2) the
injury is fairly traceable to the challenged action; and (3) the injury is
likely to be redressed by a favorable action. 18
Applied strictly, the doctrine of standing to litigate will indeed bar the
instant petition. In questioning, in their capacity as voters, the validity
of the special election on 14 May 2001, petitioners assert a harm
classified as a "generalized grievance." This generalized grievance is
shared in substantially equal measure by a large class of voters, if not
all the voters, who voted in that election. 19 Neither have petitioners
alleged, in their capacity as taxpayers, that the Court should give due
course to the petition because in the special election held on 14 May
2001 "tax money [was] '. . . extracted and spent in violation of specific
constitutional protections against abuses of legislative power' or that
there [was] misapplication of such funds by COMELEC or that public
money [was] deflected to any improper purpose." 20
On the other hand, we have relaxed the requirement on standing and
exercised our discretion to give due course to voters' suits involving
the right of suffrage. 21 Also, in the recent case of Integrated Bar of
the Philippines v. Zamora, 22 we gave the same liberal treatment to a
petition filed by the Integrated Bar of the Philippines ("IBP"). The IBP
questioned the validity of a Presidential directive deploying elements
of the Philippine National Police and the Philippine Marines in Metro
Manila to conduct patrols even though the IBP presented "too general
an interest." We held:
[T]he IBP primarily anchors its standing on its alleged responsibility to
uphold the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in support of its
locus standi. The mere invocation by the IBP of its duty to preserve
the rule of law and nothing more, while undoubtedly true, is not
sufficient to clothe it with standing in this case. This is too general an
interest which is shared by other groups and the whole citizenry . . . .
Having stated the foregoing, this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal
standing when paramount interest is involved. In not a few cases, the

265
court has adopted a liberal attitude on the locus standi of a petitioner
where the petitioner is able to craft an issue of transcendental
significance to the people. Thus, when the issues raised are of
paramount importance to the public, the Court may brush aside
technicalities of procedure. In this case, a reading of the petition
shows that the IBP has advanced constitutional issues which deserve
the attention of this Court in view of their seriousness, novelty and
weight as precedents. Moreover, because peace and order are under
constant threat and lawless violence occurs in increasing tempo,
undoubtedly aggravated by the Mindanao insurgency problem, the
legal controversy raised in the petition almost certainly will not go
away. It will stare us in the face again. It, therefore, behooves the
Court to relax the rules on standing and to resolve the issue now,
rather than later. 23 (Emphasis supplied)
We accord the same treatment to petitioners in the instant case in
their capacity as voters since they raise important issues involving
their right of suffrage, considering that the issue raised in this petition
is likely to arise again.
Whether a Special Election for a Single, Three-Year Term Senatorial
Seat was Validly Held on 14 May 2001
Under Section 9, Article VI of the Constitution, a special election may
be called to fill any vacancy in the Senate and the House of
Representatives "in the manner prescribed by law," thus:
In case of vacancy in the Senate or in the House of Representatives,
a special election may be called to fill such vacancy in the manner
prescribed by law, but the Senator or Member of the House of
Representatives thus elected shall serve only for the unexpired term.
(Emphasis supplied)
To implement this provision of the Constitution, Congress passed R.A.
No. 6645, which provides in pertinent parts:
SECTION 1. In case a vacancy arises in the Senate at least
eighteen (18) months or in the House of Representatives at least one
(1) year before the next regular election for Members of Congress, the
Commission on Elections, upon receipt of a resolution of the Senate
or the House of Representatives, as the case may be, certifying to the
existence of such vacancy and calling for a special election, shall hold
a special election to fill such vacancy. If Congress is in recess, an

official communication on the existence of the vacancy and call for a

special election by the President of the Senate or by the Speaker of
the House of Representatives, as the case may be, shall be sufficient
for such purpose. The Senator or Member of the House of
Representatives thus elected shall serve only for the unexpired term.
SECTION 2. The Commission on Elections shall fix the date of the
special election, which shall not be earlier than forty-five (45) days nor
later than ninety (90) days from the date of such resolution or
communication, stating among other things the office or offices to be
voted for: Provided, however, That if within the said period a general
election is scheduled to be held, the special election shall be held
simultaneously with such general election. (Emphasis supplied)
Section 4 of Republic Act No. 7166 subsequently amended Section 2
of R.A. No. 6645, as follows:
Postponement, Failure of Election and Special Elections. . . . In
case a permanent vacancy shall occur in the Senate or House of
Representatives at least one (1) year before the expiration of the
term, the Commission shall call and hold a special election to fill the
vacancy not earlier than sixty (60) days nor longer than ninety (90)
days after the occurrence of the vacancy. However, in case of such
vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election. (Emphasis
supplied)
Thus, in case a vacancy arises in Congress at least one year before
the expiration of the term, Section 2 of R.A. No. 6645, as amended,
requires COMELEC: (1) to call a special election by fixing the date of
the special election, which shall not be earlier than sixty (60) days nor
later than ninety (90) after the occurrence of the vacancy but in case
of a vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election; and (2) to
give notice to the voters of, among other things, the office or offices;
to be voted for.
Did COMELEC, in conducting the special senatorial election
simultaneously with the 14 May 2001 regular elections, comply with
the requirements in Section 2 of R.A. No. 6645?
A survey of COMELEC's resolutions relating to the conduct of the 14
May 2001 elections reveals that they contain nothing which would

266
amount to a compliance, either strict or substantial, with the
requirements in Section 2 of R.A. No. 6645, as amended. Thus,
nowhere in its resolutions 24 or even in its press releases 25 did
COMELEC state that it would hold a special election for a single
three-year term Senate seat simultaneously with the regular elections
on 14 May 2001. Nor did COMELEC give formal notice that it would
proclaim as winner the senatorial candidate receiving the 13th highest
number of votes in the special election.
The controversy thus turns on whether COMELEC's failure, assuming
it did fail, to comply with the requirements in Section 2 of R.A. No.
6645, as amended, invalidated the conduct of the special senatorial
election on 14 May 2001 and accordingly rendered Honasan's
proclamation as the winner in that special election void. More
precisely, the question is whether the special election is invalid for
lack of a "call" for such election and for lack of notice as to the office
to be filled and the manner by which the winner in the special election
is to be determined. For reasons stated below, the Court answers in
the negative.
COMELEC's Failure to Give Notice of the Time of the Special Election
Did Not Negate the Calling of such Election
The calling of an election, that is, the giving notice of the time and
place of its occurrence, whether made by the legislature directly or by
the body with the duty to give such call, is indispensable to the
election's validity. 26 In a general election, where the law fixes the
date of the election, the election is valid without any call by the body
charged to administer the election. 27
In a special election to fill a vacancy, the rule is that a statute that
expressly provides that an election to fill a vacancy shall be held at
the next general elections fixes the date at which the special election
is to be held and operates as the call for that election. Consequently,
an election held at the time thus prescribed is not invalidated by the
fact that the body charged by law with the duty of calling the election
failed to do so. 28 This is because the right and duty to hold the
election emanate from the statute and not from any call for the
election by some authority 29 and the law thus charges voters with
knowledge of the time and place of the election. 30
Conversely, where the law does not fix the time and place for holding
a special election but empowers some authority to fix the time and

place after the happening of a condition precedent, the statutory

provision on the giving of notice is considered mandatory, and failure
to do so will render the election a nullity. 31
In the instant case, Section 2 of R.A. No. 6645 itself provides that in
case of vacancy in the Senate, the special election to fill such vacancy
shall be held simultaneously with the next succeeding regular
election. Accordingly, the special election to fill the vacancy in the
Senate arising from Senator Guingona's appointment as VicePresident in February 2001 could not be held at any other time but
must be held simultaneously with the next succeeding regular
elections on 14 May 2001. The law charges the voters with knowledge
of this statutory notice and COMELEC's failure to give the additional
notice did not negate the calling of such special election, much less
invalidate it.
Our conclusion might be different had the present case involved a
special election to fill a vacancy in the House of Representatives. In
such a case, the holding of the special election is subject to a
condition precedent, that is, the vacancy should take place at least
one year before the expiration of the term. The time of the election is
left to the discretion of COMELEC subject only to the limitation that it
holds the special election within the range of time provided in Section
2 of R.A. No. 6645, as amended. This makes mandatory the
requirement in Section 2 of R.A. No. 6645, as amended, for
COMELEC to "call . . . a special election . . . not earlier than 60 days
nor longer than 90 days after the occurrence of the vacancy" and give
notice of the office to be filled. The COMELEC's failure to so call and
give notice will nullify any attempt to hold a special election to fill the
vacancy. Indeed, it will be well-nigh impossible for the voters in the
congressional district involved to know the time and place of the
special election and the office to be filled unless the COMELEC so
notifies them.
No Proof that COMELEC's Failure to Give Notice of the Office to be
Filled and the Manner of Determining the Winner in the Special
Election Misled Voters
The test in determining the validity of a special election in relation to
the failure to give notice of the special election is whether the want of
notice has resulted in misleading a sufficient number of voters as
would change the result of the special election. If the lack of official

267
notice misled a substantial number of voters who wrongly believed
that there was no special election to fill a vacancy, a choice by a small
percentage of voters would be void. 32

have attended the conduct of the elections. 35 This is but to

acknowledge the purpose and role of elections in a democratic society
such as ours, which is:

The required notice to the voters in the 14 May 2001 special

senatorial election covers two matters. First, that COMELEC will hold
a special election to fill a vacant single three-year term Senate seat
simultaneously with the regular elections scheduled on the same date.
Second, that COMELEC will proclaim as winner the senatorial
candidate receiving the 13th highest number of votes in the special
election. Petitioners have neither claimed nor proved that
COMELEC's failure to give this required notice misled a sufficient
number of voters as would change the result of the special senatorial
election or led them to believe that there was no such special election.

to give the voters a direct participation in the affairs of their

government, either in determining who shall be their public officials or
in deciding some question of public interest; and for that purpose all of
the legal voters should be permitted, unhampered and unmolested, to
cast their ballot. When that is done and no frauds have been
committed, the ballots should be counted and the election should not
be declared null. Innocent voters should not be deprived of their
participation in the affairs of their government for mere irregularities
on the part of the election officers, for which they are in no way
responsible. A different rule would make the manner and method of
performing a public duty of greater importance than the duty itself. 36
(Emphasis in the original)

Instead, what petitioners did is conclude that since COMELEC failed

to give such notice, no special election took place. This bare assertion
carries no value. Section 2 of R.A. No. 6645, as amended, charged
those who voted in the elections of 14 May 2001 with the knowledge
that the vacancy in the Senate arising from Senator Guingona's
appointment as Vice-President in February 2001 was to be filled in the
next succeeding regular election of 14 May 2001. Similarly, the
absence of formal notice from COMELEC does not preclude the
possibility that the voters had actual notice of the special election, the
office to be voted in that election, and the manner by which
COMELEC would determine the winner. Such actual notice could
come from many sources, such as media reports of the enactment of
R.A. No. 6645 and election propaganda during the campaign. 33
More than 10 million voters cast their votes in favor of Honasan, the
party who stands most prejudiced by the instant petition. We simply
cannot disenfranchise those who voted for Honasan, in the absence
of proof that COMELEC's omission prejudiced voters in the exercise
of their right of suffrage so as to negate the holding of the special
election. Indeed, this Court is loathe to annul elections and will only do
so when it is "impossible to distinguish what votes are lawful and what
are unlawful, or to arrive at any certain result whatever, or that the
great body of the voters have been prevented by violence,
intimidation, and threats from exercising their franchise." 34
Otherwise, the consistent rule has been to respect the electorate's will
and let the results of the election stand, despite irregularities that may

Separate Documentation and Canvassing not Required under Section

2 of R.A. No. 6645
Neither is there basis in petitioners' claim that the manner by which
COMELEC conducted the special senatorial election on 14 May 2001
is a nullity because COMELEC failed to document separately the
candidates and to canvass separately the votes cast for the special
election. No such requirements exist in our election laws. What is
mandatory under Section 2 of R.A. No. 6645 is that COMELEC "fix
the date of the election," if necessary, and "state, among others, the
office or offices to be voted for." Similarly, petitioners' reliance on
Section 73 of B.P. Blg. 881 on the filing of certificates of candidacy,
and on Section 4(4) of R.A. No. 6646 on the printing of election
returns and tally sheets, to support their claim is misplaced. These
provisions govern elections in general and in no way require separate
documentation of candidates or separate canvass of votes in a jointly
held regular and special elections.
Significantly, the method adopted by COMELEC in conducting the
special election on 14 May 2001 merely implemented the procedure
specified by the Senate in Resolution No. 84. Initially, the original draft
of Resolution No. 84 as introduced by Senator Francisco Tatad
("Senator Tatad") made no mention of the manner by which the seat
vacated by former Senator Guingona would be filled. However, upon
the suggestion of Senator Raul Roco ("Senator Roco"), the Senate

268
agreed to amend Resolution No. 84 by providing, as it now appears,
that "the senatorial candidate garnering the thirteenth (13th) highest
number of votes shall serve only for the unexpired term of former
Senator Teofisto T. Guingona, Jr." Senator Roco introduced the
amendment to spare COMELEC and the candidates needless
expenditures and the voters further inconvenience, thus:
S[ENATOR] T[ATAD]. Mr. President, I move that we now consider
Proposed Senate Resolution No. 934 [later converted to Resolution
No. 84].
T[HE] P[RESIDENT]. Is there any objection? [Silence] There being
none, the motion is approved.
Consideration of Proposed Senate Resolution No. 934 is now in order.
With the permission of the Body, the Secretary will read only the title
and text of the resolution.

shall be held on the second Monday and every three years thereafter;
Now, therefore, be it
RESOLVED by the Senate, as it is hereby resolved, to certify, as it
hereby certifies, the existence of a vacancy in the Senate and calling
the Commission on Elections (COMELEC) to fill up such vacancy
through election to be held simultaneously with the regular election on
May 14, 2001 and the Senator thus elected to serve only for the
unexpired term.
Adopted,
(Sgd.) FRANCISCO S. TATAD
Senator
S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this
resolution.

T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled

S[ENATOR] O[SMEA] (J). Mr. President.

RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY

IN THE SENATE AND CALLING ON THE COMMISSION ON
ELECTIONS (COMELEC) TO FILL UP SUCH VACANCY THROUGH
ELECTION TO BE HELD SIMULTANEOUSLY WITH THE REGULAR
ELECTION ON MAY 14, 2001 AND THE SENATOR THUS ELECTED
TO SERVE ONLY FOR THE UNEXPIRED TERM

T[HE] P[RESIDENT]. Sen. John H. Osmea is recognized.

WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected

Senator of the Philippines in 1998 for a term which will expire on June
30, 2004;

S[ENATOR] O[SMEA] (J). What a way of flattery. [Laughter]

WHEREAS, on February 6, 2001, Her Excellency President Gloria

Macapagal Arroyo nominated Senator Guingona as Vice-President of
the Philippines;
WHEREAS, the nomination of Senator Guingona has been confirmed
by a majority vote of all the members of both House of Congress,
voting separately;
WHEREAS, Senator Guingona will take his Oath of Office as VicePresident of the Philippines on February 9, 2001;
WHEREAS, Republic Act No. 7166 provides that the election for
twelve (12) Senators, all elective Members of the House of
Representatives, and all elective provincial city and municipal officials

S[ENATOR] O[SMEA] (J). Thank you, Mr. President. Will the

distinguished Majority Leader, Chairman of the Committee on Rules,
author of this resolution, yield for a few questions?
S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]
Mr. President, I think I recall that sometime in 1951 or 1953, there was
a special election for a vacant seat in the Senate. As a matter of fact,
the one who was elected in that special election was then
Congressman, later Senator Feli[s]berto Verano.
In that election, Mr. President, the candidates contested the seat. In
other words, the electorate had to cast a vote for a ninth senator
because at that time there were only eight to elect a member or
rather, a candidate to that particular seat.
Then I remember, Mr. President, that when we ran after the EDSA
revolution, twice there were 24 candidates and the first 12 were
elected to a six-year term and the next 12 were elected to a threeyear term.

269
My question therefore is, how is this going to be done in this election?
Is the candidate with the 13th largest number of votes going to be the
one to take a three-year term? Or is there going to be an election for a
position of senator for the unexpired term of Sen. Teofisto Guingona?
S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving
the mechanics to the Commission on Elections. But personally, I
would like to suggest that probably, the candidate obtaining the 13th
largest number of votes be declared as elected to fill up the unexpired
term of Senator Guingona.

S[ENATOR] R[OCO]. If we can just deem it therefore under this

resolution to be such a special election, maybe, we satisfy the
requirement of the law.
T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for
the Comelec.
S[ENATOR] R[OCO]. Yes.
T[HE] P[RESIDENT]. to implement.
S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.

S[ENATOR] O[SMEA] (J). Is there a law that would allow the

Comelec to conduct such an election? Is it not the case that the
vacancy is for a specific office? I am really at a loss. I am rising here
because I think it is something that we should consider. I do not know
if we can . . . No, this is not a Concurrent Resolution. aTcIEH

T[HE] P[RESIDENT]. That is right.

S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate

President.

T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator

Roco.

T[HE] P[RESIDENT]. May I share this information that under Republic

Act No. 6645, what is needed is a resolution of this Chamber calling
attention to the need for the holding of a special election to fill up the
vacancy created, in this particular case, by the appointment of our
colleague, Senator Guingona, as Vice President.

S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later,

maybe it will be better, Mr. President.

It can be managed in the Commission on Elections so that a slot for

the particular candidate to fill up would be that reserved for Mr.
Guingona's unexpired term. In other words, it can be arranged in such
a manner.
xxx

xxx

xxx

S[ENATOR] R[OCO]. Mr. President.

T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.
S[ENATOR] R[OCO]. May we suggest, subject to a one-minute
caucus, wordings to the effect that in the simultaneous elections, the
13th placer be therefore deemed to be the special election for this
purpose. So we just nominate 13 and it is good for our colleagues. It
is better for the candidates. It is also less expensive because the
ballot will be printed and there will be less disfranchisement.
T[HE] P[RESIDENT]. That is right.

S[ENATOR] R[OCO]. We will already consider the 13th placer of the

forthcoming elections that will be held simultaneously as a special
election under this law as we understand it.

T[HE] P[RESIDENT]. What does the sponsor say?

S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory
proposal because I do not believe that there will be anyone running
specifically
T[HE] P[RESIDENT]. Correct.
S[ENATOR] T[ATAD]. to fill up this position for three years and
campaigning nationwide.
T[HE] P[RESIDENT]. Actually, I think what is going to happen is the
13th candidate will be running with specific groups.
S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.
T[HE] P[RESIDENT]. I think we can specifically define that as the
intent of this resolution.
S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and
if there will be no other amendment, I move for the adoption of this
resolution.
xxx

xxx

xxx

270
ADOPTION OF S. RES. NO. 934
If there are no other proposed amendments, I move that we adopt this
resolution.
T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is
there any objection? [Silence] There being none, the motion is
approved. 37
Evidently, COMELEC, in the exercise of its discretion to use means
and methods to conduct the special election within the confines of
R.A. No. 6645, merely chose to adopt the Senate's proposal, as
embodied in Resolution No. 84. This Court has consistently
acknowledged and affirmed COMELEC's wide latitude of discretion in
adopting means to carry out its mandate of ensuring free, orderly, and
honest elections subject only to the limitation that the means so
adopted are not illegal or do not constitute grave abuse of discretion.
38 COMELEC's decision to abandon the means it employed in the 13
November 1951 and 8 November 1955 special elections and adopt
the method embodied in Resolution No. 84 is but a legitimate exercise
of its discretion. Conversely, this Court will not interfere should
COMELEC, in subsequent special senatorial elections, choose to
revert to the means it followed in the 13 November 1951 and 8
November 1955 elections. That COMELEC adopts means that are
novel or even disagreeable is no reason to adjudge it liable for grave
abuse of discretion. As we have earlier noted:
The Commission on Elections is a constitutional body. It is intended to
play a distinct and important part in our scheme of government. In the
discharge of its functions, it should not be hampered with restrictions
that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this Court also. It
should be allowed considerable latitude in devising means and
methods that will insure the accomplishment of the great objective for
which it was created free, orderly and honest elections. We may
not agree fully with its choice of means, but unless these are clearly
illegal or constitute gross abuse of discretion, this court should not
interfere. 39
A Word to COMELEC
The calling of a special election, if necessary, and the giving of notice
to the electorate of necessary information regarding a special election,

are central to an informed exercise of the right of suffrage. While the

circumstances attendant to the present case have led us to conclude
that COMELEC's failure to so call and give notice did not invalidate
the special senatorial election held on 14 May 2001, COMELEC
should not take chances in future elections. We remind COMELEC to
comply strictly with all the requirements under applicable laws relative
to the conduct of regular elections in general and special elections in
particular.
WHEREFORE, we DISMISS the petition for lack of merit.
SO ORDERED.

271
EN BANC
[G.R. No. 127685. July 23, 1998.]
BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER
AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT
BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO
VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL
COMPUTER CENTER and CHAIRMAN OF THE COMMISSION ON
AUDIT, respondents.
DECISION
PUNO, J p:
The petition at bar is a commendable effort on the part of Senator
Blas F. Ople to prevent the shrinking of the right to privacy, which the
revered Mr. Justice Brandeis considered as "the most comprehensive
of rights and the right most valued by civilized men.'' 1 Petitioner Ople
prays that we invalidate Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference
System" on two important constitutional grounds, viz: one, it is a
usurpation of the power of Congress to legislate, and two, it
impermissibly intrudes on our citizenry's protected zone of privacy. We
grant the petition for the rights sought to be vindicated by the
petitioner need stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos on December
12, 1996 and reads as follows:
"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign
residents with the facility to conveniently transact business with basic
service and social security providers and other government
instrumentalities;
WHEREAS, this will require a computerized system to properly and
efficiently identify persons seeking basic services on social security

and reduce, if not totally eradicate, fraudulent transactions and

misrepresentations;
WHEREAS, a concerted and collaborative effort among the various
basic services and social security providing agencies and other
government instrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic
of the Philippines, by virtue of the powers vested in me by law, do
hereby direct the following:
SEC. 1.
Establishment
of
a
National
Computerized
Identification Reference System. A decentralized Identification
Reference System among the key basic services and social security
providers is hereby established.
SEC. 2.
Inter-Agency Coordinating Committee. An InterAgency Coordinating Committee (IACC) to draw-up the implementing
guidelines and oversee the implementation of the System is hereby
created, chaired by the Executive Secretary, with the following as
members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
SEC. 3.
Secretariat. The National Computer Center (NCC) is
hereby designated as secretariat to the IACC and as such shall
provide administrative and technical support to the IACC.
SEC. 4.
Linkage Among Agencies. The Population
Reference Number (PRN) generated by the NSO shall serve as the
common reference number to establish a linkage among concerned
agencies. The IACC Secretariat shall coordinate with the different
Social Security and Services Agencies to establish the standards in

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the use of Biometrics Technology and in computer application designs
of their respective systems.
SEC. 5.
Conduct of Information Dissemination Campaign.
The Office of the Press Secretary, in coordination with the National
Statistics Office, the GSIS and SSS as lead agencies and other
concerned agencies shall undertake a massive tri-media information
dissemination campaign to educate and raise public awareness on
the importance and use of the PRN and the Social Security
Identification Reference.
SEC. 6.
Funding. The funds necessary for the
implementation of the system shall be sourced from the respective
budgets of the concerned agencies.
SEC. 7.
Submission of Regular Reports. The NSO, GSIS
and SSS shall submit regular reports to the Office of the President,
through the IACC, on the status of implementation of this undertaking.
SEC. 8.
Effectivity. This Administrative Order shall take effect
immediately.
DONE in the City of Manila, this 12th day of December in the year of
Our Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS"
A.O. No. 308 was published in four newspapers of general circulation
on January 22, 1997 and January 23, 1997. On January 24, 1997,
petitioner filed the instant petition against respondents, then Executive
Secretary Ruben Torres and the heads of the government agencies,
who as members of the Inter-Agency Coordinating Committee, are
charged with the implementation of A.O. No. 308. On April 8, 1997, we
issued a temporary restraining order enjoining its implementation.
Petitioner contends:
"A.
THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED
IDENTIFICATION
REFERENCE
SYSTEM
REQUIRES
A
LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE
PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS,
THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE
LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC
OF THE PHILIPPINES.

B.
THE APPROPRIATION OF PUBLIC FUNDS BY THE
PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN
UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT
OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR
EXPENDITURE.
C.
THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY
LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE
THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION." 2
Respondents counter-argue:
A.
THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS
WOULD WARRANT A JUDICIAL REVIEW;
B.
A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE
AND ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;
C.
THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF
THE IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED
FROM THE BUDGETS OF THE CONCERNED AGENCIES;
D.
A.O. NO. 308 [1996]
INTEREST IN PRIVACY. 3

PROTECTS

AN

INDIVIDUAL'S

We now resolve.
I
As is usual in constitutional litigation, respondents raise the threshold
issues relating to the standing to sue of the petitioner and the
justiciability of the case at bar. More specifically, respondents aver
that petitioner has no legal interest to uphold and that the
implementing rules of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner
Ople is a distinguished member of our Senate. As a Senator,
petitioner is possessed of the requisite standing to bring suit raising
the issue that the issuance of A.O. No. 308 is a usurpation of
legislative power. 4 As taxpayer and member of the Government
Service Insurance System (GSIS), petitioner can also impugn the
legality of the misalignment of public funds and the misuse of GSIS
funds to implement A.O. No. 308. 5

273
The ripeness for adjudication of the petition at bar is not affected by
the fact that the implementing rules of A.O. No. 308 have yet to be
promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se
and as infirmed on its face. His action is not premature for the rules
yet to be promulgated cannot cure its fatal defects. Moreover, the
respondents themselves have started the implementation of A.O. No.
308 without waiting for the rules. As early as January 19, 1997,
respondent Social Security System (SSS) caused the publication of a
notice to bid for the manufacture of the National Identification (ID)
card. 6 Respondent Executive Secretary Torres has publicly
announced that representatives from the GSIS and the SSS have
completed the guidelines for the national identification system. 7 All
signals from the respondents show their unswerving will to implement
A.O. No. 308 and we need not wait for the formality of the rules to
pass judgment on its constitutionality. In this light, the dissenters
insistence that we tighten the rule on standing is not a commendable
stance as its result would be to throttle an important constitutional
principle and a fundamental right.
II
We now come to the core issues. Petitioner claims that A.O. No. 308
is not a mere administrative order but a law and hence, beyond the
power of the President to issue. He alleges that A.O. No. 308
establishes a system of identification that is all-encompassing in
scope, affects the life and liberty of every Filipino citizen and foreign
resident, and more particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the
lawmaking domain of Congress is understandable. The blurring of the
demarcation line between the power of the Legislature to make laws
and the power of the Executive to execute laws will disturb their
delicate balance of power and cannot be allowed. Hence, the exercise
by one branch of government of power belonging to another will be
given a stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not
indistinct. Legislative power is "the authority, under the Constitution, to
make laws, and to alter and repeal them." 8 The Constitution, as the
will of the people in their original, sovereign and unlimited capacity,
has vested this power in the Congress of the Philippines. 9 The grant
of legislative power to Congress is broad, general and

comprehensive. 10 The legislative body possesses plenary power for

all purposes of civil government. 11 Any power, deemed to be
legislative by usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it elsewhere. 12 In fine,
except as limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects and extends to matters of
general concern or common interest. 13
While Congress is vested with the power to enact laws, the President
executes the laws. 14 The executive power is vested in the President.
15 It is generally defined as the power to enforce and administer the
laws. 16 It is the power of carrying the laws into practical operation
and enforcing their due observance. 17
As head of the Executive Department, the President is the Chief
Executive. He represents the government as a whole and sees to it
that all laws are enforced by the officials and employees of his
department. 18 He has control over the executive department,
bureaus and offices. This means that he has the authority to assume
directly the functions of the executive department, bureau and office,
or interfere with the discretion of its officials. 19 Corollary to the power
of control, the President also has the duty of supervising the
enforcement of laws for the maintenance of general peace and public
order. Thus, he is granted administrative power over bureaus and
offices under his control to enable him to discharge his duties
effectively. 20
Administrative power is concerned with the work of applying policies
and enforcing orders as determined by proper governmental organs.
21 It enables the President to fix a uniform standard of administrative
efficiency and check the official conduct of his agents. 22 To this end,
he can issue administrative orders, rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a
subject that is not appropriate to be covered by an administrative
order. An administrative order is:
"Sec. 3.
Administrative Orders. Acts of the President which
relate to particular aspects of governmental operation in pursuance of
his duties as administrative head shall be promulgated in
administrative orders." 23

274
An administrative order is an ordinance issued by the President which
relates to specific aspects in the administrative operation of
government. It must be in harmony with the law and should be for the
sole purpose of implementing the law and carrying out the legislative
policy. 24 We reject the argument that A.O. No. 308 implements the
legislative policy of the Administrative Code of 1987. The Code is a
general law and "incorporates in a unified document the major
structural, functional and procedural principles of governance" 25 and
"embodies changes in administrative structures and procedures
designed to serve the people." 26 The Code is divided into seven (7)
Books: Book I deals with Sovereignty and General Administration,
Book II with the Distribution of Powers of the three branches of
Government, Book III on the Office of the President, Book IV on the
Executive Branch, Book V on the Constitutional Commissions, Book
VI on National Government Budgeting, and Book VII on Administrative
Procedure. These Books contain provisions on the organization,
powers and general administration of the executive, legislative and
judicial branches of government, the organization and administration
of departments, bureaus and offices under the executive branch, the
organization and functions of the Constitutional Commissions and
other constitutional bodies, the rules on the national government
budget, as well as guidelines for the exercise by administrative
agencies of quasi-legislative and quasi-judicial powers. The Code
covers both the internal administration of government, i.e, internal
organization, personnel and recruitment, supervision and discipline,
and the effects of the functions performed by administrative officials
on private individuals or parties outside government. 27
It cannot be simplistically argued that A.O. No. 308 merely implements
the Administrative Code of 1987. It establishes for the first time a
National Computerized Identification Reference System. Such a
System requires a delicate adjustment of various contending state
policies the primacy of national security, the extent of privacy
interest against dossier-gathering by government, the choice of
policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that
the A.O. No. 308 involves the all-important freedom of thought. As
said administrative order redefines the parameters of some basic
rights of our citizenry vis-a-vis the State as well as the line that
separates the administrative power of the President to make rules and
the legislative power of Congress, it ought to be evident that it deals
with a subject that should be covered by law.

Nor is it correct to argue as the dissenters do that A.O. No. 308 is not
a law because it confers no right, imposes no duty, affords no
protection, and creates no office. Under A.O. No. 308, a citizen cannot
transact business with government agencies delivering basic services
to the people without the contemplated identification card. No citizen
will refuse to get this identification card for no one can avoid dealing
with government. It is thus clear as daylight that without the ID, a
citizen will have difficulty exercising his rights and enjoying his
privileges. Given this reality, the contention that A.O. No. 308 gives no
right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the
limits of administrative legislation and consequently erodes the
plenary power of Congress to make laws. This is contrary to the
established approach defining the traditional limits of administrative
legislation. As well stated by Fisher: ". . . Many regulations however,
bear directly on the public. It is here that administrative legislation
must be restricted in its scope and application. Regulations are not
supposed to be a substitute for the general policy-making that
Congress enacts in the form of a public law. Although administrative
regulations are entitled to respect, the authority to prescribe rules and
regulations is not an independent source of power to make laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of a
law, still it cannot pass constitutional muster as an administrative
legislation because facially it violates the right to privacy. The essence
of privacy is the "right to be let alone." 29 In the 1965 case of Griswold
v. Connecticut, 30 the United States Supreme Court gave more
substance to the right of privacy when it ruled that the right has a
constitutional foundation. It held that there is a right of privacy which
can be found within the penumbras of the First, Third, Fourth, Fifth
and Ninth Amendments, 31 viz:
"Specific guarantees in the Bill of Rights have penumbras formed by
emanations from these guarantees that help give them life and
substance . . . Various guarantees create zones of privacy. The right
of association contained in the penumbra of the First Amendment is
one, as we have seen. The Third Amendment in its prohibition against
the quartering of soldiers 'in any house' in time of peace without the
consent of the owner is another facet of that privacy. The Fourth

275
Amendment explicitly affirms the 'right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures.' The Fifth Amendment in its Self-Incrimination
Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The
Ninth Amendment provides: 'The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others
retained by the people.'"
In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling
that there is a constitutional right to privacy. Speaking thru Mr. Justice,
later Chief Justice, Enrique Fernando, we held:
"xxx

xxx

xxx

The Griswold case invalidated a Connecticut statute which made the

use of contraceptives a criminal offense on the ground of its
amounting to an unconstitutional invasion of the right of privacy of
married persons; rightfully it stressed "a relationship lying within the
zone of privacy created by several fundamental constitutional
guarantees." It has wider implications though. The constitutional right
to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is
accorded recognition independently of its identification with liberty; in
itself, it is fully deserving of constitutional protection. The language of
Prof. Emerson is particularly apt: 'The concept of limited government
has always included the idea that governmental powers stop short of
certain intrusions into the personal life of the citizen. This is indeed
one of the basic distinctions between absolute and limited
government. Ultimate and pervasive control of the individual, in all
aspects of his life, is the hallmark of the absolute state. In contrast, a
system of limited government safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector,
which the state can control. Protection of this private sector
protection, in other words, of the dignity and integrity of the individual
has become increasingly important as modern society has
developed. All the forces of a technological age industrialization,
urbanization, and organization operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society.'"

Indeed, if we extend our judicial gaze we will find that the right of
privacy is recognized and enshrined in several provisions of our
Constitution. 33 It is expressly recognized in Section 3(1) of the Bill of
Rights:
"Sec. 3.
(1) The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or when
public safety or order requires otherwise as prescribed by law."
Other facets of the right to privacy are protected in various provisions
of the Bill of Rights, viz: 34
"Sec. 1.
No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
Sec. 2. The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched
and the persons or things to be seized.
xxx

xxx

xxx

Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of
the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be
provided by law.
xxx

xxx

xxx.

Sec. 8. The right of the people, including those employed in the public
and private sectors, to form unions, associations, or societies for
purposes not contrary to law shall not be abridged.
Sec. 17.
himself."

No person shall be compelled to be a witness against

Zones of privacy are likewise recognized and protected in our laws.

The Civil Code provides that "[e]very person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other

276
persons" and punishes as actionable torts several acts by a person of
meddling and prying into the privacy of another. 35 It also holds a
public officer or employee or any private individual liable for damages
for any violation of the rights and liberties of another person, 36 and
recognizes the privacy of letters and other private communications. 37
The Revised Penal Code makes a crime the violation of secrets by an
officer, 38 the revelation of trade and industrial secrets, 39 and
trespass to dwelling. 40 Invasion of privacy is an offense in special
laws like the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits
Act 42 and the Intellectual Property Code. 43 The Rules of Court on
privileged communication likewise recognize the privacy of certain
information. 44
Unlike the dissenters, we prescind from the premise that the right to
privacy is a fundamental right guaranteed by the Constitution, hence,
it is the burden of government to show that A.O. No. 308 is justified by
some compelling state interest and that it is narrowly drawn. A.O. No.
308 is predicated on two considerations: (1) the need to provide our
citizens and foreigners with the facility to conveniently transact
business with basic service and social security providers and other
government instrumentalities and (2) the need to reduce, if not totally
eradicate, fraudulent transactions and misrepresentations by persons
seeking basic services. It is debatable whether these interests are
compelling enough to warrant the issuance of A.O. No. 308. But what
is not arguable is the broadness, the vagueness, the overbreadth of
A.O. No. 308 which if implemented will put our people's right to
privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a
Population Reference Number (PRN) as a "common reference
number to establish a linkage among concerned agencies" through
the use of "Biometrics Technology" and "computer application
designs."
Biometry or biometrics is "the science of the application of statistical
methods to biological facts; a mathematical analysis of biological
data." 45 The term "biometrics" has now evolved into a broad
category of technologies which provide precise confirmation of an
individual's identity through the use of the individual's own
physiological and behavioral characteristics. 46 A physiological
characteristic is a relatively stable physical characteristic such as a
fingerprint, retinal scan, hand geometry or facial features. A behavioral

characteristic is influenced by the individual's personality and includes

voice print, signature and keystroke. 47 Most biometric identification
systems use a card or personal identification number (PIN) for initial
identification. The biometric measurement is used to verify that the
individual holding the card or entering the PIN is the legitimate owner
of the card or PIN. 48
A most common form of biological encoding is finger-scanning where
technology scans a fingertip and turns the unique pattern therein into
an individual number which is called a biocrypt. The biocrypt is stored
in computer data banks 49 and becomes a means of identifying an
individual using a service. This technology requires one's fingertip to
be scanned every time service or access is provided. 50 Another
method is the retinal scan. Retinal scan technology employs optical
technology to map the capillary pattern of the retina of the eye. This
technology produces a unique print similar to a finger print. 51 Another
biometric method is known as the "artificial nose." This device
chemically analyzes the unique combination of substances excreted
from the skin of people. 52 The latest on the list of biometric
achievements is the thermogram. Scientists have found that by taking
pictures of a face using infrared cameras, a unique heat distribution
pattern is seen. The different densities of bone, skin, fat and blood
vessels all contribute to the individual's personal "heat signature." 53
In the last few decades, technology has progressed at a galloping
rate. Some science fictions are now science facts. Today, biometrics is
no longer limited to the use of fingerprint to identify an individual. It is
a new science that uses various technologies in encoding any and all
biological characteristics of an individual for identification. It is
noteworthy that A.O. No. 308 does not state what specific biological
characteristics and what particular biometrics technology shall be
used to identify people who will seek its coverage. Considering the
banquet of options available to the implementors of A.O. No. 308, the
fear that it threatens the right to privacy of our people is not
groundless.
A.O. No. 308 should also raise our antennas for a further look will
show that it does not state whether encoding of data is limited to
biological information alone for identification purposes. In fact, the
Solicitor General claims that the adoption of the Identification
Reference System will contribute to the "generation of population data
for development planning." 54 This is an admission that the PRN will

277
not be used solely for identification but for the generation of other data
with remote relation to the avowed purposes of A.O. No. 308. Clearly,
the indefiniteness of A.O. No. 308 can give the government the roving
authority to store and retrieve information for a purpose other than the
identification of the individual through his PRN .
The potential for misuse of the data to be gathered under A.O. No.
308 cannot be underplayed as the dissenters do. Pursuant to said
administrative order, an individual must present his PRN everytime he
deals with a government agency to avail of basic services and
security. His transactions with the government agency will necessarily
be recorded whether it be in the computer or in the documentary
file of the agency. The individual's file may include his transactions for
loan availments, income tax returns, statement of assets and
liabilities, reimbursements for medication, hospitalization, etc. The
more frequent the use of the PRN, the better the chance of building a
huge and formidable information base through the electronic linkage
of the files. 55 The data may be gathered for gainful and useful
government purposes; but the existence of this vast reservoir of
personal information constitutes a covert invitation to misuse, a
temptation that may be too great for some of our authorities to resist.
56
We can even grant, arguendo, that the computer data file will be
limited to the name, address and other basic personal information
about the individual. 57 Even that hospitable assumption will not save
A.O. No. 308 from constitutional infirmity for again said order does not
tell us in clear and categorical terms how these information gathered
shall be handled. It does not provide who shall control and access the
data, under what circumstances and for what purpose. These factors
are essential to safeguard the privacy and guaranty the integrity of the
information. 58 Well to note, the computer linkage gives other
government agencies access to the information. Yet, there are no
controls to guard against leakage of information. When the access
code of the control programs of the particular computer system is
broken, an intruder, without fear of sanction or penalty, can make use
of the data for whatever purpose, or worse, manipulate the data
stored within the system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that
personal information which will be gathered about our people will only
be processed for unequivocally specified purposes. 60 The lack of

proper safeguards in this regard of A.O. No. 308 may interfere with
the individual's liberty of abode and travel by enabling authorities to
track down his movement; it may also enable unscrupulous persons
to access confidential information and circumvent the right against
self-incrimination; it may pave the way for "fishing expeditions" by
government authorities and evade the right against unreasonable
searches and seizures. 61 The possibilities of abuse and misuse of
the PRN, biometrics and computer technology are accentuated when
we consider that the individual lacks control over what can be read or
placed on his ID, much less verify the correctness of the data
encoded. 62 They threaten the very abuses that the Bill of Rights
seeks to prevent. 63
The ability of a sophisticated data center to generate a
comprehensive cradle-to-grave dossier on an individual and transmit it
over a national network is one of the most graphic threats of the
computer revolution. 64 The computer is capable of producing a
comprehensive dossier on individuals out of information given at
different times and for varied purposes. 65 It can continue adding to
the stored data and keeping the information up to date. Retrieval of
stored data is simple. When information of a privileged character finds
its way into the computer, it can be extracted together with other data
on the subject. 66 Once extracted, the information is putty in the
hands of any person. The end of privacy begins. cdphil
Though A.O. No. 308 is undoubtedly not narrowly drawn, the
dissenting opinions would dismiss its danger to the right to privacy as
speculative and hypothetical. Again, we cannot countenance such a
laidback posture. The Court will not be true to its role as the ultimate
guardian of the people's liberty if it would not immediately smother the
sparks that endanger their rights but would rather wait for the fire that
could consume them.
We reject the argument of the Solicitor General that an individual has
a reasonable expectation of privacy with regard to the National ID and
the use of biometrics technology as it stands on quicksand. The
reasonableness of a person's expectation of privacy depends on a
two-part test: (1) whether by his conduct, the individual has exhibited
an expectation of privacy; and (2) whether this expectation is one that
society recognizes as reasonable. 67 The factual circumstances of
the case determines the reasonableness of the expectation. 68
However, other factors, such as customs, physical surroundings and

278
practices of a particular activity, may serve to create or diminish this
expectation. 69 The use of biometrics and computer technology in
A.O. No. 308 does not assure the individual of a reasonable
expectation of privacy. 70 As technology advances, the level of
reasonably expected privacy decreases. 71 The measure of
protection granted by the reasonable expectation diminishes as
relevant technology becomes more widely accepted. 72 The security
of the computer data file depends not only on the physical
inaccessibility of the file but also on the advances in hardware and
software computer technology. A.O. No. 308 is so widely drawn that a
minimum standard for a reasonable expectation of privacy, regardless
of technology used, cannot be inferred from its provisions.
The rules and regulations to be drawn by the IACC cannot remedy
this fatal defect. Rules and regulations merely implement the policy of
the law or order. On its face, A.O. No. 308 gives the IACC virtually
unfettered discretion to determine the metes and bounds of the ID
System.
Nor do our present laws provide adequate safeguards for a
reasonable expectation of privacy. Commonwealth Act No. 591
penalizes the disclosure by any person of data furnished by the
individual to the NSO with imprisonment and fine. 73 Republic Act No.
1161 prohibits public disclosure of SSS employment records and
reports. 74 These laws, however, apply to records and data with the
NSO and the SSS. It is not clear whether they may be applied to data
with the other government agencies forming part of the National ID
System. The need to clarify the penal aspect of A.O. No. 308 is
another reason why its enactment should be given to Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's
abridgment of the right of privacy by using the rational relationship
test. 75 He stressed that the purposes of A.O. No. 308 are: (1) to
streamline and speed up the implementation of basic government
services, (2) eradicate fraud by avoiding duplication of services, and
(3) generate population data for development planning. He concludes
that these purposes justify the incursions into the right to privacy for
the means are rationally related to the end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we
upheld the constitutionality of R.A. 3019, the Anti-Graft and Corrupt
Practices Act, as a valid police power measure. We declared that the

law, in compelling a public officer to make an annual report disclosing

his assets and liabilities, his sources of income and expenses, did not
infringe on the individual's right to privacy. The law was enacted to
promote morality in public administration by curtailing and minimizing
the opportunities for official corruption and maintaining a standard of
honesty in the public service. 78
The same circumstances do not obtain in the case at bar. For one,
R.A. 3019 is a statute, not an administrative order. Secondly, R.A.
3019 itself is sufficiently detailed. The law is clear on what practices
were prohibited and penalized, and it was narrowly drawn to avoid
abuses. In the case at bar, A.O. No. 308 may have been impelled by a
worthy purpose, but, it cannot pass constitutional scrutiny for it is not
narrowly drawn. And we now hold that when the integrity of a
fundamental right is at stake, this court will give the challenged law,
administrative order, rule or regulation a stricter scrutiny. It will not do
for the authorities to invoke the presumption of regularity in the
performance of official duties. Nor is it enough for the authorities to
prove that their act is not irrational for a basic right can be diminished,
if not defeated, even when the government does not act irrationally.
They must satisfactorily show the presence of compelling state
interests and that the law, rule, or regulation is narrowly drawn to
preclude abuses. This approach is demanded by the 1987
Constitution whose entire matrix is designed to protect human rights
and to prevent authoritarianism. In case of doubt, the least we can do
is to lean towards the stance that will not put in danger the rights
protected by the Constitution.
The case of Whalen v. Roe 79 cited by the Solicitor General is also
off-line. In Whalen, the United States Supreme Court was presented
with the question of whether the State of New York could keep a
centralized computer record of the names and addresses of all
persons who obtained certain drugs pursuant to a doctor's
prescription. The New York State Controlled Substances Act of 1972
required physicians to identify patients obtaining prescription drugs
enumerated in the statute, i.e., drugs with a recognized medical use
but with a potential for abuse, so that the names and addresses of the
patients can be recorded in a centralized computer file of the State
Department of Health. The plaintiffs, who were patients and doctors,
claimed that some people might decline necessary medication
because of their fear that the computerized data may be readily

279
available and open to public disclosure; and that once disclosed, it
may stigmatize them as drug addicts. 80 The plaintiffs alleged that the
statute invaded a constitutionally protected zone of privacy, i.e, the
individual interest in avoiding disclosure of personal matters, and the
interest in independence in making certain kinds of important
decisions. The U.S. Supreme Court held that while an individual's
interest in avoiding disclosure of personal matters is an aspect of the
right to privacy, the statute did not pose a grievous threat to establish
a constitutional violation. The Court found that the statute was
necessary to aid in the enforcement of laws designed to minimize the
misuse of dangerous drugs. The patient-identification requirement
was a product of an orderly and rational legislative decision made
upon recommendation by a specially appointed commission which
held extensive hearings on the matter. Moreover, the statute was
narrowly drawn and contained numerous safeguards against
indiscriminate disclosure. The statute laid down the procedure and
requirements for the gathering, storage and retrieval of the
information. It enumerated who were authorized to access the data. It
also prohibited public disclosure of the data by imposing penalties for
its violation. In view of these safeguards, the infringement of the
patients' right to privacy was justified by a valid exercise of police
power. As we discussed above, A.O. No. 308 lacks these vital
safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the
Court is not per se against the use of computers to accumulate, store,
process, retrieve and transmit data to improve our bureaucracy.
Computers work wonders to achieve the efficiency which both
government and private industry seek. Many information systems in
different countries make use of the computer to facilitate important
social objectives, such as better law enforcement, faster delivery of
public services, more efficient management of credit and insurance
programs, improvement of telecommunications and streamlining of
financial activities. 81 Used wisely, data stored in the computer could
help good administration by making accurate and comprehensive
information for those who have to frame policy and make key
decisions. 82 The benefits of the computer has revolutionized
information technology. It developed the internet, 83 introduced the
concept of cyberspace 84 and the information superhighway where
the individual, armed only with his personal computer, may surf and

search all kinds and classes of information from libraries and

databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy
does not bar all incursions into individual privacy. The right is not
intended to stifle scientific and technological advancements that
enhance public service and the common good. It merely requires that
the law be narrowly focused 85 and a compelling interest justify such
intrusions. 86 Intrusions into the right must be accompanied by proper
safeguards and well-defined standards to prevent unconstitutional
invasions. We reiterate that any law or order that invades individual
privacy will be subjected by this Court to strict scrutiny. The reason for
this stance was laid down in Morfe v. Mutuc, to wit:
"The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal
life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of
the individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government safeguards a
private sector, which belongs to the individual, firmly distinguishing it
from the public sector, which the state can control. Protection of this
private sector protection, in other words, of the dignity and integrity
of the individual has become increasingly important as modern
society has developed. All the forces of a technological age
industrialization, urbanization, and organization operate to narrow
the area of privacy and facilitate intrusion into it. In modern terms, the
capacity to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society." 87
IV
The right to privacy is one of the most threatened rights of man living
in a mass society. The threats emanate from various sources
governments, journalists, employers, social scientists, etc. 88 In the
case at bar, the threat comes from the executive branch of
government which by issuing A.O. No. 308 pressures the people to
surrender their privacy by giving information about themselves on the
pretext that it will facilitate delivery of basic services. Given the recordkeeping power of the computer, only the indifferent will fail to perceive
the danger that A.O. No. 308 gives the government the power to
compile a devastating dossier against unsuspecting citizens. It is

280
timely to take note of the well-worded warning of Kalvin, Jr., "the
disturbing result could be that everyone will live burdened by an
unerasable record of his past and his limitations. In a way, the threat
is that because of its record-keeping, the society will have lost its
benign capacity to forget." 89 Oblivious to this counsel, the dissents
still say we should not be too quick in labelling the right to privacy as a
fundamental right. We close with the statement that the right to
privacy was not engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order
No. 308 entitled "Adoption of a National Computerized Identification
Reference System" declared null and void for being unconstitutional.
SO ORDERED.

281
[G.R. No. 45685. November 16, 1937.]
THE PEOPLE OF THE PHILIPPINE ISLANDS and THE HONGKONG
& SHANGHAI BANKING CORPORATION, petitioners, vs. JOSE O.
VERA, Judge ad interim of the Court of First Instance of Manila, and
MARIANO CU UNJIENG, respondents.
Solicitor-General Tuason and City Fiscal Diaz for the Government.
DeWitt, Perkins & Ponce Enrile for the Hongkong & Shanghai Banking
Corporation.
Vicente J. Francisco, Feria & La O, Orense & Belmonte and Gibbs &
McDough for respondent Cu Unjieng.
DECISION
LAUREL, J p:
This is an original action instituted in this court on August 19, 1937, for
the issuance of the writs of certiorari and of prohibition to the Court of
First Instance of Manila so that this court may review the actuations of
the aforesaid Court of First Instance in criminal case No. 42649
entitled "The People of the Philippine Islands vs. Mariano Cu Unjieng,
et al.", more particularly the application of the defendant Mariano Cu
Unjieng therein for probation under the provisions of Act No. 4221,
and thereafter prohibit the said Court of First Instance from taking any
further action or entertaining further the aforementioned application for
probation, to the end that the defendant Mariano Cu Unjieng may be
forthwith committed to prison in accordance with the final judgment of
conviction rendered by this court in said case (G. R. No. 41200). 1
Petitioners herein, the People of the Philippine Islands and the
Hongkong and Shanghai Banking Corporation, are respectively the
plaintiff and the offended party, and the respondent herein Mariano Cu
Unjieng is one of the defendants, in the criminal case entitled "The
People of the Philippine Islands vs. Mariano Cu Unjieng, et al.",
criminal case No. 42649 of the Court of First Instance of Manila and
G. R. No. 41200 of this court. Respondent herein, Hon. Jose O. Vera,
is the Judge ad interim of the seventh branch of the Court of First

Instance of Manila, who heard the application of the defendant

Mariano Cu Unjieng for probation in the aforesaid criminal case.
The information in the aforesaid criminal case was filed with the Court
of First Instance of Manila on October 15, 1931, petitioner herein
Hongkong and Shanghai Banking Corporation intervening in the case
as private prosecutor. After a protracted trial unparalleled in the annals
of Philippine jurisprudence both in the length of time spent by the
court as well as in the volume of the testimony and the bulk of exhibits
presented, the Court of First Instance of Manila, on January 8, 1934,
rendered a judgment of conviction sentencing the defendant Mariano
Cu Unjieng to an indeterminate penalty ranging from four years and
two months of prision correccional to eight years of prison mayor, to
pay the costs and with reservation of civil action to the offended party,
the Hongkong and Shanghai Banking Corporation. Upon appeal, the
court, on March 26, 1935, modified the sentence to an indeterminate
penalty of from five years and six months of prision correccional to
seven years, six months and twenty-seven days of prison mayor, but
affirmed the judgment in all other respects. Mariano Cu Unjieng filed a
motion for reconsideration and four successive motions for new trial
which were denied on December 17, 1935, and final judgment was
accordingly entered on December 18, 1935. The defendant thereupon
sought to have the case elevated on certiorari to the Supreme Court
of the United States but the latter denied the petition for certiorari in
November, 1936. This court, on November 24, 1936, denied the
petition subsequently filed by the defendant for leave to file a second
alternative motion for reconsideration or new trial and thereafter
remanded the case to the court of origin for execution of the
judgment.
The instant proceedings have to do with the application for probation
filed by the herein respondent Mariano Cu Unjieng on November 27,
1936, before the trial court, under the provisions of Act No. 4221 of
the defunct Philippine Legislature. Herein respondent Mariano Cu
Unjieng states in his petition, inter alia, that he is innocent of the crime
of which he was convicted, that he has no criminal record and that he
would observe good conduct in the future. The Court of First Instance
of Manila, Judge Pedro Tuason presiding, referred the application for
probation to the Insular Probation Office which recommended denial
of the same on June 18, 1937. Thereafter, the Court of First Instance

282
of Manila, seventh branch, Judge Jose O. Vera presiding, set the
petition for hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an opposition to
the granting of probation to the herein respondent Mariano Cu
Unjieng. The private prosecution also filed an opposition on April 5,
1937, alleging, among other things, that Act No. 4221, assuming that
it has not been repealed by section 2 of Article XV of the Constitution,
is nevertheless violative of section 1, subsection (1), Article III of the
Constitution guaranteeing equal protection of the laws for the reason
that its applicability is not uniform throughout the Islands and because
section 11 of said Act No. 4221 endows the provincial boards with the
power to make said law effective or otherwise in their respective
provinces. The private prosecution also filed a supplementary
opposition on April 19, 1937, elaborating on the alleged
unconstitutionality of Act No. 4221, as an undue delegation of
legislative power to the provincial boards of several provinces (sec. 1,
Art. VI, Constitution). The City Fiscal concurred in the opposition of
the private prosecution except with respect to the questions raised
concerning the constitutionality of Act No. 4221.
On June 28, 1937, herein respondent Judge Jose O. Vera
promulgated a resolution with a finding that "las pruebas no han
establecido de una manera concluyente la culpabilidad del
peticionario y que todos los hechos probados no son inconsistentes o
incongruentes con su inocencia" and concludes that the herein
respondent Mariano Cu Unjieng "es inocente por duda racional" of the
crime for which he stands convicted by this court in G. R. No. 41200,
but denying the latter's petition for probation for the reason that:
". . . Si este Juzgado concediera la probacion solicitada por las
circunstancias y la historia social que se han expuesto en el cuerpo
de esta resolucion, que hacen al peticionario acreedor de la misma,
una parte de la opinion publica, atizada por los recelos y las
suspicacias, podria levantarse indignada contra un sistema de
probacion que permite atisbar en los procedimientos ordinarios de
una causa criminal perturbando la quietud y la eficacia de las
decisiones ya recaidas al traer a la superficie conclusiones
enteramente diferentes, en menoscabo del interes publico que
demanda el respeto de las leyes y del veredicto judicial."

On July 3, 1937, counsel for the herein respondent Mariano Cu

Unjieng filed an exception to the resolution denying probation and a
notice of intention to file a motion for reconsideration. An alternative
motion for reconsideration or new trial was filed by counsel on July 13,
1937. This was supplemented by an additional motion for
reconsideration submitted on July 14, 1937. The aforesaid motions
were set for hearing on July 31, 1937, but said hearing was
postponed at the petition of counsel for the respondent Mariano Cu
Unjieng because a motion for leave to intervene in the case as amici
curiae signed by thirty-three (thirty-four) attorneys had just been filed
with the trial court. Attorney Eulalio Chaves whose signature appears
in the aforesaid motion subsequently filed a petition for leave to
withdraw his appearance as amicus curiae on the ground that the
motion for leave to intervene as amici curiae was circulated at a
banquet given by counsel for Mariano Cu Unjieng on the evening of
July 30, 1937, and that he signed the same "without mature
deliberation and purely as a matter of courtesy to the person who
invited me (him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion with
the trial court for the issuance of an order of execution of the judgment
of this court in said case and forthwith to commit the herein
respondent Mariano Cu Unjieng to jail in obedience to said judgment.
On August 7, 1937, the private prosecution filed its opposition to the
motion for leave to intervene as amici curiae aforementioned, asking
that a date be set for the hearing of the same and that, at all events,
said motion should be denied with respect to certain attorneys signing
the same who were members of the legal staff of the several counsel
for Mariano Cu Unjieng. On August 10, 1937, herein respondent
Judge Jose O. Vera issued an order requiring all parties including the
movants for intervention as amici curiae to appear before the court on
August 14, 1937. On the last mentioned date, the Fiscal of the City of
Manila moved for the hearing of his motion for execution of judgment
in preference to the motion for leave to intervene as amici curiae but,
upon objection of counsel for Mariano Cu Unjieng, he moved for the
postponement of the hearing of both motions. The respondent judge
thereupon set the hearing of the motion for execution on August 21,
1937, but proceeded to consider the motion for leave to intervene as
amici curiae as in order. Evidence as to the circumstances under
which said motion for leave to intervene as amici curiae was signed

283
and submitted to court was to have been heard on August 19, 1937.
But at this juncture, herein petitioners came to this court on
extraordinary legal process to put an end to what they alleged was an
interminable proceeding in the Court of First Instance of Manila which
fostered "the campaign of the defendant Mariano Cu Unjieng for delay
in the execution of the sentence imposed by this Honorable Court on
him, exposing the courts to criticism and ridicule because of the
apparent inability of the judicial machinery to make effective a final
judgment of this court imposed on the defendant Mariano Cu
Unjieng."
The scheduled hearing before the trial court was accordingly
suspended upon the issuance of a temporary restraining order by this
court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs of
certiorari and prohibition, herein petitioners allege that the respondent
judge has acted without jurisdiction or in excess of his jurisdiction:
I.
Because said respondent judge lacks the power to place
respondent Mariano Cu Unjieng under probation for the following
reasons:
(1)
Under section 11 of Act No. 4221, the said Act of the Philippine
Legislature is made to apply only to the provinces of the Philippines; it
nowhere states that it is to be made applicable to chartered cities like
the City of Manila.
(2)
While section 37 of the Administrative Code contains a proviso
to the effect that in the absence of a special provision, the term
"province" may be construed to include the City of Manila for the
purpose of giving effect to laws of general application, it is also true
that Act No. 4221 is not a law of general application because it is
made to apply only to those provinces in which the respective
provincial boards shall have provided for the salary of a probation
officer.
(3)
Even if the City of Manila were considered to be a province,
still, Act No. 4221 would not be applicable to it because it has not
provided for the salary of a probation officer as required by section 11
thereof; it being immaterial that there is an Insular Probation Office
willing to act for the City of Manila, said Probation Office provided for

in section 10 of Act No. 4221 being different and distinct from the
Probation Officer provided for in section 11 of the same Act.
II.
Because even if the respondent judge originally had
jurisdiction to entertain the application for probation of the respondent
Mariano Cu Unjieng, he nevertheless acted without jurisdiction or in
excess thereof in continuing to entertain the motion for
reconsideration and by failing to commit Mariano Cu Unjieng to prison
after he had promulgated his resolution of June 28, 1937, denying
Mariano Cu Unjieng's application for probation, for the reason that:
(1)
His jurisdiction and power in probation proceedings is limited
by Act No. 4221 to the granting or denying of applications for
probation.
(2)
After he had issued the order denying Mariano Cu Unjieng's
petition for probation on June 28, 1937, it became final and executory
at the moment of its rendition.
(3)

No right of appeal exists in such cases.

(4)
The respondent judge lacks the power to grant a rehearing of
said order or to modify or change the same.
III.
Because the respondent judge made a finding that Mariano Cu
Unjieng is innocent of the crime for which he was convicted by final
judgment of this court, which finding is not only presumptuous but
without foundation in fact and in law, and is furthermore in contempt of
this court and a violation of the respondent's oath of office as ad
interim judge of first instance.
IV.
Because the respondent judge has violated and continues to
violate his duty, which became imperative when he issued his order of
June 28, 1937, denying the application for probation, to commit his
co-respondent to jail.
Petitioners also aver that they have no other plain, speedy and
adequate remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the petitioner
Hongkong and Shanghai Banking Corporation further contends that
Act No. 4221 of the Philippine Legislature providing for a system of
probation for persons eighteen years of age or over who are convicted
of crime, is unconstitutional because it is violative of section 1,
subsection (1), Article III, of the Constitution of the Philippines

284
guaranteeing equal protection of the laws because it confers upon the
provincial board of each province the absolute discretion to make said
law operative or other wise in their respective provinces, because it
constitutes an unlawful and improper delegation to the provincial
boards of the several provinces of the legislative power lodged by the
Jones Law (section 8), in the Philippine Legislature and by the
Constitution (section 1, Art. VI) in the National Assembly; and for the
further reason that it gives the provincial boards, in contravention of
the Constitution (section 2, Art. VIII) and the Jones Law (section 28),
the authority to enlarge the powers of the Courts of First Instance of
the different provinces without uniformity. In another supplementary
petition dated September 14, 1937, the Fiscal of the City of Manila, in
behalf of one of the petitioners, the People of the Philippine Islands,
concurs for the first time with the issues raised by the other petitioner
regarding the constitutionality of Act No. 4221, and in the oral
argument held on October 6, 1937, further elaborated on the theory
that probation is a form of reprieve and therefore Act No. 4221 is an
encroachment on the exclusive power of the Chief Executive to grant
pardons and reprieves. On October 7, 1937, the City Fiscal filed two
memorandums in which he contended that Act No. 4221 not only
encroaches upon the pardoning power of the executive, but also
constitutes an unwarranted delegation of legislative power and a
denial of the equal protection of the laws. On October 9, 1937, two
memorandums, signed jointly by the City Fiscal and the SolicitorGeneral, acting in behalf of the People, of the Philippine Islands, and
by counsel for the other petitioner, the Hongkong and Shanghai
Banking Corporation, one sustaining the power of the state to impugn
the validity of its own laws and the other contending that Act No. 4221
constitutes an unwarranted delegation of legislative power, were
presented. Another joint memorandum was filed by the same persons
on the same day, October 9, 1937, alleging that Act No. 4221 is
unconstitutional because it denies the equal protection of the laws and
constitutes an unlawful delegation of legislative power and, further,
that the whole Act is void; that the Commonwealth is not estopped
from questioning the validity of its laws; that the private prosecution
may intervene in probation proceedings and may attack the probation
law as unconstitutional; and that this court may pass upon the
constitutional question in prohibition proceedings.

Respondents in their answer dated August 31, 1937, as well as in

their oral argument and memorandums, challenge each and every
one of the foregoing proposition raised by the petitioners.
As special defenses, respondents allege:
(1)
That the present petition does not state facts sufficient in law
to warrant the issuance of the writ of certiorari or of prohibition.
(2)
That the aforesaid petition is premature because the remedy
sought by the petitioners is the very same remedy prayed for by them
before the trial court and was still pending resolution before the trial
court when the present petition was filed with this court.
(3)
That the petitioners having themselves raised the question as
to the execution of judgment before the trial court, said trial court has
acquired exclusive jurisdiction to resolve the same under the theory
that its resolution denying probation is unappealable.
(4)
That upon the hypothesis that this court has concurrent
jurisdiction with the Court of First Instance to decide the question as to
whether or not execution will lie, this court nevertheless cannot
exercise said jurisdiction while the Court of First Instance has
assumed jurisdiction over the same upon motion of herein petitioners
themselves.
(5)
That the procedure followed by the herein petitioners in
seeking to deprive the trial court of its jurisdiction over the case and
elevate the proceedings to this court, should not be tolerated because
it impairs the authority and dignity of the trial court which court while
sitting in probation cases is "a court of limited jurisdiction but of great
dignity."
(6)
That, under the supposition that this court has jurisdiction to
resolve the question submitted to and pending resolution by the trial
court, the present action would not lie because the resolution of the
trial court denying probation is appealable; for although the Probation
Law does not specifically provide that an applicant for probation may
appeal from a resolution of the Court of First Instance denying
probation, still it is a general rule in this jurisdiction that a final order,
resolution or decision of an inferior court is appealable to the superior
court.

285
(7)
That the resolution of the trial court denying probation of
herein respondent Mariano Cu Unjieng being appealable, the same
had not yet become final and executory for the reason that the said
respondent had filed an alternative motion for reconsideration and
new trial within the requisite period of fifteen days, which motion the
trial court was not able to resolve in view of the restraining order
improvidently and erroneously issued by this court.
(8)
That the Fiscal of the City of Manila had by implication
admitted that the resolution of the trial court denying probation is not
final and unappealable when he presented his answer to the motion
for reconsideration and agreed to the postponement of the hearing of
the said motion.
(9)
That under the supposition that the order of the trial court
denying probation is not appealable, it is incumbent upon the accused
to file an action for the issuance of the writ of certiorari with
mandamus, it appearing that the trial court, although it believed that
the accused was entitled to probation, nevertheless denied probation
for fear of criticism because the accused is a rich man; and that,
before a petition for certiorari grounded on an irregular exercise of
jurisdiction by the trial court could lie, it is incumbent upon the
petitioner to file a motion for reconsideration specifying the error
committed so that the trial court could have. an opportunity to correct
or cure the same.
(10) That on the hypothesis that the resolution of the trial court is
not appealable, the trial court retains its jurisdiction within a
reasonable time to correct or modify it in accordance with law and
justice; that this power to alter or modify an order or resolution is
inherent in the courts and may be exercised either motu proprio or
upon petition of the proper party, the petition in the latter case taking
the form of a motion for reconsideration.
(11)
That on the hypothesis that the resolution of the trial court is
appealable as respondents allege, said court cannot order execution
of the same while it is on appeal, for then the appeal would not be
availing because the doors of probation would be closed from the
moment the accused commences to serve his sentence (Act No.
4221, sec. 1; U. S. vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the
respondents maintain that Act No. 4221 is constitutional because,

contrary to the allegations of the petitioners, it does not constitute an

undue delegation of legislative power, does not infringe the equal
protection clause of the Constitution, and does not encroach upon the
pardoning power of the Executive. In an additional memorandum filed
on the same date, counsel for the respondents reiterate the view that
section 11 of Act No. 4221 is free from constitutional objections and
contend, in addition, that the private prosecution may not intervene in
probation proceedings, much less question the validity of Act No.
4221; that both the City Fiscal and the Solicitor-General are estopped
from questioning the validity of the Act; that the validity of the Act
cannot be attacked for the first time before this court; that prohibition
is unavailable; and that, in any event, section 11 of Act No. 4221 is
separable from the rest of the Act. The last memorandum for the
respondent Mariano Cu Unjieng was denied for having been filed out
of time but was admitted by resolution of this court and filed anew on
November 5, 1937. This memorandum elaborates on some of the
points raised by the respondents and refutes those brought up by the
petitioners.
In the scrutiny of the pleadings and examination of the various aspect
of the present case, we noted that the court below, in passing upon
the merits of the application of the respondent Mariano Cu Unjieng
and in denying the said application assumed the task not only of
considering the merits of the application, but of passing upon the
culpability of the applicant, notwithstanding the final pronouncement of
guilt by this court. (G. R. No. 41200.) Probation implies guilt by final
judgment. While a probation court hearing a probation case may look
into the circumstances attending the commission of the offense, this
does not authorize it to reverse the findings and conclusions of this
court, either directly or indirectly, especially where from its own
admission reliance was merely had on the printed briefs, averments,
and pleadings of the parties. As already observed by this court in
Shioji vs. Harvey ([1922], 43 Phil., 333, 337), and reiterated in
subsequent cases, "if each and every Court of First Instance could
enjoy the privilege of overruling decisions of the Supreme Court, there
would be no end to litigation, and judicial chaos would result." A
becoming modesty of inferior courts demands conscious realization of
the position that they occupy in the interrelation and operation of the
integrated judicial system of the nation.

286
After threshing carefully the multifarious issues raised by both counsel
for the petitioners and the respondents, this court prefers to cut the
Gordian knot and take up at once the two fundamental questions
presented, namely, (1) whether or not the constitutionality of Act No.
4221 has been properly raised in these proceedings; and (2) in the
affirmative, whether or not said Act is constitutional. Consideration of
these issues will involve a discussion of certain incidental questions
raised by the parties.
To arrive at a correct conclusion on the first question, resort to certain
guiding principles is necessary. It is a well-settled rule that the
constitutionality of an act of the legislature will not be determined by
the courts unless that question its properly raised and presented in
appropriate cases and is necessary to a determination of the case; i.
e., the issue of constitutionality must be the very lis mota presented.
(McGirr vs. Hamilton and Abreu [1915], 30 Phil., 563, 568; 6 R. C. L.,
pp. 76, 77; 12 C. J., pp. 780-782, 783.)
The question of the constitutionality of an act of the legislature is
frequently raised in ordinary actions. Nevertheless, resort may be
made to extraordinary legal remedies, particularly where the remedies
in the ordinary course of law even if available, are not plain, speedy
and adequate. Thus, in Cu Unjieng vs. Patstone ([1922], 42 Phil.,
818), this court held that the question of the constitutionality of a
statute may be raised by the petitioner in -mandamus proceedings
(see, also, 12 C. J., p. 783); and in Government of the Philippine
Islands vs. Springer ([1927], 50 Phil., 259 [affirmed in Springer vs.
Government of the Philippine Islands (1928), 277 U. S., 189; 72 Law.
ed., 845]), this court declared an act of the legislature unconstitutional
in an action of quo warranto brought in the name of the Government
of the Philippines. It has also been held that the constitutionality of a
statute may be questioned in habeas corpus proceedings (12 C. J., p.
783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although there are
authorities to the contrary; on an application for injunction to restrain
action under the challenged statute (mandatory, see Cruz vs.
Youngberg [1931], 56 Phil., 234); and even on an application for
preliminary injunction where the determination of the constitutional
question is necessary to a decision of the case. (12 C. J., p. 783.) The
same may be said as regards prohibition and certiorari. (Yu Cong Eng
vs. Trinidad [1925], 47 Phil., 385; [1926], 271 U. S., 500: 70 Law. ed.,

1059; Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81
Pac., 875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843,
and cases cited). The case of Yu Cong Eng vs. Trinidad, supra,
decided by this court twelve years ago was, like the present one, an
original action for certiorari and prohibition. The constitutionality of Act
No. 2972, popularly known as the Chinese Bookkeeping Law, was
there challenged by the petitioners, and the constitutional issue was
met squarely by the respondents in a demurrer. A point was raised
"relating to the propriety of the constitutional question being decided
in original proceedings in prohibition." This court decided to take up
the constitutional question and, with two justices dissenting, held that
Act No. 2972 was constitutional. The case was elevated on writ of
certiorari to the Supreme Court of the United States which reversed
the judgment of this court and held that the Act was invalid. (271 U.
S., 500; 70 Law. ed., 1059.) On the question of jurisdiction, however,
the Federal Supreme Court, though its Chief Justice, said:
"By the Code of Civil Procedure of the Philippine Islands, section 516,
the Philippine supreme court is granted concurrent jurisdiction in
prohibition with courts of first instance over inferior tribunals or
persons, and original jurisdiction over courts of first instance, when
such courts are exercising functions without or in excess of their
jurisdiction. It has been held by that Court that the question of the
validity of a criminal statute must usually be raised by a defendant in
the trial court and be carried regularly in review to the Supreme Court.
(Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192.) But
in this case where a new act seriously affected numerous persons
and extensive property rights, and was likely to cause a multiplicity of
actions, the Supreme Court exercised its discretion to bring the issue
of the act's validity promptly before it and decide it in the interest of
the orderly administration of justice. The court relied by analogy upon
the cases of Ex parte Young (209 U. S., 123; 52 Law. ed., 714; 13 L.
R. A. [N. S.], 932; 28 Sup. Ct. Rep., 441; 14 Ann. Cas., 764; Traux vs.
Raich, 239 U. S., 33, 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup.
Ct. Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243 U. S.,
332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup. Ct. Rep., 298;
Ann. Cas., 1918A, 1024). Although objection to the jurisdiction was
raised by demurrer to the petition, this is now disclaimed on behalf of
the respondents, and both parties ask a decision on the merits. In
view of broad powers in prohibition granted to that court under the
Island Code, we acquiesce in the desire of the parties."

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The writ of prohibition is an extraordinary judicial writ issuing out of a
court of superior jurisdiction and directed to an inferior court, for the
purpose of preventing the inferior tribunal from usurping a jurisdiction
with which it is not legally vested.) (High, Extraordinary Legal
Remedies, p. 705.) The general rule, although there is a conflict in the
cases, is that the writ of prohibition will not lie where the inferior court
has jurisdiction independent of the statute the constitutionality of
which is questioned, because in such cases the inferior court having
jurisdiction may itself determine the constitutionality of the statute, and
its decision may be subject to review, and consequently the
complainant in such cases ordinarily has adequate remedy by appeal
without resort to the writ of prohibition. But where the inferior court or
tribunal derives its jurisdiction exclusively from an unconstitutional
statute, it may be prevented by the writ of prohibition from enforcing
that statute. (50 C. J., 670; Ex parte Roundtree [1874], 51 Ala., 42; In
re Macfarland. 30 App. [D. C.], 365; Curtis vs. Cornish [1912], 109
Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky., 13;
State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold vs.
Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derive their
jurisdiction solely from Act No. 4221 which prescribes in detailed
manner the procedure for granting probation to accused persons after
their conviction has become final and before they have served their
sentence. It is true that at common law the authority of the courts to
suspend temporarily the execution of a sentence is recognized and,
according to a number of state courts, including those of
Massachusetts, Michigan, New York, and Ohio, the power is inherent
in the courts (Commonwealth vs. Dowdican's Bail [1874], 115 Mass.,
133; People vs. Stickel [1909], 156 Mich., 557; 121 N. W., 497;
People ex rel. Forsyth vs. Court of Sessions [1894], 141 N. Y., 288;
Weber vs. State [1898], 58 Ohio St., 616). But, in the leading case of
Ex parte United States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R.
A., 1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the
Supreme Court of the United States expressed the opinion that under
the common law the power of the court was limited to temporary
suspension, and brushed aside the contention as to inherent judicial
power saying, through Chief Justice White:
"Indisputably under our constitutional system the right to try offenses
against the criminal laws and upon conviction to impose the

punishment provided by law is judicial, and it is equally to be

conceded that, in exerting the powers vested in them on such subject,
courts inherently possess ample right to exercise reasonable, that is,
judicial, discretion to enable them to wisely exert their authority. But
these concessions afford no ground for the contention as to power
here made, since it must rest upon the proposition that the power to
enforce begets inherently a discretion to permanently refuse to do so.
And the effect of the proposition urged upon the distribution of powers
made by the Constitution will become apparent when it is observed
that indisputable also is it that the authority to define and fix the
punishment for crime is legislative and includes the right in advance to
bring within judicial discretion, for the purpose of executing the
statute, elements of consideration which would be otherwise beyond
the scope of judicial authority, and that the right to relieve from the
punishment, fixed by law and ascertained according to the methods
by it provided belongs to the executive department."
Justice Carson, in his illuminating concurring opinion in the case of
Director of Prisons vs. Judge of First Instance of Cavite (29 Phil.,
265), decided by this court in 1915, also reached the conclusion that
the power to suspend the execution of sentences pronounced in
criminal cases is not inherent in the judicial function. "All are agreed",
he said, "that in the absence of statutory authority, it does not lie
within the power of the courts to grant such suspensions." (at p. 278.)
Both petitioners and respondents are correct, therefore, when they
argue that a Court of First Instance sitting in probation proceedings is
a court of limited jurisdiction. Its jurisdiction in such proceedings is
conferred exclusively by Act No. 4221 of the Philippine Legislature.
It is, of course, true that the constitutionality of a statute will not be
considered on application for prohibition where the question has not
been properly brought to the attention of the court by objection of
some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30 S., 499; State ex
rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S. W., 746). In the case
at bar, it is unquestionable that the constitutional issue has been
squarely presented not only before this court by the petitioners but
also before the trial court by the private prosecution. The respondent,
Hon. Jose O. Vera, however, acting as judge of the court below,
declined to pass upon the question on the ground that the private
prosecutor, not being a party whose rights are affected by the statute,
may not raise said question. The respondent judge cited Cooley on

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Constitutional Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760
and 762), and McGlue vs. Essex County ([1916], 225 Mass., 59; 113
N. E., 742, 743), as authority for the proposition that a court will not
consider any attack made on the constitutionality of a statute by one
who has no interest in defeating it because his rights are not affected
by its operation. The respondent judge further stated that it may not
motu proprio take up the constitutional question and, agreeing with
Cooley that "the power to declare a legislative enactment void is one
which the judge, conscious of the fallibility of the human judgment, will
shrink from exercising in any case where he can conscientiously and
with due regard to duty and official oath decline the responsibility"
(Constitutional Limitations, 8th ed., Vol. I, p. 332), proceeded on the
assumption that Act No. 4221 is constitutional. While, therefore, the
court a quo admits that the constitutional question was raised before
it, it refused to consider the question solely because it was not raised
by a proper party. Respondents herein reiterate this view. The
argument is advanced that the private prosecution has no personality
to appear in the hearing of the application for probation of defendant
Mariano Cu Unjieng in criminal case No. 42648 of the Court of First
Instance of Manila, and hence the issue of constitutionality was not
properly raised in the lower court. Although, as a general rule, only
those who are parties to a suit may question the constitutionality of a
statute involved in a judicial decision, it has been held that since the
decree pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in
question, the issue of constitutionality will be considered on its being
brought to the attention of the court by persons interested in the effect
to be given the statute. (12 C. J., sec. 184, p. 766.) And, even if we
were to concede that the issue was not properly raised in the court
below by the proper party, it does not follow that the issue may not be
here raised in an original action of certiorari and prohibition. It is true
that, as a general rule, the question of constitutionality must be raised
at the earliest opportunity, so that if not raised by the pleadings,
ordinarily it may not be raised at the trial, and if not raised in the trial
court, it will not be considered on appeal. (12 C. J., p. 786. See, also,
Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192, 193195.) But we must state that the general rule admits of exceptions.
Courts, in the exercise of sound discretion, may determine the time
when a question affecting the constitutionality of a statute should be
presented. (In re Woolsey [1884], 95 N. Y., 135, 144.) Thus, in

criminal cases, although there is a very sharp conflict of authorities, it

is said that the question may be raised for the first time at any stage of
the proceedings, either in the trial court or on appeal. (12 C. J., p.
786.) Even in civil cases, it has been held that it is the duty of a court
to pass on the constitutional question, though raised for the first time
on appeal, if it appears that a determination of the question is
necessary to a decision of the case. (McCabe's Adm'x. vs. Maysville &
B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892; Lohmeyer vs. St.
Louis Cordage Co. [1908], 214 Mo., 685; 113 S. W., 1108; Carmody
vs. St. Louis Transit Co. [1905], 188 Mo., 572; 87 S. W., 913.) And it
has been held that a constitutional question will be considered by an
appellate court at any time, where it involves the jurisdiction of the
court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.) As to
the power of this court to consider the constitutional question raised
for the first time before this court in these proceedings, we turn again
and point with emphasis to the case of Yu Cong Eng vs. Trinidad,
supra. And on the hypothesis that the Hongkong & Shanghai Banking
Corporation, represented by the private prosecution, is not the proper
party to raise the constitutional question here a point we do not
now have to decide we are of the opinion that the People of the
Philippines, represented by the Solicitor-General and the Fiscal of the
City of Manila, is such a proper party in the present proceedings. The
unchallenged rule is that the person who impugns the validity of a
statute must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its
enforcement. It goes without saying that if Act No. 4221 really violates
the Constitution, the People of the Philippines, in whose name the
present action is brought, has a substantial interest in having it set
aside. Of greater import than the damage caused by the illegal
expenditure of public funds is the mortal wound inflicted upon the
fundamental law by the enforcement of an invalid statute. Hence, the
well-settled rule that the state can challenge the validity of its own
laws. In Government of the Philippine Islands vs. Springer ([1927], 50
Phil., 259 (affirmed in Springer vs. Government of the Philippine
Islands [1928], 277 U. S., 189; 72 Law. ed., 845), this court declared
an act of the legislature unconstitutional in an action instituted in
behalf of the Government of the Philippines. In Attorney General vs.
Perkins ([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the
State of Michigan, through its Attorney General, instituted quo
warranto proceedings to test the right of the respondents to renew a

289
mining corporation, alleging that the statute under which the
respondents base their right was unconstitutional because it impaired
the obligation of contracts. The capacity of the chief law officer of the
state to question the constitutionality of the statute was itself
questioned. Said the Supreme Court of Michigan, through Champlin,
J.:

determined, either by quo warranto to challenge its validity (State vs.

Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L. R. A., 662), by
mandamus to compel obedience to its terms (State vs. Dolley, 82
Kan., 533; 108 Pac., 846), or by injunction to restrain proceedings
under its questionable provisions (State ex rel. vs. City of Neodesha,
3 Kan. App., 319; 45 Pac., 122)."

". . . The idea seems to be that the people are estopped from
questioning the validity of a law enacted by their representatives; that
to an accusation by the people of Michigan of usurpation upon their
government, a statute enacted by the people of Michigan is an
adequate answer. The last proposition is true, but, if the statute relied
on in justification is unconstitutional, it is a statute only in form, and
lacks the force of law, and is of no more saving effect to justify action
under it than if it had never been enacted. The constitution is the
supreme law, and to its behests the courts, the legislature, and the
people must bow. . . . The legislature and the respondents are not the
only parties in interest upon such constitutional questions. As was
remarked by Mr. Justice Story, in speaking of an acquiescence by a
party affected by an unconstitutional act of the legislature: 'The people
have a deep and vested interest in maintaining all the constitutional
limitations upon the exercise of legislative powers.' (Allen vs. Mckeen,
1 Sum., 314.)"

Other courts have reached the same conclusion (See State vs. St.
Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S. H. Kress &
Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181 La., 597; 160
S., 91; State vs. Board of County Comr's [1934], 39 Pac. [2d], 286;
First Const. Co. of Brooklyn vs. State [1917], 221 N. Y., 295; 116 N.
E., 1020; Bush vs. State [1918], 187 Ind., 339; 119 N. E., 417; State
vs. Watkins [1933], 176 La., 837; 147 S., 8, 10, 11). In the case last
cited, the Supreme Court of Louisiana said:

In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an
original action (mandamus) was brought by the Attorney-General of
Kansas to test the constitutionality of a statute of the state. In
disposing of the question whether or not the state may bring the
action, the Supreme Court of Kansas said:
". . . The state is a proper party indeed, the proper party to bring
this action. The state is always interested where the integrity of its
Constitution or statutes is involved.
"'It has an interest in seeing that the will of the Legislature is not
disregarded, and need not, as an individual plaintiff must, show
grounds of fearing more specific injury. (State vs. Kansas City, 60
Kan., 518 [57 Pac., 118]'). (State vs. Lawrence, 80 Kan., 707; 103
Pac., 839.)
"Where the constitutionality of a statute is in doubt the state's law
officer, its Attorney-General, or county attorney, may exercise his best
judgment as to what sort of action he will bring to have the matter

"It is contended by counsel for Herbert Watkins that a district attorney,

being charged with the duty of enforcing the laws, has no right to
plead that a law is unconstitutional. In support of the argument, three
decisions are cited, viz.: State ex rel. Hall, District Attorney, vs. Judge
of Tenth Judicial District (33 La. Ann., 1222); State ex rel. Nicholls,
Governor vs. Shakespeare, Mayor of New Orleans (41 La. Ann., 156;
6 So., 592); and State ex rel. Banking Co., etc. vs. Heard, Auditor (47
La. Ann., 1679; 18 So., 746; 47 L. R. A., 512). These decisions do not
forbid a district attorney to plead that a statute is unconstitutional if he
finds it in conflict with one which it is his duty to enforce. In State ex
rel. Hall, District Attorney, vs. Judge, etc., the ruling was that the judge
should not, merely because he believed a certain statute to be
unconstitutional, forbid the district attorney to file a bill of information
charging a person with a violation of the statute. In other words, a
judge should not judicially declare a statute unconstitutional until the
question of constitutionality is tendered for decision, and unless it
must be decided in order to determine the right of a party litigant.
State ex rel. Nicholls, Governor, etc., is authority for the proposition
merely that an officer on whom a statute imposes the duty of
enforcing its provisions cannot avoid the duty upon the ground that he
considers the statute unconstitutional, and hence in enforcing the
statute he is immune from responsibility if the statute be
unconstitutional. State ex rel. Banking Co., etc., is authority for the
proposition merely that executive officers, e. g., the state auditor and
state treasurer, should not decline to perform ministerial duties

290
imposed upon them by a statute, on the ground that they believe the
statute is unconstitutional.
"It is the duty of a district attorney to enforce the criminal laws of the
state, and, above all, to support the Constitution of the state. If, in the
performance of his duty he finds two statutes in conflict with each
other, or one which repeals another, and if, in his judgment, one of the
two statutes is unconstitutional, it is his duty to enforce the other; and,
in order to do so, he is compelled to submit to the court, by way of a
plea, that one of the statutes is unconstitutional. If it were not so, the
power of the Legislature would be free from constitutional limitations
in the enactment of criminal laws."
The respondents do not seem to doubt seriously the correctness of
the general proposition that the state may impugn the validity of its
laws. They have not cited any authority running clearly in the opposite
direction. In fact, they appear to have proceeded on the assumption
that the rule as stated is sound but that it has no application in the
present case, nor may it be invoked by the City Fiscal in behalf of the
People of the Philippines, one of the petitioners herein, the principal
reasons being that the validity of the Probation Act cannot be attacked
for the first time before this court, that the City Fiscal is estopped from
attacking the validity of the Act and, not being authorized to enforce
laws outside of the City of Manila, cannot challenge the validity of the
Act in its application outside said city. (Additional memorandum of
respondents, October 23, 1937, pp. 8, 10, 17 and 23.)
The mere fact that the Probation Act has been repeatedly relied upon
in the past and all that time has not been attacked as unconstitutional
by the Fiscal of Manila but, on the contrary, has been impliedly
regarded by him as constitutional, is no reason for considering the
People of the Philippines estopped from now assailing its validity. For
courts will pass upon a constitutional question only when presented
before it in bona fide cases for determination, and the fact that the
question has not been raised before is not a valid reason for refusing
to allow it to be raised later. The fiscal and all others are justified in
relying upon the statute and treating it as valid until it is held void by
the courts in proper cases.
It remains to consider whether the determination of the
constitutionality of Act No. 4221 is necessary to the resolution of the
instant case. For, ". . . while the court will meet the question with

firmness, where its decision is indispensable, it is the part of wisdom,

and a just respect for the legislature, renders it proper, to waive it, if
the case in which it arises, can be decided on other points." (Ex parte
Randolph [1833], 20 F. Cas. No. 11,558; 2 Brock., 447. Vide, also,
Hoover vs. Wood [1857], 9 Ind., 286, 287.) It has been held that the
determination of a constitutional question is necessary whenever it is
essential to the decision of the case (12 C. J., p. 782, citing Long
Sault Dev. Co. vs. Kennedy [1913], 158 App. Div., 398; 143 N. Y.
Supp., 454 [aff. 212 N. Y., 1; 105 N. E., 849; Ann. Cas. 1915D, 56;
and app dism 242 U. S., 272]; Hesse vs. Ledesma, 7 Porto Rico Fed.,
520; Cowan vs. Doddridge, 22 Gratt [63 Va.], 458; Union Line Co .vs.
Wisconsin R. Comm., 146 Wis., 523; 129 N. W., 605), as where the
right of a party is founded solely on a statute, the validity of which is
attacked. (12 C. J., p. 782, citing Central Glass Co. vs. Niagara F. Ins.
Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188 Mass., 81; 74
N. E., 306). There is no doubt that the respondent Cu Unjieng draws
his privilege to probation solely from Act No. 4221 now being assailed.
Apart from the foregoing considerations, this court will also take
cognizance of the fact that the Probation Act is a new addition to our
statute books and its validity has never before been passed upon by
the courts; that many persons accused and convicted of crime in the
City of Manila have applied for probation; that some of them are
already on probation; that more people will likely take advantage of
the Probation Act in the future; and that the respondent Mariano Cu
Unjieng has been at large for a period of about four years since his
first conviction. All await the decision of this court on the constitutional
question. Considering, therefore, the importance which the instant
case has assumed and to prevent multiplicity of suits, strong reasons
of public policy demand that the constitutionality of Act No. 4221 be
now resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926],
271 U. S., 500; 70 Law. ed., 1059. See 6 R. C. L., pp. 77, 78; People
vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442, 444; Ann. Cas.
1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis., 327; 133 N. W.,
209, 211; 37 L. R. A. [N. S.], 489; Dimayuga and Fajardo vs.
Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs. Trinidad, supra,
an analogous situation confronted us. We said: "Inasmuch as the
property and personal rights of nearly twelve thousand merchants are
affected by these proceedings, and inasmuch as Act No. 2972 is a
new law not yet interpreted by the courts, in the interest of the public
welfare and for the advancement of public policy, we have determined

291
to overrule the defense of want of jurisdiction in order that we may
decide the main issue. We have here an extraordinary situation which
calls for a relaxation of the general rule." Our ruling on this point was
sustained by the Supreme Court of the United States. A more binding
authority in support of the view we have taken can not be found.
We have reached the conclusion that the question of the
constitutionality of Act No. 4221 has been properly raised. Now for the
main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of the
judiciary to enforce the Constitution. This court, by clear implication
from the provisions of section 2, subsection 1, and section 10, of
Article VIII of the Constitution, may declare an act of the national
legislature invalid because in conflict with the fundamental law. It will
not shirk from its sworn duty to enforce the Constitution. And, in clear
cases, it will not hesitate to give effect to the supreme law by setting
aside a statute in conflict therewith. This is of the essence of judicial
duty.
This court is not unmindful of the fundamental criteria in cases of this
nature that all reasonable doubts should be resolved in favor of the
constitutionality of a statute. An act of the legislature approved by the
executive, is presumed to be within constitutional limitations. The
responsibility of upholding the Constitution rests not on the courts
alone but on the legislature as well. "The question of the validity of
every statute is first determined by the legislative department of the
government itself." (U. S. vs. Ten Yu [1912], 24 Phil., 1, 10; Case vs.
Board of Health and Heiser [1913], 24 Phil., 250, 276; U. S. vs. Joson
[1913], 26 Phil., 1.) And a statute finally comes before the courts
sustained by the sanction of the executive. The members of the
Legislature and the Chief Executive have taken an oath to support the
Constitution and it must be presumed that they have been true to this
oath and that in enacting and sanctioning a particular law they did not
intend to violate the Constitution. The courts cannot but cautiously
exercise its power to overturn the solemn declarations of two of the
three grand departments of the government. (6 R. C. L., p. 101.)
Then, there is that peculiar political philosophy which bids the judiciary
to reflect the wisdom of the people as expressed through an elective
Legislature and an elective Chief Executive. It follows, therefore, that
the courts will not set aside a law as violative of the Constitution

except in a clear case. This is a proposition too plain to require a

citation of authorities.
One of the counsel for respondents, in the course of his impassioned
argument, called attention to the fact that the President of the
Philippines had already expressed his opinion against the
constitutionality of the Probation Act, adverting that as to the
Executive the resolution of this question was a foregone conclusion.
Counsel, however, reiterated his confidence in the integrity and
independence of this court. We take notice of the fact that the
President in his message dated September 1, 1937, recommended to
the National Assembly the immediate repeal of the Probation Act (No.
4221); that this message resulted in the approval of Bill No. 2417 of
the National Assembly repealing the Probation Act, subject to certain
conditions therein mentioned; but that said bill was vetoed by the
President on September 13, 1937, much against his wish, "to have
stricken out from the statute books of the Commonwealth a law . . .
unfair and very likely unconstitutional." It is sufficient to observe in this
connection that, in vetoing the bill referred to, the President exercised
his constitutional prerogative. He may express the reasons which he
may deem proper for taking such a step, but his reasons are not
binding upon us in the determination of actual controversies submitted
for our determination. Whether or not the Executive should express or
in any manner insinuate his opinion on a matter encompassed within
his broad constitutional power of veto but which happens to be at the
same time pending determination in this court is a question of
propriety for him exclusively to decide or determine. Whatever opinion
is expressed by him under these circumstances, however, cannot
sway our judgment one way or another and prevent us from taking
what in our opinion is the proper course of action to take in a given
case. If it is ever necessary for us to make any vehement affirmance
during this formative period of our political history, it is that we are
independent of the Executive no less than of the Legislative
department of our government independent in the performance of
our functions, undeterred by any consideration, free from politics,
indifferent to popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and as we understand
it.
The constitutionality of Act No. 4221 is challenged on three principal
grounds: (1) That said Act encroaches upon the pardoning power of

292
the Executive; (2) that it constitutes an undue delegation of legislative
power; and (3) that it denies the equal protection of the laws.
1.
Section 21 of the Act of Congress of August 29, 1916,
commonly known as the Jones Law, in force at the time of the
approval of Act No. 4221, otherwise known as the Probation Act, vests
in the Governor- General of the Philippines "the exclusive power to
grant pardons and reprieves and remit fines and forfeitures". This
power is now vested in the President of the Philippines. (Art. VII, sec.
11, subsec. 6.) The provisions of the Jones Law and the Constitution
differ in some respects. The adjective "exclusive" found in the Jones
Law has been omitted from the Constitution. Under the Jones Law, as
at common law, pardon could be granted any time after the
commission of the offense, either before or after conviction (Vide
Constitution of the United States, Art. II, sec. 2; In re Lontok [1922], 43
Phil., 293). The Governor-General of the Philippines was thus
empowered, like the President of the United States, to pardon a
person before the facts of the case were fully brought to light. The
framers of our Constitution thought this undesirable and, following
most of the state constitutions, provided that the pardoning power can
only be exercised "after conviction". So, too, under the new
Constitution, the pardoning power does not extend to "cases of
impeachment". This is also the rule generally followed in the United
States (Vide Constitution of the United States, Art. II, sec. 2). The rule
in England is different. There, a royal pardon can not be pleaded in
bar of an impeachment; "but," says Blackstone, "after the
impeachment has been solemnly heard and determined, it is not
understood that the king's royal grace is further restrained or
abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law. ed.,
421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am. Rep., 699;
Sterling vs. Drake [1876], 29 Ohio St., 457; 23 Am. Rep., 762.) The
reason for the distinction is obvious. In England, judgment on
impeachment is not confined to mere "removal from office and
disqualification to hold and enjoy any office of honor, trust, or profit
under the Government" (Art. IX, sec. 4, Constitution of the Philippines)
but extends to the whole punishment attached by law to the offense
committed. The House of Lords, on a conviction may, by its sentence,
inflict capital punishment, perpetual banishment, fine or imprisonment,
depending upon the gravity of the offense committed, together with
removal from office and incapacity to hold office. (Com. vs. Lockwood,
supra.) Our Constitution also makes specific mention of

"commutation" and of the power of the executive to impose, in the

pardons he may grant, such conditions, restrictions and limitations as
he may deem proper. Amnesty may be granted by the President
under the Constitution but only with the concurrence of the National
Assembly. We need not dwell at length on the significance of these
fundamental changes. It is sufficient for our purposes to state that the
pardoning power has remained essentially the same. The question is:
Has the pardoning power of the Chief Executive under the Jones Law
been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power
exclusively in the Chief Executive. The exercise of the power may not,
therefore, be vested in anyone else. ". . . The benign prerogative of
mercy reposed in the executive cannot be taken away nor fettered by
any legislative restrictions, nor can like power be given by the
legislature to any other officer or authority. The coordinate
departments of government have nothing to do with the pardoning
power, since no person properly belonging to one of the departments
can exercise any powers appertaining to either of the others except in
cases expressly provided for by the constitution." (20 R. C. L., pp.
540, 541, and cases cited.) ". . . where the pardoning power is
conferred on the executive without express or implied limitations, the
grant is exclusive, and the legislature can neither exercise such power
itself nor delegate it elsewhere, nor interfere with or control the proper
exercise thereof, . . .." (12 C. J., pp. 838, 839, and cases cited.) If Act
No. 4221, then, confers any pardoning power upon the courts it is for
that reason unconstitutional and void. But does it?
In the famous Killitts decision involving an embezzlement case, the
Supreme Court of the United States ruled in 1916 that an order
indefinitely suspending sentence was void. (Ex parte United States
[1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A. 1917E, 1178; 37 Sup.
Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief Justice White, after an
exhaustive review of the authorities, expressed the opinion of the
court that under the common law the power of the court was limited to
temporary suspension and that the right to suspend sentence
absolutely and permanently was vested in the executive branch of the
government and not in the judiciary. But, the right of Congress to
establish probation by statute was conceded. Said the court through
its Chief Justice: ". . . and so far as the future is concerned, that is, the
causing of the imposition of penalties as fixed to be subject, by

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probation legislation or such other means as the legislative mind may
devise, to such judicial discretion as may be adequate to enable
courts to meet by the exercise of an enlarged but wise discretion the
infinite variations which may be presented to them for judgment,
recourse must be had to Congress whose legislative power on the
subject is in the very nature of things adequately complete." (Quoted
in Riggs vs. United States [1926], 14 F. [2d], 5, 6.) This decision led
the National Probation Association and others to agitate for the
enactment by Congress of a federal probation law. Such action was
finally taken on March 4, 1925 (chap. 521, 43 Stat. at L. 1259, U. S.
C. title 18, sec. 724). This was followed by an appropriation to defray
the salaries and expenses of a certain number of probation officers
chosen by civil service. (Johnson, Probation for Juveniles and Adults,
p. 14.)
In United States vs. Murray ([1925], 275 U. S., 347; 48 Sup. Ct. Rep.,
146; 72 Law. ed., 309), the Supreme Court of the United States,
through Chief Justice Taft, held that when a person sentenced to
imprisonment by a district court has begun to serve his sentence, that
court has no power under the Probation Act of March 4, 1925 to grant
him probation even though the term at which sentence was imposed
had not yet expired. In this case of Murray, the constitutionality of the
Probation Act was not considered but was assumed. The court traced
the history of the Act and quoted from the report of the Committee on
the Judiciary of the United States House of Representatives (Report
No. 1377, 68th Congress, 2d Session) the following statement:
"Prior to the so-called Killitts case, rendered in December, 1916, the
district courts exercised a form of probation either by suspending
sentence or by placing the defendants under state probation officers
or volunteers. In this case, however (Ex parte United States, 242 U.
S., 27; 61 L. ed., 129; L. R. A., 1917E, 1178; 37 Sup. Ct. Rep., 72;
Ann. Cas. 1917B, 355), the Supreme Court denied the right of the
district courts to suspend sentence. In the same opinion the court
pointed out the necessity for action by Congress if the courts were to
exercise probation powers in the future. . . .
"Since this decision was rendered, two attempts have been made to
enact probation legislation. In 1917, a bill was favorably reported by
the Judiciary Committee and passed the House. In 1920, the Judiciary
Committee again favorably reported a probation bill to the House, but
it was never reached for definite action.

"If this bill is enacted into law, it will bring the policy of the Federal
government with reference to its treatment of those convicted of
violations of its criminal laws in harmony with that of the states of the
Union. At the present time every state has a probation law, and in all
but twelve states the law applies both to adult and juvenile offenders."
(See, also, Johnson, Probation for Juveniles and Adults [1928], Chap.
I.)
The constitutionality of the federal probation law has been sustained
by inferior federal courts. In Riggs vs. United States supra, the Circuit
Court of Appeals of the Fourth Circuit said:
"Since the passage of the Probation Act of March 4, 1925, the
questions under consideration have been reviewed by the Circuit
Court of Appeals of the Ninth Circuit (7 F. [2d], 590), and the
constitutionality of the act fully sustained, and the same held in no
manner to encroach upon the pardoning power of the President. This
case will be found to contain an able and comprehensive review of the
law applicable here. It arose under the act we have to consider, and to
it and the authorities cited therein special reference is made (Nix vs.
James, 7 F. [2d], 590, 594), as is also to a decision of the Circuit Court
of Appeals of the Seventh Circuit (Kriebel vs. U. S., 10 F. [2d], 762),
likewise construing the Probation Act."
We have seen that in 1916 the Supreme Court of the United States; in
plain and unequivocal language, pointed to Congress as possessing
the requisite power to enact probation laws, that a federal probation
law was actually enacted in 1925, and that the constitutionality of the
Act has been assumed by the Supreme Court of the United States in
1928 and consistently sustained by the inferior federal courts in a
number of earlier cases.
We are fully convinced that the Philippine Legislature, like the
Congress of the United States, may legally enact a probation law
under its broad power to fix the punishment of any and all penal
offenses. This conclusion is supported by other authorities. In Ex parte
Bates ([1915], 20 N. M., 542; L. R. A. 1916A, 1285; 151 Pac., 698, the
court said: "It is clearly within the province of the Legislature to
denominate and define all classes of crime, and to prescribe for each
a minimum and maximum punishment." And in State vs. Abbott
([1910], 87 S. C., 466; 33 L. R. A. [N. S.], 112; 70 S. E., 6; Ann. Cas.
1912B, 1189), the court said: "The legislative power to set punishment

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for crime is very broad, and in the exercise of this power the general
assembly may confer on trial judges, if it sees fit, the largest discretion
as to the sentence to be imposed, as to the beginning and end of the
punishment and whether it should be certain or indeterminate or
conditional." (Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E.,
69.) Indeed, the Philippine Legislature has defined all crimes and fixed
the penalties for their violation. Invariably, the legislature has
demonstrated the desire to vest in the courts particularly the trial
courts large discretion in imposing the penalties which the law
prescribes in particular cases. It is believed that justice can best be
served by vesting this power in the courts, they being in a position to
best determine the penalties which an individual convict, peculiarly
circumstanced, should suffer. Thus, while courts are not allowed to
refrain from imposing a sentence merely because, taking into
consideration the degree of malice and the injury caused by the
offense, the penalty provided by law is clearly excessive, the courts
being allowed in such cases to submit to the Chief Executive, through
the Department of Justice, such statement as it may deem proper
(see art. 5, Revised Penal Code), in cases where both mitigating and
aggravating circumstances are attendant in the commission of a crime
and the law provides for a penalty composed of two indivisible
penalties, the courts may allow such circumstances to offset one
another in consideration of their number and importance, and to apply
the penalty according to the result of such compensation. (Art. 63, rule
4, Revised Penal Code; U. S. vs. Reguera and Asuategui [1921], 41
Phil., 506.) Again, Article 64, paragraph 7, of the Revised Penal Code
empowers the courts to determine, within the limits of each period, in
case the penalty prescribed by law contains three periods, the extent
of the penalty according to the number and nature of the aggravating
and mitigating circumstances and the extent of the evil produced by
the crime. In the imposition of fines, the courts are allowed to fix any
amount within the limits established by law, considering not only the
mitigating and aggravating circumstances, but more particularly the
wealth or means of the culprit. (Art. 66, Revised Penal Code.) Article
68, paragraph 1, of the same Code provides that "a discretionary
penalty shall be imposed" upon a person under fifteen but over nine
years of age, who has not acted without discernment, but always
lower by two degrees at least than that prescribed by law for the crime
which he has committed. Article 69 of the same Code provides that in
case of "incomplete self-defense", i. e., when the crime committed is

not wholly excusable by reason of the lack of some of the conditions

required to justify the same or to exempt from criminal liability in the
several cases mentioned in articles 11 and 12 of the Code, "the courts
shall impose the penalty in the period which may be deemed proper,
in view of the number and nature of the conditions of exemption
present or lacking." And, in case the commission of what are known
as "impossible" crimes, "the court, having in mind the social danger
and the degree of criminality shown by the offender," shall impose
upon him either arresto mayor or a fine ranging from 200 to 500
pesos. (Art. 59, Revised Penal Code.)
Under our Revised Penal Code, also, one-half of the period of
preventive imprisonment is deducted from the entire term of
imprisonment, except in certain cases expressly mentioned (art. 29);
the death penalty is not imposed when the guilty person is more than
seventy years of age, or where upon appeal or revision of the case by
the Supreme Court, all the members thereof are not unanimous in
their voting as to the propriety of the imposition of the death penalty
(art. 47, see also, sec. 133, Revised Administrative Code, as
amended by Commonwealth Act No. 3); the death sentence is not to
be inflicted upon a woman within the three years next following the
date of the sentence or while she is pregnant, or upon any person
over seventy years of age (art. 83); and when a convict shall become
insane or an imbecile after final sentence has been pronounced, or
while he is serving his sentence, the execution of said sentence shall
be suspended with regard to the personal penalty during the period of
such insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the undue
harshness of the penal laws is more clearly demonstrated in various
other enactments, including the probation Act. There is the
Indeterminate Sentence Law enacted in 1933 as Act No. 4103 and
subsequently amended by Act No. 4225, establishing a system of
parole (secs. 5 to 10) and granting the courts large discretion in
imposing the penalties of the law. Section 1 of the law as amended
provides: "Hereafter, in imposing a prison sentence for an offense
punished by the Revised Penal Code, or its amendments, the court
shall sentence the accused to an indeterminate sentence the
maximum term of which shall be that which, in view of the attending
circumstances, could be properly imposed under the rules of the said
Code, and to a minimum which shall be within the range of the penalty

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next lower to that prescribed by the Code for the offense; and if the
offense is punished by any other law, the court shall sentence the
accused to an indeterminate sentence, the maximum term of which
shall not exceed the maximum fixed by said law and the minimum
shall not be less than the minimum term prescribed by the same."
Certain classes of convicts are, by section 2 of the law, excluded from
the operation thereof. The Legislature has also enacted the Juvenile
Delinquency Law (Act No. 3203) which was subsequently amended
by Act No. 3559. Section 7 of the original Act and section 1 of the
amendatory Act have become article 80 of the Revised Penal Code,
amended by Act No. 4117 of the Philippine Legislature and recently
reamended by Commonwealth Act No. 99 of the National Assembly.
Finally came the (Adult) Probation Act now in question. In this Act is
again manifested the intention of the legislature to "humanize" the
penal laws. It allows, in effect, the modification in particular cases of
the penalties prescribed by law by permitting the suspension of the
execution of the judgment in the discretion of the trial court, after due
hearing and after Investigation of the particular circumstances of the
offense, the criminal record, if any, of the convict, and his social
history. The Legislature has in reality decreed that in certain cases no
punishment at all shall be suffered by the convict as long as the
conditions of probation are faithfully observed. If this be so, then, it
cannot be said that the Probation Act comes in conflict with the power
of the Chief Executive to grant pardons and reprieves, because, to
use the language of the Supreme Court of New Mexico, "the element
of punishment or the penalty for the commission of a wrong, while to
be declared by the courts as a judicial function under and within the
limits of law as announced by legislative acts, concerns solely the
procedure and conduct of criminal causes, with which the executive
can have nothing to do." (Ex parte Bates, supra.) In Williams vs. State
([1926], 162 Ga., 327; 133 S. E., 843), the court upheld the
constitutionality of the Georgia probation statute against the
contention that it attempted to delegate to the courts the pardoning
power lodged by the constitution in the governor of the state and
observed that "while the governor alone is vested with the power to
pardon after final sentence has been imposed by the courts, the
power of the courts to impose any penalty which may be from time to
time prescribed by law and in such manner as may be defined cannot
be questioned."

We realize, of course, the conflict which the American cases disclose.

Some cases hold it unlawful for the legislature to vest in the courts the
power to suspend the operation of a sentence, by probation or
otherwise, as to do so would encroach upon the pardoning power of
the executive. (In re Webb [1895], 89 Wis., 354; 27 L. R. A., 356; 46
Am. St. Rep., 846; 62 N. W., 177; 9 Am. Crim. Rep., 702; State ex rel.
Summer field vs. Moran [1919], 43 Nev., 150; 182 Pac., 927; Ex parte
Clendenning [1908], 22 Okla., 108; 1 Okla. Crim. Rep., 227; 19 L. R.
A. [N. S.], 1041; 132 Am. St. Rep., 628; 97 Pac., 650; People vs.
Barrett [1903], 202 Ill., 287; 67 N. E., 23; 63 L. R. A., 82; 95 Am. St.
Rep., 230; Snodgrass vs. State [1912], 67 Tex. Crim. Rep., 615; 41 L.
R. A. [N. S.], 1144; 150 S. W., 162; Ex parte Shelor [1910], 33 Nev.,
361; 111 Pac., 291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A.,
190; 69 Am. St. Rep., 175; 30 S. E., 858; State ex rel. Payne vs.
Anderson [1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54
Mich., 15; 19 N. W., 571; State vs. Dalton [1903], 109 Tenn., 544; 72
S. W., 456.)
Other cases, however, hold contra. (Nix vs. James 1925; C. C. A.,
9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d], 567;
Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5; Murphy vs.
State [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L. R., 1189; Re
Giannini [1912], 18 Cal. App., 166; 122 Pac., 831; Re Nachnaber
[1928], 89 Cal. App., 530; 265 Pac., 392; Ex parte De Voe [1931], 114
Cal. App., 730; 300 Pac., 874; People vs. Patrick [1897], 118 Cal.,
332; 50 Pac., 425; Martin vs. People [1917], 69 Colo., 60; 168 Pac.,
1171; Belden vs. Hugo [1914], 88 Conn., 50; 91 A., 369, 370, 371;
Williams vs. State [1926], 162 Ga., 327; 133 S. E., 843; People vs.
Heise [1913], 257 Ill., 443; 100 N. E., 1000; Parker vs. State [1893],
135 Ind., 534; 35 N. E., 179; 23 L. R. A., 859; St. Hilarie, Petitioner
[1906], 101 Me., 522; 64 Atl., 882; People vs. Stickle [1909], 156
Mich., 557; 121 N. W., 497; State vs. Fjolander [1914], 125 Minn.,
529; State ex rel. Bottomnly vs. District Court [1925], 73 Mont., 541;
237 Pac., 525; State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274;
47 L. R. A. [N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N.
H., 402; 74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82
Atl. 424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A, 1285;
151 Pac., 698; People ex rel. Forsyth vs. Court of Sessions [1894],
141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am. Crim. Rep.,
675; People ex rel. Sullivan vs. Flynn [1907], 55 Misc., 639; 106 N. Y.
Supp., 928; People vs. Goodrich [1914], 149 N. Y. Supp., 406; Moore

296
vs. Thorn [1935], 245 App. Div., 180; 281 N. Y. Supp., 49; Re Hart
[1914], 29 N. D., 38; L. R. A., 1915C, 1169; 149 N. W., 568; Ex parte
Eaton [1925], 29 Okla., Crim. Rep., 275; 233 P., 781; State vs. Teal
[1918], 108 S. C., 455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C.,
466; 33 L. R. A. [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189;
Fults vs. State [1854], 34 Tenn., 232; Woods vs. State [1814], 130
Tenn., 100; 169 S. W., 558; Baker vs. State [1913], 70 Tex., Crim.
Rep., 618; 158 S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep.,
548; 165 S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394;
162 S. W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54
S. W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson
vs. Com. [1921], 131 Va., 802; 109 S. E., 460; State vs. Mallahan
[1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstad vs.
Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393; 396.)
We elect to follow this long catena of authorities holding that the
courts may be legally authorized by the legislature to suspend
sentence by the establishment of a system of probation however
characterized. State ex rel. Tingstad vs. Starwich ([1922], 119 Wash.,
561; 206 Pac., 29; 26 A. L. R., 393), deserved particular mention. In
that case, a statute enacted in 1921 which provided for the
suspension of the execution of a sentence until otherwise ordered by
the court, and required that the convicted person be placed under the
charge of a parole or peace officer during the term of such
suspension, on such terms as the court may determine, was held
constitutional and as not giving the court a power in violation of the
constitutional provision vesting the pardoning power in the chief
executive of the state. (Vide, also, Re Giannini [1912], 18 Cal. App.,
166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the same.
They are actually distinct and different from each other, both in origin
and in nature. In People ex rel. Forsyth vs. Court of Sessions ([1894],
141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L. R. A., 856; 15 Am. Crim.
Rep., 675), the Court of Appeals of New York said:
". . . The power to suspend sentence and the power to grant reprieves
and pardons, as understood when the constitution was adopted, are
totally distinct and different in their origin and nature. The former was
always a part of the judicial power; the latter was always a part of the
executive power. The suspension of the sentence simply postpones
the judgment of the court temporarily or indefinitely, but the conviction

and liability following it, and all civil disabilities, remain and become
operative when judgment is rendered. A pardon reaches both the
punishment prescribed for the offense and the guilt of the offender. It
releases the punishment, and blots out of existence the guilt, so that
in the eye of the law, the offender is as innocent as if he had never
committed the offense. It removes the penalties and disabilities, and
restores him to all his civil rights. It makes him, as it were, a new man,
and gives him a new credit and capacity. (Ex parte Garland, 71 U. S.,
4 Wall., 333; 18 Law. ed., 366; U. S. vs. Klein, 80 U. S., 13 Wall., 128;
20 Law. ed., 519; Knote vs. U. S. 95 U. S., 149; 24 Law. ed., 442.)
"The framers of the federal and state constitutions were perfectly
familiar with the principles governing the power to grant pardons, and
it was conferred by these instruments upon the executive with full
knowledge of the law upon the subject, and the words of the
constitution were used to express the authority formerly exercised by
the English crown, or by its representatives in the colonies. (Ex parte
Wells, 59 U. S., 18 How., 307; 15 Law. ed., 421.) As this power was
understood, it did not comprehend any part of the judicial functions to
suspend sentence, and it was never intended that the authority to
grant reprieves and pardons should abrogate, or in any degree
restrict, the exercise of that power in regard to its own judgments, that
criminal courts had so long maintained. The two powers, so distinct
and different in their nature and character, were still left separate and
distinct, the one to be exercised by the executive, and the other by the
judicial department. We therefore conclude that a statute which, in
terms, authorizes courts of criminal jurisdiction to suspend sentence in
certain cases after conviction, a power inherent in such courts at
common law, which was understood when the constitution was
adopted to be an ordinary judicial function, and which, ever since its
adoption, has been exercised by the courts, is a valid exercise of
legislative power under the constitution. It does not encroach, in any
just sense, upon the powers of the executive, as they have been
understood and practiced from the earliest times." (Quoted with
approval in Director of Prisons vs. Judge of First Instance of Cavite
[1915], 29 Phil., 265, Carson, J., concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a free
man. He is not finally and completely exonerated. He is not exempt
from the entire punishment which the law inflicts. Under the Probation
Act, the probationer's case is not terminated by the mere fact that he

297
is placed on probation. Section 4 of the Act provides that the probation
may be definitely terminated and the probationer finally discharged
from supervision only after the period of probation shall have been
terminated and the probation officer shall have submitted a report,
and the court shall have found that the probationer has complied with
the conditions of probation. The probationer, then, during the period of
probation, remains in legal custody subject to the control of the
probation officer and of the court; and, he may be rearrested upon the
non-fulfillment of the conditions of probation and, when rearrested,
may be committed to prison to serve the sentence originally imposed
upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
"The probation described in the act is not pardon. It is not complete
liberty, and may be far from it. It is really a new mode of punishment,
to be applied by the judge in a proper case, in substitution of the
imprisonment and fine prescribed by the criminal laws. For this reason
its application is as purely a judicial act as any other sentence
carrying out the law deemed applicable to the offense. The executive
act of pardon, on the contrary, is against the criminal law, which binds
and directs the judges, or rather is outside of and above it. There is
thus no conflict with the pardoning power, and no possible
unconstitutionality of the Probation Act for this cause." (Archer vs.
Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from
commutation of the sentence. Snodgrass vs. State ([1912], 67 Tex.
Crim. Rep., 615; 41 L. R. A. [N. S.], 1144; 150 S. W., 162), is relied
upon most strongly by the petitioners as authority in support of their
contention that the power to grant pardons and reprieves, having
been vested exclusively upon the Chief Executive by the Jones Law,
may not be conferred by the legislature upon the courts by means of a
probation law authorizing the indefinite judicial suspension of
sentence. We have examined that case and found that although the
Court of Criminal Appeals of Texas held that the probation statute of
the state in terms conferred on the district courts the power to grant
pardons to persons convicted of crime, it also distinguished between
suspension of sentence on the one hand, and reprieve and
commutation of sentence on the other. Said the court, through Harper,
J.:

"That the power to suspend the sentence does not conflict with the
power of the Governor to grant reprieves is settled by the decisions of
the various courts; it being held that the distinction between a
'reprieve' and a suspension of sentence is that a reprieve postpones
the execution of the sentence to a day certain, whereas a suspension
is for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R., 262; In re
Buchanan, 146 N. Y., 264; 40 N. E., 883), and cases cited in 7 Words
& Phrases, pp. 6115, 6116. This law cannot be held in conflict with the
power confiding in the Governor to grant commutations of
punishment, for commutation is but to change the punishment
assessed to a less punishment."
In State ex rel. Bottomly vs. District Court ([1925], 73 Mont., 541; 237
Pac., 525), the Supreme Court of Montana had under consideration
the validity of the adult probation law of the state enacted in 1913,
now found in sections 1207812086, Revised Codes of 1921. The
court held the law valid as not impinging upon the pardoning power of
the executive. In a unanimous decision penned by justice Holloway,
the court said:
". . . the terms 'pardon,' 'commutation,' and 'respite' each had a well
understood meaning at the time our Constitution was adopted, and no
one of them was intended to comprehend the suspension of the
execution of a judgment as that phrase is employed in sections
12078- 12086. A 'pardon' is an act of grace, proceeding from the
power intrusted with the execution of the laws which exempts the
individual on whom it is bestowed from the punishment the law inflicts
for a crime he has committed (United States vs. Wilson, 7 Pet., 150; 8
Law. ed., 640); It is a remission of guilt (State vs. Lewis, 111 La., 693;
35 So., 816), a forgiveness of the offense (Cook vs. Middlesex
County, 26 N. J. Law, 326; Ex parte Powell, 73 Ala., 517; 49 Am. Rep.,
71). 'Commutation' is a remission of a part of the punishment; a
substitution of a less penalty for the one originally imposed (Lee vs.
Murphy, 22 Grat. [Va.], 789; 12 Am. Rep., 563; Rich vs. Chamberlain,
107 Mich., 381; 65 N. W., 235). A 'reprieve' or 'respite' is the
withholding of a sentence for an interval of time (4 Blackstone's
Commentaries, 394), a postponement of execution (Carnal vs.
People, 1 Parker, Cr. R. [N. Y.], 272), a temporary suspension of
execution (Butler vs. State, 97 Ind., 373).
"Few adjudicated cases are to be found in which the validity of a
statute similar to our section 12078 has been determined; but the

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same objections have been urged against parole statutes which vest
the power to parole in persons other than those to whom the power of
pardon is granted, and these statutes have been upheld quite
uniformly, as a reference to the numerous cases cited in the notes to
Woods vs. State (130 Tenn., 100; 169 S. W., 558, reported in L. R. A.,
1915F, 531), will disclose. (See, also, 20 R. C. L., 524.)"
We conclude that the Probation Act does not conflict with the
pardoning power of the Executive. The pardoning power, in respect to
those serving their probationary sentences, remains as full and
complete as if the Probation Law had never been enacted. The
President may yet pardon the probationer and thus place it beyond
the power of the court to order his rearrest and imprisonment. (Riggs
vs. United States [1926], 14 F. [2d], 5, 7.)
2.
But while the Probation Law does not encroach upon the
pardoning power of the executive and is not for that reason void, does
section 11 thereof constitute, as contended, an undue delegation of
legislature power?
Under our constitutional system, the powers of government are
distributed among three coordinate and substantially independent
organs: the legislative, the executive and the judicial. Each of these
departments of the government derives its authority from the
Constitution which, in turn, is the highest expression of popular will.
Each has exclusive cognizance of the matters within its jurisdiction,
and is supreme within its own sphere.
The power to make laws the legislative power is vested in a
bicameral Legislature by the Jones Law (sec. 12) and in a unicameral
National Assembly by the Constitution (Art. VI, sec. 1, Constitution of
the Philippines). The Philippine Legislature or the National Assembly
may not escape its duties and responsibilities by delegating that
power to any other body or authority. Any attempt to abdicate the
power is unconstitutional and void, on the principle that potestas
delegata non delegare potest. This principle is said to have originated
with the glossators, was introduced into English law through a
misreading of Bracton, there developed as a principle of agency, was
established by Lord Coke in the English public law in decisions
forbidding the delegation of judicial power, and found its way into
America as an enlightened principle of free government. It has since
become an accepted corollary of the principle of separation of powers.

(5 Encyc. of the Social Sciences, p. 66.) The classic statement of the

rule is that of Locke, namely: "The legislative neither must nor can
transfer the power of making laws to anybody else, or place it
anywhere but where the people have." (Locke on Civil Government,
sec 142.) Judge Cooley enunciates the doctrine in the following oftquoted language: "One of the settled maxims in constitutional law is,
that the power conferred upon the legislature to make laws cannot be
delegated by that department to any other body or authority. Where
the sovereign power of the state has located the authority, there it
must remain; and by the constitutional agency alone the laws must be
made until the Constitution itself is changed. The power to whose
judgment, wisdom, and patriotism this high prerogative has been
intrusted cannot relieve itself of the responsibility by choosing other
agencies upon which the power shall be devolved, nor can it
substitute the judgment, wisdom, and patriotism of any other body for
those to which alone the people have seen fit to confide this sovereign
trust." (Cooley on Constitutional Limitations, 8th ed., Vol. I, p. 224.
Quoted with approval in U. S. vs. Barrias [1908], 11 Phil., 327.) This
court posits the doctrine "on the ethical principle that such a delegated
power constitutes not only a right but a duty to be performed by the
delegate by the instrumentality of his own judgment acting
immediately upon the matter of legislation and not through the
intervening mind of another. (U. S. vs. Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative power is
not absolute and inflexible. It admits of exceptions. An exception
sanctioned by immemorial practice permits the central legislative body
to delegate legislative powers to local authorities. (Rubi vs. Provincial
Board of Mindoro [1919], 39 Phil., 660; U. S. vs. Salaveria [1918], 39
Phil., 102; Stoutenburgh vs. Hennick [1889], 129 U. S., 141; 32 Law.
ed., 637; 9 Sup. Ct. Rep., 256; State vs. Noyes [1855], 30 N. H., 279.)
"It is a cardinal principle of our system of government, that local affairs
shall be managed by local authorities, and general affairs by the
central authority; and hence while the rule is also fundamental that the
power to make laws cannot be delegated, the creation of
municipalities exercising local self government has never been held to
trench upon that rule. Such legislation is not regarded as a transfer of
general legislative power, but rather as the grant of the authority to
prescribe local regulations, according to immemorial practice, subject
of course to the interposition of the superior in cases of necessity."
(Stoutenburgh vs. Hennick, supra.) On quite the same principle,

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Congress is empowered to delegate legislative power to such
agencies in the territories of the United States as it may select. A
territory stands in the same relation to Congress as a municipality or
city to the state government. (United States vs. Heinszen [1907], 206
U. S., 370; 27 Sup. Ct. Rep., 742.; 51 L. ed., 1098; 11 Ann. Cas., 688;
Dorr vs. United States [1904], 195 U. S., 138; 24 Sup. Ct. Rep., 808;
49 Law. ed., 128; 1 Ann. Cas., 697.) Courts have also sustained the
delegation of legislative power to the people at large. Some
authorities maintain that this may not be done (12 C. J., pp. 841, 842;
6 R. C. L., p. 164, citing People vs. Kennedy [1913], 207 N. Y., 533;
101 N. E., 442; Ann. Cas., 1914C, 616). However, the question of
whether or not a state has ceased to be republican in form because of
its adoption of the initiative and referendum has been held not to be a
judicial but a political question (Pacific States Tel. & Tel. Co. vs.
Oregon [1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Ct. Rep.,
224), and as the constitutionality of such laws has been looked upon
with favor by certain progressive courts, the sting of the decisions of
the more conservative courts has been pretty well drawn. (Opinions of
the Justices [1894], 160 Mass., 586; 36 N. E., 488; 23 L. R. A., 113;
Kiernan vs. Portland [1910], 57 Ore., 454; 111 Pac., 379; 112 Pac.,
602; 37 L. R. A. [N. S.], 332; Pacific States Tel. & Tel. Co. vs. Oregon,
supra.) Doubtless, also, legislative power may be delegated by the
Constitution itself. Section 14, paragraph 2, of article VI of the
Constitution of the Philippines provides that "The National Assembly
may by law authorize the President, subject to such limitations and
restrictions as it may impose, to fix within specified limits, tariff rates,
import or export quotas, and tonnage and wharfage dues." And
section 16 of the same article of the Constitution provides that "In
times of war or other national emergency, the National Assembly may
by law authorize the President, for a limited period and subject to such
restrictions as it may prescribe, to promulgate rules and regulations to
carry out a declared national policy." It is beyond the scope of this
decision to determine whether or not, in the absence of the foregoing
constitutional provisions, the President could be authorized to
exercise the powers thereby vested in him. Upon the other hand,
whatever doubt may have existed has been removed by the
Constitution itself.
The case before us does not fall under any of the exceptions
hereinabove mentioned.

The challenged section of Act No. 4221 is section 11 which reads as

follows:
"This Act shall apply only in those provinces in which the respective
provincial boards have provided for the sale of a probation officer at
rates not lower than those now provided for provincial fiscals. Said
probation officers shall be appointed by the Secretary of Justice and
shall be subject to the direction of the Probation Office." (Italics ours.)
In testing whether a statute constitutes an undue delegation of
legislative power or not, it is usual to inquire whether the statute was
complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other
appointee or delegate of the legislature. (6 R. C. L., p. 165.) In United
States vs. Ang Tang Ho ([1922], 43 Phil., 1), this court adhered to the
foregoing rule when it held an act of the legislature void in so far as it
undertook to authorize the Governor-General, in his discretion, to
issue a proclamation fixing the price of rice and to make the sale of it
in violation of the proclamation a crime. (See and cf. Compaia
General de Tabacos vs. Board of Public Utility Commissioners [1916],
34 Phil., 136.) The general rule, however, is limited by another rule
that to a certain extent matters of detail may be left to be filled in by
rules and regulations to be adopted or promulgated by executive
officers and administrative boards. (6 R. C. L., pp. 177-179.)
For the purposes of the Probation Act, the provincial boards may be
regarded as administrative bodies endowed with power to determine
when the Act should take effect in their respective provinces. They are
the agents or delegates of the legislature in this respect. The rules
governing delegation of legislative power to administrative and
executive officers are applicable or are at least indicative of the rule
which should be here adopted. An examination of a variety of cases
on delegation of power to administrative bodies will show that the ratio
decidendi is at variance but, it can be broadly asserted that the
rationale revolves around the presence or absence of a standard or
rule of action or the sufficiency thereof in the statute, to aid the
delegate in exercising the granted discretion. In some cases, it is held
that the standard is sufficient; in others that it is insufficient; and in still
others that it is entirely lacking. As a rule, an act of the legislature is
incomplete and hence invalid if it does not lay down any rule or
definite standard by which the administrative officer or board may be
guided in the exercise of the discretionary powers delegated to it.

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(See Schecter vs. United States [1925], 295 U. S., 495; 79 L. ed.,
1570; 55 Sup. Ct. Rep., 837; 97 A. L. R., 947; People ex rel. Rice vs.
Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E. [2d], 847; 107 A. L. R.,
1500 and cases cited. See also R. C. L., title "Constitutional Law",
sec. 174.) In the case at bar, what rules are to guide the provincial
boards in the exercise of their discretionary power to determine
whether or not the Probation Act shall apply in their respective
provinces? What standards are fixed by the Act? We do not find any
and none has been pointed to us by the respondents. The probation
Act does not, by the force of any of its provisions, fix and impose upon
the provincial boards any standard or guide in the exercise of their
discretionary power. What is granted, if we may use the language of
Justice Cardozo in the recent case of Schecter, supra, is a "roving
commission" which enables the provincial boards to exercise arbitrary
discretion. By section 11 of the Act, the legislature does seemingly on
its own authority extend the benefits of the Probation Act to the
provinces but in reality leaves the entire matter for the various
provincial boards to determine. In other words, the provincial boards
of the various provinces are to determine for themselves, whether the
Probation Law shall apply to their provinces or not at all. The
applicability and application of the Probation Act are entirely placed in
the hands of the provincial boards. If a provincial board does not wish
to have the Act applied in its province, all that it has to do is to decline
to appropriate the needed amount for the salary of a probation officer.
The plain language of the Act is not susceptible of any other
interpretation. This, to our minds, is a virtual surrender of legislative
power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the delegation
of power to make the law, which necessarily involves a discretion as
to what it shall be, and conferring an authority or discretion as to its
execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be made."
(Cincinnati, W. & Z. R. Co. vs. Clinton County Comrs. [1852]; 1 Ohio
St., 77, 88. See also, Sutherland on Statutory Construction, sec. 68.)
To the same effect are decisions of this court in Municipality of
Cardona vs. Municipality of Binangonan ([1917], 36 Phil., 547); Rubi
vs. Provincial Board of Mindoro ([1919], 39 Phil., 660), and Cruz vs.
Youngberg ([1931], 56 Phil., 234). In the first of these cases, this court
sustained the validity of a law conferring upon the Governor-General
authority to adjust provincial and municipal boundaries. In the second

case, this court held it lawful for the legislature to direct non-Christian
inhabitants to take up their habitation on unoccupied lands to be
selected by the provincial governor and approved by the provincial
board. In the third case, it was held proper for the legislature to vest in
the Governor-General authority to suspend or not, at his discretion,
the prohibition of the importation of foreign cattle, such prohibition to
be raised "if the conditions of the country make this advisable or if
disease among foreign cattle has ceased to be a menace to the
agriculture and livestock of the lands."
It should be observed that in the case at bar we are not concerned
with the simple transference of details of execution or the
promulgation by executive or administrative officials of rules and
regulations to carry into effect the provisions of a law. If we were,
recurrence to our own decisions would be sufficient. (U. S. vs. Barrias
[1908], 11 Phil., 327; U. S. vs. Molina [1914], 29 Phil., 119; Alegre vs.
Collector of Customs [1929], 53 Phil., 394; Cebu Autobus Co. vs. De
Jesus [1931], 56 Phil., 446; U. S. vs. Gomez [1915], 31 Phil., 218;
Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660.)
It is contended, however, that a legislative act may be made to the
effect as law after it leaves the hands of the legislature. It is true that
laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a
particular community (6 R. C. L., 116. 170-172; Cooley, Constitutional
Limitations, 8th ed., Vol. I, p. 227). In Wayman vs. Southard ([1825],
10 Wheat. 1; 6 Law. ed., 253), the Supreme Court of the United
States ruled that the legislature may delegate a power not legislative
which it may itself rightfully exercise. (Vide, also, Dowling vs.
Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N. W., 738; 31 L. R. A.,
112.) The power to ascertain facts is such a power which may be
delegated. There is nothing essentially legislative in ascertaining the
existence of facts or conditions as the basis of the taking into effect of
a law. That is a mental process common to all branches of the
government. (Dowling vs. Lancashire Ins. Co., supra; In re Village of
North Milwaukee [1896], 93 Wis., 616; 97 N. W., 1033; 33 L. R. A.,
938; Nash vs. Fries [1906], 129 Wis., 120; 108 N. W., 210; Field vs.
Clark [1892], 143 U. S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.)
Notwithstanding the apparent tendency, however, to relax the rule
prohibiting delegation of legislative authority on account of the
complexity arising from social and economic forces at work in this

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modern industrial age (Pfiffner, Public Administration [1936] ch. XX;
Laski, "The Mother of Parliaments", Foreign Affairs, July, 1931, Vol.
IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in Harper's
Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152), the orthodox
pronouncement of Judge Cooley in his work on Constitutional
Limitations finds restatement in Prof. Willoughby's treatise on the
Constitution of the United States in the following language
speaking of declaration of legislative power to administrative
agencies: "The principle which permits the legislature to provide that
the administrative agent may determine when the circumstances are
such as require the application of a law is defended upon the ground
that at the time this authority is granted, the rule of public policy, which
is the essence of the legislative act, is determined by the legislature.
In other words, the legislature, as it is its duty to do, determines that,
under given circumstances, certain executive or administrative action
is to be taken, and that, under other circumstances, different or no
action at all is to be taken. What is thus left to the administrative
official is not the legislative determination of what public policy
demands, but simply the ascertainment of what the facts of the case
require to be done according to the terms of the law by which he is
governed." (Willoughby on the Constitution of the United States, 2nd
ed., Vol. III, p. 1637.) In Miller vs. Mayer, etc., of New York ([1883],
109 U. S., 385; 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it was
said: "The efficiency of an Act as a declaration of legislative will must,
of course, come from Congress, but the ascertainment of the
contingency upon which the Act shall take effect may be left to such
agencies as it may designate." (See, also, 12 C. J., p. 864; State vs.
Parker [1854], 26 Vt., 357; Blanding vs. Burr [1859], 13 Cal., 343,
358.) The legislature, then, may provide that a law shall take effect
upon the happening of future specified contingencies leaving to some
other person or body the power to determine when the specified
contingency has arisen. But, in the case at bar, the legislature has not
made the operation of the Probation Act contingent upon specified
facts or conditions to be ascertained by the provincial board. It leaves,
as we have already said, the entire operation or non-operation of the
law upon the provincial boards. The discretion vested is arbitrary
because it is absolute and unlimited. A provincial board need not
investigate conditions or find any fact, or await the happening of any
specified contingency. It is bound by no rule, limited by no principle
of expediency announced by the legislature. It may take into

consideration certain facts or conditions; and, again, it may not. It may

have any purpose or no purpose at all. It need not give any reason or
have any reason whatsoever for refusing or failing to appropriate any
funds for the salary of a probation officer. This is a matter which rests
entirely at its pleasure. The fact that at some future time we cannot
say when the provincial boards may appropriate funds for the
salaries of probation officers and thus put the law into operation in the
various provinces will not save the statute. The time of its taking into
effect, we reiterate, would yet be based solely upon the will of the
provincial boards and not upon the happening of a certain specified
contingency, or upon the ascertainment of certain facts or conditions
by a person or body other than the legislature itself.
The various provincial boards are, in practical effect, endowed with
the power of suspending the operation of the Probation Law in their
respective provinces. In some jurisdictions, constitutions provide that
laws may be suspended only by the legislature or by its authority.
Thus, section 28, article I of the Constitution of Texas provides that
"No power of suspending laws in this state shall be exercised except
by the legislature"; and section 26, article I of the Constitution of
Indiana provides "That the operation of the laws shall never be
suspended, except by authority of the General Assembly." Yet, even
provisions of this sort do not confer absolute power of suspension
upon the legislature. While it may be undoubted that the legislature
may suspend a law, or the execution or operation of a law, a law may
not be suspended as to certain individuals only, leaving the law to be
enjoyed by others. The suspension must be general, and cannot be
made for individual cases or for particular localities. In Holden vs.
James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was said:
"By the twentieth article of the declaration of rights in the constitution
of this commonwealth, it is declared that the power of suspending the
laws, or the execution of the laws, ought never to be exercised but by
the legislature, or by authority derived from it, to be exercised in such
particular cases only as the legislature shall expressly provide for.
Many of the articles in that declaration of rights were adopted from the
Magna Charta of England, and from the bill of rights passed in the
reign of William and Mary. The bill of rights contains an enumeration
of the oppressive acts of James II, tending to subvert and extirpate
the protestant religion, and the laws and liberties of the kingdom; and
the first of them is the assuming and exercising a power of dispensing

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with and suspending the laws, and the execution of the laws without
consent of parliament. The first article in the claim or declaration of
rights contained in the statute is, that the exercise of such power, by
regal authority without consent of parliament, is illegal. In the tenth
section of the same statute it is further declared and enacted, that 'No
dispensation by non obstante of or to any statute, or any part thereof,
should be allowed; but the same should be held void and of no effect,
except a dispensation be allowed of in such statute.' There is an
implied reservation of authority in the parliament to exercise the power
here mentioned; because, according to the theory of the English
Constitution, 'that absolute despotic power, which must in all
governments reside somewhere,' is intrusted to the parliament: 1 Bl.
Com., 160.
"The principles of our government are widely different in this
particular. Here the sovereign and absolute power resides in the
people; and the legislature can only exercise what is delegated to
them according to the constitution. It is obvious that the exercise of
the power in question would be equally oppressive to the subject, and
subversive of his right to protection, 'according to standing laws,'
whether exercised by one man or by a number of men. It cannot be
supposed that the people when adopting this general principle from
the English bill of rights and inserting it in our constitution, intended to
bestow by implication on the general court one of the most odious and
oppressive prerogatives of the ancient kings of England. it is
manifestly contrary to the first principles of civil liberty and natural
justice, and to the spirit of our constitution and laws, that any one
citizen should enjoy privileges and advantages which are denied to all
others under like circumstances; or that any one should be subject to
losses, damages, suits, or actions from which all others under like
circumstances are exempted."
To illustrate the principle: A section of a statute relative to dogs made
the owner of any dog liable to the owner of domestic animals
wounded by it for the damages without proving a knowledge of its
vicious disposition. By a provision of the act, power was given to the
board of supervisors to determine whether or not during the current
year their county should be governed by the provisions of the act of
which that section constituted a part. It was held that the legislature
could not confer that power. The court observed that it could no more
confer such a power than to authorize the board of supervisors of a

county to abolish in such county the days of grace on commercial

paper, or to suspend the statute of limitations. (Slinger vs. Henneman
[1875], 38 Wis., 504.) A similar statute in Missouri was held void for
the same reason in State vs. Field ([1853], 17 Mo., 529; 59 Am. Dec.,
275.) In that case a general statute formulating a road system
contained a provision that "if the county court of any county should be
of opinion that the provisions of the act should not be enforced, they
might, in their discretion, suspend the operation of the same for any
specified length of time, and thereupon the act should become
inoperative in such county for the period specified in such order; and
thereupon order the roads to be opened and kept in good repair,
under the laws theretofore in force." Said the court: ". . . this act, by its
own provisions, repeals the inconsistent provisions of a former act,
and yet it is left to the county court to say which act shall be in force in
their county. The act does not submit the question to the county court
as an original question, to be decided by that tribunal, whether the act
shall commence its operation within the county; but it became by its
own terms a law in every county not excepted by name in the act. It
did not, then, require the county court to do any act in order to give it
effect. But being the law in the county, and having by its provisions
superseded and abrogated the inconsistent provisions of previous
laws, the county court is . . . empowered, to suspend this act and
revive the repealed provisions of the former act.' When the question is
before the county court for that tribunal to determine which law shall
be in force, it is urged before us that the power then to be exercised
by the court is strictly legislative power, which under our constitution,
cannot be delegated to that tribunal or to any other body of men in the
state. In the present case, the question is not presented in the
abstract; for the county court of Saline county, after the act had been
for several months in force in that county, did by order suspend its
operation; and during that suspension the offense was committed
which is the subject of the present indictment . . .." (See Mitchell vs.
State [1901], 134 Ala., 392; 32 S., 687.)
True, the legislature may enact laws for a particular locality different
from those applicable to other localities and, while recognizing the
force of the principle hereinabove expressed, courts in many
jurisdictions have sustained the constitutionality of the submission of
option laws to the vote of the people. (6 R. C. L., p. 171.) But option
laws thus sustained treat of subjects purely local in character which
should receive different treatment in different localities placed under

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different circumstances. "They relate to subjects which, like the
retailing of intoxicating drinks, or the running at large of cattle in the
highways, may be differently regarded in different localities, and they
are sustained on what seems to us the impregnable ground, that the
subject, though not embraced within the ordinary powers of
municipalities to make by-laws and ordinances, is nevertheless within
the class of public regulations, in respect to which it is proper that the
local judgment should control." (Cooley on Constitutional Limitations,
5th ed., p. 148.) So that, while we do not deny the right of local selfgovernment and the propriety of leaving matters of purely local
concern in the hands of local authorities or for the people of small
communities to pass upon, we believe that in matters of general
legislation like that which treats of criminals in general, and as regards
the general subject of probation, discretion may not be vested in a
manner so unqualified and absolute as provided in Act No. 4221.
True, the statute does not expressly state that the provincial boards
may suspend the operation of the Probation Act in particular provinces
but, considering that, in being vested with the authority to appropriate
or not the necessary funds for the salaries of probation officers, they
thereby are given absolute discretion to determine whether or not the
law should take effect or operate in their respective provinces, the
provincial boards are in reality empowered by the legislature to
suspend the operation of the Probation Act in particular provinces, the
Act to be held in abeyance until the provincial boards should decide
otherwise by appropriating the necessary funds. The validity of a law
is not tested by what has been done but by what may be done under
its provisions. (Walter E. Olsen & Co. vs. Aldanese and Trinidad
[1922], 43 Phil., 259; 12 C. J., p. 786.)
It is conceded that a great deal of latitude should be granted to the
legislature not only in the expression of what may be termed
legislative policy but in the elaboration and execution thereof. "Without
this power, legislation would become oppressive and yet imbecile."
(People vs. Reynolds, 5 Gilman, 1.) It has been said that popular
government lives because of the inexhaustible reservoir of power
behind it. It is unquestionable that the mass of powers of government
is vested in the representatives of the people and that these
representatives are no further restrained under our system than by the
express language of the instrument imposing the restraint, or by
particular provisions which by clear intendment, have that effect.
(Angara vs. Electoral Commission [1936], 35 Off. Gaz., 23;

Schneckenburger vs. Moran [1936], 35 Off. Gaz., 1317.) But, it should

be borne in mind that a constitution is both a grant and a limitation of
power and one of these time-honored limitations is that, subject to
certain exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an improper
and unlawful delegation of legislative authority to the provincial boards
and is, for this reason, unconstitutional and void.
3.
It is also contended that the Probation Act violates the
provision of our Bill of Rights which prohibits the denial to any person
of the equal protection of the laws (Art. III, sec. 1, subsec. 1,
Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a restraint
on all the three grand departments of our government and on the
subordinate instrumentalities and subdivisions thereof, and on many
constitutional powers, like the police power, taxation and eminent
domain. The equal protection of the laws, sententiously observes the
Supreme Court of the United States, "is a pledge of the protection of
equal laws." (Yick Wo vs. Hopkins [1886], 118 U. S., 356; 30 Law. ed.,
220; 6 Sup. Ct. Rep., 10464; Perley vs. North Carolina, 249 U. S.,
510; 39 Sup. Ct. Rep., 357; 63 Law. ed., 735.) Of course, what may
be regarded as a denial of the equal protection of the laws is a
question not always easily determined. No rule that will cover every
case can be formulated. (Connolly vs. Union Sewer Pipe Co. [1902],
184 U. S., 540; 22 Sup. Ct. Rep., 431; 46 Law. ed., 679.) Class
legislation discriminating against some and favoring others is
prohibited. But classification on a reasonable basis, and not made
arbitrarily or capriciously, is permitted. (Finely vs. California [1911],
222 U. S., 28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F.
Ry Co. vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct.
Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.) The
classification, however, to be reasonable must be based on
substantial distinctions which make real differences; it must be
germane to the purposes of the law; it must not be limited to existing
conditions only, and must apply equally to each member of the class.
(Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353; 133 N. W., 209; 3 N.
C. C. A., 649; 37 L. R. A. [N. S.], 489; State vs. Cooley, 56 Minn., 540;
530-552; 58 N. W., 150; Lindsley vs. Natural Carbonic Gas Co. [1911],
220 U. S., 61, 79, 55 Law. ed., 369, 377; 31 Sup. Ct. Rep., 337; Ann.
Cas., 1912C, 160; Lake Shore & M. S. R. Co. vs. Clough [1917], 242

304
U. S., 375; 37 Sup. Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co.
vs. Greene [1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed.,
536; 17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312;
12 C. J., pp. 1148, 1149.)
In the case at bar, however, the resultant inequality may be said to
flow from the unwarranted delegation of legislative power, although
perhaps this is not necessarily the result in every case. Adopting the
example given by one of the counsel for the petitioners in the course
of his oral argument, one province may appropriate the necessary
fund to defray the salary of a probation officer, while another province
may refuse or fail to do so. In such a case, the Probation Act would be
in operation in the former province but not in the latter. This means
that a person otherwise coming within the purview of the law would be
liable to enjoy the benefits of probation in one province while another
person similarly situated in another province would be denied those
same benefits. This is obnoxious discrimination. Contrariwise, it is
also possible for all the provincial boards to appropriate the necessary
funds for the salaries of the probation officers in their respective
provinces, in which case no inequality would result for the obvious
reason that probation would be in operation in each and every
province by the affirmative action of appropriation by all the provincial
boards. On that hypothesis, every person coming within the purview
of the Probation Act would be entitled to avail of the benefits of the
Act. Neither will there be any resulting inequality if no province,
through its provincial board, should appropriate any amount for the
salary of the probation officer which is the situation now and,
also, if we accept the contention that, for the purposes of the
Probation Act, the City of Manila should be considered as a province
and that the municipal board of said city has not made any
appropriation for the salary of a probation officer. These different
situations suggested show, indeed, that while inequality may result in
the application of the law and in the conferment of the benefits therein
provided, inequality is not in all cases the necessary result. But
whatever may be the case, it is clear that section 11 of the Probation
Act creates a situation in which discrimination and inequality are
permitted or allowed. There are, to be sure, abundant authorities
requiring actual denial of the equal protection of the law before courts
should assume the task of setting aside a law vulnerable on that
score, but premises and circumstances considered, we are of the
opinion that section 11 of Act No. 4221 permits of the denial of the

equal protection of the law and is on that account bad. We see no

difference between a law which denies equal protection and a law
which permits of such denial. A law may appear to be fair on its face
and impartial in appearance, yet, if it permits of unjust and illegal
discrimination, it is within the constitutional prohibition. (By analogy,
Chy Lung vs. Freeman [1876], 292 U. S., 275; 23 Law. ed., 550;
Henderson vs. Mayor [1876], 92 U. S., 259; 23 Law. ed., 543; Ex
parte Virginia [1880], 100 U. S., 339; 25 Law ed., 676; Neal vs.
Delaware [1881], 103 U. S., 370; 26 Law. ed., 567; Soon Hing vs.
Crowley [1885], 113 U. S., 703; 28 Law. ed., 1145; Yick Wo vs.
Hopkins [1886], 118 U. S., 356; 30 Law. ed., 220; Williams vs.
Mississippi [1897], 170 U. S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed.,
1012; Bailey vs. Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep.
145; 55 Law. ed., 191; Sunday Lake Iron Co. vs. Wakefield [1918],
247 U. S., 450; 38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other
words, statutes may be adjudged unconstitutional because of their
effect in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211;
28 Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat. Bank
[1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If a law has
the effect of denying the equal protection of the law it is
unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U. S., 3; 3
Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs. Hopkins, supra;
State vs. Montgomery, 94 Me., 192; 47 Atl., 165; 80 A. S. R., 386;
State vs. Dering, 84 Wis., 585; 54 N. W., 1104; 36 A. S. R., 948; 19 L.
R. A., 858.) Under section 11 of the Probation Act, not only may said
Act be in force in one or several provinces and not be in force in the
other provinces, but one province may appropriate for the salary of a
probation officer of a given year and have probation during that
year and thereafter decline to make further appropriation, and have
no probation in subsequent years. While this situation goes rather to
the abuse of discretion which delegation implies, it is here indicated to
show that the Probation Act sanctions a situation which is intolerable
in a government of laws, and to prove how easy it is, under the Act, to
make the guaranty of the equality clause but "a rope of sand".
(Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150,
154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.)
Great reliance is placed by counsel for the respondents on the case of
Ocampo vs. United States ( [1914], 234 U. S., 91; 58 Law. ed., 1231).
In that case, the Supreme Court of the United States affirmed the
decision of this court (18 Phil., 1) by declining to uphold the contention

305
that there was a denial of the equal protection of the laws because, as
held in Missouri vs. Lewis (Bowman vs. Lewis) decided in 1880 (101
U. S., 220; 25 Law. ed., 991), the guaranty of the equality clause does
not require territorial uniformity. It should be observed, however, that
this case concerns the right to preliminary investigations in criminal
cases originally granted by General Orders No. 58. No question of
legislative authority was involved and the alleged denial of the equal
protection of the laws was the result of the subsequent enactment of
Act No. 612, amending the charter of the City of Manila (Act No. 813)
and providing in section 2 thereof that "in cases triable only in the
court of first instance of the City of Manila, the defendant . . . shall not
be entitled as of right to a preliminary examination in any case where
the prosecuting attorney, after a due investigation of the facts . . . shall
have presented an information against him in proper form . . .." Upon
the other hand, an analysis of the arguments and the decision
indicates that the investigation by the prosecuting attorney
although not in the form had in the provinces was considered a
reasonable substitute for the City of Manila, considering the peculiar
conditions of the city as found and taken into account by the
legislature itself.
Reliance is also placed in the case of Missouri vs. Lewis, supra. That
case has reference to a situation where the constitution of Missouri
permits appeals to the Supreme Court of the state from final
judgments of any circuit court, except those in certain counties for
which counties the constitution establishes a separate court of
appeals called the St. Louis Court of Appeals. The provision
complained of, then, is found in the constitution itself and it is the
constitution that makes the apportionment of territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is
unconstitutional and void because it is also repugnant to the equalprotection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void for the
reasons already stated, the next inquiry is whether or not the entire
Act should be avoided.
"In seeking the legislative intent, the presumption is against any
mutilation of a statute, and the courts will resort to elimination only
where an unconstitutional provision is interjected into a statute
otherwise valid, and is so independent and separable that its removal

will leave the constitutional features and purposes of the act

substantially unaffected by the process." (Riccio vs. Hoboken, 69 N. J.
Law., 649, 662; 63 L.. R. A., 485; 55 Atl., 1109, quoted in Williams vs.
Standard Oil Co. [1929], 278 U. S., 235, 240; 73 Law. ed., 287, 309;
49 Sup. Ct. Rep., 115; 60 A. L. R., 596.) In Barrameda vs. Moir
([1913], 25 Phil., 44, 47), this court stated the well-established rule
concerning partial invalidity of statutes in the following language:
". . . where part of a statute is void, as repugnant to the Organic Law,
while another part is valid, the valid portion, if separable from the
invalid, may stand and be enforced. But in order to do this, the valid
portion must be so far independent of the invalid portion that it is fair
to presume that the Legislature would have enacted it by itself if they
had supposed that they could not constitutionally enact the other.
(Mutual Loan Co. vs. Martell, 200 Mass., 482; 86 N. E., 916; 128 A. S.
R., 446; Supervisors of Holmes Co. vs. Black Creek Drainage District,
99 Miss., 739; 55 Sou., 963.) Enough must remain to make a
complete, intelligible, and valid statute, which carries out the
legislative intent. (Pearson vs. Bass, 132 Ga., 117; 63 S. E., 798.) The
void provisions must be eliminated without causing results affecting
the main purpose of the Act, in a manner contrary to the intention of
the Legislature. (State vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou.,
969; Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R. A., N.
S., 794; Connolly vs. Union Sewer Pipe Co., 184 U. S., 540, 565;
People vs. Strassheim, 240 Ill., 279, 300; 88 N. E., 821; 22 L. R. A., N.
S., 1135; State vs. Cognevich, 124 La., 414; 50 Sou., 439.) The
language used in the invalid part of a statute can have no legal force
or efficacy for any purpose whatever, and what remains must express
the legislative will, independently of the void part, since the court has
no power to legislate. (State vs. Junkin, 85 Neb., 1; 122 N. W., 473;
23 L. R. A., N. S., 839; Vide, also, U. S. vs. Rodriguez [1918], 38 Phil.,
759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158 U. S., 601,
635; 39 Law. ed., 1108, 1125; 15 Sup. Ct. Rep., 912; 6 R. C. L., 121.)"
It is contended that even if section 11, which makes the Probation Act
applicable only in those provinces in which the respective provincial
boards have provided for the salaries of probation officers were
inoperative on constitutional grounds, the remainder of the Act would
still be valid and may be enforced. We should be inclined to accept
the suggestion but for the fact that said section is, in our opinion, so
inseparably linked with the other portions of the Act that with the

306
elimination of the section what would be left is the bare idealism of the
system, devoid of any practical benefit to a large number of people
who may be deserving of the intended beneficial results of that
system. The clear policy of the law, as may be gleaned from a careful
examination of the whole context, is to make the application of the
system dependent entirely upon the affirmative action of the different
provincial boards through appropriation of the salaries for probation
officers at rates not lower than those provided for provincial fiscals.
Without such action on the part of the various boards, no probation
officers would be appointed by the Secretary of Justice to act in the
provinces. The Philippines is divided or subdivided into provinces and
it needs no argument to show that if not one of the provinces and
this is the actual situation how appropriates the necessary fund for
the salary of a probation officer, probation under Act No. 4221 would
be illusory. There can be no probation without a probation officer.
Neither can there be a probation officer without a probation system.
Section 2 of the Act provides that the probation officer shall supervise
and visit the probationer. Every probation officer is given, as to the
persons placed in probation under his care, the powers of a police
officer. It is the duty of probation officers to see that the conditions
which are imposed by the court upon the probationer under his care
are complied with. Among those conditions, the following are
enumerated in section 3 of the Act:
"That the probationer (a) shall indulge in no injurious or vicious habits;
"(b)
Shall avoid places or persons of disreputable or harmful
character;
"(c)
Shall report to the probation officer as directed by the court or
probation officers;
"(d)
Shall permit the probation officer to visit him at reasonable
times at his place of abode or elsewhere;
"(e)
Shall truthfully answer any reasonable inquiries on the part of
the probation officer concerning his conduct or condition;
"(f)

Shall endeavor to be employed regularly;

"(g)

Shall remain or reside within a specified place or locality;

"(h)
Shall make reparation or restitution to the aggrieved parties for
actual damages or losses caused by his offense;

"(i)

Shall support his wife and children;

"(j)
Shall comply with such orders as the court may from time to
time make; and
"(k)
Shall refrain from violating any law, statute, ordinance, or any
by-law or regulation, promulgated in accordance with law."
The court is required to notify the probation officer in writing of the
period and terms of probation. Under section 4, it is only after the
period of probation, the submission of a report of the probation officer
and appropriate finding of the court that the probationer has complied
with the conditions of probation that probation may be definitely
terminated and the probationer finally discharged from supervision.
Under section 5, if the court finds that there is non-compliance with
said conditions, as reported by the probation officer, it may issue a
warrant for the arrest of the probationer and said probationer may be
committed with or without bail. Upon arraignment and after an
opportunity to be heard, the court may revoke, continue or modify the
probation, and if revoked, the court shall order the execution of the
sentence originally imposed. Section 6 prescribes the duties of
probation officers: "It shall be the duty of every probation officer to
furnish to all persons placed on probation under his supervision a
statement of the period and conditions of their probation, and to
instruct them concerning the same; to keep informed concerning their
conduct and condition; to aid and encourage them by friendly advice
and admonition, and by such other measures, not inconsistent with
the conditions imposed by the court as may seem most suitable, to
bring about improvement in their conduct and condition; to report in
writing to the court having jurisdiction over said probationers at least
once every two months concerning their conduct and condition; to
keep records of their work; to make such reports as are necessary for
the information of the Secretary of Justice and as the latter may
require; and to perform such other duties as are consistent with the
functions of the probation officer and as the court or judge may direct.
The probation officers provided for in this Act may act as parole
officers for any penal or reformatory institution for adults when so
requested by the authorities thereof, and, when designated by the
Secretary of Justice, shall act as parole officer of persons released on
parole under Act Numbered Forty-one Hundred and Three, without
any additional compensation."

307
It is argued, however, that even without section 11 probation officers
may be appointed in the provinces under section 10 of the Act which
provides as follows:
"There is hereby created in the Department of Justice and subject to
its supervision and control, a Probation Office under the direction of a
Chief Probation Officer to be appointed by the Governor-General with
the advise and consent of the Senate who shall receive a salary of
four thousand eight hundred pesos per annum. To carry out the
purposes of this Act, there is hereby appropriated out of any funds in
the Insular Treasury not otherwise appropriated, the sum of fifty
thousand pesos to be disbursed by the Secretary of Justice, who is
hereby authorized to appoint probation officers and the administrative
personnel of the probation office under civil service regulations from
among those who possess the qualifications, training and experience
prescribed by the Bureau of Civil Service, and shall fix the
compensation of such probation officers and administrative personnel
until such positions shall have been included in the Appropriation Act."
But the probation officers and the administrative personnel referred to
in the foregoing section are clearly not those probation officers
required to be appointed for the provinces under section 11. It may be
said, reddendo singula singulis, that the probation officers referred to
in section 10 above-quoted are to act as such, not in the various
provinces, but in the central office known as the Probation Office
established in the Department of Justice, under the supervision of a
Chief Probation Officer. When the law provides that "the probation
officer" shall investigated and make reports to the court (secs. 1 and
4); that "the probation officer" shall supervise and visit the probationer
(sec. 2; sec. 6, par. d); that the probationer shall report to the
"probation officer" (sec. 3, par. c.), shall allow "the probation officer" to
visit him (sec. 3, par. d), shall truthfully answer any reasonable
inquiries on the part of "the probation officer" concerning his conduct
or condition (sec. 3, par. 4); that the court shall notify "the probation
officer" in writing of the period and terms of probation (sec. 3, last
par.), it means the probation officer who is in charge of a particular
probationer in a particular province. It never could have been the
intention of the legislature, for instance, to require a probationer in
Batanes, to report to a probation officer in the City of Manila, or to
require a probation officer in Manila to visit the probationer in the said
province of Batanes, to place him under his care, to supervise his

conduct, to instruct him concerning the conditions of his probation or

to perform such other functions as are assigned to him by law.
That under section 10 the Secretary of Justice may appoint as many
probation officers as there are provinces or groups of provinces is, of
course, possible. But this would be arguing on what the law may be or
should be and not on what the law is. Between is and ought there is a
far cry. The wisdom and propriety of legislation is not for us to pass
upon. We may think a law better otherwise than it is. But much as has
been said regarding progressive interpretation and judicial legislation
we decline to amend the law. We are not permitted to read into the
law matters and provisions which are not there. Not for any purpose
not even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is not to
make the Insular Government defray the salaries of probation officers
in the provinces but to make the provinces defray them should they
desire to have the Probation Act apply thereto. The sum of P50,000,
appropriated "to carry out the purposes of this Act", is to be applied,
among other things, for the salaries of probation officers in the central
office at Manila. These probation officers are to receive such
compensations as the Secretary of Justice may fix "until such
positions shall have been included in the Appropriation Act". It was not
the intention of the legislature to empower the Secretary of Justice to
fix the salaries of probation officers in the provinces or later on to
include said salaries in an appropriation act. Considering, further, that
the sum of P50,000 appropriated in section 10 is to cover, among
other things, the salaries of the administrative personnel of the
Probation Office, what would be left of the amount can hardly be said
to be sufficient to pay even nominal salaries to probation officers in
the provinces. We take judicial notice of the fact that there are 48
provinces in the Philippines and we do not think it is seriously
contended that, with the fifty thousand pesos appropriated for the
central office, there can be in each province, as intended, a probation
officer with a salary not lower than that of a provincial fiscal. If this is
correct, the contention that without section 11 of Act No. 4221 said act
is complete is an impracticable thing under the remainder of the Act,
unless it is conceded that in our case there can be a system of
probation in the provinces without probation officers.
Probation as a development of modern penology is a commendable
system. Probation laws have been enacted, here and in other

308
countries, to permit what modern criminologists call the
"individualization of punishment", the adjustment of the penalty to the
character of the criminal and the circumstances of his particular case.
It provides a period of grace in order to aid in the rehabilitation of a
penitent offender. It is believed that, in any cases, convicts may be
reformed and their development into hardened criminals aborted. It,
therefore, takes advantage of an opportunity for reformation and
avoids imprisonment so long as the convict gives promise of reform.
(United States vs. Murray [1925], 275 U. S., 347, 357, 358; 72 Law.
ed., 309; 312, 313; 48 Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F.
[2d], 664, 665.) The welfare of society is its chief end and aim. The
benefit to the individual convict is merely incidental. But while we
believe that probation is commendable as a system and its
implantation into the Philippines should be welcomed, we are forced
by our inescapable duty to set the law aside because of repugnancy
to our fundamental law.
In arriving at this conclusion, we have endeavored to consider the
different aspects presented by able counsel for both parties, as well in
their memorandums as in their oral argument. We have examined the
cases brought to our attention, and others we have been able to reach
in the short time at our command for the study and deliberation of this
case. In the examination of the cases and in the analysis of the legal
principles involved we have inclined to adopt the line of action which
in our opinion, is supported by better reasoned authorities and is more
conducive to the general welfare. (Smith, Bell & Co. vs. Natividad
[1919], 40 Phil., 136.) Realizing the conflict of authorities, we have
declined to be bound by certain adjudicated cases brought to our
attention, except where the point or the principle is settled directly or
by clear implication by the more authoritative pronouncements of the
Supreme Court of the United States. This line of approach is justified
because:
(a)
The constitutional relations between the Federal and the State
governments of the United States and the dual character of the
American Government is a situation which does not obtain in the
Philippines;
(b)
The situation of a state of the American Union or of the District
of Columbia with reference to the Federal Government of the. United
States is not the situation of a province with respect to the Insular

Government (Art. I, sec. 8, cl. 17, and 10th Amendment, Constitution

of the United States; Sims vs. Rives, 84 Fed. [2d], 871);
(c)
The distinct federal and state judicial organizations of the
United States do not embrace the integrated judicial system of the
Philippines (Schneckenburger vs. Moran [1936], 35 Off. Gaz., p.
1317);
(d)
"General propositions do not decide concrete cases" (Justice
Holmes in Lochner vs. New York [1904], 198 U. S., 45, 76; 49 Law.
ed., 937, 949) and, "to keep pace with . . . new developments of times
and circumstances" (Chief Justice Waite in Pensacola Tel. Co. vs.
Western Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708; Yale
Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142), fundamental
principles should be interpreted having in view existing local
conditions and environments.
Act No. 4221 is hereby declared unconstitutional and void and the writ
of prohibition is, accordingly, granted. Without any pronouncement
regarding costs. So ordered.

309
EN BANC
[G.R. No. 148560. November 19, 2001.]
JOSEPH EJERCITO ESTRADA, petitioner, vs. SANDIGANBAYAN
(Third Division) and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J p:
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury
of his pen in defense of the rights of the individual from the vast
powers of the State and the inroads of societal pressure. But even as
he draws a sacrosanct line demarcating the limits on individuality
beyond which the State cannot tread asserting that "individual
spontaneity" must be allowed to flourish with very little regard to social
interference he veritably acknowledges that the exercise of rights and
liberties is imbued with a civic obligation, which society is justified in
enforcing at all cost, against those who would endeavor to withhold
fulfillment. Thus he says
The sole end for which mankind is warranted, individually or
collectively, in interfering with the liberty of action of any of their
number, is self-protection. The only purpose for which power can be
rightfully exercised over any member of a civilized community, against
his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the
State to self-preservation. With the end of maintaining the integrity
and cohesiveness of the body politic, it behooves the State to
formulate a system of laws that would compel obeisance to its
collective wisdom and inflict punishment for non-observance.
The movement from Mill's individual liberalism to unsystematic
collectivism wrought changes in the social order, carrying with it a new

formulation of fundamental rights and duties more attuned to the

imperatives of contemporary socio-political ideologies. In the process,
the web of rights and State impositions became tangled and
obscured, enmeshed in threads of multiple shades and colors, the
skein irregular and broken. Antagonism, often outright collision,
between the law as the expression of the will of the State, and the
zealous attempts by its members to preserve their individuality and
dignity, inevitably followed. It is when individual rights are pitted
against State authority that judicial conscience is put to its severest
test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be
prosecuted under RA 7080 (An Act Defining and Penalizing the Crime
of Plunder), 1 as amended by RA 7659, 2 wishes to impress upon us
that the assailed law is so defectively fashioned that it crosses that
thin but distinct line which divides the valid from the constitutionally
infirm. He therefore makes a stringent call for this Court to subject the
Plunder Law to the crucible of constitutionality mainly because,
according to him, (a) it suffers from the vice of vagueness; (b) it
dispenses with the "reasonable doubt" standard in criminal
prosecutions; and, (c) it abolishes the element of mens rea in crimes
already punishable under The Revised Penal Code, all of which are
purportedly clear violations of the fundamental rights of the accused to
due process and to be informed of the nature and cause of the
accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to
have transgressed constitutional boundaries are Secs. 1, par. (d), 2
and 4 which are reproduced hereunder:
SECTION 1. . . . . (d) "Ill-gotten wealth" means any asset, property,
business, enterprise or material possession of any person within the
purview of Section Two (2) hereof, acquired by him directly or
indirectly through dummies, nominees, agents, subordinates and/or
business associates by any combination or series of the following
means or similar schemes:
(1)
Through
misappropriation,
conversion,
misuse,
malversation of public funds or raids on the public treasury;

or

(2)
By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from any
person and/or entity in connection with any government contract or

310
project or by reason of the office or position of the public office
concerned;
(3)
By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities, or government owned or controlled
corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation
including the promise of future employment in any business enterprise
or undertaking;
(5)
By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of decrees
and orders intended to benefit particular persons or special interests;
or
(6)
By taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and
the Republic of the Philippines.
SECTION 2. Definition of the Crime of Plunder, Penalties. Any
public officer who, by himself or in connivance with members of his
family, relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires illgotten wealth through a combination or series of overt or criminal acts
as described in Section 1 (d) hereof, in the aggregate amount or total
value of at least fifty million pesos (P50,000,000.00) shall be guilty of
the crime of plunder and shall be punished by reclusion perpetua to
death. Any person who participated with the said public official in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties,
the degree of participation and the attendance of mitigating and
extenuating circumstances as provided by the Revised Penal Code
shall be considered by the court. The court shall declare any and all
ill-gotten wealth and their interests and other incomes and assets
including the properties and shares of stocks derived from the deposit
or investment thereof forfeited in favor of the State (emphasis
supplied).

SECTION 4. Rule of Evidence. For purposes of establishing the

crime of plunder, it shall not be necessary to prove each and every
criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth, it being
sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy
(emphasis supplied).
On 4 April 2001 the Office of the Ombudsman filed before the
Sandiganbayan eight (8) separate Informations, docketed as: (a)
Crim. Case No. 26558, for violation of RA 7080, as amended by RA
7659; (b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of
Secs. 3, par (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019
(Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case
No. 26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of
Conduct and Ethical Standards for Public Officials and Employees);
(d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal
Code); and, (e) Crim. Case No. 26565, for Illegal Use of An Alias (CA
No. 142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of
the case to the Ombudsman for preliminary investigation with respect
to specification "d" of the charges in the Information in Crim. Case No.
26558; and, for reconsideration/reinvestigation of the offenses under
specifications "a," "b," and "c" to give the accused the opportunity to
file counter-affidavits and other documents necessary to prove lack of
probable cause. Noticeably, the grounds raised were only lack of
preliminary investigation, reconsideration/reinvestigation of offenses,
and opportunity to prove lack of probable cause. The purported
ambiguity of the charges and the vagueness of the law under which
they are charged were never raised in that Omnibus Motion thus
indicating the explicitness and comprehensibility of the Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a
Resolution in Crim. Case No. 26558 finding that "a probable cause for
the offense of PLUNDER exists to justify the issuance of warrants for
the arrest of the accused." On 25 June 2001 petitioner's motion for
reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim.
Case No. 26558 on the ground that the facts alleged therein did not
constitute an indictable offense since the law on which it was based

311
was unconstitutional for vagueness, and that the Amended
Information for Plunder charged more than one (1) offense. On 21
June 2001 the Government filed its Opposition to the Motion to
Quash, and five (5) days later or on 26 June 2001 petitioner submitted
his Reply to the Opposition. On 9 July 2001 the Sandiganbayan
denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18
September 2001, the issues for resolution in the instant petition for
certiorari are: (a) The Plunder Law is unconstitutional for being vague;
(b) The Plunder Law requires less evidence for proving the predicate
crimes of plunder and therefore violates the rights of the accused to
due process; and, (c) Whether Plunder as defined in RA 7080 is a
malum prohibitum, and if so, whether it is within the power of
Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the
validity of legislation is predicated on the basic principle that a
legislative measure is presumed to be in harmony with the
Constitution. 3 Courts invariably train their sights on this fundamental
rule whenever a legislative act is under a constitutional attack, for it is
the postulate of constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is forbidden for
one branch of the government to encroach upon the duties and
powers of another. Thus it has been said that the presumption is
based on the deference the judicial branch accords to its coordinate
branch the legislature.
If there is any reasonable basis upon which the legislation may firmly
rest, the courts must assume that the legislature is ever conscious of
the borders and edges of its plenary powers, and has passed the law
with full knowledge of the facts and for the purpose of promoting what
is right and advancing the welfare of the majority. Hence in
determining whether the acts of the legislature are in tune with the
fundamental law, courts should proceed with judicial restraint and act
with caution and forbearance. Every intendment of the law must be
adjudged by the courts in favor of its constitutionality, invalidity being a
measure of last resort. In construing therefore the provisions of a
statute, courts must first ascertain whether an interpretation is fairly
possible to sidestep the question of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon 4 we held that as long

as there is some basis for the decision of the court, the
constitutionality of the challenged law will not be touched and the case
will be decided on other available grounds. Yet the force of the
presumption is not sufficient to catapult a fundamentally deficient law
into the safe environs of constitutionality. Of course, where the law
clearly and palpably transgresses the hallowed domain of the organic
law, it must be struck down on sight lest the positive commands of the
fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily
on the party challenging the validity of the statute. He must
demonstrate beyond any tinge of doubt that there is indeed an
infringement of the constitution, for absent such a showing, there can
be no finding of unconstitutionality. A doubt, even if well-founded, will
hardly suffice. As tersely put by Justice Malcolm, "To doubt is to
sustain." 5 And petitioner has miserably failed in the instant case to
discharge his burden and overcome the presumption of
constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and
well-defined parameters which would enable the accused to
determine the nature of his violation. Section 2 is sufficiently explicit in
its description of the acts, conduct and conditions required or
forbidden, and prescribes the elements of the crime with reasonable
certainty and particularity. Thus
1.
That the offender is a public officer who acts by himself or in
connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons;
2.
That he amassed, accumulated or acquired ill-gotten wealth
through a combination or series of the following overt or criminal acts:
(a) through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury; (b) by receiving, directly or
indirectly, any commission, gift, share, percentage, kickback or any
other form of pecuniary benefits from any person and/or entity in
connection with any government contract or project or by reason of
the office or position of the public officer; (c) by the illegal or fraudulent
conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities of
Government owned or controlled corporations or their subsidiaries; (d)

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by obtaining, receiving or accepting directly or indirectly any shares of
stock, equity or any other form of interest or participation including the
promise of future employment in any business enterprise or
undertaking; (e) by establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of decrees
and orders intended to benefit particular persons or special interests;
or (f) by taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and
the Republic of the Philippines; and,
3.
That the aggregate amount or total value of the ill-gotten
wealth amassed, accumulated or acquired is at least P50,000,000.00.
As long as the law affords some comprehensible guide or rule that
would inform those who are subject to it what conduct would render
them liable to its penalties, its validity will be sustained. It must
sufficiently guide the judge in its application; the counsel, in defending
one charged with its violation; and more importantly, the accused, in
identifying the realm of the proscribed conduct. Indeed, it can be
understood with little difficulty that what the assailed statute punishes
is the act of a public officer in amassing or accumulating ill-gotten
wealth of at least P50,000,000.00 through a series or combination of
acts enumerated in Sec. 1, par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language of
the law, indicating with reasonable certainty the various elements of
the offense which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB,
Office of the Ombudsman, hereby accuses former PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada,
a.k.a. 'ASIONG SALONGA' and a.k.a. JOSE VELARDE together with
Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward Serapio, Yolanda
T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR
Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and
John DOES & Jane Does, of the crime of Plunder, defined and
penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No.
7659, committed as follows:
That during the period from June, 1998 to January 2001, in the
Philippines, and within the jurisdiction of this Honorable Court,
accused Joseph Ejercito Estrada, THE PRESIDENT OF THE

REPUBLIC OF THE PHILIPPINES, by himself AND/OR in

CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE
MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR
CONSANGUINITY, BUSINESS ASSOCIATES, SUBORDINATES
AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF
HIS
OFFICIAL
POSITION,
AUTHORITY,
RELATIONSHIP,
CONNECTION, OR INFLUENCE, did then and there willfully,
unlawfully and criminally amass, accumulate and acquire BY
HIMSELF DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount or TOTAL VALUE of FOUR BILLION NINETY
SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE AND SEVENTEEN CENTAVOS
(P4,097,804,173.17), more or less, THEREBY UNJUSTLY
ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND
TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC
OF PHILIPPINES through ANY OR A combination OR A series of
overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS
described as follows:
(a)
by receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF FIVE
HUNDRED FORTY FIVE MILLION PESOS (P545,000.000.00),
MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF
GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF
PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with coaccused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda T.
Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES in
consideration OF TOLERATION OR PROTECTION OF ILLEGAL
GAMBLING;
(b)
by DIVERTING, RECEIVING, misappropriating, converting OR
misusing DIRECTLY OR INDIRECTLY for HIS OR THEIR
PERSONAL gain and benefit, public funds in the amount of ONE
HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or
less, representing a portion of the TWO HUNDRED MILLION PESOS
(P200,000.000.00) tobacco excise tax share allocated for the province
of Ilocos Sur under R.A. No 7171, by himself and or in connivance
with co accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a k. a.
Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND
OTHER JOHN DOES & JANE DOES (emphasis supplied).

313
(c)
by directing, ordering and compelling, FOR HIS PERSONAL
GAIN AND BENEFIT , the Government Service Insurance System
(GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE
OR LESS, and the Social Security System (SSS), 329,855,000
SHARES OF STOCK, MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF MORE OR LESS ONE
BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY
FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY
CENTAVOS (P1,102,965,607.50) AND MORE OR LESS SEVEN
HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE
THOUSAND
AND
FOUR
HUNDRED
FIFTY
PESOS
(P744,612,450.00) RESPECTIVELY OR A TOTAL OF MORE OR
LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION
FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN
PESOS AND FIFTY CENTAVOS (P1,847,578,057.50); AND BY
COLLECTING OR RECEIVING, DIRECTLY OR INDIRECTLY, BY
HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES JANE
DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID
PURCHASES OF SHARES OF STOCK IN THE AMOUNT OF ONE
HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE
EQUITABLE BANK UNDER THE ACCOUNT NAME 'JOSE
VELARDE'
(d)
by unjustly enriching himself FROM COMMISSIONS, GIFTS,
SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF
PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND
JANE DOES in the amount of MORE OR LESS THREE BILLION
TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND
SEVENTEEN CENTAVOS (P3,233,104,173.17) AND DEPOSITING
THE SAME UNDER HIS ACCOUNT 'JOSE VELARDE' AT THE
EQUITABLE-PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous as
there is obviously none that will confuse petitioner in his defense.
Although subject to proof, these factual assertions clearly show that
the elements of the crime are easily understood and provide adequate
contrast between the innocent and the prohibited acts. Upon such
unequivocal assertions, petitioner is completely informed of the

accusations against him as to enable him to prepare for an intelligent

defense. aCSEcA
Petitioner, however, bewails the failure of the law to provide for the
statutory definition of the terms "combination" and "series" in the key
phrase "a combination or series of overt or criminal acts" found in
Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These
omissions, according to petitioner, render the Plunder Law
unconstitutional for being impermissibly vague and overbroad and
deny him the right to be informed of the nature and cause of the
accusation against him, hence, violative of his fundamental right to
due process.
The rationalization seems to us to be pure sophistry. A statute is not
rendered uncertain and void merely because general terms are used
therein, or because of the employment of terms without defining them;
6 much less do we have to define every word we use. Besides, there
is no positive constitutional or statutory command requiring the
legislature to define each and every word in an enactment. Congress
is not restricted in the form of expression of its will, and its inability to
so define the words employed in a statute will not necessarily result in
the vagueness or ambiguity of the law so long as the legislative will is
clear, or at least, can be gathered from the whole act, which is
distinctly expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words
of a statute will be interpreted in their natural, plain and ordinary
acceptation and signification, 7 unless it is evident that the legislature
intended a technical or special legal meaning to those words 8 The
intention of the lawmakers who are, ordinarily, untrained
philologists and lexicographers to use statutory phraseology in
such a manner is always presumed. Thus, Webster's New Collegiate
Dictionary contains the following commonly accepted definition of the
words "combination" and "series:"
Combination the result or product of combining; the act or process
of combining. To combine is to bring into such close relationship as to
obscure individual characters.
Series a number of things or events of the same class coming one
after another in spatial and temporal succession.

314
That Congress intended the words "combination" and "series" to be
understood in their popular meanings is pristinely evident from the
legislative deliberations on the bill which eventually became RA 7080
or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE,
7 May 1991
REP. ISIDRO: I am just intrigued again by our definition of plunder.
We say THROUGH A COMBINATION OR SERIES OF OVERT OR
CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now
when we say combination, we actually mean to say, if there are two or
more means, we mean to say that number one and two or number
one and something else are included, how about a series of the same
act? For example, through misappropriation, conversion, misuse, will
these be included also?
REP. GARCIA:

Two.

SEN. TAADA:

So that would fall under the term "series?"

REP. GARCIA:

Series, oo.

REP. ISIDRO: Now, if it is a combination, ano, two misappropriations .

..

Yes.

REP. GARCIA:

Yes.

SEN. TAADA:

Two different.

REP. ISIDRO: Two different acts.

REP. GARCIA:

For example, ha . . .

DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

REP. ISIDRO: Not twice?

Combination

is

not

twice

but

REP. ISIDRO: So in other words, that's it. When we say combination,

we mean, two different acts. It cannot be a repetition of the same act.
REP. GARCIA:

Series One after the other eh di . . .

REP. ISIDRO: Now a series, meaning, repetition . . .

No, no, not twice.

REP. GARCIA:
Yes.
combination, two acts.

REP. GARCIA:

REP. ISIDRO: When you say combination, two different?

Yes.

REP. ISIDRO: Not only two but we seem to mean that two of the
enumerated means not twice of one enumeration.
REP. GARCIA:

REP. GARCIA:
Yes, this distinguishes it really from ordinary
crimes. That is why, I said, that is a very good suggestion because if it
is only one act, it may fall under ordinary crime but we have here a
combination or series of overt or criminal acts. So . . .

REP. GARCIA:

REP. ISIDRO: When we say combination, it seems that

REP. GARCIA:

REP. ISIDRO: That's not series. Its a combination. Because when we

say combination or series, we seem to say that two or more, di ba?

REP. ISIDRO: So, it is not a combination?

Yeah, we include series.

REP. ISIDRO: But we say we begin with a combination.

REP. GARCIA:

A series.

REP. GARCIA:
Its not . . . Two misappropriations will not be
combination. Series.

Yeah, because we say a series.

REP. ISIDRO: Series.

REP. GARCIA:

REP. GARCIA:

That be referred to series, yeah.

REP. ISIDRO: No, no. Supposing one act is repeated, so there are
two.

SENATOR MACEDA: In line with our interpellations that sometimes

"one" or maybe even "two" acts may already result in such a big
amount, on line 25, would the Sponsor consider deleting the words "a
series of overt or," to read, therefore: "or conspiracy COMMITTED by
criminal acts such as." Remove the idea of necessitating "a series."
Anyway, the criminal acts are in the plural.
SENATOR TAADA: That would mean a combination of two or more
of the acts mentioned in this.

315
THE PRESIDENT:

Probably two or more would be . . . .

SENATOR MACEDA: Yes, because "a series" implies several or

many; two or more.
SENATOR TAADA: Accepted, Mr. President . . . .
THE PRESIDENT:
If there is only one, then he has to be
prosecuted under the particular crime. But when we say "acts of
plunder" there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by
existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to
at least two (2) acts falling under different categories of enumeration
provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1,
par. (d), subpar. (1), and fraudulent conveyance of assets belonging to
the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a "series" there must be two (2) or
more overt or criminal acts falling under the same category of
enumeration found in Sec. 1, par. (d), say, misappropriation,
malversation and raids on the public treasury, all of which fall under
Sec 1, par. (d), subpar. (1). Verily, had the legislature intended a
technical or distinctive meaning for "combination" and "series," it
would have taken greater pains in specifically providing for it in the
law.
As for "pattern," we agree with the observations of the Sandiganbayan
9 that this term is sufficiently defined in Sec. 4, in relation to Sec. 1,
par. (d), and Sec. 2
. . . . under Sec. 1 (d) of the law, a 'pattern' consists of at least a
combination or series of overt or criminal acts enumerated in
subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of
the law, the pattern of overt or criminal acts is directed towards a
common purpose or goal which is to enable the public officer to
amass, accumulate or acquire ill-gotten wealth. And thirdly, there must
either be an 'overall unlawful scheme' or 'conspiracy' to achieve said
common goal. As commonly understood, the term 'overall unlawful
scheme' indicates a 'general plan of action or method' which the
principal accused and public officer and others conniving with him,
follow to achieve the aforesaid common goal. In the alternative, if

there is no such overall scheme or where the schemes or methods

used by multiple accused vary, the overt or criminal acts must form
part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a
fair warning and sufficient notice of what it seeks to penalize. Under
the circumstances, petitioner's reliance on the "void-for-vagueness"
doctrine is manifestly misplaced. The doctrine has been formulated in
various ways, but is most commonly stated to the effect that a statute
establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against
that specie of legislation that is utterly vague on its face, i.e., that
which cannot be clarified either by a saving clause or by construction.
aSAHCE
A statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence must
necessarily guess at its meaning and differ in its application. In such
instance, the statute is repugnant to the Constitution in two (2)
respects it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what conduct to
avoid; and, it leaves law enforcers unbridled discretion in carrying out
its provisions and becomes an arbitrary flexing of the Government
muscle. 10 But the doctrine does not apply as against legislations that
are merely couched in imprecise language but which nonetheless
specify a standard though defectively phrased; or to those that are
apparently ambiguous yet fairly applicable to certain types of
activities. The first may be "saved" by proper construction, while no
challenge may be mounted as against the second whenever directed
against such activities. 11 With more reason, the doctrine cannot be
invoked where the assailed statute is clear and free from ambiguity,
as in this case.
The test in determining whether a criminal statute is void for
uncertainty is whether the language conveys a sufficiently definite
warning as to the proscribed conduct when measured by common
understanding and practice. 12 It must be stressed, however, that the
"vagueness" doctrine merely requires a reasonable degree of
certainty for the statute to be upheld not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility,
rather than meticulous specificity, is permissible as long as the metes

316
and bounds of the statute are clearly delineated. An act will not be
held invalid merely because it might have been more explicit in its
wordings or detailed in its provisions, especially where, because of
the nature of the act, it would be impossible to provide all the details in
advance as in all other statutes. ESCacI
Moreover, we agree with, hence we adopt, the observations of Mr.
Justice Vicente V. Mendoza during the deliberations of the Court that
the allegations that the Plunder Law is vague and overbroad do not
justify a facial review of its validity
The void-for-vagueness doctrine states that "a statute which either
forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ
as to its application, violates the first essential of due process of law."
13 The overbreadth doctrine, on the other hand, decrees that "a
governmental purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms.'' 14
A facial challenge is allowed to be made to a vague statute and to one
which is overbroad because of possible "chilling effect" upon
protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests itself
as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity.' 15 The possible harm to society in
permitting some unprotected speech to go unpunished is outweighed
by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory
effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if
facial challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of
free speech.

The overbreadth and vagueness doctrines then have special

application only to free speech cases. They are inapt for testing the
validity of penal statutes. As the U.S. Supreme Court put it, in an
opinion by Chief Justice Rehnquist, "we have not recognized an
'overbreadth' doctrine outside the limited context of the First
Amendment." 16 In Broadrick v Oklahoma, 17 the Court ruled that
"claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words"
and, again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought
to be applied to protected conduct." For this reason, it has been held
that "a facial challenge to a legislative act is the most difficult
challenge to mount successfully, since the challenger must establish
that no set of circumstances exists under which the Act would be
valid." 18 As for the vagueness doctrine, it is said that a litigant may
challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to
the conduct of others.'' 19
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness
are analytical tools developed for testing "on their faces" statutes in
free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is
involved is a criminal statute. With respect to such statute, the
established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or other
situations in which its application might be unconstitutional." 20 As
has been pointed out, "vagueness challenges in the First Amendment
context, like overbreadth challenges typically produce facial
invalidation, while statutes found vague as a matter of due process
typically are invalidated [only] 'as applied' to a particular defendant.''
21 Consequently, there is no basis for petitioner's claim that this Court
review the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them
down entirely on the ground that they might be applied to parties not
before the Court whose activities are constitutionally protected. 22 It
constitutes a departure from the case and controversy requirement of
the Constitution and permits decisions to be made without concrete

317
factual settings and in sterile abstract contexts. 23 But, as the U.S.
Supreme Court pointed out in Younger v. Harris 24
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put
into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis
of detailed statutes, . . . ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever
way they might be decided.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed "sparingly
and only as a last resort," 25 and is generally disfavored. 26 In
determining the constitutionality of a statute, therefore, its provisions
which are alleged to have been violated in a case must be examined
in the light of the conduct with which the defendant is charged. 27
In light of the foregoing disquisition, it is evident that the purported
ambiguity of the Plunder Law, so tenaciously claimed and argued at
length by petitioner, is more imagined than real. Ambiguity, where
none exists, cannot be created by dissecting parts and words in the
statute to furnish support to critics who cavil at the want of scientific
precision in the law. Every provision of the law should be construed in
relation and with reference to every other part. To be sure, it will take
more than nitpicking to overturn the well-entrenched presumption of
constitutionality and validity of the Plunder Law. A fortiori, petitioner
cannot feign ignorance of what the Plunder Law is all about. Being
one of the Senators who voted for its passage, petitioner must be
aware that the law was extensively deliberated upon by the Senate
and its appropriate committees by reason of which he even registered
his affirmative vote with full knowledge of its legal implications and
sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan 28 must be mentioned
if only to illustrate and emphasize the point that courts are loathed to
declare a statute void for uncertainty unless the law itself is so
imperfect and deficient in its details, and is susceptible of no
reasonable construction that will support and give it effect. In that
case, petitioners Gallego and Agoncillo challenged the

constitutionality of Sec. 3, par. (e), of The Anti-Graft and Corrupt

Practices Act for being vague. Petitioners posited, among others, that
the term "unwarranted" is highly imprecise and elastic with no
common law meaning or settled definition by prior judicial or
administrative precedents; that, for its vagueness, Sec. 3, par. (e),
violates due process in that it does not give fair warning or sufficient
notice of what it seeks to penalize. Petitioners further argued that the
Information charged them with three (3) distinct offenses, to wit: (a)
giving of "unwarranted" benefits through manifest partiality; (b) giving
of 'unwarranted" benefits through evident bad faith; and, (c) giving of
"unwarranted" benefits through gross inexcusable negligence while in
the discharge of their official function and that their right to be
informed of the nature and cause of the accusation against them was
violated because they were left to guess which of the three (3)
offenses, if not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The
Anti-Graft and Corrupt Practices Act does not suffer from the
constitutional defect of vagueness. The phrases "manifest partiality,"
"evident bad faith," and "gross and inexcusable negligence" merely
describe the different modes by which the offense penalized in Sec. 3,
par. (e), of the statute may be committed, and the use of all these
phrases in the same Information does not mean that the indictment
charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or
official support; unjustified; unauthorized (Webster, Third International
Dictionary, p. 2514); or without justification or adequate reason
(Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405
F. Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol.
43-A 1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act
consider a corrupt practice and make unlawful the act of the public
officer in:
. . . or giving any private party any unwarranted benefits, advantage or
preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence, . . . (Section 3 [e], Rep. Act 3019, as
amended).

318
It is not at all difficult to comprehend that what the aforequoted penal
provisions penalize is the act of a public officer, in the discharge of his
official, administrative or judicial functions, in giving any private party
benefits, advantage or preference which is unjustified, unauthorized or
without justification or adequate reason, through manifest partiality,
evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or
ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of
The Anti-Graft and Corrupt Practices Act, which was understood in its
primary and general acceptation. Consequently, in that case,
petitioners' objection thereto was held inadequate to declare the
section unconstitutional.
On the second issue, petitioner advances the highly stretched theory
that Sec. 4 of the Plunder Law circumvents the immutable obligation
of the prosecution to prove beyond reasonable doubt the predicate
acts constituting the crime of plunder when it requires only proof of a
pattern of overt or criminal acts showing unlawful scheme or
conspiracy
SEC. 4.
Rule of Evidence. For purposes of establishing the
crime of plunder, it shall not be necessary to prove each and every
criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth, it being
sufficient to establish beyond reasonable doubt a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy.
TcHCDI
The running fault in this reasoning is obvious even to the simplistic
mind. In a criminal prosecution for plunder, as in all other crimes, the
accused always has in his favor the presumption of innocence which
is guaranteed by the Bill of Rights, and unless the State succeeds in
demonstrating by proof beyond reasonable doubt that culpability lies,
the accused is entitled to an acquittal. 29 The use of the "reasonable
doubt" standard is indispensable to command the respect and
confidence of the community in the application of criminal law. It is
critical that the moral force of criminal law be not diluted by a standard
of proof that leaves people in doubt whether innocent men are being
condemned. It is also important in our free society that every
individual going about his ordinary affairs has confidence that his
government cannot adjudge him guilty of a criminal offense without

convincing a proper factfinder of his guilt with utmost certainty. This

"reasonable doubt" standard has acquired such exalted stature in the
realm of constitutional law as it gives life to the Due Process Clause
which protects the accused against conviction except upon proof
beyond reasonable doubt of every fact necessary to constitute the
crime with which he is charged. 30 The following exchanges between
Rep. Rodolfo Albano and Rep. Pablo Garcia on this score during the
deliberations in the floor of the House of Representatives are
elucidating
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA
7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal
law that what is alleged in the information must be proven beyond
reasonable doubt. If we will prove only one act and find him guilty of
the other acts enumerated in the information, does that not work
against the right of the accused especially so if the amount
committed, say, by falsification is less than P100 million, but the
totality of the crime committed is P100 million since there is
malversation, bribery, falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information
needs to be proved beyond reasonable doubt. What is required to be
proved beyond reasonable doubt is every element of the crime
charged. For example, Mr. Speaker, there is an enumeration of the
things taken by the robber in the information three pairs of pants,
pieces of jewelry. These need not be proved beyond reasonable
doubt, but these will not prevent the conviction of a crime for which he
was charged just because, say, instead of 3 pairs of diamond earrings
the prosecution proved two. Now, what is required to be proved
beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in
the crime of plunder the totality of the amount is very important, I feel
that such a series of overt criminal acts has to be taken singly. For
instance, in the act of bribery, he was able to accumulate only
P50,000 and in the crime of extortion, he was only able to accumulate
P1 million. Now, when we add the totality of the other acts as required
under this bill through the interpretation on the rule of evidence, it is
just one single act, so how can we now convict him?

319
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving
an essential element of the crime, there is a need to prove that
element beyond reasonable doubt. For example, one essential
element of the crime is that the amount involved is P100 million. Now,
in a series of defalcations and other acts of corruption in the
enumeration the total amount would be P110 or P120 million, but
there are certain acts that could not be proved, so, we will sum up the
amounts involved in those transactions which were proved. Now, if the
amount involved in these transactions, proved beyond reasonable
doubt, is P100 million, then there is a crime of plunder (emphasis
supplied).
It is thus plain from the foregoing that the legislature did not in any
manner refashion the standard quantum of proof in the crime of
plunder. The burden still remains with the prosecution to prove
beyond any iota of doubt every fact or element necessary to constitute
the crime.
The thesis that Sec. 4 does away with proof of each and every
component of the crime suffers from a dismal misconception of the
import of that provision. What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to form a
combination or series which would constitute a pattern and involving
an amount of at least P50,000,000.00. There is no need to prove each
and every other act alleged in the Information to have been committed
by the accused in furtherance of the overall unlawful scheme or
conspiracy to amass, accumulate or acquire ill- gotten wealth. To
illustrate, supposing that the accused is charged in an Information for
plunder with having committed fifty (50) raids on the public treasury.
The prosecution need not prove all these fifty (50) raids, it being
sufficient to prove by pattern at least two (2) of the raids beyond
reasonable doubt provided only that they amounted to at least
P50,000,000.00. 31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical
conclusion that "pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy" inheres in the very acts of
accumulating, acquiring or amassing hidden wealth. Stated otherwise,
such pattern arises where the prosecution is able to prove beyond
reasonable doubt the predicate acts as defined in Sec. 1, par. (d).
Pattern is merely a by-product of the proof of the predicate acts. This
conclusion is consistent with reason and common sense. There would

be no other explanation for a combination or series of overt or criminal

acts to stash P50,000,000.00 or more, than "a scheme or conspiracy
to amass, accumulate or acquire ill gotten wealth. The prosecution is
therefore not required to make a deliberate and conscious effort to
prove pattern as it necessarily follows with the establishment of a
series or combination of the predicate acts. DaHISE
Relative to petitioner's contentions on the purported defect of Sec. 4 is
his submission that "pattern" is "a very important element of the crime
of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule of
evidence and a substantive element of the crime,' such that without it
the accused cannot be convicted of plunder
JUSTICE BELLOSILLO:
In other words, cannot an accused be
convicted under the plunder law without applying Section 4 on the
Rule of Evidence if there is proof beyond reasonable doubt of the
commission of the acts complained of?
ATTY. AGABIN:
In that case he can be convicted of individual
crimes enumerated in the Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO:
In other words, if all the elements of the
crime are proved beyond reasonable doubt without applying Section
4, can you not have a conviction under the Plunder Law?
ATTY. AGABIN:

Not a conviction for plunder, your Honor.

JUSTICE BELLOSILLO:
Can you not disregard the application of
Sec. 4 in convicting an accused charged for violation of the Plunder
Law?
ATTY. AGABIN:
Well, your Honor, in the first place Section 4
lays down a substantive element of the law . . . .
JUSTICE BELLOSILLO:
What I said is do we have to avail of
Section 4 when there is proof beyond reasonable doubt on the acts
charged constituting plunder?
ATTY. AGABIN:
Yes, your Honor, because Section 4 is two
pronged, it contains a rule of evidence and it contains a substantive
element of the crime of plunder. So, there is no way by which we can
avoid Section 4.

320
JUSTICE BELLOSILLO:
But there is proof beyond reasonable
doubt insofar as the predicate crimes charged are concerned that you
do not have to go that far by applying Section 4?
ATTY. AGABIN:
Your Honor, our thinking is that Section 4
contains a very important element of the crime of plunder and that
cannot be avoided by the prosecution. 32
We do not subscribe to petitioner's stand. Primarily, all the essential
elements of plunder can be culled and understood from its definition in
Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of them.
Moreover, the epigraph and opening clause of Sec. 4 is clear and
unequivocal:
SEC. 4.
Rule of Evidence For purposes of establishing the
crime of plunder . . . .
It purports to do no more than prescribe a rule of procedure for the
prosecution of a criminal case for plunder. Being a purely procedural
measure, Sec. 4 does not define or establish any substantive right in
favor of the accused but only operates in furtherance of a remedy. It is
only a means to an end, an aid to substantive law. Indubitably, even
without invoking Sec. 4, a conviction for plunder may be had, for what
is crucial for the prosecution is to present sufficient evidence to
engender that moral certitude exacted by the fundamental law to
prove the guilt of the accused beyond reasonable doubt. Thus, even
granting for the sake of argument that Sec. 4 is flawed and vitiated for
the reasons advanced by petitioner, it may simply be severed from the
rest of the provisions without necessarily resulting in the demise of the
law; after all, the existing rules on evidence can supplant Sec. 4 more
than enough. Besides, Sec. 7 of RA 7080 provides for a separability
clause
Sec. 7. Separability of Provisions. If any provisions of this Act or the
application thereof to any person or circumstance is held invalid, the
remaining provisions of this Act and the application of such provisions
to other persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from
being declared invalid as a result of the nullity of some of its
provisions, assuming that to be the case although it is not really so, all
the provisions thereof should accordingly be treated independently of

each other, especially if by doing so, the objectives of the statute can
best be achieved. aETAHD
As regards the third issue, again we agree with Justice Mendoza that
plunder is a malum in se which requires proof of criminal intent. Thus,
he says, in his Concurring Opinion
. . . Precisely because the constitutive crimes are mala in se the
element of mens rea must be proven in a prosecution for plunder. It is
noteworthy that the amended information alleges that the crime of
plunder was committed "willfully, unlawfully and criminally." It thus
alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement
of mens rea and that is the reason he claims the statute is void,
petitioner cites the following remarks of Senator Taada made during
the deliberation on S.B. No. 733:
SENATOR TAADA . . . And the evidence that will be required to
convict him would not be evidence for each and every individual
criminal act but only evidence sufficient to establish the conspiracy or
scheme to commit this crime of plunder. 33
However, Senator Taada was discussing 4 as shown by the
succeeding portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it
is contained in Section 4, Rule of Evidence, which, in the Gentleman's
view, would provide for a speedier and faster process of attending to
this kind of cases?
SENATOR TAADA: Yes, Mr. President . . . 34 Senator Taada was
only saying that where the charge is conspiracy to commit plunder,
the prosecution need not prove each and every criminal act done to
further the scheme or conspiracy, it being enough if it proves beyond
reasonable doubt a pattern of overt or criminal acts indicative of the
overall unlawful scheme or conspiracy. As far as the acts constituting
the pattern are concerned, however, the elements of the crime must
be proved and the requisite mens rea must be shown. IaECcH
Indeed, 2 provides that
Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties,

321
the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code,
shall be considered by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law
indicates quite clearly that mens rea is an element of plunder since
the degree of responsibility of the offender is determined by his
criminal intent. It is true that 2 refers to "any person who participates
with the said public officer in the commission of an offense
contributing to the crime of plunder." There is no reason to believe,
however, that it does not apply as well to the public officer as principal
in the crime. As Justice Holmes said: "We agree to all the generalities
about not supplying criminal laws with what they omit, but there is no
canon against using common sense in construing laws as saying what
they obviously mean." 35
Finally, any doubt as to whether the crime of plunder is a malum in se
must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring
to these groups of heinous crimes, this Court held in People v.
Echegaray. 36
The evil of a crime may take various forms. There are crimes that are,
by their very nature, despicable, either because life was callously
taken or the victim is treated like an animal and utterly dehumanized
as to completely disrupt the normal course of his or her growth as a
human being . . . . Seen in this light, the capital crimes of kidnapping
and serious illegal detention for ransom resulting in the death of the
victim or the victim is raped, tortured, or subjected to dehumanizing
acts; destructive arson resulting in death; and drug offenses involving
minors or resulting in the death of the victim in the case of other
crimes; as well as murder, rape, parricide, infanticide, kidnapping and
serious illegal detention, where the victim is detained for more than
three days or serious physical injuries were inflicted on the victim or
threats to kill him were made or the victim is a minor, robbery with
homicide, rape or intentional mutilation, destructive arson, and
carnapping where the owner, driver or occupant of the carnapped
vehicle is killed or raped, which are penalized by reclusion perpetua to
death, are clearly heinous by their very nature.

There are crimes, however, in, which the abomination lies in the
significance and implications of the subject criminal acts in the
scheme of the larger socio-political and economic context in which the
state finds itself to be struggling to develop and provide for its poor
and underprivileged masses. Reeling from decades of corrupt
tyrannical rule that bankrupted the government and impoverished the
population, the Philippine Government must muster the political will to
dismantle the culture of corruption, dishonesty, greed and syndicated
criminality that so deeply entrenched itself in the structures of society
and the psyche of the populace. [With the government] terribly lacking
the money to provide even the most basic services to its people, any
form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and
in turn, the very survival of the people it governs over. Viewed in this
context, no less heinous are the effect and repercussions of crimes
like qualified bribery, destructive arson resulting in death, and drug
offenses involving government official, employees or officers, that their
perpetrators must not be allowed to cause further destruction and
damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous
offense implies that it is a malum in se. For when the acts punished
are inherently immoral or inherently wrong, they are mala in se 37 and
it does not matter that such acts are punished in a special law,
especially since in the case of plunder the predicate crimes are mainly
mala in se. Indeed, it would be absurd to treat prosecutions for
plunder as though they are mere prosecutions for violations of the
Bouncing Check Law (B.P. Blg. 22) or of an ordinance against
jaywalking, without regard to the inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the
amendatory law of RA 7080, on constitutional grounds. Suffice it to
say however that it is now too late in the day for him to resurrect this
long dead issue, the same having been eternally consigned by People
v. Echegaray 38 to the archives of jurisprudential history. The
declaration of this Court therein that RA 7659 is constitutionally valid
stands as a declaration of the State, and becomes, by necessary
effect, assimilated in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene
profligacy of officials in high places which have shaken its very
foundation. The anatomy of graft and corruption has become more

322
elaborate in the corridors of time as unscrupulous people relentless]y
contrive more and more ingenious ways to bilk the coffers of the
government. Drastic and radical measures are imperative to fight the
increasingly
sophisticated,
extraordinarily
methodical
and
economically catastrophic looting of the national treasury. Such is the
Plunder Law, especially designed to disentangle those ghastly tissues
of grand-scale corruption which, if left unchecked, will spread like a
malignant tumor and ultimately consume the moral and institutional
fiber of our nation. The Plunder Law, indeed, is a living testament to
the will of the legislature to ultimately eradicate this scourge and thus
secure society against the avarice and other venalities in public office.
HScDIC
These are times that try men's souls. In the checkered history of this
nation, few issues of national importance can equal the amount of
interest and passion generated by petitioner's ignominious fall from
the highest office, and his eventual prosecution and trial under a
virginal statute. This continuing saga has driven a wedge of
dissension among our people that may linger for a long time. Only by
responding to the clarion call for patriotism, to rise above factionalism
and prejudices, shall we emerge triumphant in the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise
known as the Plunder Law, as amended by RA 7659, is
CONSTITUTIONAL. Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.
SO ORDERED.

323
THIRD DIVISION
[G.R. No. 131124. March 29, 1999.]
OSMUNDO G. UMALI, petitioner, vs. EXECUTIVE SECRETARY
TEOFISTO T. GUINGONA JR., CHAIRMAN, PRESIDENTIAL
COMMISSION AGAINST GRAFT AND CORRUPTION, THE
SECRETARY OF FINANCE, AND THE COMMISSIONER OF
INTERNAL REVENUE, respondents.
RESOLUTION
PURISIMA, J p:
At bar is a petition for review under Rule 45 of the Revised Rules of
Court assailing the decision of the Court of Appeals dated April 8,
1997, which set aside the Amended Decision dated December 13,
1995 of the Regional Trial Court of Makati in Civil Case No. 94-3079,
and dismissed the petition for Certiorari, Prohibition and Injunction
brought by petitioner against the respondents.
The antecedent facts leading to the filing of the present petition are as
follows:
On October 27, 1993, petitioner Osmundo Umali was appointed
Regional Director of the Bureau of Internal Revenue by the then
President Fidel V. Ramos. He was assigned in Manila, from
November 29, 1993 to March 15, 1994, and in Makati, from March 16,
1994 to August 4, 1994.
On August 1, 1994, President Ramos received a confidential
memorandum against the petitioner for alleged violations of internal
revenue laws, rules and regulations during his incumbency as
Regional Director, more particularly the following malfeasance,
misfeasance and nonfeasance, to wit:
A.
Issuance of Letters of Authority (LA's) to investigate taxpayers
despite the ban on investigations as ordered in Revenue

Memorandum Order No. 31-93. In numerous cases, revenue officers

whose names appeared in the LA's as investigating officers were
unaware that such LA's were issued to them. He issued LA's to
favored revenue examiners such as his Secretary, Natividad
Feliciano;
B.
Termination of tax cases without the submission of the
required investigation reports, thus exempting the same from
examination and review;
C.
Terminated cases with reports were submitted directly to and
approved by respondent Umali without being reviewed by the
Assessment Division, thus eliminating the check and balance
mechanism designed to guard against abuses or errors;
D.
Unlawful issuance of LA's to taxpayers who were thereafter
convinced to avail of the BIR's compromise and abatement program
under RMO's 45093 and 54-93, for which the taxpayers were made,
for a monetary consideration, to pay smaller amounts in lieu of being
investigated;
E.
Despite the devolution of the authority to issue LA's from
Regional Directors to the Revenue District Officers under RMO 26-94,
dated April 14, 1994, respondent Umali continued to issue antedated
LA's in absolute defiance of the aforesaid issuance, using old LA's
requisitioned by him when still Regional Director of San Pablo Region.
In one instance, he issued a termination letter bearing the San Pablo
Region letterhead even when he was already Makati Regional
Director; and
F.
In his attempt to cover up his tracks and to muddle the real
issue of his violations of the ban in the issuance of LA's and basic
revenue rules and regulations, respondent enlisted the support of
other regional directors for the purpose of questioning particularly the
devolution/centralization of the functions of the Bureau. 1
On August 2, 1994, upon receipt of the said confidential
memorandum, former President Ramos authorized the issuance of an
Order for the preventive suspension of Umali and immediately
referred the Complaint against the latter to the Presidential
Commission on Anti-Graft and Corruption ( PCAGC ), for
investigation.

324
Petitioner was duly informed of the charges against him. In its Order,
dated August 9, 1994, the PCAGC directed him to send in his answer,
copies of his Statement of Assets and Liabilities for the past three
years (3), and Personal Data Sheet. Initial hearing was set on August
25, 1994, at 2:00 p.m., at the PCAGC Office. On August 23, the
petitioner filed his required Answer.
On August 25, 1994, petitioner appeared with his lawyer, Atty.
Bienvenido Santiago before the PCAGC. Counsel for the
Commissioner of Internal Revenue submitted a Progress Report,
dated August 24, 1994, on the audit conducted on the petitioner. As
prayed for, petitioner and his lawyer were granted five (5) days to file
a supplemental answer.
The hearing was reset to August 30, 1994, during which the parties
were given a chance to ask clarificatory questions. Petitioner and his
counsel did not ask any question on the genuineness and authenticity
of the documents attached as annexes to the Complaint. Thereafter,
the parties agreed to submit the case for resolution upon the
presentation of their respective memoranda.
Petitioner filed his Memorandum on September 6, 1994 while the BIR
sent in its Memorandum on the following day.
After evaluating the evidence on record, the PCAGC issued its
Resolution of September 23, 1994, finding a prima facie evidence to
support six (6) of the twelve (12) charges against petitioner, to wit:
1.
On the First Charge Respondent issued 176 Letters of
Authority in gross disobedience to and in violation of RMOs 31-93 and
27-94.
xxx

xxx

xxx

3.
On the Third Charge There is sufficient evidence of a prima
facie case of falsification of official documents as defined in Art. 171,
par. 2 and 4 of the Revised Penal Code, against the respondent for
the issuance of 9 LA's and who did not investigate the tax cases, each
LA being a separate offense.
xxx

xxx

xxx

7.
On the Seventh Charge There is sufficient evidence of a
prima facie case of falsification of official documents against
respondent for antedating the four LA's cited in the charge, each LA

constituting a separate offense, under Art. 171 (4) of the Revised

Penal Code.
8.
On the Ninth (sic) Charge There is sufficient evidence to
support a prima facie case of falsification of an official document
under Art. 171 (4) of the Revised Penal Code against the respondent
in the tax case of Richfield International Corp., Inc. for indicating a
false date on the letter of termination he issued to the company. There
is, however, insufficient evidence against respondent in the other tax
case of Jayson Auto Supply Co.
9.
On the Ninth Charge There is sufficient evidence of a prima
facie case of falsification of official documents in each of the two tax
cases cited in his charge, under the provisions of Art. 171 (4) of the
Revised Penal Code, as the dates of Termination Letters were false.
10.
On the Tenth Charge Respondent, by his own admission,
violated RMO 36-87 requiring turn over of all properties and forms to
his successor upon transfer as head of office, and RMO 27-94
requiring the surrender of all unused old forms of Letters of Authority.
The Commission noted the defiant attitude of respondent, as
expressed in his admission, towards valid and legal orders of the BIR,
and his propensity to defy and ignore such orders and regulations. 2
xxx

xxx

xxx

On October 6, 1994, acting upon the recommendation of the PCAGC,

then President Ramos issued Administrative Order No. 152
dismissing petitioner from the service, with forfeiture of retirement and
all benefits under the law.
On October 24, 1994, the petitioner moved for reconsideration of his
dismissal but the Office of the President denied the motion for
reconsideration on November 28, 1994.
On December 1, 1994, petitioner brought a Petition for Certiorari,
Prohibition and Injunction, docketed as Civil Case No. 94-3079 before
the Regional Trial Court of Makati, alleging, among others:
I.
That the petitioner was suspended and dismissed from the
service in violation of his constitutional right to due process of law;
and
II.
That the constitutional right of the petitioner to security of
tenure was violated by the respondents.

325
The case was raffled off to Branch 133 of the Regional Trial Court in
Makati, which issued on December 2, 1994, a Temporary Restraining
Order, enjoining the respondents and/or their representatives from
enforcing Administrative Order No. 152, and directing the parties to
observe the status quo until further orders from the said Court.
On December 23, 1994, the said Regional Trial Court dismissed the
petition. On January 10, 1995, the petitioner presented a motion for
reconsideration, this time, theorizing that the Presidential Commission
on Anti-Graft and Corruption is an unconstitutional office without
jurisdiction to conduct the investigation against him. cdt
Respondents submitted their Opposition/Comment to the Motion for
Reconsideration. Then, the petitioner filed a Motion to Inhibit Judge
Inoturan on the ground that the latter was formerly a Solicitor in the
Office of the Solicitor General and could not be expected to decide the
case with utmost impartiality.
The case was then re-raffled to Hon. Teofilo L. Guadiz, Jr. who, on
December 13, 1995, handed down an Amended Decision, granting
the petition and practically reversing the original Decision.
Not satisfied with the Amended Decision of Judge Guadiz, Jr., the
respondents appealed therefrom to the Court of Appeals.
On April 8, 1997, the Ninth Division of the Court of Appeals 3
promulgated its decision, reversing the Amended Decision of the trial
court of origin, and dismissing Civil Case No. 94-3079. Petitioner's
motion for reconsideration met the same fate. It was denied on
October 28, 1997.
Undaunted, petitioner found his way to this Court via the petition
under scrutiny.
In the interim that the administrative and civil cases against the
petitioner were pending, the criminal aspect of such cases was
referred to the Office of the Ombudsman for investigation.
On July 25, 1995, after conducting the investigation, Ombudsman
Investigators Merba Waga and Arnulfo Pelagio issued a Resolution
finding a probable cause and recommending the institution in the
courts of proper jurisdiction criminal cases for Falsification of Public
Documents (13 counts) and Open Disobedience (2 counts) against
the petitioner.

However, acting upon petitioner's motion for reconsideration Special

Prosecution Officer II Lemuel M. De Guzman set aside the said
Resolution of July 25, 1995, and in lieu thereof, dismissed the charges
against petitioner, in the Order dated November 5, 1996, which was
approved by Ombudsman Aniano Desierto. Accordingly, all the
Informations against the petitioner previously sent to the Office of the
City Prosecutor, were recalled.
On August 10, 1998, Commissioner Beethoven L. Rualo of the
Bureau of Internal Revenue sent a letter to the Solicitor General
informing the latter that "the Bureau of Internal Revenue is no longer
interested in pursuing the case against Atty. Osmundo Umali" on the
basis of the comment and recommendation submitted by the Legal
Department of the BIR. 4
Petitioner raised the issues:
1.
WHETHER ADMINISTRATIVE ORDER NO. 152 VIOLATED
PETITIONER'S RIGHT TO SECURITY OF TENURE;
2.
WHETHER PETITIONER WAS DENIED DUE PROCESS IN
THE ISSUANCE OF ADMINISTRATIVE ORDER NO. 152;
3.
WHETHER THE PCAGC IS A VALIDLY CONSTITUTED
GOVERNMENT AGENCY AND WHETHER PETITIONER CAN
RAISE THE ISSUE OF ITS CONSTITUTIONALITY BELATEDLY IN
ITS MOTION FOR RECONSIDERATION OF THE TRIAL COURT'S
DECISION; AND
5.
WHETHER IN THE LIGHT OF THE OMBUDSMAN
RESOLUTION
DISMISSING
THE
CHARGES
AGAINST
PETITIONER, THERE IS STILL BASIS FOR PETITIONER'S
DISMISSAL WITH FORFEITURE OF BENEFITS AS RULED IN
ADMINISTRATIVE ORDER NO. 152.
Petitioner contends that as Regional Director of the Bureau of Internal
Revenue he belongs to the Career Executive Service. Although a
presidential appointee under the direct authority of the President to
discipline, he is a career executive service officer (CESO) with tenurial
protection, who can only be removed for cause. In support of this
theory, petitioner cited the case of Larin vs. Executive Secretary 5
where the Court held:

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". . . petitioner is a presidential appointee who belongs to the career
service of the Civil Service. Being a presidential appointee, he comes
under the direct disciplining authority of the President. This is in line
with the settled principle that the "power to remove is inherent in the
power to appoint" conferred to the President by Section 16, Article VII
of the Constitution. . . . This power of removal, however, is not an
absolute one which accepts no reservation. It must be pointed out that
petitioner is a career service officer. . . Specifically, Section 36 of P.D.
No. 807, as amended, otherwise known as Civil Service Decree of the
Philippines, is emphatic that career service officers and employees
who enjoy security of tenure may be removed only for any of the
causes enumerated in said law. In other words, the fact that petitioner
is a presidential appointee does not give the appointing authority the
license to remove him at will or at his pleasure for it is an admitted fact
that he is likewise a career service officer who under the law is the
recipient of tenurial protection, thus, may only be removed for cause
and in accordance with procedural due process."
Petitioner maintains that as a career executive service officer, he can
only be removed for cause and under the Administrative Code of
1987, 6 loss of confidence is not one of the legal causes or grounds
for removal. Consequently, his dismissal from office on the ground of
loss of confidence violated his right to security of tenure; petitioner
theorized.
After a careful study, we are of the irresistible conclusion that the
Court of Appeals ruled correctly on the first three issues. To be sure,
petitioner was not denied the right to due process before the PCAGC.
Records show that the petitioner filed his answer and other pleadings
with respect to his alleged violation of internal revenue laws and
regulations, and he attended the hearings before the investigatory
body. It is thus decisively clear that his protestation of non-observance
of due process is devoid of any factual or legal basis.
Neither can it be said that there was a violation of what petitioner
asserts as his security of tenure. According to petitioner, as a
Regional Director of Bureau of Internal Revenue, he is a CESO
eligible entitled to security of tenure. However, petitioner's claim of
CESO eligibility is anemic of evidentiary support. It was incumbent
upon him to prove that he is a CESO eligible but unfortunately, he
failed to adduce sufficient evidence on the matter. His failure to do so
is fatal.

As regards the issue of constitutionality of the PCAGC, it was only

posed by petitioner in his motion for reconsideration before the
Regional Trial Court of Makati. It was certainly too late to raise the
said issue for the first time at such late stage of the proceedings
below.
How about the fourth issue, whether in view of the Resolution of the
Ombudsman dismissing the charges against petitioner, there still
remains a basis for the latter's dismissal with forfeiture of benefits, as
directed in Administrative Order No. 152?
It is worthy to note that in the case under consideration, the
administrative action against the petitioner was taken prior to the
institution of the criminal case. The charges included in Administrative
Order No. 152 were based on the results of investigation conducted
by the PCAGC and not on the criminal charges before the
Ombudsman.
In sum, the petition is dismissable on the ground that the issues
posited by the petitioner do not constitute a valid legal basis for
overturning the finding and conclusion arrived at by the Court of
Appeals. However, taking into account the antecedent facts and
circumstances aforementioned, the Court, in the exercise of its equity
powers, has decided to consider the dismissal of the charges against
petitioner before the Ombudsman, the succinct, and unmistakable
manifestation by the Commissioner of the Bureau of Internal Revenue
that his office is no longer interested in pursuing the case, and the
position taken by the Solicitor General, 7 that there is no more basis
for Administrative Order No. 152, as effective and substantive
supervening events that cannot be overlooked.
WHEREFORE, in light of the foregoing effective and substantive
supervening events, and in the exercise of its equity powers, the
Court hereby GRANTS the petition. Accordingly, Administrative Order
No. 152 is considered LIFTED, and petitioner can be allowed to retire
with full benefits. No pronouncement as to costs
SO ORDERED.

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EN BANC

The facts of these cases are not in dispute.

1.

[G.R. No. 152895. June 15, 2004.]

OFELIA V. ARCETA, petitioner, vs. The Honorable MA. CELESTINA
C. MANGROBANG, Presiding Judge, Branch 54, Metropolitan Trial
Court of Navotas, Metro Manila, respondent.
[G.R. No. 153151. June 15, 2004.]
GLORIA S. DY, petitioner, vs. The Honorable EDWIN B. RAMIZO,
Presiding Judge, Branch 53, Metropolitan Trial Court of Caloocan City,
respondent.
RESOLUTION

G.R. No. 152895

The City Prosecutor of Navotas, Metro Manila charged Ofelia V.

Arceta with violating B.P. Blg. 22 in an Information, which was
docketed as Criminal Case No. 1599-CR. The accusatory portion of
said Information reads:
That on or about the 16th day of September 1998, in Navotas, Metro
Manila, and within the jurisdiction of this Honorable Court, the abovenamed accused, did then and there wilfully, unlawfully and feloniously
make or draw and issue to OSCAR R. CASTRO, to apply on account
or for value the check described below:
Check No

00082270

Drawn Against :

The Region Bank

In the Amount of

Date

P740,000.00

December 21, 1998

QUISUMBING, J p:

Payable to

For resolution are two consolidated 1 petitions under Rule 65 of the

Rules of Court, for certiorari, prohibition and mandamus, with prayers
for a temporary restraining order. Both assail the constitutionality of
the Bouncing Checks Law, also known as Batas Pambansa Bilang 22.

said accused well-knowing that at the time of issue Ofelia V. Arceta

did not have sufficient funds or credit with the drawee bank for the
payment, which check when presented for payment within ninety (90)
days from the date thereof was subsequently dishonored by the
drawee bank for reason "DRAWN AGAINST INSUFFICIENT FUNDS,"
and despite receipt of notice of such dishonor, the accused failed to
pay said payee with the face amount of said check or to make
arrangement for full payment thereof within five (5) banking days after
receiving notice.

In G.R. No. 152895, petitioner Ofelia V. Arceta prays that we order the
Metropolitan Trial Court (MeTC) of Navotas, Metro Manila, Branch 54,
to cease and desist from hearing Criminal Case No. 1599-CR for
violation of B.P. Blg. 22, and then dismiss the case against her. In
G.R. No. 153151, petitioner Gloria S. Dy also prays that this Court
order the MeTC of Caloocan City to cease and desist from proceeding
with Criminal Case No. 212183, and subsequently dismiss the case
against her. In fine, however, we find that what both petitioners seek is
that the Court should revisit and abandon the doctrine laid down in
Lozano v. Martinez, 2 which upheld the validity of the Bouncing
Checks Law.

Cash

CONTRARY TO LAW. 3
Arceta did not move to have the charge against her dismissed or the
Information quashed on the ground that B.P. Blg. 22 was
unconstitutional. She reasoned out that with the Lozano doctrine still
in place, such a move would be an exercise in futility for it was highly
unlikely that the trial court would grant her motion and thus go against
prevailing jurisprudence.
On October 21, 2002, 4 Arceta was arraigned and pleaded "not guilty"
to the charge. However, she manifested that her arraignment should

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be without prejudice to the present petition or to any other actions she
would take to suspend proceedings in the trial court.

[d]
Does section 2 make BP 22 a debt collecting law under threat
of imprisonment?

Arceta then filed the instant petition.

[e]
Does BP 22 violate the constitutional proscription against
imprisonment for non-payment of debt?

2.

G.R. No. 153151

The Office of the City Prosecutor of Caloocan filed a charge sheet

against Gloria S. Dy for violation of the Bouncing Checks Law,
docketed by the MeTC of Caloocan City as Criminal Case No.
212183. Dy allegedly committed the offense in this wise:
That on or about the month of January 2000 in Caloocan City, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, did then and there wilfully, unlawfully and
feloniously make and issue Check No. 0000329230 drawn against
PRUDENTIAL BANK in the amount of P2,500,000.00 dated January
19, 2000 to apply for value in favor of ANITA CHUA well knowing at
the time of issue that she has no sufficient funds in or credit with the
drawee bank for the payment of such check in full upon its
presentment which check was subsequently dishonored for the
reason "ACCOUNT CLOSED" and with intent to defraud failed and
still fails to pay the said complainant the amount of P2,500,000.00
despite receipt of notice from the drawee bank that said check has
been dishonored and had not been paid.
Contrary to Law. 5
Like Arceta, Dy made no move to dismiss the charges against her on
the ground that B.P. Blg. 22 was unconstitutional. Dy likewise believed
that any move on her part to quash the indictment or to dismiss the
charges on said ground would fail in view of the Lozano ruling.
Instead, she filed a petition with this Court invoking its power of
judicial review to have the said law voided for Constitutional infirmity.
Both Arceta and Dy raise the following identical issues for our
resolution: EHTISC
[a]
Does section 1 really penalize the act of issuing a check
subsequently dishonored by the bank for lack of funds?
[b]
What is the effect if the dishonored check is not paid pursuant
to section 2 of BP 22?
[c]

What is the effect if it is so paid?

[f]

Is BP 22 a valid exercise of the police power of the state? 6

After minute scrutiny of petitioners' submissions, we find that the basic

issue being raised in these special civil actions for certiorari,
prohibition, and mandamus concern the unconstitutionality or invalidity
of B.P. Blg. 22. Otherwise put, the petitions constitute an oblique
attack on the constitutionality of the Bouncing Checks Law, a matter
already passed upon by the Court through Justice (later Chief Justice)
Pedro Yap almost two decades ago. Petitioners add, however, among
the pertinent issues one based on the observable but worrisome
transformation of certain metropolitan trial courts into seeming
collection agencies of creditors whose complaints now clog the court
dockets.
But let us return to basics. When the issue of unconstitutionality of a
legislative act is raised, it is the established doctrine that the Court
may exercise its power of judicial review only if the following requisites
are present: (1) an actual and appropriate case and controversy
exists; (2) a personal and substantial interest of the party raising the
constitutional question; (3) the exercise of judicial review is pleaded at
the earliest opportunity; and (4) the constitutional question raised is
the very lis mota of the case. 7 Only when these requisites are
satisfied may the Court assume jurisdiction over a question of
unconstitutionality or invalidity of an act of Congress. With due regard
to counsel's spirited advocacy in both cases, we are unable to agree
that the abovecited requisites have been adequately met.
Perusal of these petitions reveals that they are primarily anchored on
Rule 65, Section 1 8 of the 1997 Rules of Civil Procedure. In a special
civil action of certiorari the only question that may be raised is whether
or not the respondent has acted without or in excess of jurisdiction or
with grave abuse of discretion. 9 Yet nowhere in these petitions is
there any allegation that the respondent judges acted with grave
abuse of discretion amounting to lack or excess of jurisdiction. A
special civil action for certiorari will prosper only if a grave abuse of
discretion is manifested. 10

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Noteworthy, the instant petitions are conspicuously devoid of any
attachments or annexes in the form of a copy of an order, decision, or
resolution issued by the respondent judges so as to place them
understandably within the ambit of Rule 65. What are appended to the
petitions are only copies of the Informations in the respective cases,
nothing else. Evidently, these petitions for a writ of certiorari,
prohibition and mandamus do not qualify as the actual and
appropriate cases contemplated by the rules as the first requisite for
the exercise of this Court's power of judicial review. For as the
petitions clearly show on their faces petitioners have not come to us
with sufficient cause of action.
Instead, it appears to us that herein petitioners have placed the cart
before the horse, figuratively speaking. Simply put, they have ignored
the hierarchy of courts outlined in Rule 65, Section 4 11 of the 1997
Rules of Civil Procedure. Seeking judicial review at the earliest
opportunity does not mean immediately elevating the matter to this
Court. Earliest opportunity means that the question of
unconstitutionality of the act in question should have been
immediately raised in the proceedings in the court below. Thus, the
petitioners should have moved to quash the separate indictments or
moved to dismiss the cases in the proceedings in the trial courts on
the ground of unconstitutionality of B.P. Blg. 22. But the records show
that petitioners failed to initiate such moves in the proceedings below.
Needless to emphasize, this Court could not entertain questions on
the invalidity of a statute where that issue was not specifically raised,
insisted upon, and adequately argued. 12 Taking into account the
early stage of the trial proceedings below, the instant petitions are
patently premature. SIaHTD
Nor do we find the constitutional question herein raised to be the very
lis mota presented in the controversy below. Every law has in its favor
the presumption of constitutionality, and to justify its nullification, there
must be a clear and unequivocal breach of the Constitution, and not
one that is doubtful, speculative or argumentative. 13 We have
examined the contentions of the petitioners carefully; but they still
have to persuade us that B.P. Blg. 22 by itself or in its implementation
transgressed a provision of the Constitution. Even the thesis of
petitioner Dy that the present economic and financial crisis should be
a basis to declare the Bouncing Checks Law constitutionally infirm
deserves but scant consideration. As we stressed in Lozano, it is

precisely during trying times that there exists a most compelling

reason to strengthen faith and confidence in the financial system and
any practice tending to destroy confidence in checks as currency
substitutes should be deterred, to prevent havoc in the trading and
financial communities. Further, while indeed the metropolitan trial
courts may be burdened immensely by bouncing checks cases now,
that fact is immaterial to the alleged invalidity of the law being
assailed. The solution to the clogging of dockets in lower courts lies
elsewhere.
WHEREFORE, the instant petitions are DISMISSED for utter lack of
merit.
SO ORDERED.

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