1

[G.R. NO. 177597 : July 16, 2008]

BAI SANDRA S. A. SEMA, Petitioner, v. COMMISSION ON
ELECTIONS and DIDAGEN P. DILANGALEN, Respondents.
[G.R. NO. 178628]
PERFECTO
F.
MARQUEZ, Petitioner, v. COMMISSION
ON
ELECTIONS, Respondent.
DECISION
CARPIO, J.:
The Case
These consolidated petitions1 seek to annul Resolution No. 7902,
dated 10 May 2007, of the Commission on Elections (COMELEC)
treating Cotabato City as part of the legislative district of the
Province of Shariff Kabunsuan.2
The Facts
The Ordinance appended to the 1987 Constitution apportioned two
legislative districts for the Province of Maguindanao. The first
legislative district consists of Cotabato City and eight
municipalities.3 Maguindanao forms part of the Autonomous Region
in Muslim Mindanao (ARMM), created under its Organic Act,
Republic Act No. 6734 (RA 6734), as amended by Republic Act No.
9054 (RA 9054).4 Although under the Ordinance, Cotabato City
forms part of Maguindanao's first legislative district, it is not part of
the ARMM but of Region XII, having voted against its inclusion in
the ARMM in the plebiscite held in November 1989.
On 28 August 2006, the ARMM's legislature, the ARMM Regional
Assembly, exercising its power to create provinces under Section
19, Article VI of RA 9054,5 enacted Muslim Mindanao Autonomy Act
No. 201 (MMA Act 201) creating the Province of Shariff Kabunsuan
composed of the eight municipalities in the first district of
Maguindanao. MMA Act 201 provides:
Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat,
Kabuntalan, Matanog, Parang, Sultan Kudarat, Sultan Mastura, and
Upi are hereby separated from the Province of Maguindanao and
constituted into a distinct and independent province, which is
hereby created, to be known as the Province of Shariff Kabunsuan.
xxx
Sec. 5.The corporate existence of this province shall commence
upon the appointment by the Regional Governor or election of the

governor and majority of the regular members of the Sangguniang

Panlalawigan.
The incumbent elective provincial officials of the Province of
Maguindanao shall continue to serve their unexpired terms in the
province that they will choose or where they are residents:
Provided, that where an elective position in both provinces
becomes vacant as a consequence of the creation of the Province
of Shariff Kabunsuan, all incumbent elective provincial officials shall
have preference for appointment to a higher elective vacant
position and for the time being be appointed by the Regional
Governor, and shall hold office until their successors shall have
been elected and qualified in the next local elections; Provided,
further, that they shall continue to receive the salaries they are
receiving at the time of the approval of this Act until the new
readjustment of salaries in accordance with law. Provided,
furthermore, that there shall be no diminution in the number of the
members of the Sangguniang Panlalawigan of the mother province.
Except as may be provided by national law, the existing legislative
district, which includes Cotabato as a part thereof, shall remain.
Later, three new municipalities6 were carved out of the original nine
municipalities constituting Shariff Kabunsuan, bringing its total
number of municipalities to 11. Thus, what was left of Maguindanao
were the municipalities constituting its second legislative district.
Cotabato City, although part of Maguindanao's first legislative
district, is not part of the Province of Maguindanao.
The voters of Maguindanao ratified Shariff Kabunsuan's creation in
a plebiscite held on 29 October 2006.
On 6 February 2007, the Sangguniang Panlungsod of Cotabato City
passed Resolution No. 3999 requesting the COMELEC to "clarify the
status of Cotabato City in view of the conversion of the First District
of Maguindanao into a regular province" under MMA Act 201.
In answer to Cotabato City's query, the COMELEC issued Resolution
No. 07-0407 on 6 March 2007 "maintaining the status quo with
Cotabato City as part of Shariff Kabunsuan in the First Legislative
District of Maguindanao." Resolution No. 07-0407, which adopted
the recommendation of the COMELEC's Law Department under a
Memorandum dated 27 February 2007,7 provides in pertinent parts:

2
Considering the foregoing, the Commission RESOLVED, as it hereby
resolves, to adopt the recommendation of the Law Department
that pending the enactment of the appropriate law by
Congress, to maintain the status quo with Cotabato City as part of
Shariff Kabunsuan in the First Legislative District of Maguindanao.
(Emphasis supplied)cralawlibrary
However, in preparation for the 14 May 2007 elections, the
COMELEC promulgated on 29 March 2007 Resolution No. 7845
stating that Maguindanao's first legislative district is composed only
of Cotabato City because of the enactment of MMA Act 201.8
On 10 May 2007, the COMELEC issued Resolution No. 7902, subject
of these petitions, amending Resolution No. 07-0407 by renaming
the legislative district in question as "Shariff Kabunsuan Province
with Cotabato City (formerly First District of Maguindanao with
Cotabato City)."9 chanrobles virtual law library
In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007
elections for Representative of "Shariff Kabunsuan with Cotabato
City," prayed for the nullification of COMELEC Resolution No. 7902
and the exclusion from canvassing of the votes cast in Cotabato
City for that office. Sema contended that Shariff Kabunsuan is
entitled to one representative in Congress under Section 5 (3),
Article VI of the Constitution10 and Section 3 of the Ordinance
appended to the Constitution.11 Thus, Sema asserted that the
COMELEC acted without or in excess of its jurisdiction in issuing
Resolution No. 7902 which maintained the status quo in
Maguindanao's first legislative district despite the COMELEC's
earlier directive in Resolution No. 7845 designating Cotabato City
as the lone component of Maguindanao's reapportioned first
legislative district.12 Sema further claimed that in issuing Resolution
No. 7902, the COMELEC usurped Congress' power to create or
reapportion legislative districts.
In its Comment, the COMELEC, through the Office of the Solicitor
General (OSG), chose not to reach the merits of the case and
merely contended that (1) Sema wrongly availed of the writ
of certiorari to nullify COMELEC Resolution No. 7902 because the
COMELEC issued the same in the exercise of its administrative, not
quasi-judicial, power and (2) Sema's prayer for the writ of
prohibition in G.R. No. 177597 became moot with the proclamation

of respondent Didagen P. Dilangalen (respondent Dilangalen) on 1

June 2007 as representative of the legislative district of Shariff
Kabunsuan Province with Cotabato City.
In his Comment, respondent Dilangalen countered that Sema is
estopped from questioning COMELEC Resolution No. 7902 because
in her certificate of candidacy filed on 29 March 2007, Sema
indicated that she was seeking election as representative of "Shariff
Kabunsuan including Cotabato City." Respondent Dilangalen added
that COMELEC Resolution No. 7902 is constitutional because it did
not apportion a legislative district for Shariff Kabunsuan or
reapportion the legislative districts in Maguindanao but merely
renamed Maguindanao's first legislative district. Respondent
Dilangalen further claimed that the COMELEC could not reapportion
Maguindanao's first legislative district to make Cotabato City its
sole component unit as the power to reapportion legislative
districts lies exclusively with Congress, not to mention that
Cotabato City does not meet the minimum population requirement
under Section 5 (3), Article VI of the Constitution for the creation of
a legislative district within a city.13
Sema filed a Consolidated Reply controverting the matters raised in
respondents' Comments and reiterating her claim that the
COMELEC acted ultra vires in issuing Resolution No. 7902.
In the Resolution of 4 September 2007, the Court required the
parties in G.R. No. 177597 to comment on the issue of whether a
province created by the ARMM Regional Assembly under Section
19, Article VI of RA 9054 is entitled to one representative in the
House of Representatives without need of a national law creating a
legislative district for such new province. The parties submitted
their compliance as follows:
(1) Sema answered the issue in the affirmative on the following
grounds: (a) the Court in Felwa v. Salas14 stated that "when a
province is created by statute, the corresponding representative
district comes into existence neither by authority of that statute which cannot provide otherwise - nor by apportionment, but by
operation of the Constitution, without a reapportionment"; (b)
Section 462 of Republic Act No. 7160 (RA 7160) "affirms" the
apportionment of a legislative district incident to the creation of a
province; and (c) Section 5 (3), Article VI of the Constitution and

3
Section 3 of the Ordinance appended to the Constitution mandate
the apportionment of a legislative district in newly created
provinces.
(2) The COMELEC, again represented by the OSG, apparently
abandoned its earlier stance on the propriety of issuing Resolution
Nos. 07-0407 and 7902 and joined causes with Sema, contending
that Section 5 (3), Article VI of the Constitution is "self-executing."
Thus, every new province created by the ARMM Regional Assembly
is ipso facto entitled to one representative in the House of
Representatives even in the absence of a national law; and
(3) Respondent Dilangalen answered the issue in the negative on
the following grounds: (a) the "province" contemplated in Section 5
(3), Article VI of the Constitution is one that is created by an act of
Congress taking into account the provisions in RA 7160 on the
creation of provinces; (b) Section 3, Article IV of RA 9054 withheld
from the ARMM Regional Assembly the power to enact measures
relating
to
national
elections,
which
encompasses
the
apportionment of legislative districts for members of the House of
Representatives; (c) recognizing a legislative district in every
province the ARMM Regional Assembly creates will lead to the
disproportionate representation of the ARMM in the House of
Representatives as the Regional Assembly can create provinces
without regard to the requirements in Section 461 of RA 7160; and
(d) Cotabato City, which has a population of less than 250,000, is
not entitled to a representative in the House of Representatives.
On 27 November 2007, the Court heard the parties in G.R. No.
177597 in oral arguments on the following issues: (1) whether
Section 19, Article VI of RA 9054, delegating to the ARMM Regional
Assembly the power to create provinces, is constitutional; and (2) if
in the affirmative, whether a province created under Section 19,
Article VI of RA 9054 is entitled to one representative in the House
of Representatives without need of a national law creating a
legislative district for such new province.15
In compliance with the Resolution dated 27 November 2007, the
parties in G.R. No. 177597 filed their respective Memoranda on the
issues raised in the oral arguments.16 On the question of the
constitutionality of Section 19, Article VI of RA 9054, the parties in
G.R. No. 177597 adopted the following positions:

(1) Sema contended that Section 19, Article VI of RA 9054 is

constitutional (a) as a valid delegation by Congress to the ARMM of
the power to create provinces under Section 20 (9), Article X of the
Constitution granting to the autonomous regions, through their
organic acts, legislative powers over "other matters as may be
authorized by law for the promotion of the general welfare of the
people of the region" and (b) as an amendment to Section 6 of RA
7160.17 However, Sema concedes that, if taken literally, the grant in
Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of
the power to "prescribe standards lower than those mandated" in
RA 7160 in the creation of provinces contravenes Section 10, Article
X of the Constitution.18 Thus, Sema proposed that Section 19
"should be construed as prohibiting the Regional Assembly from
prescribing standards x x x that do not comply with the minimum
criteria" under RA 7160.19
(2) Respondent Dilangalen contended that Section 19, Article VI of
RA 9054 is unconstitutional on the following grounds: (a) the power
to create provinces was not among those granted to the
autonomous regions under Section 20, Article X of the Constitution
and (b) the grant under Section 19, Article VI of RA 9054 to the
ARMM Regional Assembly of the power to prescribe standards lower
than those mandated in Section 461 of RA 7160 on the creation of
provinces contravenes Section 10, Article X of the Constitution and
the Equal Protection Clause; andcralawlibrary
(3) The COMELEC, through the OSG, joined causes with respondent
Dilangalen (thus effectively abandoning the position the COMELEC
adopted in its Compliance with the Resolution of 4 September
2007) and contended that Section 19, Article VI of RA 9054 is
unconstitutional because (a) it contravenes Section 10 and Section
6,20 Article X of the Constitution and (b) the power to create
provinces was withheld from the autonomous regions under Section
20, Article X of the Constitution.
On the question of whether a province created under Section 19,
Article VI of RA 9054 is entitled to one representative in the House
of Representatives without need of a national law creating a
legislative district for such new province, Sema and respondent
Dilangalen reiterated in their Memoranda the positions they
adopted in their Compliance with the Resolution of 4 September

4
2007. The COMELEC deemed it unnecessary to submit its position
on this issue considering its stance that Section 19, Article VI of RA
9054 is unconstitutional.
The pendency of the petition in G.R. No. 178628 was disclosed
during the oral arguments on 27 November 2007. Thus, in the
Resolution of 19 February 2008, the Court ordered G.R. No. 178628
consolidated with G.R. No. 177597. The petition in G.R. No. 178628
echoed Sema's contention that the COMELEC acted ultra vires in
issuing Resolution No. 7902 depriving the voters of Cotabato City of
a representative in the House of Representatives. In its Comment to
the petition in G.R. No. 178628, the COMELEC, through the OSG,
maintained the validity of COMELEC Resolution No. 7902 as a
temporary measure pending the enactment by Congress of the
"appropriate law."
The Issues
The petitions raise the following issues:
I. In G.R. No. 177597:
(A) Preliminarily '
(1) whether the writs of Certiorari, Prohibition, and Mandamus are
proper to test the constitutionality of COMELEC Resolution No.
7902; and
(2) whether the proclamation of respondent Dilangalen as
representative of Shariff Kabunsuan Province with Cotabato City
mooted the petition in G.R. No. 177597.
(B) On the merits '
(1) whether Section 19, Article VI of RA 9054, delegating to the
ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays, is constitutional; and
(2) if in the affirmative, whether a province created by the ARMM
Regional Assembly under MMA Act 201 pursuant to Section 19,
Article VI of RA 9054 is entitled to one representative in the House
of Representatives without need of a national law creating a
legislative district for such province.
II. In G.R No. 177597 and G.R No. 178628, whether COMELEC
Resolution No. 7902 is valid for maintaining the status quo in the
first legislative district of Maguindanao (as "Shariff Kabunsuan
Province with Cotabato City [formerly First District of Maguindanao

with Cotabato City]"), despite the creation of the Province of Shariff

Kabunsuan out of such district (excluding Cotabato City).
The Ruling of the Court
The petitions have no merit. We rule that (1) Section 19, Article VI
of RA 9054 is unconstitutional insofar as it grants to the ARMM
Regional Assembly the power to create provinces and cities; (2)
MMA Act 201 creating the Province of Shariff Kabunsuan is void;
and (3) COMELEC Resolution No. 7902 is valid.
On the Preliminary Matters
The
Writ
of
Prohibition
is
Appropriate
to
Test
the
Constitutionality
of
Election Laws, Rules and Regulations
The purpose of the writ of Certiorari is to correct grave abuse of
discretion by "any tribunal, board, or officer exercising judicial or
quasi-judicial functions."21 On the other hand, the writ of Mandamus
will issue to compel a tribunal, corporation, board, officer, or person
to perform an act "which the law specifically enjoins as a
duty."22 True, the COMELEC did not issue Resolution No. 7902 in the
exercise of its judicial or quasi-judicial functions. 23 Nor is there a law
which specifically enjoins the COMELEC to exclude from canvassing
the votes cast in Cotabato City for representative of "Shariff
Kabunsuan Province with Cotabato City." These, however, do not
justify the outright dismissal of the petition in G.R. No. 177597
because Sema also prayed for the issuance of the writ of
Prohibition and we have long recognized this writ as proper for
testing the constitutionality of election laws, rules, and
regulations.24
Respondent
Dilangalen's
Proclamation
Does Not Moot the Petition
There is also no merit in the claim that respondent Dilangalen's
proclamation as winner in the 14 May 2007 elections for
representative of "Shariff Kabunsuan Province with Cotabato City"
mooted this petition. This case does not concern respondent
Dilangalen's election. Rather, it involves an inquiry into the validity
of COMELEC Resolution No. 7902, as well as the constitutionality of
MMA Act 201 and Section 19, Article VI of RA 9054. Admittedly, the
outcome of this petition, one way or another, determines whether
the votes cast in Cotabato City for representative of the district of

5
"Shariff Kabunsuan Province with Cotabato City" will be included in
the canvassing of ballots. However, this incidental consequence is
no reason for us not to proceed with the resolution of the novel
issues raised here. The Court's ruling in these petitions affects not
only the recently concluded elections but also all the other
succeeding elections for the office in question, as well as the power
of the ARMM Regional Assembly to create in the future additional
provinces.
On the Main Issues
Whether
the
ARMM
Regional
Assembly
Can Create the Province of Shariff Kabunsuan
The creation of local government units is governed by Section 10,
Article X of the Constitution, which provides:
Sec. 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.
Thus, the creation of any of the four local government units province, city, municipality or barangay - must comply with three
conditions. First, the creation of a local government unit must follow
the criteria fixed in the Local Government Code. Second, such
creation must not conflict with any provision of the Constitution.
Third, there must be a plebiscite in the political units affected.
There is neither an express prohibition nor an express grant of
authority in the Constitution for Congress to delegate to regional or
local legislative bodies the power to create local government units.
However, under its plenary legislative powers, Congress can
delegate to local legislative bodies the power to create local
government units, subject to reasonable standards and provided no
conflict arises with any provision of the Constitution. In fact,
Congress has delegated to provincial boards, and city and
municipal councils, the power to create barangays within their
jurisdiction,25 subject to compliance with the criteria established in
the Local Government Code, and the plebiscite requirement in
Section 10, Article X of the Constitution. However, under the Local
Government Code, "only x x x an Act of Congress" can create
provinces, cities or municipalities.26 Under Section 19, Article VI of

RA 9054, Congress delegated to the ARMM Regional Assembly the

power to create provinces, cities, municipalities and barangays
within the ARMM. Congress made the delegation under its plenary
legislative powers because the power to create local government
units is not one of the express legislative powers granted by the
Constitution to regional legislative bodies. 27 In the present case, the
question arises whether the delegation to the ARMM Regional
Assembly of the power to create provinces, cities, municipalities
and barangays conflicts with any provision of the Constitution.
There is no provision in the Constitution that conflicts with the
delegation to regional legislative bodies of the power to create
municipalities and barangays, provided Section 10, Article X of the
Constitution is followed. However, the creation of provinces and
cities is another matter. Section 5 (3), Article VI of the Constitution
provides, "Each city with a population of at least two hundred fifty
thousand, or each province, shall have at least one representative"
in the House of Representatives. Similarly, Section 3 of the
Ordinance appended to the Constitution provides, "Any province
that may hereafter be created, or any city whose population may
hereafter increase to more than two hundred fifty thousand shall be
entitled in the immediately following election to at least one
Member x x x."
Clearly, a province cannot be created without a legislative district
because it will violate Section 5 (3), Article VI of the Constitution as
well as Section 3 of the Ordinance appended to the Constitution.
For the same reason, a city with a population of 250,000 or more
cannot also be created without a legislative district. Thus, the
power to create a province, or a city with a population of 250,000
or more, requires also the power to create a legislative district.
Even the creation of a city with a population of less than 250,000
involves the power to create a legislative district because once the
city's population reaches 250,000, the city automatically becomes
entitled to one representative under Section 5 (3), Article VI of the
Constitution and Section 3 of the Ordinance appended to the
Constitution. Thus, the power to create a province or city inherently
involves the power to create a legislative district.
For Congress to delegate validly the power to create a province or
city, it must also validly delegate at the same time the power to

6
create a legislative district. The threshold issue then is, can
Congress validly delegate to the ARMM Regional Assembly the
power to create legislative districts for the House of
Representatives? The answer is in the negative.
Legislative Districts are Created or Reapportioned
Only by an Act of Congress
Under the present Constitution, as well as in past 28 Constitutions,
the power to increase the allowable membership in the House of
Representatives, and to reapportion legislative districts, is vested
exclusively in Congress. Section 5, Article VI of the Constitution
provides:
SECTION 5. (1) The House of Representatives shall be composed of
not more than two hundred and fifty members, unless
otherwise fixed by law, who shall be elected from legislative
districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of their
respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be
elected through a party-list system of registered national, regional,
and sectoral parties or organizations.
xxx
(3) Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each province,
shall have at least one representative.
(4) Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts
based on the standards provided in this section. (Emphasis
supplied) Section 5 (1), Article VI of the Constitution vests in
Congress the power to increase, through a law, the allowable
membership in the House of Representatives. Section 5 (4)
empowers Congress to reapportion legislative districts. The power
to reapportion legislative districts necessarily includes the power to
create legislative districts out of existing ones. Congress exercises
these powers through a law that Congress itself enacts, and not
through a law that regional or local legislative bodies enact. The
allowable membership of the House of Representatives can be
increased, and new legislative districts of Congress can be created,

only through a national law passed by Congress. InMontejo v.

COMELEC,29 we held that the "power of redistricting x x x is
traditionally regarded as part of the power (of Congress) to make
laws," and thus is vested exclusively in Congress.
This textual commitment to Congress of the exclusive power to
create or reapportion legislative districts is logical. Congress is a
national legislature and any increase in its allowable membership
or in its incumbent membership through the creation of legislative
districts must be embodied in a national law. Only Congress can
enact such a law. It would be anomalous for regional or local
legislative bodies to create or reapportion legislative districts for a
national legislature like Congress. An inferior legislative body,
created by a superior legislative body, cannot change the
membership of the superior legislative body.
The creation of the ARMM, and the grant of legislative powers to its
Regional Assembly under its organic act, did not divest Congress of
its exclusive authority to create legislative districts. This is clear
from the Constitution and the ARMM Organic Act, as amended.
Thus, Section 20, Article X of the Constitution provides:
SECTION 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
Nothing in Section 20, Article X of the Constitution
authorizes autonomous regions, expressly or impliedly, to
create or reapportion legislative districts for Congress.
On the other hand, Section 3, Article IV of RA 9054 amending the
ARMM Organic Act, provides, "The Regional Assembly may
exercise legislative power x x x except on the following

7
matters: x x x (k) National elections. x x x." Since the ARMM
Regional Assembly has no legislative power to enact laws relating
to national elections, it cannot create a legislative district whose
representative is elected in national elections. Whenever Congress
enacts a law creating a legislative district, the first representative is
always elected in the "next national elections" from the effectivity
of the law.30
Indeed, the office of a legislative district representative to Congress
is a national office, and its occupant, a Member of the House of
Representatives, is a national official.31 It would be incongruous
for a regional legislative body like the ARMM Regional Assembly to
create a national office when its legislative powers extend only to
its regional territory. The office of a district representative is
maintained by national funds and the salary of its occupant is paid
out of national funds. It is a self-evident inherent limitation on the
legislative powers of every local or regional legislative body that it
can only create local or regional offices, respectively, and it can
never create a national office.
To allow the ARMM Regional Assembly to create a national office is
to allow its legislative powers to operate outside the ARMM's
territorial jurisdiction. This violates Section 20, Article X of the
Constitution which expressly limits the coverage of the Regional
Assembly's legislative powers "[w]ithin its territorial jurisdiction x x
x."
The ARMM Regional Assembly itself, in creating Shariff Kabunsuan,
recognized the exclusive nature of Congress' power to create or
reapportion legislative districts by abstaining from creating a
legislative district for Shariff Kabunsuan. Section 5 of MMA Act 201
provides that:
Except as may be provided by national law, the existing legislative
district, which includes Cotabato City as a part thereof, shall
remain. (Emphasis supplied) However, a province cannot legally be
created without a legislative district because the Constitution
mandates that "each province shall have at least one
representative." Thus, the creation of the Province of Shariff
Kabunsuan without a legislative district is unconstitutional.
Sema, petitioner in G.R. No. 177597, contends that Section 5 (3),
Article VI of the Constitution, which provides:

Each legislative district shall comprise, as far as practicable,

contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each province,
shall have at least one representative. (Emphasis supplied)
and Section 3 of the Ordinance appended to the Constitution, which
states:
Any province that may hereafter be created, or any city
whose population may hereafter increase to more than two
hundred fifty thousand shall be entitled in the immediately
following election to at least one Member or such number
of Members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards
set forth in paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to the province
out of which such new province was created or where the city,
whose population has so increased, is geographically located shall
be correspondingly adjusted by the Commission on Elections but
such adjustment shall not be made within one hundred and twenty
days before the election. (Emphasis supplied)
serve as bases for the conclusion that the Province of Shariff
Kabunsuan, created on 29 October 2006, is automatically entitled
to one member in the House of Representatives in the 14 May 2007
elections. As further support for her stance, petitioner invokes the
statement in Felwa that "when a province is created by statute, the
corresponding representative district comes into existence neither
by authority of that statute - which cannot provide otherwise - nor
by apportionment, but by operation of the Constitution, without a
reapportionment."
The contention has no merit.
First. The issue in Felwa, among others, was whether Republic Act
No. 4695 (RA 4695), creating the provinces of Benguet, Mountain
Province, Ifugao, and Kalinga-Apayao and providing for
congressional representation in the old and new provinces, was
unconstitutional for "creati[ng] congressional districts without the
apportionment provided in the Constitution." The Court answered in
the negative, thus:
The Constitution ordains:

8
"The House of Representatives shall be composed of not more than
one hundred and twenty Members who shall be apportioned among
the several provinces as nearly as may be according to the number
of their respective inhabitants, but each province shall have at least
one Member. The Congress shall by law make an apportionment
within three years after the return of every enumeration, and not
otherwise. Until such apportionment shall have been made, the
House of Representatives shall have the same number of Members
as that fixed by law for the National Assembly, who shall be elected
by the qualified electors from the present Assembly districts. Each
representative district shall comprise as far as practicable,
contiguous and compact territory."
Pursuant to this Section, a representative district may come
into existence: (a) indirectly, through the creation of a
province - for "each province shall have at least one
member" in the House of Representatives; or (b) by direct
creation of several representative districts within a
province. The requirements concerning the apportionment of
representative districts and the territory thereof refer only to the
second method of creation of representative districts, and do not
apply to those incidental to the creation of provinces, under the
first method. This is deducible, not only from the general tenor of
the provision above quoted, but, also, from the fact that the
apportionment therein alluded to refers to that which is made by an
Act of Congress. Indeed, when a province is created by statute, the
corresponding representative district, comes into existence neither
by authority of that statute - which cannot provide otherwise - nor
by apportionment, but by operation of the Constitution, without a
reapportionment.
There is no constitutional limitation as to the time when, territory
of, or other conditions under which a province may be created,
except, perhaps, if the consequence thereof were to exceed the
maximum of 120 representative districts prescribed in the
Constitution, which is not the effect of the legislation under
consideration. As a matter of fact, provinces have been created or
subdivided into other provinces, with the consequent creation of
additional representative districts, without complying with the
aforementioned requirements.32 (Emphasis supplied) Thus, the

Court sustained the constitutionality of RA 4695 because (1) it

validly created legislative districts "indirectly" through a special
law enacted by Congress creating a province and (2) the
creation of the legislative districts will not result in breaching the
maximum number of legislative districts provided under the 1935
Constitution. Felwa does not apply to the present case because
in Felwa the new provinces were created by anational law
enacted by Congress itself. Here, the new province was created
merely by a regional law enacted by the ARMM Regional
Assembly.
What Felwa teaches is that the creation of a legislative district by
Congress does not emanate alone from Congress' power to
reapportion legislative districts, but also from Congress' power to
create provinces which cannot be created without a legislative
district. Thus, when a province is created, a legislative district is
created by operation of the Constitution because the Constitution
provides that "each province shall have at least one representative"
in the House of Representatives. This does not detract from the
constitutional principle that the power to create legislative districts
belongs exclusively to Congress. It merely prevents any other
legislative body, except Congress, from creating provinces because
for a legislative body to create a province such legislative body
must have the power to create legislative districts. In short, only an
act of Congress can trigger the creation of a legislative district by
operation of the Constitution. Thus, only Congress has the power to
create, or trigger the creation of, a legislative district.
Moreover, if as Sema claims MMA Act 201 apportioned a legislative
district to Shariff Kabunsuan upon its creation, this will leave
Cotabato City as the lone component of the first legislative district
of Maguindanao. However, Cotabato City cannot constitute a
legislative district by itself because as of the census taken in 2000,
it had a population of only 163,849. To constitute Cotabato City
alone as the surviving first legislative district of Maguindanao will
violate Section 5 (3), Article VI of the Constitution which requires
that "[E]ach city with a population of at least two hundred fifty
thousand x x x, shall have at least one representative."
Second. Sema's theory also undermines the composition and
independence of the House of Representatives. Under Section

9
19,33 Article VI of RA 9054, the ARMM Regional Assembly can create
provinces and cities within the ARMM with or without regard to the
criteria fixed in Section 461 of RA 7160, namely: minimum annual
income of P20,000,000, and minimum contiguous territory of 2,000
square kilometers or minimum population of 250,000. 34 The
following scenarios thus become distinct possibilities:
(1) An inferior legislative body like the ARMM Regional Assembly
can create 100 or more provinces and thus increase the
membership of a superior legislative body, the House of
Representatives, beyond the maximum limit of 250 fixed in the
Constitution (unless a national law provides otherwise);
(2) The proportional representation in the House of Representatives
based on one representative for at least every 250,000 residents
will be negated because the ARMM Regional Assembly need not
comply with the requirement in Section 461(a)(ii) of RA 7160 that
every province created must have a population of at least 250,000;
and
(3) Representatives from the ARMM provinces can become the
majority in the House of Representatives through the ARMM
Regional Assembly's continuous creation of provinces or cities
within the ARMM.
The following exchange during the oral arguments of the petition in
G.R. No. 177597 highlights the absurdity of Sema's position that the
ARMM Regional Assembly can create provinces:
Justice Carpio:
So, you mean to say [a] Local Government can create legislative
district[s] and pack Congress with their own representatives [?]
Atty. Vistan II:35
Yes, Your Honor, because the Constitution allows that.
Justice Carpio:
So, [the] Regional Assembly of [the] ARMM can create and create x
x x provinces x x x and, therefore, they can have thirty-five (35)
new representatives in the House of Representatives without
Congress agreeing to it, is that what you are saying? That can be
done, under your theory[?]
Atty. Vistan II:
Yes, Your Honor, under the correct factual circumstances.
Justice Carpio:

Under your theory, the ARMM legislature can create thirty-five (35)
new provinces, there may be x x x [only] one hundred thousand
(100,000) [population], x x x, and they will each have one
representative x x x to Congress without any national law, is that
what you are saying?
Atty. Vistan II:
Without law passed by Congress, yes, Your Honor, that is what we
are saying.
xxx
Justice Carpio:
So, they can also create one thousand (1000) new provinces,
sen[d] one thousand (1000) representatives to the House of
Representatives without a national law[,] that is legally possible,
correct?
Atty. Vistan II:
Yes, Your Honor.36 (Emphasis supplied)
Neither the framers of the 1987 Constitution in adopting the
provisions in Article X on regional autonomy, 37 nor Congress in
enacting RA 9054, envisioned or intended these disastrous
consequences that certainly would wreck the tri-branch system of
government under our Constitution. Clearly, the power to create or
reapportion legislative districts cannot be delegated by Congress
but must be exercised by Congress itself. Even the ARMM Regional
Assembly recognizes this.
The Constitution empowered Congress to create or reapportion
legislative districts, not the regional assemblies. Section 3 of the
Ordinance to the Constitution which states, "[A]ny province that
may hereafter be created x x x shall be entitled in the immediately
following election to at least one Member," refers to a province
created by Congress itself through a national law. The reason is that
the creation of a province increases the actual membership of the
House of Representatives, an increase that only Congress can
decide. Incidentally, in the present 14th Congress, there are
21938 district representatives out of the maximum 250 seats in the
House of Representatives. Since party-list members shall constitute
20 percent of total membership of the House, there should at least
be 50 party-list seats available in every election in case 50 partylist candidates are proclaimed winners. This leaves only 200 seats

10
for district representatives, much less than the 219 incumbent
district representatives. Thus, there is a need now for Congress to
increase by law the allowable membership of the House, even
before Congress can create new provinces.
It is axiomatic that organic acts of autonomous regions cannot
prevail over the Constitution. Section 20, Article X of the
Constitution expressly provides that the legislative powers of
regional assemblies are limited "[w]ithin its territorial
jurisdiction and subject to the provisions of the Constitution
and national laws, x x x." The Preamble of the ARMM Organic Act
(RA 9054) itself states that the ARMM Government is established
"within the framework of the Constitution." This follows Section 15,
Article X of the Constitution which mandates that the ARMM "shall
be
created x
x
x within
the
framework
of
this
Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines."
The present case involves the creation of a local government unit
that necessarily involves also the creation of a legislative district.
The Court will not pass upon the constitutionality of the creation of
municipalities and barangays that does not comply with the criteria
established in Section 461 of RA 7160, as mandated in Section 10,
Article X of the Constitution, because the creation of such
municipalities and barangays does not involve the creation of
legislative districts. We leave the resolution of this issue to an
appropriate case.
In summary, we rule that Section 19, Article VI of RA 9054, insofar
as it grants to the ARMM Regional Assembly the power to create
provinces and cities, is void for being contrary to Section 5 of
Article VI and Section 20 of Article X of the Constitution, as well as
Section 3 of the Ordinance appended to the Constitution. Only
Congress can create provinces and cities because the creation of
provinces and cities necessarily includes the creation of legislative
districts, a power only Congress can exercise under Section 5,
Article VI of the Constitution and Section 3 of the Ordinance
appended to the Constitution. The ARMM Regional Assembly cannot
create a province without a legislative district because the
Constitution mandates that every province shall have a legislative
district. Moreover, the ARMM Regional Assembly cannot enact a law

creating a national office like the office of a district representative

of Congress because the legislative powers of the ARMM Regional
Assembly operate only within its territorial jurisdiction as provided
in Section 20, Article X of the Constitution. Thus, we rule that MMA
Act 201, enacted by the ARMM Regional Assembly and creating the
Province of Shariff Kabunsuan, is void.
Resolution No. 7902 Complies with the Constitution
Consequently, we hold that COMELEC Resolution No. 7902,
preserving the geographic and legislative district of the First District
of Maguindanao with Cotabato City, is valid as it merely complies
with Section 5 of Article VI and Section 20 of Article X of the
Constitution, as well as Section 1 of the Ordinance appended to the
Constitution.
WHEREFORE, we declare Section 19, Article VI of Republic Act No.
9054 UNCONSTITUTIONAL insofar as it grants to the Regional
Assembly of the Autonomous Region in Muslim Mindanao the power
to create provinces and cities. Thus, we declareVOID Muslim
Mindanao Autonomy Act No. 201 creating the Province of Shariff
Kabunsuan. Consequently, we rule that COMELEC Resolution No.
7902 is VALID.
Let a copy of this ruling be served on the President of the Senate
and the Speaker of the House of Representatives.
SO ORDERED.
SEPARATE
OPINION
(Dissenting and Concurring)
TINGA, J.:
I agree that the petitions should be denied, but on a wholly
different basis from that offered by the majority. I cannot accede to
the majority's conclusion, burnished by reasoning most strained,
that the Regional Assembly of the Autonomous Region of Muslim
Mindanao (Regional Assembly) should be deprived of the power
delegated to it by Congress to create provinces. With this ruling,
the Court has dealt another severe blow to the cause of local
autonomy.
Our Constitution, in reflection of the sovereign wisdom of the
people, has prescribed local government rule as a tool for national
development and welfare. The majority is unfortunately unmindful
of these considerations. The Regional Assembly and the

11
government of the Autonomous Region of Muslim Mindanao
exercised constituent functions in establishing the province of
Shariff Kabunsuan and providing for its local government. The
majority did not bother to hear their side in these petitions, which
after all, never put in issue the constitutionality of the creation of
the province. The people of Shariff Kabunsuan, by sovereign desire
and constitutional design, ratified through a plebiscite the province
named in honor of the revered figure who introduced Islam to
Central Mindanao. The majority has annihilated the province with
nary a word of comfort or concern for its citizens. Sadly, there will
be no shelter for the Court from the impact of this decision, which
unduly stretches the Constitution to deny the will of the duly
elected members of the Regional Assembly, that of the constituents
they represent, and most of all, that of the people of Shariff
Kabunsuan.
I.
We are dealing with two consolidated petitions which essentially
raise the same arguments, but were brought forth by two different
parties laboring under different circumstances. The petitioner in
G.R. No. 177597, Bai Sandra S.A. Sema, a congressional candidate
in the 2007 legislative elections who posits that the newly-created
province of Shariff Kabunsuan is entitled to its own exclusive
legislative district. The petitioner in G.R. No. 178628, Perfecto F.
Marquez, suing in his capacity as a taxpayer and a resident of
Cotabato City,1 argues that with the creation of Shariff Kabunsuan,
his home city cannot be conjoined with Shariff Kabunsuan to create
just one legislative district for both territories.
As narrated by the majority,2 four (4) days prior to the 14 May 2007
elections, respondent Commission on Elections (COMELEC)
promulgated Resolution No. 7902, whereby it resolved to maintain
the composition of what had been the First District of Maguindanao,
composed of Cotabato City, a chartered city, and several other
municipalities, even though these municipalities formerly belonging
to Maguindanao have since been constituted as part of the
province of Shariff Kabunsuan, which was created by the Regional
Assembly by virtue of Muslim Mindanao Autonomy Act No. 201 in
August of 2006.

Both petitioners challenge the notion of fusing Cotabato City, which

is not a part of ARMM, with the ARMM municipalities which now
constitute the new province of Shariff Kabunsuan, into one
legislative district. To resolve that question on the merits, it is
inevitable that the Court examine the validity of the creation of
Shariff Kabunsuan in the first place, and the majority has fully
adopted that approach. However, there are significant impediments
that weigh down both petitioners, and supply the cogent reason for
the more prudent approach which is to dismiss the petitions
outright.
It is clear that both petitioners rely on constitutional issues in
support of their petitions as they posit that under the Constitution
Shariff Kabunsuan is entitled to its own separate legislative district.
It is cardinal that 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.3
With respect to Sema, it is plainly evident, as argued by private
respondent Rep. Didagen P. Dilangalen, that she is estopped from
bringing forth the present petition. On 29 March 2007, she filed her
Certificate of Candidacy before the COMELEC, declaring her
candidacy a Member of the House of Representatives representing
"the Province of Shariff Kabunsuan w/ Cotabato City." 4 She
recognized under oath that she was seeking election for a
legislative district that encompassed both Shariff Kabunsuan and
Cotabato City, and she should be consequently barred from
disavowing the very district which she undertook to serve if
elected. Sema appears to have campaigned for election in this
conjoined district, and was accordingly defeated by Dilangalen, her
votes from both Shariff Kabunsuan and Cotabato City included in
the tally.
It would indeed be difficult to assess injury for purposes of locus
standi on the part of Sema by reason of the assailed COMELEC
Resolution, which after all, reaffirms the very legislative district

12
whose seat in Congress she had sought to be elected to. Her
standing to raise the present petition is materially affected by her
express consent and active campaign for election from the
legislative district which she now seeks to invalidate. A party
challenging the constitutionality of a law, act or statute must show
"not only that the law is invalid, but also that he or she has
sustained or is in immediate, or imminent danger of sustaining
some direct injury as a result of its enforcement," that party has
been or is about to be, denied some right or privilege to which he
or she is lawfully entitled. 5 Sema's prior avowal that she was
running for the Shariff Kabunsuan with Cotabato City legislative
district, and her campaign for election to that district, belie the
existence of injury on her part caused by the COMELEC resolution
that affirmed that very legislative district.
On the part of Marquez, he first raised his present claims through
the petition in G.R. No. 179608, which was filed with this Court in
July 2007, or more than two months after the May 2007 elections.
As a result, could no longer ask that the holding of the said
elections in the conjoined district be restrained, and instead seeks
that new or special elections be conducted.
As earlier noted, among the requisites for the Court to be able to
exercise judicial review in constitutional cases is that the exercise
of judicial review is pleaded at the earliest possible
opportunity.6 Clearly, his petition was not timely filed at the earliest
possible opportunity, which would have been at a point prior to the
May 2007 elections. Worse, he filed his petition after the voters in
the affected districts had
already elected a candidate of their choosing, a sovereign act
which he seeks to annul. Considering the grave implications of the
step he seeks, as well as the fact that such recourse usually
smacks of opportunism and bad faith, it is but proper for the Court
to decline review unless all the established requisites for judicial
review for constitutional cases have indeed been met. Marquez
does not meet this Court's exacting standards.
Moreover, Marquez does not have a valid cause of action before
this Court. His prayer is to compel the COMELEC to provide for new
congressional elections for Cotabato City.The relief sought does not
lie simply because Rep. Dilangalen, by virtue of his electoral

victory, lawfully represents the City in addition to the Province of

Shariff Kabunsuan. From another perspective, the COMELEC does
not have the requisite power to call elections, as the same is part of
the plenary legislative power. Only Congress, which was not
impleaded as a party to Marquez's petition, has the power to set
congressional elections only for Cotabato City, if ever. Even
assuming that Congress was impleaded, it would be improper for
this Court to compel Congress by judicial fiat to pass a law or
resolution for the holding of such elections.
In sum, Marquez's petition should be dismissed outright for having
been filed out of time, for lack of cause of action, and for not
impleading a real party-in-interest.
II.
One might argue that it is imperative for the Court to resolve the
substantive issues, since the situation may emerge again.
However, the exception in exercising judicial review if the case is
capable of repetition yet evading review applies only if the case is
"moot and academic,"7and not when the petitioners lack the
requisite standing, have no cause of action, and have failed to join
a proper party, which is the case here. In addition, it is entirely
possible that between now and the next elections, either Congress
or the Regional Assembly would pass new legislation concerning
the composition or status of Shariff Kabunsuan, thereby changing
the legal complexion and factual milieu of the situation. If that
occurs, the questions that will be facing the Court then should a
challenge be mounted may very well be different from those
currently befacing us.
However, it is apparent that the ponente wishes to settle these
cases on the merits. In doing so, he frames two issues'whether
Congress can delegate to the Regional Assembly the power to
create provinces; and whether the Regional Assembly has the
power to create legislative districts. However, with due respect, the
majority's discussion makes quite an easy leap when it abruptly
fuses these two issues. Worse, the majority fails to take into
account certain fundamental constitutional principles which have
immense bearing in these cases. The resulting analysis is
incomplete and uninformed of the full constitutional milieu under
which these petitions should be resolved.

13
My own framework firstly considers two important principles which
underlie the issues presented before us'the rule on delegation of
powers, and the constitutionally-ordained paradigms of local
government and local autonomy. Without the influence of these
principles, any resulting analysis of the two issues cast by the
majority will be atomistic in nature.
III.
The laws we are presently impelled to interpret involve multiple
instances of Congress delegating power to the Regional Assembly.
Explicity, Rep. Act No. 9054 delegates to the Regional Assembly the
power to create provinces and other local government units,
though subject to certain specified limitations. The majority likewise
asserts that through that mechanism, Congress has also delegated
to the Regional Assembly the power to create legislative districts.
The fundamental principles on delegation of powers bear review.
The Constitution expressly vests legislative power in the Congress
of the Philippines, consisting of a Senate and a House of
Representatives.8Traditionally, the delegation of Congress of its
legislative powers had been frowned upon. "A logical corollary to
the doctrine of separation of powers is the principle of nondelegation of powers, as expressed in the Latin maxim potestas
delegata non delegare potest (what has been delegated cannot be
delegated). This is based on the ethical principle that such
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."9
However, the strict application of the non-delegation doctrine has,
in recent times, been relaxed, if not minimized altogether,
particularly in the context of regulatory jurisdiction of
administrative
agencies.
In
every
industrialized
nation,
administrative agencies, which are generally part of the executive
branch, have been granted considerable lawmaking power. 10 "Given
the volume and variety of interactions in today's society, it is
doubtful if the legislature can promulgate laws that will deal
adequately with and respond promptly to the minutiae of everyday
life. Hence, the need to delegate to administrative bodies'the
principal agencies tasked to execute laws in their specialized

fields'the authority to promulgate rules and regulations to

implement a given statute and effectuate its policies."11
In the context of delegation of legislative powers to local
governments, a noted authority on the subject has this to say:
The state legislative power - that is, the exercise of the policymaking judgment and discretion on state matters that state
constitutions vest and recognize in the legislature - cannot be
delegated to some other person or body but must rest with the
legislature itself. Thus, the legislature cannot delegate to a
commission the power to determine the form of government,
powers and functions of proposed municipalities since these
matters require legislative judgment. But the details of organization
of its own government can be left to a municipality, limited only by
general state law; and such basic state powers as the police power,
taxing power, and power of eminent domain can be, and almost
always are, delegated to local governments for their use for local
purposes. The rule against delegation of state legislative authority
is no barrier to the delegation of powers of local self government to
local units. x x x12
Notwithstanding the exceptions that have been carved to the rule
of non-delegation, it bears notice that while our Constitution
broadly endows legislative powers to Congress it also specifically
conditions the emergence of certain rights, duties and obligations
upon the enactment of a law oriented towards such constitutional
predicate. These include the prohibition of political dynasties as
may be defined by law,13 the reasonable conditions prescribed by
law relating to full public disclosure of all the State's transactions
involving public interest;14the manner by which Philippine
citizenship may be lost or reacquired; 15 the date of regular elections
for members of Congress;16 the manner of conduct of special
elections to fill in congressional vacancies; 17 the authorization of
the President to exercise emergency powers;18 the system for
initiative and referendum;19 the salaries of the President and VicePresident;20 the creation and allocation of jurisdiction of lower
courts21 ; and on many other matters of grave import.
May these specified functions be delegated by Congress to another
body? These specific functions are non-delegable, for they are
textually committed by the Constitution to Congress. Perhaps it is

14
possible to segregate these particular functions to those which
would, even absent constitutional definition, anyway fall within the
plenary legislative power, and those which are not plenary in
nature but were especially designated to Congress by the
Constitution. Still, in either case, only Congress, and no other body,
can carry out that function. As to those powers which would
normally fall within the plenary legislative power, the Constitution
has decided to doubly emphasize that it is the Congress which is so
empowered to perform such tasks. With respect to the non-plenary
functions assigned to Congress, it is clear that the assignment
implies the delegation by the Constitution to Congress of specific,
wholly original functions.
There shall be further discussion on this point in relation to the
questions currently presented. Before we get there, I wish to
emphasize a second constitutional principle, local governance and
autonomy, that should likewise bear on our deliberations.
IV.
The 1987 Constitution ushered in a new era in local government
rule for all citizens, and local autonomy rule for Muslim Mindanao
and the Cordillera region. This new paradigm is crystallized under
Article X of the Constitution.
Section 2, Article X guarantees that the territorial and political
subdivisions in the Philippines shall enjoy local autonomy. The
guarantee of local autonomy is actualized through a local
government code that delineates the structure and powers of local
governments, and through constitutional measures that entitle
local government units to generate their own revenue stream and
assure the same to their fair share in the national internal
revenue.22 Local government rule, in constitutional contemplation,
is a live being that exists to counterbalance the rule of the national
government, and is not a mere palliative established in the
Constitution to soothe the people with the illusion of having a more
direct say in their governance.
By constitutional design, local government rule for the people of
Muslim Mindanao and the Cordilleras is even more enhanced, as
they are assured of their own autonomous regions. Section 15,
Article X of the Constitution mandated that "[t]he shall be created
autonomous regions in Muslim Mindanao and in the Cordilleras

consisting of provinces, cities, municipalities, and geographical

areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant
characteristics'" Following the Constitution, Congress in 1989
passed Republic Act No. 6734, "An Act Providing for An Organic Act
for the Autonomous Region in Muslim Mindanao", leading to the
creation of the ARMM. In 2001, Congress further strengthened the
Organic Act with the passage of Rep. Act No. 9054, which among
others, empowered the Assembly to create provinces. The Organic
Acts possess a special status within Philippine laws. While they are
classified as statutes, the Organic Acts are more than ordinary
statutes because they enjoy affirmation by a plebiscite, and thus
could not be amended by ordinary statutes without any plebiscite.23
In Disomangcop v. Datumanong,24 the Court explained at length the
vital constitutional purposes of local autonomy:
xxx According to Commissioner Jose Nolledo, Chairman of the
Committee which drafted the provisions, it "is an indictment
against the status quo of a unitary system that, to my mind, has
ineluctably tied the hands of progress in our country . . . our
varying regional characteristics are factors to capitalize on to attain
national strength through decentralization."
The idea behind the Constitutional provisions for autonomous
regions is to allow the separate development of peoples with
distinctive cultures and traditions. These cultures, as a matter of
right, must be allowed to flourish.
xxx
Several commissioners echoed the pervasive sentiment in the
plenary sessions in their own inimitable way. Thus, Commissioner
Bias Ople referred to the recognition that the Muslim Mindanao and
the Cordilleras "do not belong to the dominant national community"
as the justification for conferring on them a "measure of legal selfsufficiency, meaning self-government, so that they will flourish
politically, economically and culturally," with the hope that after
achieving parity with the rest of the country they would "give up
their own autonomous region in favor of joining the national
mainstream." For his part, the Muslim delegate, Commissioner
Ahmad Alonto, spoke of the diversity of cultures as the framework

15
for nation-building. Finally, excerpts of the poignant plea of
Commissioner Ponciano Bennagen deserve to be quoted verbatim:
. . . They see regional autonomy as the answer to their centuries of
struggle against oppression and exploitation. For so long, their
names and identities have been debased. Their ancestral lands
have been ransacked for their treasures, for their wealth. Their
cultures have been defiled, their very lives threatened, and worse,
extinguished, all in the name of national development; all in the
name of public interest; all in the name of common good; all in the
name of the right to property; all in the name of Regalian Doctrine;
all in the name of national security. These phrases have meant
nothing to our indigenous communities, except for the violation of
their human rights.
xxx
xxx
xxx
Honorable Commissioners, we wish to impress upon you the gravity
of the decision to be made by every single one of us in this
Commission. We have the overwhelming support of the Bangsa
Moro and the Cordillera Constitution. By this we mean meaningful
and authentic regional autonomy. We propose that we have a
separate Article on the autonomous regions for the Bangsa Moro
and Cordillera people clearly spelled out in this Constitution,
instead of prolonging the agony of their vigil and their struggle.
This, too is a plea for national peace. Let us not pass the buck to
the Congress to decide on this. Let us not wash our hands of our
responsibility to attain national unity and peace and to settle this
problem and rectify past injustices, once and for all.
The need for regional autonomy is more pressing in the case of the
Filipino Muslims and the Cordillera people who have been fighting
for it. Their political struggle highlights their unique cultures and
the unresponsiveness of the unitary system to their aspirations.
The Moros' struggle for self-determination dates as far back as the
Spanish conquest in the Philippines. Even at present, the struggle
goes on.
Perforce, regional autonomy is also a means towards solving
existing serious peace and order problems and secessionist
movements. Parenthetically, autonomy, decentralization and
regionalization, in international law, have become politically

acceptable answers to intractable problems of nationalism,

separatism, ethnic conflict and threat of secession.25
Petitioner Sema points out that among the terms in the Final Peace
Agreement between the Philippine Government and the Moro
National Liberation Front was that amendments be introduced to
the original Organic Act, including one which authorized the
Assembly to "create, divide, merge, abolish or substantially alter
boundaries of local government units in the area of autonomy in
accordance with the criteria laid down by law subject to approval
by a majority of the votes cast in a plebiscite called for the purpose
in the political units affected." 26 Indeed, it could hardly be argued
that the challenged power of the Assembly was animated by
nakedly selfish political purposes. It was, in fact, among the terms
negotiated with care by the Philippine Government with the leading
armed insurgency group in Muslim Mindanao towards the higher
purpose of providing a permanent peace agreement in the strifetorn region. It does come with a measure of surprise and
disappointment that the Solicitor General has reached a position
that rejects the Final Peace Agreement negotiated by the
Government and the MNLF.
Disomangcop further crystallizes the interplay between regional
autonomy and national sovereignty, to the extent that the former is
accommodated under the latter.
Regional autonomy is the degree of self-determination exercised by
the local government unit vis - -vis the central government.
In international law, the right to self-determination need not be
understood as a right to political separation, but rather as a
complex net of legal-political relations between a certain people
and the state authorities. It ensures the right of peoples to the
necessary level of autonomy that would guarantee the support of
their own cultural identity, the establishment of priorities by the
community's internal decision-making processes and the
management of collective matters by themselves.
If self-determination is viewed as an end in itself reflecting a
preference for homogeneous, independent nation-states, it is
incapable of universal application without massive disruption.
However, if self-determination is viewed as a means to an end that end being a democratic, participatory political and economic

16
system in which the rights of individuals and the identity of
minority communities are protected - its continuing validity is more
easily perceived.
Regional autonomy refers to the granting of basic internal
government powers to the people of a particular area or region with
least control and supervision from the central government.
The objective of the autonomy system is to permit determined
groups, with a common tradition and shared social-cultural
characteristics, to develop freely their ways of life and heritage,
exercise their rights, and be in charge of their own business. This is
achieved through the establishment of a special governance
regime for certain member communities who choose their own
authorities from within the community and exercise the
jurisdictional authority legally accorded to them to decide internal
community affairs.
In the Philippine setting, regional autonomy implies the cultivation
of more positive means for national integration. It would remove
the wariness among the Muslims, increase their trust in the
government and pave the way for the unhampered implementation
of the development programs in the region. Again, even a glimpse
of the deliberations of the Constitutional Commission could lend a
sense of the urgency and the inexorable appeal of true
decentralization:
MR. OPLE. . . . We are writing a Constitution, of course, for
generations to come, not only for the present but for our posterity.
There is no harm in recognizing certain vital pragmatic needs for
national peace and solidarity, and the writing of this Constitution
just happens at a time when it is possible for this Commission to
help the cause of peace and reconciliation in Mindanao and the
Cordilleras, by taking advantage of a heaven-sent opportunity. . . .
xxx
xxx
xxx
MR. ABUBAKAR. . . . So in order to foreclose and convince the rest
of the of the Philippines that Mindanao autonomy will be granted to
them as soon as possible, more or less, to dissuade these armed
men from going outside while Mindanao will be under the control of
the national government, let us establish an autonomous Mindanao
within our effort and capacity to do so within the shortest possible

time. This will be an answer to the Misuari clamor, not only for
autonomy but for independence.
xxx
xxx
xxx
MR. OPLE. . . . The reason for this abbreviation of the period for the
consideration of the Congress of the organic acts and their passage
is that we live in abnormal times. In the case of Muslim Mindanao
and the Cordilleras, we know that we deal with questions of war
and peace. These are momentous issues in which the territorial
integrity and the solidarity of this country are being put at stake, in
a manner of speaking.
We are writing a peace Constitution. We hope that the Article on
Social Justice can contribute to a climate of peace so that any civil
strife in the countryside can be more quickly and more justly
resolved. We are providing for autonomous regions so that we give
constitutional permanence to the just demands and grievances of
our own fellow countrymen in the Cordilleras and in Mindanao. One
hundred thousand lives were lost in that struggle in Mindanao, and
to this day, the Cordilleras is being shaken by an armed struggle as
well as a peaceful and militant struggle.
xxx
xxx
xxx
Rather than give opportunity to foreign bodies, no matter how
sympathetic to the Philippines, to contribute to the settlement of
this issue, I think the Constitutional Commission ought not to forego
the opportunity to put the stamp of this Commission through
definitive action on the settlement of the problems that have
nagged us and our forefathers for so long.27
A necessary prerequisite of autonomy is decentralization, which
typically involves delegated power wherein a larger government
chooses
to
delegate
certain
authority
to
more
local
governments.28 Decentralization of power involves an abdication of
political power in the favor of local government units declared to be
autonomous, which are free to chart their own destiny and shape
their
future
with
minimum
intervention
from
central
authorities.29 What the Constitution contemplated with respect to
the ARMM was political autonomy. As explained by Justice Cortes
for the Court:
It must be clarified that the constitutional guarantee of local
autonomy in the Constitution [Art. X, sec. 2] refers to the

17
administrative autonomy of local government units or, cast in more
technical language, the decentralization of government authority
[Villegas v. Subido, G.R. No. L-31004, January 8, 1971, 37 SCRA 1].
Local autonomy is not unique to the 1987 Constitution, it being
guaranteed also under the 1973 Constitution [Art. II, sec. 10]. And
while there was no express guarantee under the 1935 Constitution,
the Congress enacted the Local Autonomy Act (R.A. No. 2264) and
the Decentralization Act (R.A. No. 5185), which ushered the
irreversible march towards further enlargement of local autonomy
in the country [Villegas v. Subido, supra.]
On the other hand, the creation of autonomous regions in Muslim
Mindanao and the Cordilleras, which is peculiar to the 1987
Constitution, contemplates the grant of political autonomy and not
just administrative autonomy to these regions. Thus, the provision
in the Constitution for an autonomous regional government with a
basic structure consisting of an executive department and a
legislative assembly and special courts with personal, family and
property law jurisdiction in each of the autonomous regions [Art. X,
sec. 18].30
Disomangcop further elaborates on the import of political
autonomy as it relates to the ARMM:
[B]y regional autonomy, the framers intended it to mean
"meaningful and authentic regional autonomy." As articulated by a
Muslim author, substantial and meaningful autonomy is "the kind of
local self-government which allows the people of the region or area
the power to determine what is best for their growth and
development without undue interference or dictation from the
central government."
To this end, Section 16, Article X limits the power of the President
over autonomous regions. In essence, the provision also curtails the
power of Congress over autonomous regions. Consequently,
Congress will have to re-examine national laws and make sure that
they reflect the Constitution's adherence to local autonomy. And in
case of conflicts, the underlying spirit which should guide its
resolution is the Constitution's desire for genuine local autonomy.
The diminution of Congress' powers over autonomous regions was
confirmed in Ganzon v. Court of Appeals[ 31],wherein this Court held
that "the omission (of "as may be provided by law") signifies

nothing more than to underscore local governments' autonomy

from Congress and to break Congress' 'control' over local
government affairs."32
Unfortunately, the majority gives short shrift to the considerations
of local autonomy, even as such paradigm partakes of a
constitutional mandate. If anything, these provisions should
dissuade against a reflexive dismissal of the provisions of the
Organic Acts. It should be emphasized that local autonomy cannot
be in denigration of the Constitution. It is repeatedly emphasized
within Article X that the grant of local autonomy and the
subsequent exercise of powers by the autonomous government
must remain within the confines of the Constitution. At the same
time, if there is no constitutional bar against the exercise of the
powers of government by the autonomous government in Muslim
Mindanao, particularly by the Regional Assembly, then there is no
basis to thwart the constitutional design by denying such powers to
that body.
Having laid down the essential constitutional predicates, I shall
proceed to dwell on the core issues raised. May Congress delegate
to the Regional Assembly the power to create provinces? Assuming
that such delegation is not barred by the Constitution, may the
exercise of such power by the Regional Assembly give rise to
separate legislative districts for such provinces thus created?
V.
There should be little debate on the origins of the power to create
provinces, which had existed as a political unit in the Philippines
since the Spanish colonial period, and which all our Constitutions
have recognized as a basic level of local governments. Ever since
the emergence of our tripartite system of democratic government,
the power to create provinces have always been legislative in
character. They are created by the people through their
representatives in Congress, subject to direct affirmation by the
very people who stand to become the constituents of the new
putative province.
May such power be delegated by Congress to a local legislative
body such as the Regional Assembly? Certainly, nothing in the
Constitution bars Congress from doing so. In fact, considering the
constitutional mandate of local autonomy for Muslim Mindanao, it

18
can be said that such delegation is in furtherance of the
constitutional design.
The only constitutional provision that concerns with the creation of
provinces is Section 10, Article X, which reads:
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.
Nothing in this provision specifically limits the power to create
provinces, cities, municipalities or barangays to Congress alone.
The provision does embody a significant limitation - that the
creation of these political subdivisions must be in accordance with
the criteria established in the local government code, a law which is
enacted by Congress. It would thus be proper to say that the
Constitution limits the ability to set forth the standards for the
creation of a province exclusively to Congress. But to say that the
Constitution confines to Congress alone the power to establish the
criteria for creating provinces is vastly different from saying that
the Constitution confines to Congress alone the power to create
provinces. There is nothing in the Constitution that supports the
latter proposition.
Section 10, Article X does not specifically designate Congress as
the body with the power to create provinces. As earlier stated, the
power to create these political subdivisions is part of the plenary
legislative power, hence such power can be exercised by Congress
even without need of specific constitutional assignation. At the
same time, the absence of constitutional language committing
Congress with the function of creating political subdivisions
ultimately denotes that such legislative function may be delegated
by Congress.
In fact, the majority actually concedes that Congress, under its
plenary legislative powers, "can delegate to local legislative bodies
the power to create local government units, subject to reasonable
standards and provided no conflict arises with any provision of the
Constitution."33 As is pointed out, such delegation is operationalized
by the LGC itself, which confers to provincial boards and city and
municipal councils, the general power to create barangays within

their respective jurisdictions. The Constitution does not confine the

exercise of such powers only to the national legislature, and indeed
if that were the case, the power to create barangays as granted by
the LGC to local legislative bodies would be unconstitutional
Traditionally, it has been the national legislature which has
exercised the power to create provinces. However, the 1987
Constitution ushered in a new era in devolved local government
rule, and particularly, a regime of local autonomy for Muslim
Mindanao and the Cordilleras. We recognized in Disomangcop v.
Datumanong, thus:
Autonomy, as a national policy, recognizes the wholeness of the
Philippine society in its ethnolinguistic, cultural, and even religious
diversities. It strives to free Philippine society of the strain and
wastage caused by the assimilationist approach. Policies emanating
from the legislature are invariably assimilationist in character
despite channels being open for minority representation. As a
result, democracy becomes an irony to the minority group.34
It bears reemphasizing that the Constitution also actualizes a
preference for local government rule, and thusly provides:
The Congress shall enact a local government code which shall
provide for a more responsive and accountable local government
structure instituted through a system of decentralization with
effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters relating
to the organization and operation of the local units.35
Attuned with enhanced local government rule, Congress had,
through Rep. Act No. 9054, taken the bold step of delegating to a
local legislative assembly the power to create provinces, albeit
prudently withholding any ability to create legislative districts as
well. Section 19 of Rep. Act No. 9054 reads:
Section 19. Creation, Division or Abolition of Provinces, Cities,
Municipalities or Barangay. The Regional Assembly may create,
divide, merge, abolish, or substantially alter boundaries of
provinces, cities, municipalities, or barangays in accordance with
the criteria laid down by the Republic Act No. 7160, the Local

19
Government Code of 1991, subject to the approval by the majority
of the votes cast in the plebiscite in the political units directly
affected. The Regional Assembly may prescribe standards lower
than those mandated by Republic Act No. 7160, the Local
Government Code of 1991, in the creation, division, merger,
abolition, or alteration of the boundaries of provinces, cities,
municipalities, or barangay. Provinces, cities, municipalities, or
barangays created, divided, merged, or whose boundaries are
altered without observing the standards prescribed by Republic Act
No. 7160, the Local Government Code of 1991, shall not be entitled
to any share of the taxes that are allotted to the local governments
units under the provisions of the code.
The financial requirements of the provinces, cities and
municipalities, or barangays so created, divided, merged shall be
provided by the Regional Assembly out of the general funds of the
Regional Government.
The holding of a plebiscite to determine the will of the majority of
the voters of the areas affected by the creation, division, merger, or
whose boundaries are being altered as required by Republic Act No.
7160, the Local Government Code of 1991, shall, however, be
observed.
Because this empowerment scheme is in line with a policy
preferred by the Constitution, it becomes utterly necessary to
pinpoint a specific constitutional prohibition that bars Congress
from authorizing the Regional Assembly to create provinces. No
such constitutional limitation exists, and it is not the province, duty
or sensible recourse of this Court to nullify an act of Government in
furtherance of a constitutional mandate and directly ratified by the
affected people if nothing in the Constitution proscribes such act.
The constitutionality of the delegated power of the Regional
Assembly to create provinces is further affirmed by the provisions
in the Constitution concerning the mandatory creation of
autonomous regions in Muslim Mindanao, as found in Sections 15 to
21, Article X. The organic act enacted by Congress for the
autonomous region is to define the basic structure of
government.36 Section 20 specifically allows the organic act of
autonomous regions to provide for legislative powers over, among
others, administrative organization; creation of sources of

revenues; economic, social and tourism development; and such

other matters as may be authorized by law for the promotion of the
general welfare of the people of the region. The creation of
provinces within the autonomous region precisely assists these
constitutional aims under Section 20, enhancing as it does the
basic administration of government, the delivery of government
services, and the promotion of the local economy.
In addition, Section 17, Article X states that "[a]ll powers, functions,
and responsibilities not granted by this Constitution or by law to the
autonomous regions shall be vested in the National Government".
The original Organic Act for Muslim Mindanao did not grant to the
regional government the power to create provinces, thus at that
point, such power was properly exercised by the National
Government. But the subsequent passage of Rep. Act No. 9054
granted to the Regional Assembly the power, function and
responsibility to create provinces and other local government units
which had been exercised by the National Government.
The majority does not point to any specific constitutional
prohibition barring Congress from delegating to the Regional
Assembly the power to create provinces. It does cite though that
Article 460 of the LGC provides that only by an Act of Congress may
a province be created, divided, merged, abolished or its boundary
substantially altered. However, Republic Act No. 9054, which was
passed ten (10) years after the LGC, unequivocally granted to the
ARMM Regional Assembly the power to create provinces, cities,
municipalities and barangays within the ARMM.
Any argument that the LGC confines to Congress the creation of
provinces is muted by the fact that ten years after the LGC was
enacted by Congress, the same legislative body conferred on the
Assembly that same power within its territorial jurisdiction, thus
amending the LGC to the extent of accommodating these newlygranted powers to the Assembly.
There actually is an obvious unconstitutional dimension to Section
19, albeit one which is not in point in this case. The provision states
in part "[t]hat Regional Assembly may prescribe standards lower
than those mandated by Republic Act No. 7160, the Local
Government Code of 1991, in the creation, division, merger,
abolition, or alteration of the boundaries of provinces, cities,

20
municipalities, or barangays." That proviso is squarely inconsistent
with Section 10, Article X, which accords to the LGC the sole criteria
for the creation, division, merger, abolition or alteration of
boundaries of local government units. Said proviso thus cannot
receive recognition from this Court.
It bears noting that there is no contention presented thus far that
the creation of Shariff Kabunsuan was not in accordance with the
criteria established in the LGC, thus this aspect of
unconstitutionality of Rep. Act No. 9054 may not be material to the
petitions at bar.
VI.
The majority unfortunately asserts that Congress may not delegate
to the Regional Assembly the power to create provinces, despite
the absence of any constitutional bar in that respect. The reasons
offered for such conclusion are actually the same reasons it submits
why the Regional Assembly could not create legislative districts, as
if the power to create provinces and the power to create legislative
districts were one and the same. In contrast, I propose to pinpoint a
specific constitutional provision that prohibits the Regional
Assembly from creating, directly or indirectly, any legislative
district without affecting that body's delegated authority to create
provinces.
Let us review this issue as presented before us. Notably, Republic
Act No. 9054 does not empower the Regional Assembly to create
legislative districts, and MMA Act No. 201, which created Shariff
Kabunsuan, specifically disavows the creation of a new district for
that province and maintains the old legislative district shared with
Cotabato City. It is the thesis though of the petitioners that
following Felwa v. Salas,37 the creation of the new province ipso
facto established as well an exclusive legislative district for Shariff
Kabunsuan, "by operation of the Constitution."
How exactly does a legislative district come into being? In theory,
Congress does not have any express or plenary legislative power to
create legislative districts, except by reapportionment. Under the
Constitution, such reapportionment occurs within three years
following the return of the census, 38 but this Court has likewise
recognized that reapportionment can also be made through a
special law, such as in the charter of a new city. 39 Still, even in

exercising this limited power through the constitutionally mandated

reapportionment, Congress cannot substitute its own discretion for
the standards set forth in Section 5, Article VI. And should general
reapportionment made by Congress violate the parameters set
forth by the Constitution, such act may be invalidated by the Court,
as it did in Macias v. COMELEC.40
There is another constitutional provision which is of critical
importance in considering limitations in the creation of legislative
districts. Section 5(1), Article VI states that "[t]he House of
Representatives shall be composed of not more than two hundred
fifty members, unless otherwise fixed by law". The provision
textually commits that only through a law may the numerical
composition of Congress may be increased or reduced.
The Court has previously recognized that such law increasing the
membership of the House of Representatives need not be one
specifically devoted for that purpose alone, but it may be one that
creates a province or charters a city with a population of more than
250,000. In Tobias v. Abalos,41 the Court pronounced that the law
converting Mandaluyong into a city could likewise serve the
purpose of increasing the composition of the House of
Representatives:
As to the contention that the assailed law violates the present limit
on the number of representatives as set forth in the Constitution, a
reading of the applicable provision, Article VI, Section 5 (1), as
aforequoted, shows that the present limit of 250 members is not
absolute. The Constitution clearly provides that the House of
Representatives shall be composed of not more than 250 members,
"unless otherwise provided by law." The inescapable import of the
latter clause is that the present composition of Congress may be
increased, if Congress itself so mandates through a legislative
enactment. Therefore, the increase in congressional representation
mandated by R.A. No. 7675 is not unconstitutional.42
This point was reemphasized by the Court in Mariano v. COMELEC: 43
These issues have been laid to rest in the recent case of Tobias v.
Abalos. 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 clearly provides that Congress shall
be composed of not more than two hundred fifty (250) members,

21
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.44
From these cases, it is evident that a law creating the province of
Shariff Kabunsuan may likewise serve the purpose of increasing the
composition of the House of Representatives. In addition, Congress
generally has the power to delegate the power of creating local
government units to the appropriate local legislative assemblies.
The critical question now is thus whether Congress may delegate to
local legislative assemblies the power to increase the composition
of the House of Representatives? The answer is no.
I have already pointed out that when the Constitution specifically
designates a particular function to Congress, only Congress may
exercise such function, as the same is non-delegable. The power to
increase the composition of the House of Representatives is
restricted by the Constitution to a law passed by Congress, which
may not delegate such law-making power to the Regional
Assembly. If we were to rule that Congress may delegate the power
to increase the composition of the House of Representatives, there
would be no impediment for us to similarly rule that those other
specific functions tasked by the Constitution to Congress may be
delegated as well. To repeat, these include gravely important
functions as the enactment of a law defining political dynasties; the
enactment of reasonable conditions relating to full public disclosure
of all the State's transactions involving public interest; the manner
by which Philippine citizenship may be lost or reacquired; the date
of regular elections for members of Congress; the provision for the
manner of conduct of special elections to fill in congressional
vacancies; the authorization of the President to exercise emergency
powers; the prescription of a system for initiative and referendum;
the salaries of the President and Vice-President; and the creation
and allocation of jurisdiction of lower courts.
Considering that all these matters, including the composition of the
House of Representatives, are of national interest, it is but
constitutionally proper that only a national legislature has the
competence to exercise these powers. And the Constitution does

textually commit to Congress alone the power to increase the

membership of the House of Representatives.
Accordingly, the petitioners' position cannot be sustained, as Shariff
Kabunsuan cannot acquire its own legislative district unless
Congress itself accedes to the passage of a law that establishes the
same. The contrary position is in denigration of the Constitution,
which limits to Congress alone the non-delegable power to fix or
increase the composition of the House of Representatives. For that,
I concur with the result of the majority.
Felwa cannot apply to these petitions. Its pronouncement that the
creation of a province automatically leads to the creation of a
legislative district "by operation of the Constitution" can only apply
when the province is created by Congress itself, since there is no
other constitutional impediment to the emergence of the legislative
district. However, in cases where it is a body other than Congress
which has created, although validly, the legislative district, the
Constitution itself bars the emergence of an accompanying
legislative district, as this will result in an increase in the
composition of the House of Representatives which can only be
accomplished through a law passed by Congress.
VII.
Even as Section 19 of Rep. Act No. 9054 constitutionally authorizes
the Regional Assembly to create provinces, there are legal
limitations that constrict the discretion of that body to exercise
such power. I had earlier identified as unconstitutional the
discretion of the Regional Assembly to create local government
units based on a lower standard than that prescribed under the
LGC. Another clear limitation is that the creation of provinces
cannot be authorized without the ratification through a plebiscite
by the people affected by such act, a requirement imposed by the
Organic Act itself and by Section 10, Article X of the Constitution.
The majority itself had raised an alarmist tone that allowing the
Assembly to create provinces would not lead to the unholy
spectacle of whimsical provinces intended as personal fiefdoms and
created irrespective of size, shape and sense. In fact, allowing the
Regional Assembly to create provinces will not lead to hundreds or
thousands, or even tens or dozens of new provinces. Any new

22
province will have to meet the same criteria set forth by the LGC
for the creation of provinces.
To stress how implausible the scenario of dozens-hundredthousands of ARMM provinces actually is, it bears reviewing what
exactly is the criteria set forth under the LGC for the creation of
provinces. An Assembly-created province, just as with any other
putative province, following Section 461 of the LGC, must possess
the following requisites: (a) an average annual income, as certified
by the Department of Finance, of not less than Php20,000,000.00,
such income including the income accruing to the general fund,
exclusive of special funds, trust funds, transfers, and non-recurring
income; (b) a contiguous territory of at least two thousand (2,000)
square kilometers, as certified by the Lands Management Bureau
(excepting when comprised of two (2) or more islands or when
separated by a chartered city or cities which do not contribute to
the income of the province), or a population of not less than
250,000 inhabitants as certified by the National Statistics Office; (c)
that the creation of the province shall not reduce the land area,
population, and income of the original unit or units at the time of
said creation to less than the minimum requirements prescribed
under the Code. These standards, which should bear upon the
Assembly, would preclude the emergence of dozens, hundreds or
thousands of provinces within the relatively confined spaces of the
present Autonomous Region of Muslim Mindanao.
IX.
The concerns raised by the majority on how allowing the Assembly
to create provinces would affect the composition of the national
Congress are valid issues, yet the approach it adopts is to treat
autonomy as invisible and inconsequential, instead of the
countervailing constitutional principle that it actually is. It is an
approach that will exacerbate political and regional tensions within
Mindanao, especially since it shuns the terms of the negotiated
peace. This decision today, sad to say, is a decisive step backwards
from the previous rulings of this Court that have been supportive of
the aims of regional autonomy.
Except for the result, which I join, I respectfully dissent.

23
EN BANC
G.R. No. L-18684
September 14, 1961
LAMBERTO MACIAS, LORENZO TEVES, FAUSTO DUGENIO,
ROGACIANO MERCADO and MARIANO PERDICES, petitioners,
vs.
THE COMMISSION ON ELECTIONS and VICENTE GELLA in his
Capacity as National Treasurer, respondents.
Crispin
D.
Baizas
for
petitioners.
Barrios, Garcia and Apostol for respondent Commission on
Elections.
Office of the Solicitor General for respondent Vicente Gella.
BENGZON, C.J.:
Statement of the case. Petitioners request that respondent
officials be prevented from implementing Republic Act 3040 that
apportions representative districts in this country. It is
unconstitutional and void, they allege, because: (a) it was passed
by the House of Representatives without printed final copies of the
bill having been furnished the Members at least three calendar
days prior to its passage; (b) it was approved more than three
years after the return of the last census of our population; and (c) it
apportioned districts without regard to the number of inhabitants of
the several provinces.
Admitting some allegations but denying others, the respondents
aver they were merely complying with their duties under the
statute, which they presume and allege to be constitutional. The
respondent National Treasurer further avers that petitioners have
no personality to bring this action; that a duly certified copy of the
law creates the presumption of its having been passed in
accordance with the requirements of the Constitution (distribution
of printed bills included); that the Director of the Census submitted
an official report on the population of the Philippines in November,
1960, which report became the basis of the bill; and that the Act
complies with the principle of proportional representation
prescribed by the Constitution..
After hearing the parties and considering their memoranda, this
Court reached the conclusion that the statute be declared invalid,

and, aware of the need of prompt action, issued its brief resolution
of August 23, partly in the following language:
Whereas such Republic Act 3040 clearly violates the said
constitutional provision in several ways namely, (a) it gave Cebu
seven members, while Rizal with a bigger number of inhabitants
got four only; (b) it gave Manila four members, while Cotabato with
a bigger population got three only; . . .;
Whereas such violation of the Constitutional mandate
renders the law void;
Therefore, without prejudice to the writing of a more
extended opinion passing additionally on other issues raised in the
case, the Court resolved, without any dissent, forthwith to issue the
injunction prayed for by the petitioners. No bond is needed.
What with the reservation announced in the resolution, and what
with the motion for reconsideration, this is now written fully to
explain the premises on which our conclusion rested.
Personality of the petitioners. Petitioners are four members of
the House of Representatives from Negros Oriental, Misamis
Oriental, and Bulacan, and the provincial governor of Negros
Oriental. They bring this action in behalf of themselves and of other
residents of their provinces. They allege, and this Court finds, that
their provinces had been discriminated against by Republic Act
3040, because they were given less representative districts than
the number of their inhabitants required or justified: Misamis
Oriental having 387,839 inhabitants, was given one district only,
whereas Cavite with 379,902 inhabitants, was given two districts;
Negros Oriental and Bulacan with 598,783 and 557,691
respectively, were allotted 2 representative districts each, whereas
Albay with 515,961 was assigned 3 districts.
The authorities hold that "citizens who are deprived of as full and
effective an elective franchise as they are entitled to under the
Constitution by an apportionment act, have a sufficient interest to
proceed in a court to test the statute. (18 Am. Jur. 199.)
Therefore, petitioners as voters and as congressmen and governor
of the aggrieved provinces have personality to sue.
In Stiglitz vs. Schardien (Ky) 40 S.W. (2d) 315, the right of a citizen
to question the validity of a redistricting statute was upheld. The
same right was recognized in Jones vs. Freeman (Okla.) 146 P. (2d)

24
564, the court saying that each citizen has the right to have the
State apportioned in accordance with the Constitution and to be
governed by a Legislative fairly representing the whole body of
electorate and elected as required by the Constitution.
Colegrove vs. Green, 328 .U.S. 549, on which respondents rely,
appear to be inconclusive: three against three. The seventh justice
concurred in the result even supposing the contrary was
justiciable."
The printed-form, three-day requirement. The Constitution
provides that "no bill shall be passed by either House unless it shall
have been printed and copies thereof in its final form furnished its
Members at least three calendar days prior to its passage, except
when the President shall have certified to the necessity of its
immediate enactment."
Petitioners presented certificates of the Secretary of the House of
Representatives to show that no printed copy had been distributed
three days before passage of the bill (on May 10, 1961) and that no
certificate of urgency by the President had been received in the
House.
The respondents claim in their defense that a statute may not be
nullified upon evidence of failure to print, because "it is
conclusively presumed that the details of legislative procedure
leading to the enrollment that are prescribed by the Constitution
have been complied with by the Legislature." They further claim
that the certificates of the Secretary of the House are inadmissible,
in view of the conclusive (enrolled-bill) presumption, which in
several instances have been applied by the courts. In further
support of their contention, Sec. 313(2) of Act 190 might be cited. 1
On the other hand, it may be said for the petitioners, that such
printed bill requirement had a fundamental purpose to serve 2 and
was inserted in the Constitution not as a mere procedural step; and
that the enrolled-bill theory, if adopted, would preclude the courts
from enforcing such requirement in proper cases.
We do not deem it necessary to make a definite pronouncement on
the question, because the controversy may be decided upon the
issue of districts-in-proportion-to-inhabitants.1awphl.nt
Population Census. According to the Constitution, "the Congress
shall by law, make an apportionment (of Members of the House)

within three years after the return of every enumeration, and not
otherwise." It is admitted that the bill, which later became Republic
Act 3040, was based upon a report submitted to the President by
the Director of the Census on November 23, 1960. It reads:
I have the honor to submit herewith a preliminary count of
the population of the Philippines as a result of the population
enumeration which has just been completed. This is a report on the
total number of inhabitants in this country and does not include the
population characteristics. It is the result of a hand tally and may
be subject to revision when all the population schedules shall have
been processed mechanically.
The Census of Population is the first of a series of four
censuses which include housing, agriculture and economics in
addition to population. These four censuses together constitute
what is known as the Census of 1960. Like population, the housing
and agricultural censuses are undergoing processing, while the
economic census is now under preparation.
Until the final report is made, these figures should be
considered as official for all purposes.
Petitioners maintain that the apportionment could not legally rest
on this report since it is merely "preliminary" and "may be subject
to revision." On the other hand, respondents point out that the
above letter says the report should be considered "official for all
purposes." They also point out that the ascertainment of what
constitutes a return of an enumeration is a matter for Congress
action. This issue does not clearly favor petitioners, because there
are authorities sustaining the view that although not final, and still
subject to correction, a census enumeration may be considered
official, in the sense that Governmental action may be based
thereon even in matters of apportionment of legislative districts
(Cahill vs. Leopold [Conn.] 108 Atl. 2d 818). (See also Elliott vs.
State, 1 Pac. 2d 370; Ervin vs. State, 44 S.W. 2d 380; Herndon vs.
Excise Board, 295 Pac. 223; Holcomb vs. Spikes, 232 S.W. 891.)
Apportionment of Members. The Constitution directs that the one
hundred twenty Members of the House of Representatives "shall be
apportioned among the several provinces as nearly as may be
according to the member of their respective inhabitants." In our
resolution on August 23, we held that this provision was violated by

25
Republic Act 3040 because (a) it gave Cebu seven members, while
Rizal with a bigger number of inhabitants got four only; (b) it gave
Manila four members, while Cotabato with a bigger population got
three only; (c) Pangasinan with less inhabitants than both Manila
and Cotabato got more than both, five members having been
assigned to it; (d) Samar (with 871,857) was allotted four members
while Davao with 903,224 got three only; (e) Bulacan with 557,691
got two only, while Albay with less inhabitants (515,691) got three,
and (f) Misamis Oriental with 387,839 was given one member only,
while Cavite with less inhabitants (379,904) got two. These were
not the only instances of unequal apportionment. We see that
Mountain Province has 3 whereas Isabela, Laguna and Cagayan
with more inhabitants have 2 each. And then, Capiz, La Union and
Ilocos Norte got 2 each, whereas Sulu that has more inhabitants got
1 only. And Leyte with 967,323 inhabitants got 4 only, whereas
Iloilo with less inhabitants (966,145) was given 5.
Such disproportion of representation has been held sufficient to
avoid apportionment laws enacted in States having Constitutional
provisions similar to ours. For instance, in Massachusetts, the
Constitution required division "into representative district . . .
equally, as nearly as may be, according to the relative number of
legal voters in the several districts." The Supreme Judicial Court of
that state found this provision violated by an allotment that gave 3
representatives to 7,946 voters and only 2 representatives to 8,618
voters, and further gave two representatives to 4,854 voters and
one representative to 5,598 voters. Justice Rugg said:
It is not an approximation to equality to allot three representatives
to 7,946 voters, and only two representatives to 8,618 voters, and
to allot two representatives to 4,854 voters, and one representative
to 5,596 voters. . . .
Whenever this kind of inequality of apportionment has been before
the courts, it has been held to be contrary to the Constitution. It
has been said to be "arbitrary and capricious and against the vital
principle of equality." Houghton County v. Blacker, 92 Mich. 638,
647, 653; 16 LRA 432, 52 N.W. 951; Giddings vs. Blacken, 93 Mich.
1, 13, 16 LRA 402, 52 N.W. 944; Barker v. State, 133 Ind. 178, 197,
18 LRA 567, 32 NE 836, 33 NE 119; Denney v. State, 144 Ind. 503,
535, 31 LRA 726, 42 N. E. 929.

Other cases along the same line upholding the same view are
these:
1. Stiglitz v. Schardien, supra, wherein twelve districts entitled to
but six were given twelve representatives, and twelve districts
given twelve only were actually entitled to twenty-two.
2. Jones v. Freeman, supra, wherein districts entitled to only 3
senators were given 7, and districts entitled to 15 were assigned
seven only.
It is argued in the motion to reconsider, that since Republic Act
3040 improves existing conditions, this Court could perhaps, in the
exercise of judicial statesmanship, consider the question involved
as purely political and therefore non-justiciable. The overwhelming
weight of authority is that district apportionment laws are subject
to review by the courts.
The constitutionality of a legislative apportionment act is a judicial
question, and not one which the court cannot consider on the
ground that it is a political question. (Parker v. State ex rel. Powell,
18 L.R.A. 567, 133 Ind. 178, 32 N.E. 836; State ex rel. Morris v.
Wrightson, 22 L.R.A. 548, 56 N.J.L. 126, 28 Atl. 56; Harmison v.
Ballot Comrs. 42 L.R.A. 591, 45 W. Va. 179, 31 S. E. 394)
It is well settled that the passage of apportionment acts is not so
exclusively within the political power of the legislature as to
preclude a court from inquiring into their constitutionality when the
question is properly brought before it. (Indiana-Parker v. Powell
(1882) 133 Ind. 178, 18 L.R.A. 567, 32 N. E. 836, 33 N. E. 119;
Denney v. State (1896) 144 Ind. 503; 31 L.R.A. 726, 42 N. E. 929;
Marion County v. Jewett (1915) 184 Ind. 63, 110 N. E. 553.)
(Kentucky-Ragland v. Anderson (1907) 125 Ky 141, 128 Am. St.
Rep. 242, 100 S. W. 865.) (Massachusetts-Atty. Gen. v. Suffolk
County Apportionment Comrs., etc.)
It may be added in this connection, that the mere impact of the suit
upon the political situation does not render it political instead of
judicial. (Lamb v. Cunningham, 17 L.R.A. 145, 83 Wis. 90.) .
The alleged circumstance that this statute improves the present
set-up constitutes no excuse for approving a transgression of
constitutional limitations, because the end does not justify the
means. Furthermore, there is no reason to doubt that, aware of the
existing inequality of representation, and impelled by its sense of

26
duty, Congress will opportunely approve remedial legislation in
accord with the precepts of the Constitution.
Needless to say, equality of representation 3 in the Legislature being
such an essential feature of republican institutions, and affecting so
many lives, the judiciary may not with a clear conscience stand by
to give free hand to the discretion of the political departments of
the Government. Cases are numerous wherein courts intervened
upon proof of violation of the constitutional principle of equality of
representation.
An injunction to prevent the secretary of state from issuing notices
of election under an unconstitutional apportionment act gerrymandering the state is not a usurpation of authority by the court,
on the ground that the question is a political one, but the
constitutionality of the act is purely a judicial question. (State ex
rel. Adams County v. Cunningham, 15 L.R.A. 561, 81 Wis. 440, 51
N.W. 724.)
The fact that the action may have a political effect, and in that
sense effect a political object, does not make the questions
involved in a suit to declare the unconstitutionality of an
apportionment act political instead of judicial. (State ex rel. Lamb v.
Cunningham, 17 L.R.A. 145, 83 Wis. 90, 53 N.W. 48.)
An unconstitutional apportionment law may be declared void by the
courts, notwithstanding the fact that such statute is an exercise of
political power. (Denney vs. State ex rel. Basler, 31 L.R.A. 726, 144
Ind. 503, 42 N.E. 929.)
The constitutionality of a statute forming a delegate district or
apportioning delegates for the house of delegates is a judicial
question for the courts, although the statute is an exercise of
political power. (Harmison v. Ballot Comrs. 42 L.R.A. 591, 45 W. Va.
179, 31 S. E. 394.) [3 L.R.A. Digest, p. 2737.)
Conclusion. For all the foregoing, we hereby reiterate our
resolution declaring that Republic Act 3040 infringed the provisions
of the Constitution and is therefore void.
Padilla, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes,
Dizon,
De
Leon
and
Natividad,
JJ.,
concur.
Bautista Angelo, J., is on leave.

27
G.R. No. 73155 July 11, 1986
PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO
HILADO, VIRGILIO GASTON, CONCHITA MINAYA, TERESITA
ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA, ALBERTO
LACSON, FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND
CECILIA
MAGSAYSAY, petitioners,
vs.
THE COMMISSION ON ELECTIONS and THE PROVINCIAL
TREASURER OF NEGROS OCCIDENTAL,respondents.
Gamboa & Hofilea Law Office for petitioners.

ALAMPAY, J.:
Prompted by the enactment of Batas Pambansa Blg. 885-An Act
Creating a New Province in the Island of Negros to be known as the
Province of Negros del Norte, which took effect on December 3,
1985, Petitioners herein, who are residents of the Province of
Negros Occidental, in the various cities and municipalities therein,
on December 23, 1985, filed with this Court a case for Prohibition
for the purpose of stopping respondents Commission on Elections
from conducting the plebiscite which, pursuant to and in
implementation of the aforesaid law, was scheduled for January 3,
1986. Said law provides:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and
the municipalities of Calatrava, Taboso, Escalante, Sagay, Manapla,
Victorias, E.R. Magalona; and Salvador Benedicto, all in the
northern portion of the Island of Negros, are hereby separated from
the province to be known as the Province of Negros del Norte.
SEC. 2. The boundaries of the new province shall be the
southern limits of the City of Silay, the Municipality of Salvador
Benedicto and the City of San Carlos on the south and the territorial

limits of the northern portion to the Island of Negros on the west,

north and east, comprising a territory of 4,019.95 square
kilometers more or less.
SEC. 3. The seat of government of the new province shall be
the City of Cadiz.
SEC. 4. A plebiscite shall be conducted in the proposed new
province which are the areas affected within a period of one
hundred and twenty days from the approval of this Act. After the
ratification of the creation of the Province of Negros del Norte by a
majority of the votes cast in such plebiscite, the President of the
Philippines shall appoint the first officials of the province.
SEC. 5. The Commission on Elections shall conduct and
supervise the plebiscite herein provided, the expenses for which
shall be charged to local funds.
SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp.
23-24)
Petitioners contend that Batas Pambansa Blg. 885 is
unconstitutional and it is not in complete accord with the Local
Government Code as in Article XI, Section 3 of our Constitution, it is
expressly mandated that
See. 3. No province, city, municipality or barrio 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 the approval by a majority of the
votes in a plebiscite in the unit or units affected.
Section 197 of the Local Government Code enumerates the
conditions which must exist to provide the legal basis for the
creation of a provincial unit and these requisites are:

28
SEC. 197. Requisites for Creation. A province may be
created if it has a territory of at least three thousand five hundred
square kilometers, a population of at least five hundred thousand
persons, an average estimated annual income, as certified by the
Ministry of Finance, of not less than ten million pesos for the last
three consecutive years, and its creation shall not reduce the
population and income of the mother province or provinces at the
time of said creation to less than the minimum requirements under
this section. The territory need not be contiguous if it comprises
two or more islands.
The average estimated annual income shall include the income
alloted for both the general and infrastructural funds, exclusive of
trust funds, transfers and nonrecurring income. (Rollo, p. 6)
Due to the constraints brought about by the supervening Christmas
holidays during which the Court was in recess and unable to timely
consider the petition, a supplemental pleading was filed by
petitioners on January 4, 1986, averring therein that the plebiscite
sought to be restrained by them was held on January 3, 1986 as
scheduled but that there are still serious issues raised in the instant
case affecting the legality, constitutionality and validity of such
exercise which should properly be passed upon and resolved by this
Court.
The plebiscite was confined only to the inhabitants of the territory
of Negros del Nrte, namely: the Cities of Silay, Cadiz, and San
Carlos, and the municipalities of Calatrava, Taboso, Escalante,
Sagay, Manapla, Victorias, E.B. Magalona and Don Salvador
Benedicto. Because of the exclusions of the voters from the rest of
the province of Negros Occidental, petitioners found need to
change the prayer of their petition "to the end that the
constitutional issues which they have raised in the action will be
ventilated and given final resolution.'"At the same time, they asked
that the effects of the plebiscite which they sought to stop be
suspended until the Supreme Court shall have rendered its decision
on the very fundamental and far-reaching questions that petitioners
have brought out.

Acknowledging in their supplemental petition that supervening

events rendered moot the prayer in their initial petition that the
plebiscite scheduled for January 3, 1986, be enjoined, petitioners
plead, nevertheless, that... a writ of Prohibition be issued, directed to Respondent
Commission on Elections to desist from issuing official proclamation
of the results of the plebiscite held on January 3, 1986.
Finding that the exclusion and non-participation of the voters of the
Province of Negros Occidental other than those living within the
territory of the new province of Negros del Norte to be not in
accordance with the Constitution, that a writ of mandamus be
issued, directed to the respondent Commission on Elections, to
schedule the holding of another plebiscite at which all the qualified
voters of the entire Province of Negros Occidental as now existing
shall participate, at the same time making pronouncement that the
plebiscite held on January 3, 1986 has no legal effect, being a
patent legal nullity;
And that a similar writ of Prohibition be issued, directed to the
respondent Provincial Treasurer, to desist from ordering the release
of any local funds to answer for expenses incurred in the holding of
such plebiscite until ordered by the Court. (Rollo pp. 9-10).
Petitioners further prayed that the respondent COMELEC hold in
abeyance the issuance of any official proclamation of the results of
the aforestated plebiscite.
During the pendency of this case, a motion that he be allowed to
appear as amicus curiae in this case (dated December 27, 1985
and filed with the Court on January 2, 1986) was submitted by
former Senator Ambrosio Padilla. Said motion was granted in Our
resolution of January 2, 1986.
Acting on the petition, as well as on the supplemental petition for
prohibition with preliminary injunction with prayer for restraining
order, the Court, on January 7, 1986 resolved, without giving due

29
course to the same, to require respondents to comment, not to file
a motion to dismiss. Complying with said resolution, public
respondents, represented by the Office of the Solicitor General, on
January 14, 1986, filed their Comment, arguing therein that the
challenged statute.-Batas Pambansa 885, should be accorded the
presumption of legality. They submit that the said law is not void on
its face and that the petition does not show a clear, categorical and
undeniable demonstration of the supposed infringement of the
Constitution. Respondents state that the powers of the BatasangPambansa to enact the assailed law is beyond question. They claim
that Batas Pambansa Big. 885 does not infringe the Constitution
because the requisites of the Local Government Code have been
complied with. Furthermore, they submit that this case has now
become moot and academic with the proclamation of the new
Province of Negros del Norte.
Respondents argue that the remaining cities and municipalities of
the Province of Negros Occidental not included in the area of the
new Province of Negros del Norte, de not fall within the meaning
and scope of the term "unit or units affected", as referred to in
Section 3 of Art. XI of our Constitution. On this reasoning,
respondents maintain that Batas Pambansa Blg. 885 does not
violate the Constitution, invoking and citing the case of Governor
Zosimo Paredes versus the Honorable Executive Secretary to the
President, et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61),
particularly the pronouncements therein, hereunder quoted:
1. Admittedly,this is one of those cases where the discretion of the
Court is allowed considerable leeway. There is indeed an element of
ambiguity in the use of the expression 'unit or units affected'. It is
plausible to assert as petitioners do that when certain Barangays
are separated from a parent municipality to form a new one, all the
voters therein are affected. It is much more persuasive, however, to
contend as respondents do that the acceptable construction is for
those voters, who are not from the barangays to be separated,
should be excluded in the plebiscite.

2. For one thing, it is in accordance with the settled doctrine that

between two possible constructions, one avoiding a finding of
unconstitutionality and the other yielding such a result, the former
is to be preferred. That which will save, not that which will destroy,
commends itself for acceptance. After all, the basic presumption all
these years is one of validity. ...
3. ... Adherence to such philosophy compels the conclusion that
when there are indications that the inhabitants of several
barangays are inclined to separate from a parent municipality they
should be allowed to do so. What is more logical than to ascertain
their will in a plebiscite called for that purpose. It is they, and they
alone, who shall constitute the new unit. New responsibilities will be
assumed. New burdens will be imposed. A new municipal
corporation will come into existence. Its birth will be a matter of
choice-their choice. They should be left alone then to decide for
themselves. To allow other voters to participate will not yield a true
expression of their will. They may even frustrate it, That certainly
will be so if they vote against it for selfish reasons, and they
constitute the majority. That is not to abide by the fundamental
principle of the Constitution to promote local autonomy, the
preference being for smaller units. To rule as this Tribunal does is to
follow an accepted principle of constitutional construction, that in
ascertaining the meaning of a particular provision that may give
rise to doubts, the intent of the framers and of the people may be
gleaned from provisions in pari materia.
Respondents submit that said ruling in the aforecited case applies
equally with force in the case at bar. Respondents also maintain
that the requisites under the Local Government Code (P.D. 337) for
the creation of the new province of Negros del Norte have all been
duly complied with, Respondents discredit petitioners' allegations
that the requisite area of 3,500 square kilometers as so prescribed
in the Local Government Code for a new province to be created has
not been satisfied. Petitioners insist that the area which would
comprise the new province of Negros del Norte, would only be
about 2,856.56 square kilometers and which evidently would be
lesser than the minimum area prescribed by the governing statute.

30
Respondents, in this regard, point out and stress that Section 2 of
Batas Pambansa Blg. 885 creating said new province plainly
declares that the territorial boundaries of Negros del Norte
comprise an area of 4,019.95 square kilometers, more or less.

Secondly, in Parliamentary Bill No. 3644 which led to the enactment

of Batas Pambansa Blg. 885 and the creation of the new Province of
Negros del Norte, it expressly declared in Sec. 2 of the
aforementioned Parliamentary Bill, the following:

As a final argument, respondents insist that instant petition has

been rendered moot and academic considering that a plebiscite has
been already conducted on January 3, 1986; that as a result
thereof, the corresponding certificate of canvass indicated that out
of 195,134 total votes cast in said plebiscite, 164,734 were in favor
of the creation of Negros del Norte and 30,400 were against it; and
because "the affirmative votes cast represented a majority of the
total votes cast in said plebiscite, the Chairman of the Board of
Canvassers proclaimed the new province which shall be known as
"Negros del Norte". Thus, respondents stress the fact that following
the proclamation of Negros del Norte province, the appointments of
the officials of said province created were announced. On these
considerations, respondents urge that this case should be
dismissed for having been rendered moot and academic as the
creation of the new province is now a "fait accompli."

SEC. 2. The boundaries of the new province shall be the southern

limits of the City of Silay, the Municipality of Salvador Benedicto
and the City of San Carlos on the South and the natural boundaries
of the northern portion of the Island of Negros on the West, North
and East, containing an area of 285,656 hectares more or less.
(Emphasis supplied).

In resolving this case, it will be useful to note and emphasize the

facts which appear to be agreed to by the parties herein or stand
unchallenged.
Firstly, there is no disagreement that the Provincial Treasurer of the
Province of Negros Occidental has not disbursed, nor was required
to disburse any public funds in connection with the plebiscite held
on January 3, 1986 as so disclosed in the Comment to the Petition
filed by the respondent Provincial Treasurer of Negros Occidental
dated January 20, 1986 (Rollo, pp. 36-37). Thus, the prayer of the
petitioners that said Provincial Treasurer be directed by this Court
to desist from ordering the release of any public funds on account
of such plebiscite should not longer deserve further consideration.

However, when said Parliamentary Bill No. 3644 was very quickly
enacted into Batas Pambansa Blg. 885, the boundaries of the new
Province of Negros del Norte were defined therein and its
boundaries then stated to be as follows:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the
municipalities of Calatrava, Toboso, Escalante, Sagay, Manapla,
Victorias, E.R. Magalona; and Salvador Benedicto, all in the
northern portion of the Island of Negros, are hereby separated from
the Province of Negros Occidental and constituted into a new
province to be known as the Province of Negros del Norte.
SEC. 1. The boundaries of the new province shall be the southern
limits of the City of Silay, the Municipality of Salvador Benedicto
and the City of San Carlos on the south and the territorial limits of
the northern portion of the Island of Negros on the West, North and
East, comprising a territory of 4,019.95 square kilometers more or
less.
Equally accepted by the parties is the fact that under the
certification issued by Provincial Treasurer Julian L. Ramirez of the
Province of Negros Occidental, dated July 16, 1985, it was therein
certified as follows:
xxx xxx xxx

31
This is to certify that the following cities and municipalities of
Negros Occidental have the land area as indicated hereunder based
on the Special Report No. 3, Philippines 1980, Population, Land Area
and Density: 1970, 1975 and 1980 by the National Census and
Statistics Office, Manila.
Land Area
(Sq. Km.)
1.SilayCity.......................................................214.8
2. E.B. Magalona..........................................113.3
3. Victorias..................................................133.9
4. Manapla.....................................................112.9
5. Cadiz City ...................................................516.5
6. Sagay..........................................................389.6
7. Escalante....................................................124.0
8. Toboso.....................................................123.4
9. Calatrava......................................................504.5
10. San Carlos City.............................................451.3
11. Don Salvador Benedicto.................... (not available)
This certification is issued upon the request of Dr. Patricio Y. Tan for
whatever purpose it may serve him.
(SGD.) JULIAN L. RAMIREZ

Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).

Although in the above certification it is stated that the land area of
the relatively new municipality of Don Salvador Benedicto is not
available, it is an uncontradicted fact that the area comprising Don
Salvador municipality, one of the component units of the new
province, was derived from the City of San Carlos and from the
Municipality of Calatrava, Negros Occidental, and added thereto
was a portion of about one-fourth the land area of the town of
Murcia, Negros Occidental. It is significant to note the
uncontroverted submission of petitioners that the total land area of
the entire municipality of Murcia, Negros Occidental is only 322.9
square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this total
land area of Murcia that was added to the portions derived from the
land area of Calatrava, Negros Occidental and San Carlos City
(Negros Occidental) would constitute, therefore, only 80.2 square
kilometers. This area of 80.2 square kilometers if then added to
2,685.2 square kilometers, representing the total land area of the
Cities of Silay, San Carlos and Cadiz and the Municipalities of E.R.
Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and
Calatrava, will result in approximately an area of only 2,765.4
square kilometers using as basis the Special Report, Philippines
1980, Population, Land Area and Density: 1970, 1975 and 1980 of
the National Census and Statistics Office, Manila (see Exhibit "C",
Rollo, p. 90).
No controversion has been made by respondent with respect to the
allegations of petitioners that the original provision in the draft
legislation, Parliamentary Bill No. 3644, reads:
SEC. 4. A plebiscite shall be conducted in the areas affected within
a period of one hundred and twenty days from the approval of this
Act. After the ratification of the creation of the Province of Negros
del Norte by a majority of the votes cast in such plebiscite, the
President shall appoint the first officials of the new province.
However, when Batas Pambansa Blg. 885 was enacted, there was a
significant change in the above provision. The statute, as modified,

32
provides that the requisite plebiscite "shall be conducted in the
proposed new province which are the areas affected."
It is this legislative determination limiting the plebiscite exclusively
to the cities and towns which would comprise the new province that
is assailed by the petitioners as violative of the provisions of our
Constitution. Petitioners submit that Sec. 3, ART XI thereof,
contemplates a plebiscite that would be held in the unit or units
affected by the creation of the new province as a result of the
consequent division of and substantial alteration of the boundaries
of the existing province. In this instance, the voters in the
remaining areas of the province of Negros Occidental should have
been allowed to participate in the questioned plebiscite.
Considering that the legality of the plebiscite itself is challenged for
non-compliance with constitutional requisites, the fact that such
plebiscite had been held and a new province proclaimed and its
officials appointed, the case before Us cannot truly be viewed as
already moot and academic. Continuation of the existence of this
newly proclaimed province which petitioners strongly profess to
have been illegally born, deserves to be inquired into by this
Tribunal so that, if indeed, illegality attaches to its creation, the
commission of that error should not provide the very excuse for
perpetuation of such wrong. For this Court to yield to the
respondents' urging that, as there has been fait accompli then this
Court should passively accept and accede to the prevailing
situation is an unacceptable suggestion. Dismissal of the instant
petition, as respondents so propose is a proposition fraught with
mischief. Respondents' submission will create a dangerous
precedent. Should this Court decline now to perform its duty of
interpreting and indicating what the law is and should be, this
might tempt again those who strut about in the corridors of power
to recklessly and with ulterior motives, create, merge, divide and/or
alter the boundaries of political subdivisions, either brazenly or
stealthily, confident that this Court will abstain from entertaining
future challenges to their acts if they manage to bring about a fait
accompli.

In the light of the facts and circumstances alluded to by petitioners

as attending to the unusually rapid creation of the instant province
of Negros del Norte after a swiftly scheduled plebiscite, this Tribunal
has the duty to repudiate and discourage the commission of acts
which run counter to the mandate of our fundamental law, done by
whatever branch of our government. This Court gives notice that it
will not look with favor upon those who may be hereafter inclined to
ram through all sorts of legislative measures and then implement
the same with indecent haste, even if such acts would violate the
Constitution and the prevailing statutes of our land. It is illogical to
ask that this Tribunal be blind and deaf to protests on the ground
that what is already done is done. To such untenable argument the
reply would be that, be this so, the Court, nevertheless, still has the
duty and right to correct and rectify the wrong brought to its
attention.
On the merits of the case.
Aside from the simpler factual issue relative to the land area of the
new province of Negros del Norte, the more significant and pivotal
issue in the present case revolves around in the interpretation and
application in the case at bar of Article XI, Section 3 of the
Constitution, which being brief and for convenience, We again
quote:
SEC. 3. No province, city, municipality or barrio 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 the approval by a majority of the
votes in a plebiscite in the unit or units affected.
It can be plainly seen that the aforecited constitutional provision
makes it imperative that there be first obtained "the approval of a
majority of votes in the plebiscite in the unit or units affected"
whenever a province is created, divided or merged and there is
substantial alteration of the boundaries. It is thus inescapable to
conclude that the boundaries of the existing province of Negros
Occidental would necessarily be substantially altered by the

33
division of its existing boundaries in order that there can be created
the proposed new province of Negros del Norte. Plain and simple
logic will demonstrate than that two political units would be
affected. The first would be the parent province of Negros
Occidental because its boundaries would be substantially altered.
The other affected entity would be composed of those in the area
subtracted from the mother province to constitute the proposed
province of Negros del Norte.

changes or differences in the proposed Parliamentary Bill No. 3644

and the enacted Batas Pambansa Blg. 885; the swift and
surreptitious manner of passage and approval of said law; the
abrupt scheduling of the plebiscite; the reference to news articles
regarding the questionable conduct of the said plebiscite held on
January 3, 1986; all serve as interesting reading but are not the
decisive matters which should be reckoned in the resolution of this
case.

We find no way to reconcile the holding of a plebiscite that should

conform to said constitutional requirement but eliminates the
participation of either of these two component political units. No
amount of rhetorical flourishes can justify exclusion of the parent
province in the plebiscite because of an alleged intent on the part
of the authors and implementors of the challenged statute to carry
out what is claimed to be a mandate to guarantee and promote
autonomy of local government units. The alleged good intentions
cannot prevail and overrule the cardinal precept that what our
Constitution categorically directs to be done or imposes as a
requirement must first be observed, respected and complied with.
No one should be allowed to pay homage to a supposed
fundamental policy intended to guarantee and promote autonomy
of local government units but at the same time transgress, ignore
and disregard what the Constitution commands in Article XI Section
3 thereof. Respondents would be no different from one who hurries
to pray at the temple but then spits at the Idol therein.

What the Court considers the only significant submissions lending a

little support to respondents' case is their reliance on the rulings
and pronouncements made by this Court in the case of Governor
Zosimo Paredes versus The Honorable Executive Secretary to the
President, et al., G.R. No. 55628, March 2, 1984 (128 SCRA 6). In
said case relating to a plebiscite held to ratify the creation of a new
municipality from existing barangays, this Court upheld the legality
of the plebiscite which was participated in exclusively by the people
of the barangay that would constitute the new municipality.

We find no merit in the submission of the respondents that the

petition should be dismissed because the motive and wisdom in
enacting the law may not be challenged by petitioners. The
principal point raised by the petitioners is not the wisdom and
motive in enacting the law but the infringement of the Constitution
which is a proper subject of judicial inquiry.
Petitioners' discussion regarding the motives behind the enactment
of B.P. Blg. 885 to say the least, are most enlightening and
provoking but are factual issues the Court cannot properly pass
upon in this case. Mention by petitioners of the unexplained

This Court is not unmindful of this solitary case alluded to by

respondents. What is, however, highly significant are the prefatory
statements therein stating that said case is "one of those cases
where the discretion of the Court is allowed considerable leeway"
and that "there is indeed an element of ambiguity in the use of the
expression unit or units affected." The ruling rendered in said case
was based on a claimed prerogative of the Court then to exercise
its discretion on the matter. It did not resolve the question of how
the pertinent provision of the Constitution should be correctly
interpreted.
The ruling in the aforestated case of Paredes vs. The Honorable
Executive Secretary, et al. (supra) should not be taken as a
doctrinal or compelling precedent when it is acknowledged therein
that "it is plausible to assert, as petitioners do, that when certain
Barangays are separated from a parent municipality to form a new
one, all the voters therein are affected."

34
It is relevant and most proper to mention that in the aforecited case
of Paredes vs. Executive Secretary, invoked by respondents, We
find very lucidly expressed the strong dissenting view of Justice
Vicente Abad Santos, a distinguished member of this Court, as he
therein voiced his opinion, which We hereunder quote:
2. ... when the Constitution speaks of "the unit or units affected" it
means all of the people of the municipality if the municipality is to
be divided such as in the case at bar or an of the people of two or
more municipalities if there be a merger. I see no ambiguity in the
Constitutional provision.
This dissenting opinion of Justice Vicente Abad Santos is the
forerunner of the ruling which We now consider applicable to the
case at bar, In the analogous case of Emilio C. Lopez, Jr., versus the
Honorable Commission on Elections, L-56022, May 31, 1985, 136
SCRA 633, this dissent was reiterated by Justice Abad Santos as he
therein assailed as suffering from a constitutional infirmity a
referendum which did not include all the people of Bulacan and
Rizal, when such referendum was intended to ascertain if the
people of said provinces were willing to give up some of their towns
to Metropolitan Manila. His dissenting opinion served as a useful
guideline in the instant case.
Opportunity to re-examine the views formerly held in said cases is
now afforded the present Court. The reasons in the mentioned
cases invoked by respondents herein were formerly considered
acceptable because of the views then taken that local autonomy
would be better promoted However, even this consideration no
longer retains persuasive value.
The environmental facts in the case before Us readily disclose that
the subject matter under consideration is of greater magnitude with
concomitant multifarious complicated problems. In the earlier case,
what was involved was a division of a barangay which is the
smallest political unit in the Local Government Code.
Understandably, few and lesser problems are involved. In the case
at bar, creation of a new province relates to the largest political unit

contemplated in Section 3, Art. XI of the Constitution. To form the

new province of Negros del Norte no less than three cities and eight
municipalities will be subtracted from the parent province of Negros
Occidental. This will result in the removal of approximately 2,768.4
square kilometers from the land area of an existing province whose
boundaries will be consequently substantially altered. It becomes
easy to realize that the consequent effects cf the division of the
parent province necessarily will affect all the people living in the
separate areas of Negros Occidental and the proposed province of
Negros del Norte. The economy of the parent province as well as
that of the new province will be inevitably affected, either for the
better or for the worse. Whatever be the case, either or both of
these political groups will be affected and they are, therefore, the
unit or units referred to in Section 3 of Article XI of the Constitution
which must be included in the plebiscite contemplated therein.
It is a well accepted rule that "in ascertaining the meaning of a
particular provision that may give rise to doubts, the intent of the
framers and of the people, may be gleaned from the provisions
in pari materia." Parliamentary Bill No. 3644 which proposed the
creation of the new province of Negros del Norte recites in Sec. 4
thereof that "the plebiscite shall be conducted in the areas affected
within a period of one hundred and twenty days from the approval
of this Act." As this draft legislation speaks of "areas," what was
contemplated evidently are plurality of areas to participate in the
plebiscite. Logically, those to be included in such plebiscite would
be the people living in the area of the proposed new province and
those living in the parent province. This assumption will be
consistent with the requirements set forth in the Constitution.
We fail to find any legal basis for the unexplained change made
when Parliamentary Bill No. 3644 was enacted into Batas Pambansa
Blg. 885 so that it is now provided in said enabling law that the
plebiscite "shall be conducted in the proposed new province which
are the areas affected." We are not disposed to agree that by mere
legislative fiat the unit or units affected referred in the fundamental
law can be diminished or restricted by the Batasang Pambansa to
cities and municipalities comprising the new province, thereby

35
ignoring the evident reality that there are other people necessarily
affected.
In the mind of the Court, the change made by those responsible for
the enactment of Batas Pambansa Blg. 885 betrays their own
misgivings. They must have entertained apprehensions that by
holding the plebiscite only in the areas of the new proposed
province, this tactic will be tainted with illegality. In anticipation of a
possible strong challenge to the legality of such a plebiscite there
was, therefore, deliberately added in the enacted statute a selfserving phrase that the new province constitutes the area affected.
Such additional statement serves no useful purpose for the same is
misleading, erroneous and far from truth. The remaining portion of
the parent province is as much an area affected. The substantial
alteration of the boundaries of the parent province, not to mention
the other adverse economic effects it might suffer, eloquently
argue the points raised by the petitioners.
Petitioners have averred without contradiction that after the
creation of Negros del Norte, the province of Negros Occidental
would be deprived of the long established Cities of Silay, Cadiz, and
San Carlos, as well as the municipality of Victorias. No
controversion has been made regarding petitioners' assertion that
the areas of the Province of Negros Occidental will be diminished by
about 285,656 hectares and it will lose seven of the fifteen sugar
mills which contribute to the economy of the whole province. In the
language of petitioners, "to create Negros del Norte, the existing
territory and political subdivision known as Negros Occidental has
to be partitioned and dismembered. What was involved was no
'birth' but "amputation." We agree with the petitioners that in the
case of Negros what was involved was a division, a separation; and
consequently, as Sec. 3 of Article XI of the Constitution anticipates,
a substantial alteration of boundary.

isolated from the mutually exclusive to each other. A Province

maybe created where an existing province is divided or two
provinces merged. Such cases necessarily will involve existing unit
or units abolished and definitely the boundary being substantially
altered.
It would thus be inaccurate to state that where an existing political
unit is divided or its boundary substantially altered, as the
Constitution provides, only some and not all the voters in the whole
unit which suffers dismemberment or substantial alteration of its
boundary are affected. Rather, the contrary is true.
It is
that
this
that

also Our considered view that even hypothetically assuming

the merits of this case can depend on the mere discretion that
Court may exercise, nevertheless, it is the petitioners' case
deserve to be favored.

It is now time for this Court to set aside the equivocations and the
indecisive pronouncements in the adverted case of Paredes vs. the
Honorable Executive Secretary, et al. (supra). For the reasons
already here express, We now state that the ruling in the two
mentioned cases sanctioning the exclusion of the voters belonging
to an existing political unit from which the new political unit will be
derived, from participating in the plebiscite conducted for the
purpose of determining the formation of another new political unit,
is hereby abandoned.
In their supplemental petition, dated January 4, 1986, it is prayed
for by petitioners that a writ of mandamus be issued, directing the
respondent Commission on Elections, to schedule the holding of
another plebiscite at which all the qualified voters of the entire
province of Negros Occidental as now existing shall participate and
that this Court make a pronouncement that the plebiscite held on
January 3, 1986 has no legal effect for being a patent nullity.

As contended by petitioners,
Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used
in the constitutional provision do not contemplate distinct situation

The Court is prepared to declare the said plebiscite held on January

3, 1986 as null and void and violative of the provisions of Sec. 3,
Article XI of the Constitution. The Court is not, however, disposed to

36
direct the conduct of a new plebiscite, because We find no legal
basis to do so. With constitutional infirmity attaching to the subject
Batas Pambansa Big. 885 and also because the creation of the new
province of Negros del Norte is not in accordance with the criteria
established in the Local Government Code, the factual and legal
basis for the creation of such new province which should justify the
holding of another plebiscite does not exist.
Whatever claim it has to validity and whatever recognition has
been gained by the new province of Negros del Norte because of
the appointment of the officials thereof, must now be erased. That
Negros del Norte is but a legal fiction should be announced. Its
existence should be put to an end as quickly as possible, if only to
settle the complications currently attending to its creation. As has
been manifested, the parent province of Negros del Norte has been
impleaded as the defendant in a suit filed by the new Province of
Negros del Norte, before the Regional Trial Court of Negros (del
Norte), docketed as Civil Case No. 169-C, for the immediate
allocation, distribution and transfer of funds by the parent province
to the new province, in an amount claimed to be at least
P10,000,000.00.
The final nail that puts to rest whatever pretension there is to the
legality of the province of Negros del Norte is the significant fact
that this created province does not even satisfy the area
requirement prescribed in Section 197 of the Local Government
Code, as earlier discussed.
It is of course claimed by the respondents in their Comment to the
exhibits submitted by the petitioners (Exhs. C and D, Rollo, pp. 19
and 91), that the new province has a territory of 4,019.95 square
kilometers, more or less. This assertion is made to negate the
proofs submitted, disclosing that the land area of the new province
cannot be more than 3,500 square kilometers because its land area
would, at most, be only about 2,856 square kilometers, taking into
account government statistics relative to the total area of the cities
and municipalities constituting Negros del Norte. Respondents
insist that when Section 197 of the Local Government Code speaks

of the territory of the province to be created and requires that such

territory be at least 3,500 square kilometers, what is contemplated
is not only the land area but also the land and water over which the
said province has jurisdiction and control. It is even the submission
of the respondents that in this regard the marginal sea within the
three mile limit should be considered in determining the extent of
the territory of the new province. Such an interpretation is strained,
incorrect, and fallacious.
The last sentence of the first paragraph of Section 197 is most
revealing. As so stated therein the "territory need not be
contiguous if it comprises two or more islands." The use of the
word territory in this particular provision of the Local Government
Code and in the very last sentence thereof, clearly reflects
that "territory" as therein used, has reference only to the mass of
land area and excludes the waters over which the political unit
exercises control.
Said sentence states that the "territory need not be contiguous."
Contiguous means (a) in physical contact; (b) touching along all or
most of one side; (c) near, text, or adjacent (Webster's New World
Dictionary, 1972 Ed., p. 307). "Contiguous", when employed as an
adjective, as in the above sentence, is only used when it describes
physical contact, or a touching of sides of two solid masses of
matter. The meaning of particular terms in a statute may be
ascertained by reference to words associated with or related to
them in the statute (Animal Rescue League vs. Assessors, 138
A.L.R. p. 110). Therefore, in the context of the sentence above,
what need not be "contiguous" is the "territory" the physical mass
of land area. There would arise no need for the legislators to use
the word contiguous if they had intended that the term "territory"
embrace not only land area but also territorial waters. It can be
safely concluded that the word territory in the first paragraph of
Section 197 is meant to be synonymous with "land area" only. The
words and phrases used in a statute should be given the meaning
intended by the legislature (82 C.J.S., p. 636). The sense in which
the words are used furnished the rule of construction (In re Winton
Lumber Co., 63 p. 2d., p. 664).

37
The distinction between "territory" and "land area" which
respondents make is an artificial or strained construction of the
disputed provision whereby the words of the statute are arrested
from their plain and obvious meaning and made to bear an entirely
different meaning to justify an absurd or unjust result. The plain
meaning in the language in a statute is the safest guide to follow in
construing the statute. A construction based on a forced or artificial
meaning of its words and out of harmony of the statutory scheme is
not to be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909).
It would be rather preposterous to maintain that a province with a
small land area but which has a long, narrow, extended coast line,
(such as La Union province) can be said to have a larger territory
than a land-locked province (such as Ifugao or Benguet) whose land
area manifestly exceeds the province first mentioned.
Allegations have been made that the enactment of the questioned
state was marred by "dirty tricks", in the introduction and passing
of Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister
designs to achieve "pure and simple gerrymandering; "that recent
happenings more than amply demonstrate that far from
guaranteeing its autonomy it (Negros del Norte) has become the
fiefdom of a local strongman" (Rollo, p. 43; emphasis supplied).
It is not for this Court to affirm or reject such matters not only
because the merits of this case can be resolved without need of
ascertaining the real motives and wisdom in the making of the
questioned law. No proper challenge on those grounds can also be
made by petitioners in this proceeding. Neither may this Court
venture to guess the motives or wisdom in the exercise of
legislative powers. Repudiation of improper or unwise actions taken
by tools of a political machinery rests ultimately, as recent events
have shown, on the electorate and the power of a vigilant people.
Petitioners herein deserve and should receive the gratitude of the
people of the Province of Negros Occidental and even by our
Nation. Commendable is the patriotism displayed by them in daring
to institute this case in order to preserve the continued existence of

their historic province. They were inspired undoubtedly by their

faithful commitment to our Constitution which they wish to be
respected and obeyed. Despite the setbacks and the hardships
which petitioners aver confronted them, they valiantly and
unfalteringly pursued a worthy cause. A happy destiny for our
Nation is assured as long as among our people there would be
exemplary citizens such as the petitioners herein.
WHEREFORE, Batas Pambansa Blg. 885 is hereby declared
unconstitutional. The proclamation of the new province of Negros
del Norte, as well as the appointment of the officials thereof are
also declared null and void.
SO ORDERED.
Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and
Paras, JJ., concur.
Melencio-Herrera, J., concurs in the result.

Separate Opinions
TEEHANKEE, C.J., concurring:
I congratulate my brethren for the unanimous decision we issue
today striking down an Act approved in "deep secrecy and
inordinate haste" apparently on the last day of session of the
Batasang Pambansa on December 3, 1985 and signed on the same
day by the then President of the authoritarian regime. The Act
provided for the partitioning of the province of Negros Occidental
and would substantially alter its boundaries by lopping off the
progressive cities of Silay, Cadiz and San Carlos and municipality of
Victorias with seven other municipalities to constitute the proposed
new province of Negros del Norte. Negros Occidental would thereby
lose 4,019.95 square kilometers in area and seven of fifteen sugar

38
mills which contribute to the economic progress and welfare of the
whole province.

the ordinary citizen to perform deeds of courage and patriotism

that makes one proud to be a Filipino today. (Record, pp. 9, 41).

The discredited Commission on Elections of the time played its

customary subservient role by setting the plebiscite with equal
"indecent haste" for January 3, 1986, notwithstanding that the Act
itself provided for an ample period of 120 days from its approval
within which to inform the people of the proposed dismemberment
and allow them to freely express and discuss the momentous issue
and cast their vote intelligently. This was learned by petitioners
through an item in the printed media one day before they filed the
present rush petition on December 23, 1985 to seek a restraining
order to atop the plebiscite, even as no printed copies of the Act as
finally enacted and approved were available to them and the Act
had not been published, as required by law, for its effectivity. As
petitioners ruefully state: "it was in vain hope" for everything had
apparently been timed for the Christmas holidays; the Court was in
Christmas recess and "there was no chance to have their plea for a
restraining order acted upon speedily enough." In fact, it was only
on January 7, 1986 that the Court took cognizance of the petition
and required respondents' comment.

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 La 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 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.

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 argument of fait accompli viz. that the railroaded plebiscite of

January 3, 1986 was held and can no longer be enjoined and that
the new province of Negros del Norte has been constituted, begs
the issue of invalidity of the challenged Act. This Court has always
held that it "does not look with favor upon parties 'racing to beat an
injunction or restraining order' which they have reason to believe
might be forthcoming from the Court by virtue of the filing and

39
pendency of the appropriate petition therefor. Where the
restraining order or preliminary injunction are found to have been
properly issued, as in the case at bar, mandatory writs shall be
issued by the Court to restore matters to the status quo ante."
(Banzon v. Cruz, 45 SCRA 475, 506 [1972]). Where, as in this case,
there was somehow a failure to properly issue the restraining order
stopping the holding of the illegal plebiscite, the Court will issue the
mandatory writ or judgment to restore matters to the status quo
ante and restore the territorial integrity of the province of Negros
Occidental by declaring the unconstitutionality of the challenged
Act and nullifying the invalid proclamation of the proposed new
province of Negros del Norte and the equally invalid appointment of
its officials.

Separate Opinions
TEEHANKEE, C.J., concurring:
I congratulate my brethren for the unanimous decision we issue
today striking down an Act approved in "deep secrecy and
inordinate haste" apparently on the last day of session of the
Batasang Pambansa on December 3, 1985 and signed on the same
day by the then President of the authoritarian regime. The Act
provided for the partitioning of the province of Negros Occidental
and would substantially alter its boundaries by lopping off the
progressive cities of Silay, Cadiz and San Carlos and municipality of
Victorias with seven other municipalities to constitute the proposed
new province of Negros del Norte. Negros Occidental would thereby
lose 4,019.95 square kilometers in area and seven of fifteen sugar
mills which contribute to the economic progress and welfare of the
whole province.
The discredited Commission on Elections of the time played its
customary subservient role by setting the plebiscite with equal
"indecent haste" for January 3, 1986, notwithstanding that the Act
itself provided for an ample period of 120 days from its approval

within which to inform the people of the proposed dismemberment

and allow them to freely express and discuss the momentous issue
and cast their vote intelligently. This was learned by petitioners
through an item in the printed media one day before they filed the
present rush petition on December 23, 1985 to seek a restraining
order to atop the plebiscite, even as no printed copies of the Act as
finally enacted and approved were available to them and the Act
had not been published, as required by law, for its effectivity. As
petitioners ruefully state: "it was in vain hope" for everything had
apparently been timed for the Christmas holidays; the Court was in
Christmas recess and "there was no chance to have their plea for a
restraining order acted upon speedily enough." In fact, it was only
on January 7, 1986 that the Court took cognizance of the petition
and required respondents' comment.
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. (Record, pp. 9, 41).
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

40
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 La 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 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.
The argument of fait accompli viz. that the railroaded plebiscite of
January 3, 1986 was held and can no longer be enjoined and that
the new province of Negros del Norte has been constituted, begs
the issue of invalidity of the challenged Act. This Court has always
held that it "does not look with favor upon parties 'racing to beat an
injunction or restraining order' which they have reason to believe
might be forthcoming from the Court by virtue of the filing and
pendency of the appropriate petition therefor. Where the
restraining order or preliminary injunction are found to have been
properly issued, as in the case at bar, mandatory writs shall be
issued by the Court to restore matters to the status quo ante."
(Banzon v. Cruz, 45 SCRA 475, 506 [1972]). Where, as in this case,
there was somehow a failure to properly issue the restraining order
stopping the holding of the illegal plebiscite, the Court will issue the
mandatory writ or judgment to restore matters to the status quo

ante and restore the territorial integrity of the province of Negros

Occidental by declaring the unconstitutionality of the challenged
Act and nullifying the invalid proclamation of the proposed new
province of Negros del Norte and the equally invalid appointment of
its officials.

41
[G.R.
No.
136781.
October
6,
2000.]
VETERANS FEDERATION PARTY, ALYANSANG BAYANIHAN NG
MGA
MAGSASAKA,
MANGGAGAWANG
BUKID
AT
MANGINGISDA, ADHIKAIN AT KILUSAN NG ORDINARYONG
TAO PARA SA LUPA, PABAHAY AT KAUNLARAN, and LUZON
FARMERS
PARTY, Petitioners,
v.
COMMISSION
ON
ELECTIONS, PAG-ASA, SENIOR CITIZENS, AKAP AKSYON,
PINATUBO, NUPA, PRP, AMIN, PAG-ASA, MAHARLIKA, OCWUNIFIL, PCCI, AMMA-KATIPUNAN, KAMPIL, BANTAY-BAYAN,
AFW, ANG LAKAS OCW, WOMEN-POWER INC., FEJODAP, CUP,
VETERANS CARE, 4L, AWATU, PMP, ATUCP, NCWP, ALU,
BIGAS, COPRA, GREEN, ANAKBAYAN, ARBA, MINFA, AYOS,
ALL COOP, PDP-LABAN, KATIPUNAN, ONEWAY PRINT,
AABANTE
KA
PILIPINAS

All
Being
Party-List
Parties/Organizations and Hon MANUEL B. VILLAR JR. in
his
Capacity
as
Speaker
of
the
House
of
Representatives, Respondents.
[G.R.
No.
136786.
October
6,
2000.]
AKBAYAN! (CITIZENS ACTION PARTY), ADHIKAIN AT
KILUSAN NG ORDINARYONG TAO PARA SA LUPA, PABAHAY AT
KAUNLARAN (AKO), and ASSOCIATION OF PHILIPPINE
ELECTRIC
COOPERATIVES
(APEC), Petitioners,
v.
COMMISSION ON ELECTIONS (COMELEC), HOUSE OF
REPRESENTATIVES represented by Speaker Manuel B. Villar,
PAG-ASA, SENIOR CITIZENS, AKAP, AKSYON, PINATUBO,
NUPA, PRP, AMIN, MAHARLIKA, OCW, UNIFIL, PCCI, AMMAKATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS
OCW, WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE,
FOUR "L", AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA,
GREEN, ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDPLABAN,
KATIPUNAN,
ONEWAY
PRINT,
AABANTE
KA
PILIPINAS, Respondents.
[G.R.
No.
136795.
October
6,
2000.]
ALAGAD (PARTIDO NG MARALITANG-LUNGSOD), NATIONAL
CONFEDERATION
OF
SMALL
(COCONUT
FARMERS
ORGANIZATIONS (NCSFCO), and LUZON FARMERS PARTY

(BUTIL),Petitioners, v. COMMISSION ON ELECTIONS, SENIOR

CITIZENS, AKAP, AKSYON, PINATUBO, NUPA, PRP, AMIN,
PAG-ASA,
MAHARLIKA,
OCW,
UNIFIL,
PCCI,
AMMAKATIPUNAN, KAMPIL, BANTAY-BAYAN, AFW, ANG LAKAS
OCW, WOMENPOWER INC., FEJODAP, CUP, VETERANS CARE,
4L, AWATU, PMP, ATUCP, NCWP, ALU, BIGAS, COPRA, GREEN,
ANAK-BAYAN, ARBA, MINFA, AYOS, ALL COOP, PDP-LABAN,
KATIPUNAN,
ONEWAY
PRINT,
and
AABANTE
KA
PILIPINAS,Respondents.

DECISION
PANGANIBAN,
Prologue

p*

To determine the winners in a Philippine-style party-list election, the

Constitution and Republic Act (RA) No. 7941 mandate at least four
inviolable parameters. These are:chanrob1es virtua1 1aw 1ibrary
First, the twenty percent allocation the combined number of all
party-list congressmen shall not exceed twenty percent of the total
membership of the House of Representatives, including those
elected
under
the
party
list.
Second, the two percent threshold only those parties garnering a
minimum of two percent of the total valid votes cast for the partylist system are "qualified" to have a seat in the House of
Representatives;
Third, the three-seat limit each qualified party, regardless of the
number of votes it actually obtained, is entitled to a maximum of
three seats; that is, one "qualifying" and two additional seats.
Fourth, proportional representation the additional seats which a
qualified party is entitled to shall be computed "in proportion to
their
total
number
of
votes."
Because the Comelec violated these legal parameters, the assailed
Resolutions must be struck down for having been issued in grave
abuse of discretion. The poll body is mandated to enforce and
administer election-related laws. It has no power to contravene or
amend them. Neither does it have authority to decide the wisdom,

42
propriety
or
rationality
of
the
acts
of
Congress.
Its bounden duty is to craft rules, regulations, methods and
formulas to implement election laws not to reject, ignore, defeat,
obstruct
or
circumvent
them.
In fine, the constitutional introduction of the party-list system a
normal feature of parliamentary democracies into our
presidential form of government, modified by unique Filipino
statutory parameters, presents new paradigms and novel
questions, which demand innovative legal solutions convertible into
mathematical formulations which are, in turn, anchored on timetested jurisprudence.
The Case
Before the Court are three consolidated Petitions for Certiorari (with
applications for the issuance of a temporary restraining order or
writ of preliminary injunction) under Rule 65 of the Rules of Court,
assailing (1) the October 15, 1998 Resolution 1 of the Commission
on Elections (Comelec), Second Division, in Election Matter 98-065;
2 and (2) the January 7, 1999 Resolution 3 of the Comelec en banc,
affirming the said disposition. The assailed Resolutions ordered the
proclamation
of
thirty-eight
(38)
additional
party-list
representatives "to complete the full complement of 52 seats in the
House of Representatives as provided under Section 5, Article VI of
the
1987
Constitution
and
R.A.
7941."
The
Facts
and
the
Antecedents
Our 1987 Constitution introduced a novel feature into our
presidential system of government the party-list method of
representation. Under this system, any national, regional or
sectoral party or organization registered with the Commission on
Elections may participate in the election of party-list
representatives who, upon their election and proclamation, shall sit
in the House of Representatives as regular members. 4 In effect, a
voter is given two (2) votes for the House one for a district
congressman and another for a party-list representative. 5
Specifically, this system of representation is mandated by Section
5,
Article
VI
of
the
Constitution,
which
provides:
"SECTION 5. (1) The House of Representatives shall be composed of

not more than two hundred and fifty members, unless otherwise
fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio,
and those who, as provided by law, shall be elected by a party-list
system of registered national, regional, and sectoral parties or
organizations.
(2) The party-list representatives shall constitute twenty per
centum of the total number of representatives including those
under the party-list. For three consecutive terms after the
ratification of this Constitution, one half of the seats allocated to
party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector."
Complying with its constitutional duty to provide by law the
"selection or election" of party-list representatives, Congress
enacted RA 7941 on March 3, 1995. Under this statutes policy
declaration, the State shall" promote proportional representation in
the election of representatives to the House of Representatives
through a party-list system of registered national, regional and
sectoral parties or organizations or coalitions thereof, which will
enable
Filipino
citizens
belonging
to
marginalized
and
underrepresented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and
guarantee a full, free and open party system in order to attain the
broadest possible representation of party, sectoral or group
interests in the House of Representatives by enhancing their
chances to compete for and win seats in the legislature, and shall
provide the simplest scheme possible." (Emphasis ours.)
The requirements for entitlement to a party-list seat in the House
are prescribed by this law (RA 7941) in this wise:
"SECTION 11. Number of Party-List Representatives. The party-

43
list representatives shall constitute twenty per centum (20%) of the
total number of the members of the House of Representatives
including
those
under
the
party-list.
For purposes of the May 1998 elections the first five (5) major
political parties on the basis of party representation in the House of
Representatives at the start of the Tenth Congress of the Philippines
shall not be entitled to participate in the party-list system.
In determining the allocation of seats for the second vote, the
following
procedure
shall
be
observed:
(a) The parties, organizations, and coalitions shall be ranked from
the highest to the lowest based on the number of votes they
garnered
during
the
elections.
(b) The parties, organizations, and coalitions receiving at least two
percent (2%) of the total votes cast for the party-list system shall
be entitled to one seat each; Provided, That those garnering more
than two percent (2%) of the votes shall be entitled to additional
seats in proportion to their total number of votes; Provided, finally,
That each party, organization, or coalition shall be entitled to not
more
than
three
(3)
seats.
Pursuant to Section 18 of RA 7941, the Comelec en banc
promulgated Resolution No. 2847, prescribing the rules and
regulations governing the election of party-list representatives
through
the
party-list
system.
Election
of
the
Fourteen
Party-list
Representatives
May 11, 1998, the first election for party-list representation was
held simultaneously with the national elections. A total of one
hundred twenty-three (123) parties, organizations and coalitions
participated. On June 26, 1998, the Comelec en banc proclaimed
thirteen (13) party-list representatives from twelve (12) parties and
organizations, which had obtained at least two percent of the total
number of votes cast for the party-list system. Two of the
proclaimed representatives belonged to Petitioner APEC, which
obtained 5.5 percent of the votes. The proclaimed winners and the
votes
cast
in
their
favor
were
as
follows:
6
Party/Organization/

Number

of

Percentage

of

Nominees

Coalition
Votes
Obtained
Total
Votes
1.
APEC
503,487
5.5%
Rene
M.
Silos
Melvyn
D.
Eballe
2.
ABA
321,646
3.51%
Leonardo
Q.
Montemayor
3.
ALAGAD
312,500
3.41%
Diogenes
S.
Osabel
4.
VETERANS
304,802
3.33%
Eduardo
P.
Pilapil
FEDERATION
5.
PROMDI
255,184
2.79%
Joy
A.G.
Young
6.
AKO
239,042
2.61%
Ariel
A.
Zartiga
7.
NCSCFO
238,303
2.60%
Gorgonio
P.
Unde
8. ABANSE! PINAY 235,548 2.57% Patricia M. Sarenas
9.
AKBAYAN
232,376
2.54%
Loreta
Ann
P.
Rosales
10.
BUTIL
215,643
2.36%
Benjamin
A.
Cruz
11.
SANLAKAS
194,617
2.13%
Renato
B.
Magtubo
12.
COOP-NATCCO
189,802
2.07%
Cresente
C.
Paez
After passing upon the results of the special elections held on July
4, 18, and 25, 1998, the Comelec en banc further determined that
COCOFED (Philippine Coconut Planters Federation, Inc.) was
entitled to one party-list seat for having garnered 186,388 votes,
which were equivalent to 2.04 percent of the total votes cast for
the party-list system. Thus, its first nominee, Emerito S. Calderon,
was proclaimed on September 8, 1998 as the 14th party-list
representative.
7
On July 6, 1998, PAG-ASA (Peoples Progressive Alliance for Peace
and Good Government Towards Alleviation of Poverty and Social
Advancement) filed with the Comelec a "Petition to Proclaim [the]
Full Number of Party-List Representatives provided by the
Constitution." It alleged that the filling up of the twenty percent
membership of party-list representatives in the House of
Representatives, as provided under the Constitution, was
mandatory. It further claimed that the literal application of the two
percent vote requirement and the three-seat limit under RA 7941
would defeat this constitutional provision, for only 25 nominees
would be declared winners, short of the 52 party-list
representatives who should actually sit in the House.
Thereafter, nine other party-list organizations 8 filed their
respective Motions for Intervention, seeking the same relief as that

44
sought by PAG-ASA on substantially the same grounds. Likewise,
PAG-ASAs Petition was joined by other party-list organizations in a
Manifestation they filed on August 28, 1998. These organizations
were COCOFED, Senior Citizens, AKAP, AKSYON, PINATUBO, NUPA,
PRP, AMIN, PCCI, AMMA-KATIPUNAN, OCW-UNIFIL, KAMPIL,
MAHARLIKA, AFW, Women Power, Inc., Ang Lakas OCW, FEJODAP,
CUP, Veterans Care, Bantay Bayan, 4L, AWATU, PMP, ATUCP, ALU
and
BIGAS.
On October 15, 1998, the Comelec Second Division promulgated
the present assailed Resolution granting PAG-ASAs Petition. It also
ordered the proclamation of herein 38 respondents who, in addition
to the 14 already sitting, would thus total 52 party-list
representatives. It held that "at all times, the total number of
congressional 9 seats must be filled up by eighty (80%) percent
district representatives and twenty (20%) percent party-list
representatives." In allocating the 52 seats, it disregarded the two
percent-vote requirement prescribed under Section 11 (b) of RA
7941. Instead, it identified three "elements of the party-list
system," which should supposedly determine "how the 52 seats
should be filled up." First, "the system was conceived to enable the
marginalized sectors of the Philippine society to be represented in
the House of Representatives." Second, "the system should
represent the broadest sectors of the Philippine society." Third, "it
should encourage [the] multi-party system." (Boldface in the
original.) Considering these elements, but ignoring the two percent
threshold requirement of RA 7941, it concluded that "the party-list
groups ranked Nos. 1 to 51 . . . should have at least one
representative." It thus disposed as follows:
"WHEREFORE, by virtue of the powers vested in it by the
Constitution, the Omnibus Election Code (B.P. 881), Republic Act
No. 7941 and other election laws, the Commission (Second
Division) hereby resolves to GRANT the instant petition and motions
for
intervention,
to
include
those
similarly
situated.
ACCORDINGLY, the nominees from the party-list hereinbelow
enumerated based on the list of names submitted by their
respective parties, organizations and coalitions are PROCLAIMED as
party-list
representatives,
to
wit:

1.
SENIOR
CITIZENS
2.
AKAP
3.
AKSYON
4.
PINATUBO
5.
NUPA
6.
PRP
7.
AMIN
8.
PAG-ASA
9.
MAHARLIKA
10.
OCW-UNIFIL
11.
FCL
12.
AMMA-KATIPUNAN
13.
KAMPIL
14.
BANTAY
BAYAN
15.
AFW
16.
ANG
LAKAS
OCW
17. WOMENPOWER, INC. 18. FEJODAP 19. CUP 20. VETERANS CARE
21.
4L
22.
AWATU
23.
PMP
24. ATUCP 25. NCWP 26. ALU 27. BIGAS 28. COPRA 29. GREEN 30.
ANAKBAYAN
31.
ARBA
32. MINFA 33. AYOS 34. ALL COOP 35. PDP-LABAN 36. KATIPUNAN
37.
ONEWAY
PRINT
38.
AABANTE
KA
PILIPINAS
to complete the full complement of 52 seats in the House of
Representatives as provided in Section 5, Article VI of the 1987
Constitution
and
R.A.
7941."
The foregoing disposition sums up a glaring bit of inconsistency and
flip-flopping. In its Resolution No. 2847 dated June 25, 1996, the
Comelec en banc had unanimously promulgated a set of "Rules and
Regulations Governing the Election of . . . Party List Representatives
Through the Party-List System." Under these Rules and Regulations,
one additional seat shall be given for every two percent of the vote,
a formula the Comelec illustrated in its Annex "A." It apparently
relied on this method when it proclaimed the 14 incumbent partylist solons (two for APEC and one each for the 12 other qualified
parties). However, for inexplicable reasons, it abandoned said
unanimous Resolution and proclaimed, based on its three
"elements," the "Group of 38" private respondents. 10
The twelve (12) parties and organizations, which had earlier been
proclaimed winners on the basis of having obtained at least two
percent of the votes cast for the party-list system, objected to the
proclamation of the 38 parties and filed separate Motions for
Reconsideration. They contended that (1) under Section 11 (b) of
RA 7941, only parties, organizations or coalitions garnering at least
two percent of the votes for the party-list system were entitled to
seats in the House of Representatives; and (2) additional seats, not
exceeding two for each, should be allocated to those which had

45
garnered the two percent threshold in proportion to the number of
votes cast for the winning parties, as provided by said Section
11.chanrob1es
virtua1
1aw
1ibrary
Ruling
of
the
Comelec
En
Banc
Noting that all the parties movants and oppositors alike had
agreed that the twenty percent membership of party-list
representatives in the House "should be filled up," the Comelec en
banc resolved only the issue concerning the apportionment or
allocation of the remaining seats. In other words, the issue was:
Should the remaining 38 unfilled seats allocated to party-list solons
be given (1) to the thirteen qualified parties that had each garnered
at least two percent of the total votes, or (2) to the Group of 38
herein private respondents even if they had not passed the two
percent
threshold?
The poll body held that to allocate the remaining seats only to
those who had hurdled the two percent vote requirement "will
mean the concentration of representation of party, sectoral or
group interests in the House of Representatives to thirteen
organizations representing two political parties, three coalitions and
four sectors: urban poor, veterans, women and peasantry . . . Such
strict application of the 2% threshold does not serve the essence
and object of the Constitution and the legislature to develop and
guarantee a full, free and open party system in order to attain the
broadest possible representation of party, sectoral or group
interests in the House of Representatives . . ." Additionally, it "will
also present this Commission from complying with the
constitutional and statutory decrees for party-list representatives to
compose
20%
of
the
House
of
Representatives."
Thus, in its Resolution dated January 7, 1999, the Comelec en banc,
by a razor-thin majority with three commissioners concurring 11
and two members 12 dissenting affirmed the Resolution of its
Second Division. It, however, held in abeyance the proclamation of
the 51st party (AABANTE KA PILIPINAS), "pending the resolution of
petitions
for
correction
of
manifest
errors.
Without expressly declaring as unconstitutional or void the two

percent vote requirement imposed by RA 7941, the Commission

blithely rejected and circumvented its application, holding that
there were more important considerations than this statutory
threshold.
Consequently, several petitions for certiorari, prohibition and
mandamus, with prayers for the issuance of temporary restraining
orders or writs of preliminary injunction, were filed before this Court
by the parties and organizations that had obtained at least two per
cent of the total votes cast for the party-list system. 13 In the suits,
made respondents together with the Comelec were the 38 parties,
organizations and coalitions that had been declared by the poll
body as likewise entitled to party-list seats in the House of
Representatives. Collectively, petitioners sought the proclamation
of additional representatives from each of their parties and
organizations, all of which had obtained at least two percent of the
total
votes
cast
for
the
party-list
system.
On January 12, 1999, this Court issued a Status Quo Order directing
the Comelec "to CEASE and DESIST from constituting itself as a
National Board of Canvassers on 13 January 1999 or on any other
date and proclaiming as winners the nominees of the parties,
organizations and coalitions enumerated in the dispositive portions
at its 15 October 1998 Resolution or its 7 January 1999 Resolution,
until
further
orders
from
this
Court."
On July 1, 1999, oral arguments were heard from the parties. Atty.
Jeremias U. Montemayor appeared for petitioners in GR No.
136781; Atty. Gregorio A. Andolana, for petitioners in GR No.
136786; Atty. Rodante D. Marcoleta for petitioners in GR No.
136795; Attys. Ricardo Blancaflor and Pete Quirino Quadra, for all
the private respondents; Atty. Porfirio V. Sison for Intervener
NACUSIP; and Atty. Jose P. Balbuena for Respondent Comelec. Upon
invitation of the Court, retired Comelec Commissioner Regalado E.
Maambong acted as amicus curiae. Solicitor General Ricardo P.
Galvez appeared, not for any party but also as a friend of the Court.
Thereafter, the parties and the amici curiae were required to
submit their respective Memoranda in amplification of their verbal
arguments. 14

46
The Issues
The Court believes, and so holds, that the main question of how to
determine the winners of the subject party-list election can be
settled
by
addressing
the
following
issues:
1. Is the twenty percent allocation for party-list representatives
mentioned in Section 5 (2), Article VI of the Constitution,
mandatory or is it merely a ceiling? In other words, should the
twenty percent allocation for party-list solons be filled up
completely
and
all
the
time?
2. Are the two percent threshold requirement and the three-seat
limit provided in Section 11 (b) of RA 7941 constitutional?
3. If the answer to Issue 2 is in the affirmative, how should the
additional seats of a qualified party be determined?
The Courts Ruling
The Petitions are partly meritorious. The Court agrees with
petitioners that the assailed Resolutions should be nullified, but
disagrees that they should all be granted additional seats.
First
Issue:
Whether
the
Twenty
Percent
Constitutional
Allocation
Is
Mandatory
The pertinent provision 15 of the Constitution on the composition of
the
House
of
Representatives
reads
as
follows:
"SECTION 5. (1) The House of Representatives shall be composed of
not more than two hundred and fifty members, unless otherwise
fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio,
and those who, as provided by law, shall be elected by a party-list
system of registered national, regional, and sectoral parties or
organizations.
(2) The party-list representatives shall constitute twenty per
centum of the total number of representatives including those
under the party-list. For three consecutive terms after the
ratification of this Constitution, one half of the seats allocated to
party-list representatives shall be filled, as provided by law, by

selection or election from the labor, peasant, urban poor,

indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector."
Determination
of
the
Total
Number
of
Party-List
Lawmakers
Clearly, the Constitution makes the number of district
representatives the determinant in arriving at the number of seats
allocated for party-list lawmakers, who shall comprise "twenty per
centum of the total number of representatives including those
under the party-list." We thus translate this legal provision into a
mathematical
formula,
as
follows:
No. of district representatives
x .20 = No. of party-list
.80

representatives

This formulation 16 means that any increase in the number of

district representatives, as may be provided by law, will necessarily
result in a corresponding increase in the number of party-list seats.
To illustrate, considering that there were 208 district
representatives to be elected during the 1998 national elections,
the number of party-list seats would be 52, computed as follows:
208

.20

52.80

The foregoing computation of seat allocation is easy enough to

comprehend. The problematic question, however, is this: Does the
Constitution require all such allocated seats to be filled up all the
time and under all circumstances? Our short answer is "No."
Twenty
Percent
Allocation
a
Mere
Ceiling
The Constitution simply states that" [t]he party-list representatives
shall constitute twenty per centum of the total number of
representatives
including
those
under
the
party-list."
According to petitioners, this percentage is a ceiling; the mechanics

47
by which it is to be filled up has been left to Congress. In the
exercise of its prerogative, the legislature enacted RA 7941, by
which it prescribed that a party, organization or coalition
participating in the party-list election must obtain at least two
percent of the total votes cast for the system in order to qualify for
a
seat
in
the
House
of
Representatives.
Petitioners further argue that the constitutional provision must be
construed together with this legislative requirement. If there is no
sufficient number of participating parties, organizations or
coalitions which could hurdle the two percent vote threshold and
thereby fill up the twenty percent party-list allocation in the House,
then naturally such allocation cannot be filled up completely. The
Comelec cannot be faulted for the "incompleteness," for ultimately
the voters themselves are the ones who, in the exercise of their
right of suffrage, determine who and how many should represent
them.
On the other hand, Public Respondent Comelec, together with the
respondent parties, avers that the twenty percent allocation for
party-list lawmakers is mandatory, and that the two percent vote
requirement in RA 7941 is unconstitutional, because its strict
application would make it mathematically impossible to fill up the
House
party-list
complement.
We rule that a simple reading of Section 5, Article VI of the
Constitution, easily conveys the equally simple message that
Congress was vested with the broad power to define and prescribe
the mechanics of the party-list system of representation. The
Constitution explicitly sets down only the percentage of the total
membership in the House of Representatives reserved for party-list
representatives.
In the exercise of its constitutional prerogative, Congress enacted
RA 7941. As said earlier, Congress declared therein a policy to
promote "proportional representation" in the election of party-list
representatives in order to enable Filipinos belonging to the
marginalized and underrepresented sectors to contribute legislation
that would benefit them. It however deemed it necessary to require
parties, organizations and coalitions participating in the system to
obtain at least two percent of the total votes cast for the party-list
system in order to be entitled to a party-list seat. Those garnering

more than this percentage could have "additional seats in

proportion to their total number of votes." Furthermore, no winning
party, organization or coalition can have more than three seats in
the House of Representatives. Thus the relevant portion of Section
11(b)
of
the
law
provides:
"(b) The parties, organizations, and coalitions receiving at least two
percent (2%) of the total votes cast for the party-list system shall
be entitled to one seat each; Provided, That those garnering more
than two percent (2%) of the votes shall be entitled to additional
seats in proportion to their total number of votes; Provided, finally,
That each party, organization, or coalition shall be entitled to not
more
than
three
(3)
seats."
Considering the foregoing statutory requirements, it will be shown
presently that Section 5 (2), Article VI of the Constitution is not
mandatory. It merely provides a ceiling for party-list seats in
Congress.
On the contention that a strict application of the two percent
threshold may result in a "mathematical impossibility," suffice it to
say that the prerogative to determine whether to adjust or change
this percentage requirement rests in Congress. 17 Our task now, as
should have been the Comelecs, is not to find fault in the wisdom
of the law through highly unlikely scenarios of clinical extremes, but
to craft an innovative mathematical formula that can, as far as
practicable, implement it within the context of the actual election
process.
Indeed, the function of the Supreme Court, as well as of all judicial
and quasi-judicial agencies, is to apply the law as we find it, not to
reinvent or second-guess it. Unless declared unconstitutional,
ineffective, insufficient or otherwise void by the proper tribunal, a
statute remains a valid command of sovereignty that must be
respected and obeyed at all times. This is the essence of the rule of
law.
Second
Issue:chanrob1es
virtual
The
Statutory
Requirement
The
Two
Threshold

1aw
and

library
Limitation
Percent

48
In imposing a two percent threshold, Congress wanted to ensure
that only those parties, organizations and coalitions having a
sufficient number of constituents deserving of representation are
actually represented in Congress. This intent can be gleaned from
the deliberations on the proposed bill. We quote below a pertinent
portion
of
the
Senate
discussion:
"SENATOR GONZALES: For purposes of continuity, I would want to
follow up a point that was raised by, I think, Senator Osmea when
he said that a political party must have obtained at least a
minimum percentage to be provided in this law in order to qualify
for
a
seat
under
the
party-list
system.
They do that in many other countries. A party must obtain at least
2 percent of the votes cast, 5 percent or 10 percent of the votes
cast. Otherwise, as I have said, this will actually proliferate political
party groups and those who have not really been given by the
people sufficient basis for them to represent their constituents and,
in turn, they will be able to get to the Parliament through the
backdoor under the name of the party-list system, Mr. President."
18
A similar intent is clear from the statements of the bill sponsor in
the house of Representatives, as the following shows:
"MR. ESPINOSA. There is a mathematical formula which this
computation is based at, arriving at a five percent ratio which
would distribute equitably the number of seats among the different
sectors. There is a mathematical formula which is, I think,
patterned after that of the party list of the other parliaments or
congresses, more particularly the Bundestag of Germany." 19
Moreover, even the framers of our Constitution had in mind a
minimum-vote requirement, the specification of which they left to
Congress to properly determine. Constitutional Commissioner
Christian
S.
Monsod
explained:
"MR. MONSOD. . . . We are amenable to modifications in the
minimum percentage of votes. Our proposal is that anybody who
has two-and-a-half percent of the votes gets a seat. There are
about 20 million who cast their votes in the last elections. Two-anda-half percent would mean 500,000 votes. Anybody who has a

constituency of 500,000 votes nationwide deserves a seat in the

Assembly. If we bring that down to two percent, we are talking
about 400,000 votes. The average vote per family is three. So, here
we are talking about 134,000 families. We believe that there are
many sectors who will be able to get seats in the Assembly
because many of them have memberships of over 10,000. In effect,
that is the operational implication of our proposal. What we are
trying to avoid is this selection of sectors, the reserve seat system.
We believe that it is our job to open up the system and that we
should not have within that system a reserve seat. We think that
people should organize, should work hard, and should earn their
seats
within
that
system."
20
The two percent threshold is consistent not only with the intent of
the framers of the Constitution and the law, but with the very
essence of "representation." Under a republican or representative
state, all government authority emanates from the people, but is
exercised by representatives chosen by them. 21 But to have
meaningful representation, the elected persons must have the
mandate of a sufficient number of people. Otherwise, in a
legislature features the party-list system, the result might be the
proliferation of small groups which are incapable of contributing
significant legislation, and which might even pose a threat to the
stability of Congress. Thus, even legislative districts are
apportioned according to "the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio" 22
to
ensure
meaningful
local
representation.
All in all, we hold that the statutory provision on this two percent
requirement is precise and crystalline. When the law is clear, the
function of courts is simple application, not interpretation or
circumvention.
23
The
Three-Seat-Per-Party
Limit
An important consideration in adopting the party-list system is to
promote and encourage a multiparty system of representation.
Again,
we
quote
Commissioner
Monsod:
"MR. MONSOD. Madam President, I just want to say that we
suggested or proposed the party list system because we wanted to

49
open up the political system to a pluralistic society through a
multiparty system. But we also wanted to avoid the problems of
mechanics and operation in the implementation of a concept that
has very serious shortcomings of classification and of double or
triple votes. We are for opening up the system, and we would like
very much for the sectors to be there. That is why one of the ways
to do that is to put a ceiling on the number of representatives from
any single party that can sit within the 50 allocated under the party
list system. This way, we will open it up and enable sectoral groups,
or maybe regional groups, to earn their seats among the fifty. . . ."
24
Consistent with the Constitutional Commissions pronouncements,
Congress set the seat-limit to three (3) for each qualified party,
organization or coalition. "Qualified" means having hurdled the two
percent vote threshold. Such three-seat limit ensures the entry of
various interest-representations into the legislature; thus, no single
group, no matter how large its membership, would dominate the
party-list
seats,
if
not
the
entire
House.
We shall not belabor this point, because the validity of the three
seat limit is not seriously challenged in these consolidated cases.
Third
Method

of

Allocating

Additional

Issue:
Seats

Having determined that the twenty percent seat allocation is

merely a ceiling, and having upheld the constitutionality of the two
percent vote threshold and the three-seat limit imposed under RA
7941, we now proceed to the method of determining how many
party-list seats the qualified parties, organizations and coalitions
are entitled to. The very first step there is no dispute on this is
to rank all the participating parties, organizations and coalitions
(hereafter collectively referred to as "parties") according to the
votes they each obtained. The percentage of their respective votes
as against the total number of votes cast for the party-list system is
then determined. All those that garnered at least two percent of the
total votes cast have an assured or guaranteed seat in the House of
Representatives. Thereafter, "those garnering more than two
percent of the votes shall be entitled to additional seats in

proportion to their total number of votes." The problem is how to

distribute additional seats "proportionally," bearing in mind the
three-seat
limit
further
imposed
by
the
law.
One
Additional
Seat
Per
Two
Percent
Increment
One proposed formula is to allocate one additional seat for every
additional proportion of the votes obtained equivalent to the two
percent vote requirement for the first seat. 25 Translated in figures,
a party that wins at least six percent of the total votes cast still be
entitled to three seats; another party that gets four percent will be
entitled to two seats; and one that gets two percent will be entitled
to one seat only. This proposal has the advantage of simplicity and
ease of comprehension. Problems arise, however, when the parties
get very lop-sided votes for example, when Party A receives 20
percent of the total votes cast; Party B, 10 percent; and Party C, 6
percent. Under the method just described, Party A would be
entitled to 10 seats; Party B. to 5 seats and Party C, to 3 seats.
Considering the three-seat limit imposed by law, all the parties will
each uniformly have three seats only. We would then have the
spectacle of a party garnering two or more times the number of
votes obtained by another, yet getting the same number of seats
as the other one with the much lesser votes. In effect, proportional
representation will be contravened and the law rendered nugatory
by this suggested solution. Hence, the Court discarded it.
The
Niemeyer
Formula
Another suggestion that the Court considered was the Niemeyer
formula, which was developed by a German mathematician and
adopted by Germany as its method of distributing party-list seats in
the Bundestag. Under this formula, the number of additional seats
to which a qualified party would be entitled is determined by
multiplying the remaining number of seats to be allocated by the
total number of votes obtained by that party and dividing the
product by the total number of votes garnered by all the qualified
parties. The integer portion of the resulting product will be the
number of additional seats that the party concerned is entitled to.
Thus:

50
No.
of
remaining
to
be
allocated
No.
of

x
No.
of
votes
of
=
seats
Total
no.
of
votes
of
party
concerned
qualified parties (Integer. decimal)

seats
additional
of
party
concerned

The next step is to distribute the extra seats left among the
qualified parties in the descending order of the decimal portions of
the resulting products. Based on the 1998 election results, the
distribution of party-list seats under the Niemeyer method would be
as follows:
Party
Number
of
Guaranteed
Additional
Extra
Total
Votes Seats Seats Seats
1.
APEC
503,487
1
5.73
1
7
2.
ABA
321,646
1
3.66
1
5
3.
ALAGAD
312,500
1
3.55
4
4.
VETERANS
304,802
1
3.47
4
FEDERATION
5.
PROMDI
255,184
1
2.90
1
4
6.
AKO
239,042
1
2.72
1
4
7.
NCSCFO
238,303
1
2.71
1
4
8.
ABANSE!
PINAY
235,548
1
2.68
1
4
9.
AKBAYAN
232,376
1
2.64
1
4
10.
BUTIL
215,643
1
2.45
3
11.
SANLAKAS
194,617
1
2.21
3
12.
COOP-NATCCO
189,802
1
2.16
3
13.
COCOFED
186,388
1
2.12
3
Total
3,429,338
13
32
7
52
However, since Section 11 of RA 7941 sets a limit of three (3) seats
for each party, those obtaining more than the limit will have to give
up their excess seats. Under our present set of facts, the thirteen
qualified parties will each be entitled to three seats, resulting in an
overall total of 39. Note that like the previous proposal, the
Niemeyer formula would violate the principle of "proportional
representation," a basic tenet of our party-list system.

The Niemeyer formula, while no doubt suitable for Germany, finds

no application in the Philippine setting, because of our three-seat
limit and the non-mandatory character of the twenty percent
allocation. True, both our Congress and the Bundestag have
threshold requirements two percent for us and five for them.
There are marked differences between the two models, however. As
ably pointed out by private respondents, 26 one half of the German
Parliament is filled up by party-list members. More important, there
are no seat limitations, because German law discourages the
proliferation of small parties. In contrast, RA 7941, as already
mentioned, imposes a three-seat limit to encourage the promotion
of the multiparty system. This major statutory difference makes the
Niemeyer formula completely inapplicable to the Philippines.
Just as one cannot grow Washington apples in the Philippines or
Guimaras mangoes in the Arctic because of fundamental
environmental differences, neither can the Niemeyer formula be
transplanted in toto here because of essential variances between
the two party-list models.
The
Formula

Legal
for

and
the

Logical
Philippines

It is now obvious that the Philippine style party-list system is a

unique paradigm which demands an equally unique formula. In
crafting a legally defensible and logical solution to determine the
number of additional seats that a qualified party is entitled to, we
need to review the parameters of the Filipino party-list system.
As earlier mentioned in top Prologue, they are as follows:
First, the twenty percent allocation the combined number of all
party-list congressmen shall not exceed twenty percent of the total
membership of the House of Representatives, including those
elected
under
the
party
list.
Second, the two percent threshold only those parties garnering a
minimum of two percent of the total valid votes cast for the partylist system are "qualified" to have a seat in the House of
Representatives;
Third, the three-seat limit each qualified party, regardless of the
number of votes it actually obtained, is entitled to a maximum of

51
three seats; that is, one "qualifying" and two additional seats.
Fourth, proportional representation the additional seats which a
qualified party is entitled to shall be computed "in proportion to
their
total
number
of
votes."
The problem, as already stated, is to find a way to translate
"proportional representation" into a mathematical formula that will
not contravene, circumvent or amend the above-mentioned
parameters.
After careful deliberation, we now explain such formula, step by
step.
Step One. There is no dispute among the petitioners, the public and
the private respondents, as well as the members of this Court, that
the initial step is to rank all the participating parties, organizations
and coalitions from the highest to the lowest based on the number
of votes they each received. Then the ratio for each party is
computed by dividing its votes by the total votes cast for all the
parties participating in the system. All parties with at least two
-percent of the total votes are guaranteed one seat each. Only
these parties shall be considered in the computation of additional
seats. The party receiving the highest number of votes shall
thenceforth
be
referred
to
as
the
"first"
party.
Step Two. The next step is to determine the number of seats the
first party is entitled to, in order to be able to compute that for the
other parties. Since the distribution is based on proportional
representation, the number of seats to be allotted to the other
parties cannot possibly exceed that to which the first party is
entitled by virtue of its obtaining the most number of votes.
For example, the first party received 1,000,000 votes and is
determined to be entitled to two additional seats. Another qualified
party which received 500,000 votes cannot be entitled to the same
number of seats, since it garnered only fifty percent of the votes
won by the first party. Depending on the proportion of its votes
relative to that of the first party whose number of seats has already
been predetermined, the second party should be given less than
that
to
which
the
first
one
is
entitled.
The other qualified parties will always be allotted less additional
seats than the first party for two reasons: (1) the ratio between said
parties and the first party will always be less than 1:1, (2) the

formula does not admit of mathematical rounding off, because

there is no such thing as a fraction of a seat. Verily, an arbitrary
rounding off could result in a violation of the twenty percent
allocation. An academic mathematical demonstration of such
incipient violation is not necessary because the present set of facts,
given the number of qualified parties and the voting percentages
obtained, will definitely not end up in such constitutional
contravention.
The Court has previously ruled in Guingona Jr. v. Gonzales 27 that a
fractional membership cannot be converted into a whole
membership of one when it would, in effect, deprive another
partys fractional membership. It would be a violation of the
constitutional mandate of proportional representation. We said
further that "no party can claim more than what it is entitled to . . ."
In any case, the decision on whether to round off the fractions is
better left to the legislature. Since Congress did not provide for it in
the present law, neither will this Court. The Supreme Court does
not make the law; it merely applies it to a given set of
facts.chanrob1es
virtua1
1aw
1ibrary
Formula
for
Determining
Additional
Seats
for
the
First
Party
Now, how do we determine the number of seats the first party is
entitled to? The only basis given by the law is that a party receiving
at least two percent of the total votes shall be entitled to one seat.
Proportionally, if the first party were to receive twice the number of
votes of the second party, it should be entitled to twice the latters
number of seats and so on. The formula, therefore, for computing
the number of seats to which the first party is entitled is as
follows:chanrob1es
virtual
1aw
library
Number
of
first

Total
votes
party-list

party
=
for

of
votes
Proportion
of
votes
of
first
party
relative
to
total
votes
for
party-list
system
system

52
If the proportion of votes received by the first party without
rounding it off is equal to at least six percent of the total valid votes
cast for all the party list groups, then the first party shall be entitled
to two additional seats or a total of three seats overall. If the
proportion of votes without a rounding off is equal to or greater
than four percent, but less than six percent, then the first party
shall have one additional or a total of two seats. And if the
proportion is less than four percent, then the first party shall not be
entitled
to
any
additional
seat.
We adopted this six percent bench mark, because the first party is
not always entitled to the maximum number of additional seats.
Likewise, it would prevent the allotment of more than the total
number of available seats, such as in an extreme case wherein 18
or more parties tie for the highest rank and are thus entitled to
three seats each. In such scenario, the number of seats to which all
the parties are entitled may exceed the maximum number of partylist
seats
reserved
in
the
House
of
Representatives.
Applying the above formula, APEC, which received 5.5% of the total
votes cast, is entitled to one additional seat or a total of two seats.
Note that the above formula will be applicable only in determining
the number of additional seats the first party is entitled to. It
cannot be used to determine the number of additional seats of the
other qualified parties. As explained earlier, the use of the same
formula for all would contravene the proportional representation
parameter. For example, a second party obtains six percent of the
total number of votes cast. According to the above formula, the
said parts would be entitled to two additional seats or a total of
three seats overall. However, if the first party received a
significantly higher amount of votes say, twenty percent to
grant it the same number of seats as the second party would
violate the statutory mandate of proportional representation, since
a party getting only six percent of the votes will have an equal
number of representatives as the one obtaining twenty percent.
The proper solution, therefore, is to grant the first party a total of
three seats; and the party receiving six percent, additional seats in
proportion
to
those
of
the
first
party.
Formula

for

Additional

Seats
of
Other
Qualified
Parties
Step Three The next step is to solve for the number of additional
seats that the other qualified parties are entitled to, based on
proportional representation. The formula is encompassed by the
following complex fraction:chanrob1es virtual 1aw library
No.
of
votes
of
concerned
party
Total no. of votes Additional seats for party-list system
No. of additional for concerned = x seats allocated
to party No. of votes of the first party
first

Total

no.

of

votes

for

party

In
simplified
form,
it
is
written
as
No.
of
votes
Additional
seats
concerned
party
No.
of

list

party
system

follows:
of
additional

for concerned = x seats allocated to

party
No.
of
votes
of
the
first
party
first
party
(APEC)
Thus, in the case of ABA, the additional number of seats it would be
entitled to is computed as follows:chanrob1es virtual 1aw library
No.
of
votes
of
Additional
seats
ABA
No.
of
additional
folk Concerned = x seats allocated to
party
(ABA)
No.
of
votes
of
the
first
party
first
party
(APEC)
Substituting actual values would result in the following equation:
Additional
seats
321,646
for concerned = x 1 = .64 or 0 additional seat, since
party (ABA) 503,487 rounding off is not to be applied
Applying the above formula, we find the outcome of the 1998
party-list election to be as follows:chanrob1es virtual 1aw library
Organization Votes % age of Initial No. Additional Total

53
Garnered Total Votes of Seats Seats
1.
APEC
503,487
5.50%
1
1
2
2. ABA 321,646 3.51% 1 321,646 / 503,487 * 1 = 0.64 1
3. ALAGAD 312,500 3.41% 1 312,500 / 503,487 * 1 = 0.62 1
4. VETERANS 304,802 3.33% 1 304,802 / 503,487 * 1 = 0.61 1
FEDERATION
5. PROMDI 255,184 2.79% 1 255,184 / 503,487 * 1 = 0.51 1
6. AKO 239,042 2.61% 1 239,042 / 503,487 * 1 = 0.47 1
7. NCSCFO 238,303 2.60% 1 238,303 / 503,487 * 1 = 0.47 1
8. ABANSE! 235,548 2.57% 1 321,646 / 503,487 * 1 = 0.47 1
PINAY
9. AKBAYAN! 232,376 2.54% 1 232,376 / 503,487 * 1 = 0.46 1
10. BUTIL 215,643 2.36% 1 215,643 / 503,487 * 1 = 0.43 1
11. SANLAKAS 194,617 2.13% 1 194,617 / 503,487 * 1 = 0.39 1
12.
COOPNATCCO 189,802 2.07% 1 189,802 / 503,487 * 1 = 0.38 1
13. COCOFED 186,388 2.04% 1 186,388 / 503,487 * 1 = 0.37 1
Incidentally, if the first party is not entitled to any additional seat,
then the ratio of the number of votes for the other party to that for
the first one is multiplied by zero. The end result would be zero
additional seat for each of the other qualified parties as well.
The above formula does not give an exact mathematical
representation of the number of additional seats to be awarded
since, in order to be entitled to one additional seat, an exact whole
number is necessary. In fact, most of the actual mathematical
proportions are not whole numbers and are not rounded off for the
reasons explained earlier. To repeat, rounding off may result in the
awarding of a number of seats in excess of that provided by the
law. Furthermore, Obtaining absolute proportional representation is
restricted by the three-seat-per-party limit to a maximum of two
additional slots. An increase in the maximum number of additional
representatives a party may be entitled to would result in a more
accurate proportional representation. But the law itself has set the
limit: only two additional seats. Hence, we need to work within such
extant
parameter.
The net result of the foregoing formula for determining additional

seats happily coincides with the present number of incumbents;

namely, two for the first party (APEC) and one each for the twelve
other qualified parties. Hence, we affirm the legality of the
incumbencies of their nominees, albeit through the use of a
different
formula
and
methodology.
In his Dissent, Justice Mendoza criticizes our methodology for being
too strict. We say, however, that our formula merely translated the
Philippine legal parameters into a mathematical equation, no more
no less. If Congress in its wisdom decides to modify RA 7941 to
make it "less strict," then the formula will also be modified to
reflect
the
changes
willed
by
the
lawmakers.
Epilogue
In sum, we hold that the Comelec gravely abused its discretion in
ruling that the thirty-eight (38) herein respondent parties,
organizations and coalitions are each entitled to a party-list seat,
because it glaringly violated two requirements of RA 7941: the two
percent
threshold
and
proportional
representation.
In disregarding, rejecting and circumventing these statutory
provisions, the Comelec effectively arrogated unto itself what the
Constitution expressly and wholly vested in the legislature: the
power and the discretion to define the mechanics for the
enforcement of the system. The wisdom and the propriety of these
impositions, absent any clear transgression of the Constitution or
grave abuse of discretion amounting to lack or excess of
jurisdiction,
are
beyond
judicial
review.
28
Indeed, the Comelec and the other parties in these cases both
petitioners and respondents have failed to demonstrate that our
lawmakers gravely abused their discretion in prescribing such
requirements. By grave abuse of discretion is meant such
capricious or whimsical exercise of judgment equivalent to lack or
excess
of
jurisdiction.
29
The Comelec, which is tasked merely to enforce and administer
election-related laws, 30 cannot simply disregard an act of
Congress exercised within the bounds of its authority. As a mere

54
implementing body, it cannot judge the wisdom, propriety or
rationality of such act. Its recourse is to draft an amendment to the
law find lobby for its approval and enactment by the
legislature.chanrob1es
virtua1
1aw
1ibrary
Furthermore, a reading of the entire Constitution reveals no
Violation of any of its provisions by the strict enforcement of RA
7941. It is basic that to strike down a law or any of its provisions as
unconstitutional, there must be a clear and unequivocal showing
that what the Constitution prohibits, the statute permits. 31

perseverance and perspicacity, our marginalized sectors, in time,

will fulfill the Filipino dream of full representation in Congress under
the
aegis
of
the
party-list
system,
Philippine
style.
WHEREFORE, the Petitions are hereby partially GRANTED. The
assailed Resolutions of the Comelec are SET ASIDE and NULLIFIED.
The proclamations of the fourteen (14) sitting party-list
representatives two for APEC and one each for the remaining
twelve (12) qualified parties are AFFIRMED. No pronouncement
as
to
costs.

Neither can we grant petitioners prayer that they each be given

additional seats (for a total of three each), because granting such
plea would plainly and simply violate the "proportional
representation" mandated by Section 11 (b) of RA 7941.

SO

The low turnout of the party-list votes during the 1998 elections
should not be interpreted as a total failure of the law in fulfilling the
object of this new system of representation. It should not be
deemed a conclusive indication that the requirements imposed by
RA 7941 wholly defeated the implementation of the system. Be it
remembered that the party-list system, though already popular in
parliamentary democracies, is still quite new in our presidential
system. We should allow it some time to take root in the
consciousness of our people and in the heart of our tripartite form
of republicanism. Indeed, the Comelec and the defeated litigants
should
not
despair.

Bellosillo, Melo and Vitug, JJ., concur in the result.

Separate Opinions

Quite the contrary, the dismal result of the first election for partylist representatives should serve as a challenge to our sectoral
parties and organizations. It should stir them to be more active and
vigilant in their campaign for representation in the States
lawmaking body. It should also serve as a clarion call for innovation
and creativity in adopting this novel system of popular democracy.
With adequate information dissemination to the public and more
active sectoral parties, we are confident our people will be more
responsive to future party-list elections. Armed with patience,

ORDERED.

Davide, Jr., C.J., Purisima, Pardo, Buena, Gonzaga-Reyes, YnaresSantiago

and
De
Leon,
Jr.,JJ.,
concur.

PUNO, J.,
dissenting:
I.
Prefatory
Statement
The case at bar is one of first impression and of immense difficulty.
The constitutional issues involved are full of slippery slopes but the
most difficult one concerns the apportionment of additional seats to
the parties that hurdled the 2% threshold requirement. There is
much to be admired in the mathematical formula forwarded by our
esteemed colleague, Mr. Justice Vicente V. Mendoza, but with due
respect, I find more attractive the majority formula, crafted with
equal expertise by another esteemed colleague, Mr. Justice Artemio
Panganiban. To be sure, the two formulae may be faulted by
mathematicians obsessed with exactitude but the fault lies with the
inexactitude of the law itself. However it may be, I join the majority
of my brethren for I find its geometry of the phrase "proportionately
according to the percentage of votes obtained by each party,
organization, or coalition as against the total nationwide votes cast
for the party-list system" more expressive of the spirit of the
Constitution,
albeit,
arguable.

55
II.
Issues
The case at bar, however, is suffused with other significant
constitutional issues. They are:
1. Is it a mandatory requirement that a party/organization/coalition
should obtain at least 2% of the total votes cast for the party-list
system
to
be
entitled
to
a
seat?
2. Is it mandatory to fill up all the 52 seats allotted for the party-list
representatives of the House of Representatives as provided for
under Article VI, Sec. 5(2) of the 1987 Constitution? If so, how are
the
seats
to
be
allocated?
3. Whether Sec. 5(2), Article VI of the Constitution requires that
every time the number of district representatives is increased from
200 there should be a corresponding increase in the number of
party-list representatives so that, as there are now 208 district
representatives, there should be 52 party-list representatives
constituting 20% of the total number of members of the House of
Representatives;
4. Whether the 2% threshold requirement in Section 11(b), R.A.
7941
is
not
unconstitutional;
and
5. Whether the three-seat limit provided in Section 11 (b), R.A.
7941
is
not
unconstitutional.
In addition to the scholarly disquisitions of the majority opinion, I
humbly offer the following:
III.
Submissions
A.
The
2%
threshold
requirement
Respondent Commission refused to give a strict and literal
interpretation to the 2% requirement of Section 11 of R.A. 7941 on
the ground that it runs contrary to the Constitution and the law
which is "to enable the marginalized sectors of the Philippine
society to be represented in the House of Representatives," "to
represent the broadest sector of the Philippine society," and "to
encourage multi-party system." It likewise proffered the thesis that
to allow only the 13 proclaimed parties/organization to be
represented in the House of Representatives will result in the
concentration of party-list representation to only a few sectors,

namely urban poor, veterans, women and peasantry. Thus,

respondent Commission holds that all the sectors should be equally
represented and hence should be given one seat each.
Like the majority of the brethren, I cannot support such a stance.
The Record of the 1986 Constitutional Commission, as well as that
of the Senate deliberations, will clearly disclose a specific intent to
impose a minimum percentage of votes to be obtained, that is, at
least two (2%) percent of the total votes cast nationwide, in order
that a party/organization/coalition under the party-list system may
have a seat in the House of Representatives. I quote relevant
excerpts from the Record of the 1986 Constitutional Commission:
"a) MR. MONSOD. . . [A]nybody who has at least 2 percent of the
vote qualifies and the 50 seats are apportioned among all of these
parties who get at least 2 percent of the vote.
"What does that mean? It means that any group or party who has a
constituency of, say, 500,000 nationwide gets a seat in the National
Assembly. What is the justification for that? When we allocate
legislative districts, we are saying that any district that has 200,000
votes gets a seat. There is no reason why a group that has a
national constituency, even if it is a sectoral or special interest
group, should not have a voice in the National Assembly. . . If each
of them gets only one percent or five of them get one percent, they
are not entitled to any representative. So, they will begin to think
that if they really have a common interest, they should band
together, form a coalition and get five percent of the vote and,
therefore, have two seats in the Assembly. Those are the dynamics
of
a
party
list
system.
"We feel that this approach gets around the mechanics of sectoral
representation while at the same time making sure that those who
really have a national constituency or sectoral constituency will get
a chance to have a seat in the National Assembly. 1
"b) MR. MONSOD. . . . When these parties register with the
COMELEC, they would simultaneously submit a list of the people
who would sit in case they win the required number of votes in the
order in which they place them. . . . If they win the required number
of votes, let us say they win 400,000 votes, then they will have one

56
seat. If they win 2 million votes, then they will have five seats. 2
"c) MR. MONSOD. Madam President, I just want to say that we
suggested or proposed the party list system because we wanted to
open up the political system to a pluralistic society through a
multiparty system. But we also wanted to avoid the problems of
mechanics and operation in the implementation of a concept that
has very serious shortcomings of classification and of double or
triple votes. We are for opening up the system, and we would like
very much for the sectors to be there. That is why one of the ways
to do that is to put a ceiling on the number of representatives from
any single party that can sit within the 50 allocated under the party
list system. This way, we will open it up and enable sectoral groups,
or maybe regional groups, to earn their seats among the fifty. When
we talk about limiting it, if there are two parties, then we are
opening it up to the extent of 30 seats. We are amenable to
modifications in the minimum percentage of votes. Our proposal is
that anybody who has two-and-a-half percent of the votes gets a
seat. There are about 20 million who cast their votes in the last
elections. Two-and-a-half percent would mean 500,000 votes.
Anybody who has a constituency of 500,000 votes, nationwide,
deserves a seat in the Assembly. If we bring that down to two
percent, we are talking about 400,000 votes. The average vote per
family is three. So, here we are talking about 134,000 families. We
believe that there are many sectors who will be able to get seats in
the Assembly because many of them have memberships over
10,000. In effect, that is the operational implication of our proposal.
What we are trying to avoid is this selection of sectors, the reserve
seat system. We believe that it is our job to open up the system
and that we should not have within that system a reserve seat. We
think that people should organize, should work hard, and should
earn
their
seats
within
that
system.
3
"d) MR. TADEO. . . . Ngayon, sa ganitong kalagayan, gusto ko po
lamang ipaliwanag ang party list. Ang ibig sabihin nito, doon sa
ilalim ng two-party system, kapag kumuha ka ng 51 percent, iyong
ibang partido ay wala nang nakuhang puwesto sa legislature. Ang
ibig sabihin ng party list system, makakuha ka lamang ng 2.5
percent
ay
mayroon
ka
nang
isang
puwesto.
4

Similarly, I call attention to the pertinent debates in the Senate,

viz.:
"a) Senator Gonzales: Yes, Mr. President. But nonetheless, if his
party qualifies, at least, for the minimum number of the
requirement to be entitled to a seat, then he would be proclaimed
by the Commission as having been elected under the party-list
system.
5
"b) Senator Gonzales: For purposes of continuity, I would want to
follow up a point that was raised by, I think, Senator Osmea when
he said that a political party must have obtained at least a
minimum percentage to be provided in this law in order to qualify
for
a
seat
under
the
party-list
system.
"They do that in many other countries. A party must obtain at least
2 percent of the votes cast, 5 percent or 10 percent of the votes
cast. Otherwise, as I have said, this will actually proliferate political
party groups and those who have not really been given by the
people sufficient basis for them to represent their constituents and,
in turn, they will be able to get to the Parliament through the
backdoor under the name of party-list system, Mr. President. 6
"c) Senator Tolentino: . . . Mr. President, the required number of
votes here refers to the votes that will qualify it for certain number
of representatives. The phrase "required number of votes" simply
means here the number of votes that will qualify it to have a
certain number of representatives in the House of Representatives.
7
"d) Senator Gonzales: Would not all of them be entitled to a
proportionate seat in the three categories allocated for the partylist
members?
"Senator Tolentino: If they do not receive the votes that would be
needed in order to give them a proportionate number of seats,
then, of course, they would not have any seat in the category in
which
they
are.
"Senator Gonzales: That is why in my interpellation during our last
session, I suggested that, probably, it would be better to set a
minimum percentage of votes to be received by them in order to
qualify for a seat so that we can, more or less, limit the party-list
members to those who obtain a substantial portion of the votes
cast,
Mr.
President.
8

57
"e) Senator Gonzales: . . . The idea is to open the system so that it
is not all or nothing. Kahit na hindi manalo ang kaniyang kandidato
but he obtained at least the minimum number of votes cast, which I
would propose later in order to ensure that only those with a more
or less substantial following can be represented, then the purpose
of
party-list
system
has
already
been
achieved.
9
"f) Senator Gonzales: My amendment, Mr. President, will be . . . add
the following: "Provided, however that a political party or group
whether national, regional, or sectoral must obtain at least two (2)
percent of the votes cast to be entitled to a seat."
"Senator Tolentino: A minimum of 2 percent of what?
"Senator Gonzales: My initial position, Mr. President, is the total
votes cast nationwide. At least, it would have a right to demand
representation. Imagine a political party obtaining only 10,000
votes nationwide, it is already entitled to a seat; I do not think that
is
doing
justice
to
the
representative
system.
10
"g) Senator Gonzales: . . . we said that in the minimum number of
votes for a political party, whether national or regional or a sectoral
organization to be entitled to the party list, it must have received at
least 2 percent of the votes cast in that category." 11
The rationale for the 2% threshold can thus be synthesized as
follows:
1. to avoid a situation where the candidate will just use the partylist
system
as
a
fallback
position;
12
2. to discourage nuisance candidates or parties, who are not ready
and whose chances are very low, from participating in the
elections;
13
3. to avoid the reserve seat system by opening up the system;
4. to encourage the marginalized sectors to organize, work hard,
and
earn
their
seats
within
the
system;
14
5. to enable sectoral representatives to rise to the same majesty as
that of the elected representatives in the legislative body, rather
than owing to some degree their seats in the legislative body either
to an outright constitutional gift or to an appointment by the
President
of
the
Philippines;
15
6. if no threshold is imposed, this will actually proliferate political
party groups and those who have not really been given by the
people sufficient basis for them to represent their constituents and,

in turn, they will be able to get to the Parliament through the

backdoor under the name of the party-list system; 16 and
7. to ensure that only those with a more or less substantial
following
can
be
represented.
17
We are not at liberty to pass judgment on the wisdom of the law.
The principle of separation of powers prohibits this Court from
engaging in judicial legislation. Both the legislative intent and the
language of the law as to the 2% threshold requirement are clear
and unambiguous. It leaves no room for further interpretation. It
demands
our
obeisance.
Respondent Commission is of the mind that the sectoral groups
have a vested right to a seat in the House of Representatives. It
assumes that this is mandated by the law which aims to provide a
party-list system where the marginalized and underrepresented
sectors of society can actively participate and attain the broadest
possible representation in the House of Representatives. The
assumption
cannot
stand
scrutiny.
First, in order that a sectoral group or party can participate under
the party-list system, it should comply with certain statutory
requirements such as the filing, before the Comelec, of a
manifestation (Section 4) and a petition (Section 5) expressing its
intent to participate in the party-list system. Comelec is required to
verify and review such petition, and is empowered to refuse or
cancel the registration of a sectoral party on grounds stated in the
law.
Second, during the deliberations in the Constitutional Commission
and the Senate, it was clear that the party-list system is not
synonymous with that of sectoral representation. Sectoral
representation means that certain sectors would have reserved
seats; under the party-list system, there are no reserved seats for
sectors. 18 The party-list system recognizes the right of sectoral
parties or organizations to register. Nonetheless, it only enables
these sectors to be part of the party, if they have the capacity, but
it does not reserve any seat for the sectors. To stress, it is not a
reserve
seat
system.
19
Third, the framers of the Constitution knew that the sectoral groups
suffer from major disadvantages in the competitive election arena.

58
They sought to remedy this inequality through an outright
constitutional gift of reserve seats for the first three terms of the
sectoral representatives and no further. Thereafter, they have to
earn their seats through participation in the party-list system. Thus:
"MR. OPLE. . . . The ideal manner of securing functional
representation is through a party list system through popular
suffrage so that when sectoral representatives get into a legislative
body on this basis, rather than direct regional or district
representation, they can rise to the same majesty as that of the
elected representatives in the legislative body, rather than owing to
some degree their seats in the legislative body either to an outright
constitutional gift or to an appointment by the President of the
Philippines. I think, therefore, this proposed amendment now meets
this test. There is an outright constitutional gift for the first two
terms of the sectoral representatives but, after that, they will have
to earn the seats through participation in a party list system or,
even beyond that, to be direct competitors with established and
more orthodox parties in the general political arena. I see no reason
why after having occupied seats in the House of Representatives
for two terms, the representatives of the sectors may not be able to
combine their forces in order to form their own political parties or
become powerful adjuncts to existing political parties so that they
will enjoy not only the benefits of a party list system but also the
benefits of being able to compete directly in the wider political
arena.
". . . And after two or three terms, then they will be in a position to
take full advantage of the party list system so that on the basis of
two-and-a-half percent or two percent of all the qualified voters in
the country, one seat is earned . . . Let us assume that the
representatives of these organizations . . . occupy the seats for two
terms, will not six years be enough for them to amalgamate their
forces if there is enough basis of unification so that, from their
platform in the legislature, they can, through a party list system,
amass as many seats as are available now outside territorial
representation? And beyond that, they can even rise to the level of
a major political party able to compete for territorial representation
both for the Senate and the House of Representatives.

". . . Therefore, I support this amendment. It installs sectoral

representation as a constitutional gift, but at the same time, it
challenges the sector to rise to the majesty of being elected
representatives later on through a party list system, and even
beyond that, to become actual political parties capable of
contesting political power in the constitutional arena for major
political
parties."
20
Fourth, the objective of the party-list system is not alone to provide
representation to sectoral groups but also to accord proportionate
representation for political parties participating in the election, so
that those political parties whose candidates did not win in any
district but obtained a substantial amount of the votes cast by the
people will not be completely denied representation in the House.
21
Fifth, in the Senate, it was proposed that all the sectors mentioned
in the law should be entitled to at least one seat each. 22 This
proposal was not approved for it is nowhere to be found in the
present law. Thus, it cannot be doubted that the lawmakers did not
contemplate a reserve seat system for the sectoral groups. Verily,
the ruling of respondent Commission that the party-list groups from
rank nos. 1 to 51 shall be given one seat each so that all sectors
are represented runs contrary to the intendment of the legislature.
There is no constitutional right to win elections, only the
constitutional right to equal opportunity to participate in and
influence the selection of candidates. It is not a violation of equal
protection to deny legislative seats to losing candidates. The fact
that minorities or interest groups in an electoral unit find
themselves consistently outvoted and without a person elected
from their particular group is no basis for invoking constitutional
remedies where there is no indication that the complaining minority
or interest group has been denied access to the political system.
23
And neither can the sectoral groups claim discrimination simply
because they failed to get a seat in the House of Representatives. It
is not enough to prove that some of the sectors are not represented
because the party or organization representing them failed to win
in the elections. It must be shown that the party-list system was

59
conceived or operated as a purposeful device to further
discriminate
against
them.
24
In the past, it cannot be gainsaid that there was a hostility against
sectoral groups as their unelected representatives were criticized
as people who owed their seats to a constitutional provision and
could not rise to the same status or dignity as those elected by the
people. 25 This criticism was laid to rest with the passage of the
party-list system where sectoral representatives had to undergo an
election. To be sure, these sectoral candidates were given a favored
treatment. During the Senate deliberations on Senate Bill No. 1913,
which later became R.A. 7941, Senator Tolentino emphatically
declared that the purpose of the party-list system is "to give access
to the House those who are considered as marginal political groups
that cannot elect a representative in one district, but when taken
together nationally, they may be able to have a representative." 26
But while given a favored treatment, the sectoral candidates were
not guaranteed seats. Indeed, the party-list system was devised to
replace the reserve seat system. For unlike the reserve seat system
which assured sectoral groups of a seat in the House of
Representatives, the party-list system merely provides for a
mechanism by which the sectoral groups can run for election as
sectoral representatives. The very essence of the party-list system
is
representation
by
election.
The lack of success in the elections is not indicative of a lack of
access to the political system but rather from a failure of the
parties/organizations to turn out as many of the voters as will
enable them to meet the required number of voted. The access
guideline touches upon whether the political processes are open to
minorities or sectoral groups, not on whether such groups are
successful once access has been obtained. 27 The party-list system
was conceived in order to open the system to sectoral
representation, but it does not warrant representation for these
sectors
with
absolute
certainty.
Finally, Section 6 of R.A. 7941 provides that the Comelec may, motu
proprio or upon verified complaint of any interested party, refuse or
cancel, after due notice and hearing, the registration of any
national, regional or sectoral party if it fails to obtain at least two
percent of the votes cast under the party-list system in the two

preceding elections for the constituency in which it has registered.

If a sectoral party cannot even register when it fails to obtain the
2% required number of votes, with more reason that it should not
be entitled to get a seat in the House of Representatives. An
absurdity may arise where a sectoral party which failed to meet the
2% threshold is given a seat in the House but is actually
disqualified for registration and therefore has no legal personality
and
standing
as
such.
B. The 20% membership requirement for sectoral representatives
Respondent Commission held that a restriction on the allocation of
seats only to those obtaining the 2% threshold will prevent
compliance with the purported constitutional and statutory
mandate that the party-list representatives shall be composed of
20% of the entire membership of the House of Representatives,
including the party list. The ruling is predicated on the supposition
that the 20% requirement is mandatory and that the law requires
that all the seats apportioned to sectoral representatives must be
filled
up.
Article VI, Section 5, subparagraph 1 of the Constitution provides
that "the House of Representatives shall be composed of not more
than two hundred and fifty members . . . who shall be elected from
legislative districts, . . . and those who . . . shall be elected through
a party-list system of registered national, regional and sectoral
parties or organizations." The record of the ConCom will show that
the delegates considered this provision as a grant of authority to
the legislature, and hence should not be viewed as either directory
or
mandatory.
28
Section 5 further provides, under subparagraph (2) thereof, that
"the party-list representatives shall constitute twenty per centum of
the total number of representatives including those under the party
list." Axiomatic is the rule that a provision of law must be read in
harmony with the other provisions. Consequently, subparagraph (2)
should be accorded a similar treatment as subparagraph (1), i.e.,
that it is neither directory nor mandatory, but simply a grant of
legislative
authority.
In the exercise of such authority, Congress passed R.A. 7941 which
contains exactly the same provision as that found in the
Constitution. The query is whether Congress intended the 20%

60
requirement as a ceiling or whether it intended all the seats
allocated to sectoral groups to be filled up. Section 5 of Article VI,
as originally worded, provides that "the sectoral or party-list
representatives shall in no case exceed twenty percent of the entire
membership of the House of Representatives." From the language
thereof, it is clear that the framers intended to simply impose a
ceiling. Nevertheless, in its final form, the phrase "in no case
exceed" was deleted. Does this mean then that the 20%
requirement was meant to be mandatory? A perusal of the Record
of
the
ConCom will
negate
this
implication,
thus:
"MR. GASCON. In the Gentlemans proposal, he has replaced the
words "SHALL APPOINT" by "MAY APPOINT" which means there is a
possibility that the President will not appoint. Will it not be best that
to make that assurance since it was the intent, I believe, during
our deliberation that either we should write an ordinance with
regard to sectoral representation or encourage an appointment by
the President we change the words "MAY APPOINT" to "SHALL
APPOINT"
?
"x
x
x
"MR. MONSOD. . . . I would be more comfortable by just saying:
"THE
PRESIDENT
MAY
FILL."
"The President may have her commitments to labor and the
peasant sector. But a directive on this point may in fact be
counterproductive because she may not have the full period to look
into how to implement the selection. If we do it that way, the
President may be hurried into a selection because she has to
comply with it by July and it may not be a good or meaningful
selection. It may be necessary that there will be, as Commissioner
Lerum said, various congresses in order to make it a real
systematic choice. I do not know if there is enough time. But why
do we not leave it to the President to determine if there is time to
do
this
properly?"
29
The word "may" was used in the final version of the Constitution.
Ostensibly, ConCom wanted to give the President the discretion
whether to appoint sectoral representatives or not. If the President
does not, then there can be vacancies in the scats allocated for
sectoral representatives. Perforce, such an eventuality is not highly
improbable and cannot thus be disregarded or ignored.

The Senate deliberations on the matter are more revealing:

"1) Senator Alvarez: But, Mr. President, we already have a ceiling of
20
percent
for
party-list
representatives.
30
"2) Senator Herrera: So that if there will only be two organizations
participating, even if we have to give them the maximum, these
two organizations will only be entitled to ten seats, and that will be
less than the number of 25 seats that are supposed to be covered
under
the
party
list
system.
"Senator Tolentino: Yes, Mr. President. That is what is going to
happen if we limit to five seats. But as had been brought out in the
interpellations last night, if we use as a basis the total number of
votes cast for the parties that are participating in the party-list
system of election, then, perhaps, there would be no need of a
limitation to five seats because the proportion can be strictly
applied.
"x
x
x
"Senator Maceda: Mr. President, just on this point. In the example
given, if a party gets a certain percentage of votes that should
entitle it to seven seats or eight seats and then it is cut down to
five seats the first computation will be to compute the
percentage of all the parties, and they get a corresponding number
of seats what happens to the excess since there is a limitation on
five
seats?
"Senator Tolentino: What is going to happen is, there may be
vacancies
under
this
system.
"Senator
Maceda:
I
just
wanted
to
clarify
that.
"Senator Tolentino: That is why, I think, the basis must always be
the total number of votes and give them what is due them in the
mathematical
proportion.
"Senator Maceda: But even based on the total number of votes, we
may have one or two major parties or major labor organizations, for
that
matter,
really
getting
more
than
five
seats.
"Senator Tolentino: Yes, that is going to happen, Mr. President, if
there is no limitation. But the alternative is we will have some
vacancies
in
the
House
of
Representatives.
"Senator Maceda: Because the alternative to vacancies, if it is so
provided in the law, would be to further redistribute the vacancies.
After providing for the parties that get a maximum of five seats,

61
then the excess could be reapportioned among all the parties that
would
not
be
getting
the
maximum
of
five
seats.
"Senator Tolentino: That could be expressly provided for.
"Senator Maceda: Yes, that could be the other alternative. But as
framed now, the result would be that there would be vacancies if
some parties get more than five seats.chanrob1es virtua1 1aw
1ibrary
"Senator
Tolentino:
That
is
right,
Mr.
President.
31
It bears to stress that in imposing a limitation on the number of
seats to which a sectoral group or organization may be entitled, the
lawmakers anticipated that vacancies will occur. To obviate the
possibility, it was proposed in the Senate that "the excess of seats,
if any, shall be proportionally allotted to the participants entitled to
a smaller number of seats." The purpose was to distribute
proportionately the excess seats to those who are lower in rank. 32
The proposal was approved in the Senate, but was not included in
the final version of the law. Hence, it stands to reason that the
lawmakers did not intend to fill up the entire 20% allotted to the
sectoral groups. This is not at all surprising given the sentiment
shared among members of the House of Representatives against
sectoral
representation.
33
Respondent Commission further held that allocating the seats only
to those obtaining the 2% threshold will prevent compliance with
the
alleged
constitutional
mandate
that
the
party-list
representatives shall be composed of 20% of the entire
membership of the House of Representatives. Again, I beg to
disagree for it unduly assumes that the 2% threshold is not
mandatory and that it is essential to fill up the entire 20% of the
seats allocated to party-list representatives. In effect, the
respondent Commission effectively voids the 2% threshold using
the mandatory or directory nature of certain provisions of the law.
This is too artificial a technique of interpretation for what we ought
to decipher is the real legislative intent, which can only be
ascertained from the nature and object of the act, and the
consequences which would result from construing it one way or
another. 34 Using these guidelines, it is clear that the 2% threshold
is mandatory while the 20% requirement is but a ceiling.
A corollary issue raised is whether Article VI, Section 5(2) of the

Constitution requires that everytime the number of district

representatives is increased from 200 there shall be a
corresponding increase in the number of party-list representatives.
The answer can be found in the discussions of the Constitutional
Commission,
to
wit:
"MR. GASCON. I would like to ask a question. Is the intent of the
proposal of Commissioner Monsod to maintain the ratio of 80
percent legislative district and 20 percent party list representatives
on
a
constant
basis?
"MR.
MONSOD.
Yes,
Mr.
Presiding
Officer.
"MR. GASCON. Regardless of the number of legislative
representatives and the number of the party list representatives?
"MR. MONSOD. Yes, Mr. Presiding Officer."cralaw virtua1aw library
Similarly, the Senate records reveal the following exchange
between
Senator
Osmea
and
Senator
Tolentino:
"Senator Osmea: . . . Going to paragraph (2), it states:
"The party-list representatives shall constitute twenty per centum
of the total number of representatives including those under the
party
list.
And
paragraph
(1)
states:
"The House shall be composed of not more than 250 members.
Twenty percent of 250 would be 50. Is that the total number to be
elected? Or is it 20 percent of the existing membership of the
House
which,
I
think,
is
207?
"The membership of the House is changing because every time we
enact a law creating a province, a new member is added. Like in
the case of Mandaluyong, a newly created city, a new member is
added.
"As a matter of fact, we have a bill before us which I do not think
is the right thing to do which creates one more seat in Makati
through the operation of a simple law and not through
reapportionment.
"In effect, Mr. President, the number of members of the House is
not static. It can change from time to time. It can increase or it can
even
conceivably
decrease
if
there
are
mergers.
"What is the 20 percent going to be based on, Mr. President?
"Senator Tolentino: The 20 per cents would be what is provided
already by law. I think the creation of new cities may not

62
automatically involve an increase in the number of members of the
House but may have to wait until a new district is provided by law,
Mr.
President.
"In other words, if that is the interpretation, then the membership
will
remain
the
same.
"But if we take a different view that every city or every new
province is entitled, by the Constitution itself, to a member, that
means the number will actually change depending upon the
number of seats that we add by the creation of new urbanized
cities
or
new
provinces.
"That will mean that in every election where there is a party list
system, the computation of the number of seats for the party list
will
change."
35
Upon further clarification by Senator Lina, it was explained by
Senator Tolentino that it will not be a fixed and definite number of
seats but that the party-list representatives shall constitute a given
percentage of the total number of the Members of the House of
Representatives to be elected including those under the party-list.
36
C.
The
3-seat
limitation
The rationale for the 3-seat limit is to distribute party-list
representation to as many party groups as possible. According to
Senator Tolentino, if one party will be allowed to dominate, then the
idea of giving as much as possible to the marginalized groups may
be defeated. 37 The purpose is to allow as many as possible of the
marginalized groups that would be entitled to representation to
have a seat in Congress, 38 and to have enough seats left for those
who are way below the list. 39 There is nothing offensive to this
requirement as to warrant a declaration of unconstitutionality.
Indeed, the parties do not attack this provision as legally infirmed.
IV.
Conclusion
The party list-system of election is one of the major innovations in
our 1987 Constitution. The system gives the poor and the
powerless in our society a fighting chance to elect representatives
in Congress who will act as their real mouthpieces. In a country like
ours where vested interest reigns and may reign till kingdom come,
this rare opportunity given by the Constitution to our less privileged

people should be re-examined so that the exercise of the privilege

will not be diluted by undemocratic restraints. R.A. 7941 while
brimming with good intention can stand a lot of improvements.
Hopefully, the bills filed and that may still be filed in Congress
improving R.A. 7941 may bring about the day when our democracy
will be more vibrant, as they who have less in life will have more in
law
because
they
themselves
can
make
the
law.
I
vote
with
the
majority.
MENDOZA, J.,
concurring:
My disagreement with the majority is in respect of its computation
of the number of seats to which the parties, organizations, and
coalitions, which obtained more than 2 percent of the votes for the
party-list system are entitled to have under the Constitution and
the implementing law, R.A. No. 7941. Beyond affirming the election
of the 14 party-list representatives as the majority does, I contend
that 25 more should be proclaimed to give each of the winning
parties, organizations, and coalitions the maximum three seats
allowed by law, thus bringing the total number of party-list
representatives in the House of Representatives to 39. I am afraid
that todays ruling, denying additional seats to the winning groups,
bodes ill for the future of the party-list system in this country.
I
To be sure, those who drafted the Constitution simply sketched out
the basic features of proportional representation, leaving it to
Congress to flesh out the bare bones of an idea. The record of the
Constitutional
Commission
shows:
MR. RODRIGO: Then, I will propound my question to Commissioner
Monsod whose name appears as number one in the list.
My question have reference to the party list system and the
sectoral representation in the House of Representatives. I would
like to preface my questions by stating that I am in favor of the
basic idea of having sectoral representation and representation by
means of the party list in the House of Representatives. However,
from the very beginning, I already expressed my misgivings about
the mechanics, the practicableness of this idea. I think this is in line
with the thinking of the Constitutional Commission on this matter.
We like this party list and sectoral representation, if they can be

63
implemented properly. And we should leave to the legislature the
enactment of the implementing laws or the enabling acts. The
legislature will have more time to study the problem on how this
can be implemented. The legislature can go into details on the
mechanics. This we cannot do in the Constitutional Commission
because a Constitution must be brief, concise and broad.
So, I am very glad when I read this proposed amendment which
stated twice the phrase "AS PROVIDED BY LAW.." . .
And so, my first question is: in the light of the phrase "AS
PROVIDED BY LAW," do I take it that this party list system and the
sectoral representation provision will not take effect until an
enabling act or an implementing legislation shall have been
enacted
by
Congress?
MR. MONSOD: Madam President, the first Assembly will be in March
or April. But when we say "AS PROVIDED BY LAW," it could really
mean that it may be by ordinance appended to this Constitution or
an executive order by the incumbent President or, as the
Gentleman has said, by law provided by the incoming Congress. So,
it
could
be
any
of
these
ways.
MR. RODRIGO: Madam President, we are all witnesses to the
difficulty in arriving at a consensus of these very novel ideas on the
disputes that we have had. And up to now, there is no real
consensus yet. Does the Commissioner believe that we should
really try to go into the details by enacting an ordinance to the
Constitution? In other words, should we force the issue? Should we
insist that before this Constitution is submitted to the people in a
plebiscite, we shall have already defined the details on how this
party list system and sectoral representation can be implemented
in the first election after the ratification of the Constitution?
MR. MONSOD: we just want to establish the principle of the party
list system with sectoral representation in the present Constitution.
We can discuss whether the body in its collective wisdom feels that
it is qualified or should go into the ordinance after we have
established the principle, and we will be guided by the vote or
judgment
of
this
Commission.
1
When the fundamental law, therefore, emerged from the
Commissions
Art.
VI,
5
merely
provided:
SECTION 5. (1) The House of Representatives shall be composed of

not more than two hundred fifty members, unless otherwise fixed
by law, who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of
registered national, regionals and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per
centum of the total number of representatives including those
under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such other
sectors as may be provided by law except the religious sector.
Pursuant to its mandate under the Constitution, Congress enacted
R.A.
No.
7941
which
in
pertinent
parts
provides:
SECTION 11. Number of Party-List Representatives. The party-list
representatives shall constitute twenty per centum (20%) of the
total number of the members of the House of Representatives
including those under the party-list.
x
x
x
In determining the allocation of seats for the second vote, the
following
procedure
shall
be
observed:
(a) The parties, organizations, and coalitions shall be ranked from
the highest to the lowest based on the number of votes they
garnered
during
the
elections.
(b) The parties, organizations, and coalitions receiving at least two
percent (2%) of the total votes cast for the party-list system shall
be entitled to one seat each; Provided, That those garnering more
than two percent (2%) of the votes shall be entitled to additional
seats in proportion to their total number of votes: Provided, finally,
That each party, organization, or coalition shall be entitled to not
more
than
three
(3)
seats.
Rep. Tito R. Espinosa, co-sponsor of the bill which became R.A. No.
7941, explained that the system embodied in the law was largely
patterned after the mixed party-list system in Germany. Indeed, the
decision to use the German model is clear from the exchanges in

64
the Constitutional Commission between Commissioners Blas F. Ople
and Christian S. Monsod. 2 The difference between our system and
that of Germany is that whereas in Germany half (328) of the seats
in the Bundestag are filled by direct vote and the other half (328)
are filled through the party-list system, in out case the membership
of the House of Representatives is composed of 80 percent district
and
20
percent
party-list
representatives.
The party-list system of proportional representation is based on the
Niemeyer formula, embodied in Art. 6(2) of the German Federal
Electoral Law, which provides that, in determining the number of
seats a party is entitled to have in the Bundestag, seats should be
multiplied by the number of votes obtained by each party and then
the product should be divided by the sum total of the second votes
obtained by all the parties that have polled at least 5 percent of the
votes. First, each party receives one seat for each whole number
resulting from the calculation. The remaining seats are then
allocated in the descending sequence of the decimal fractions. The
Niemeyer formula was adopted in R.A. No. 7941, 11. As
Representative Espinosa said:chanrob1es virtual 1aw library
MR. ESPINOSA: [T]his mathematical computation or formula was
patterned after that of Niemeyer formula which is being practiced
in Germany as formerly stated. As this is the formula or
mathematical computation which they have seen most fit to be
applied in a party-list system. This is not just a formula arrived at
because of suggestions of individual Members of the Committee
but rather a pattern which was already used, as I have said, in the
assembly
of
Germany.
3
The rules in 11 require a four-step process of distributing the seats
for the part-list system. Using the results of the last elections, the
application
oaths
rules
in
11
is
as
follows:
Step 1. R.A. No. 7941, 11 states that "the parties, organizations,
and coalitions shall be ranked from the highest to the lowest based
on the number of votes they garnered during the elections." The
first step, therefore, is to rank the groups taking part in the election
for party-list seats and get the total number of votes cast for all of
them. Then determine which of them obtained at least 2 percent of
the total votes cast. The application of this rule shows that only 13

parties, organizations, and coalitions obtained at least 2 percent of

the total votes (9,155,309) cast for the party-list system.
Step 2. R.A. No. 7941, 11 provides that "the parties, organizations,
or coalitions receiving at least two percent (2%) of the total votes
cast for the party-list system shall be entitled to one seat each."
Since only 13 parties, organizations and coalitions obtained at least
2 percent of the total votes cast, only they should initially get one
seat each. The results of applying Steps 1 and 2 are shown in Table
1:
Table 1
DETERMINATION OF 2 PERCENTERS AND INITIAL DISTRIBUTION OF
SEATS TO THEM
Group Actual votes Percentage of Guaranteed received votes cast
for seat party-list
1.
APEC
503,487
5.50%
1
2.
ABA
321,646
3.51%
1
3.
ALAGAD
312,500
3.41%
1
4.
VETERANS
FEDERATION
304,902
3.33%
1
5.
PROMDI
255,184
2.79%
1
6.
AKO
239,042
2.61%
1
7.
NCSCFO
338,303
2.60%
1
8.
ABANSE!
PINAY
235,548
2.57%
1
9.
AKBAYAN!
232,376
2.54%
1
10.
BUTIL
215,643
2.36%
1
11.
SAN
LAKAS
194,617
2.13%
1
12.
COOP-NATCCO
189,802
2.07%
1
13.
COCOFED
186,388
2.04%
1
14.
SENIOR
CITIZENS
143,444
1.57%
15.
Other
Parties
5,582,427
Each
with
less
than
2%
Total
9,155,309I
00%
100%
13
Step 3. R.A. No. 7941, 11 provides that "those garnering more
than two percent (2%) of the votes shall be entitled to additional
seats in proportion to their total number of votes." The initial
allocation of seats to the 13 parties and organizations which
obtained at least 2 percent of the votes leaves 39 seats (52 minus
13) available for further distribution. How should this be done? As

65
stated earlier, Congress adopted the Niemeyer formula for
distributing
seats
in
the
Bundestag.
Accordingly, the number of additional seats to which a 2 percenter
is entitled should be determined by multiplying the number of seats
remaining by the total number of votes obtained by that party and
dividing the product by the total number of votes (3,429,438)
garnered by all the 2 percenters. The 2 percenters are each entitled
to the additional seats equivalent to the integer portion of the
resulting product. Thus, APEC will have five additional seats
computed
as
follows:
39
3,429,438

503,487

5.73

The result of the application of this formula is shown in Column 4 of

Table 2, with 32 seats (the sum of the integer portions of the
resulting products) being apportioned among the 2 percenters. The
seats remaining alter the distribution of seats in accordance with
Step 3 should be distributed to the two percenters in the
descending order of the decimal portions of the products shown in
Column 4. This distribution of the remaining seats is shown in
Column
5.
Table 1
DETERMINATION OF 2 PERCENTERS AND INITIAL DISTRIBUTION OF
SEATS TO THEM
Group
Total
votes
Guaranteed
Additional
Extra
Total
obtained
seats
seats
seats
(1) (2) (3) (4)
1.
APEC
503,487
1
5.73
1
7
2.
ABA
321,646
1
3.66
1
5
3.
ALAGAD
312,500
1
3.55
4
4.
VETERANS
304,902
1
3.47
4
FEDERATION
5.
PROMDI
255,184
1
2.90
1
4
6.
AKO
239,042
1
2.72
1
4
7.
NCSCFO
238,303
1
2.71
1
4
8.
ABANSE!PINAY
235,548
1
2.68
1
4

9.
10.
11.
12.
13.
Total

AKBAYAN!
232,376
1
BUTIL
215,643
SANLAKAS
194,617
COOP-NATCCO
189,802
COCOFED
186,388
3,429.438

13

2.64
1
1
1
1
32

1
2.45
2.21
2.16
2.12
7

4
3
3
3
3
52

It may be asked why, despite the fact that most of the parties have
already exceeded the three-seat limit while the rest have obtained
three Seats the computation is still brought forward. The answer is
that it is possible that every party will get three or more seats after
following the procedure in Step 3. The only reason why, in the
cases at bar, the results seem to make the distribution of excess
seats superfluous is that the 2 percenters are not sufficiently
numerous.
Indeed, the goal should be to fill all seats allowed for party-list
representatives, which at present are 52. Thus, Art. VI, 5(2) of the
Constitution that "the party-list representatives shall constitute
twenty per centum of the total number of representatives including
those under the party-list." This provision thus fixes a ratio of 80
percent district representatives to 20 percent party-list
representatives. If in fact all seats reserved for party-list
representatives are not filled, that is due to the fact that the law
limits parties, organizations, and coalitions to three (3) seats each.
To maintain this ratio, the entire number of seats for the party-list
system, after deducting the number of seats initially distributed to
the
2
percenters,
must
be
allocated
to
them.
The above formula is similar to that used by this Court in
determining the proportional representation of political parties in
the Commission on Appointments of Congress. Art. VI, 18 of the
Constitution provides that the Commission shall be composed of
"the President of the Senate as ex officio Chairman, twelve
Senators and twelve Members of the House of Representatives
elected by each House on the basis of proportional representation
from the political parties and parties or organizations registered
under the party-list system represented therein." In Guingona Jr. v.
Gonzales,
4
this
Court
held:
5

66
As a result of the national elections held last May 11, 1992, the
Senate is composed of the following members or Senators
representing the respective political affiliations:chanrob1es virtual
1aw
library
LDP

15
senators
NPC

5
senators
LAKAS-NUCD

3
senators
LP-PDP-LABAN

1
senator
Applying the mathematical formula agreed to by the parties as
follows:chanrob1es
virtual
1aw
library
No. of
Total

senators
No.

of

political
of

party
senators

12

seats
elected

the resulting composition of the senate based on the rule of

proportional representation of each political party with elected
representatives in the Senate, is as follows:chanrob1es virtual 1aw
library
Step 4. Finally, R.A. No. 7941, 11 provides that "each party,
organization, or coalition shall be entitled to not more than three
(3) seats." Hence the 2 percenters, which are determined to be
entitled to more than three seats are finally allotted three seats
each, or 38 seats in all, as shown in Column 8 of Table 3. This
incidentally leaves 13 seats in the House of Representatives for the
party-list
vacant.chanrob1es
virtua1
1aw
1ibrary
Table 3
FINAL DISTRIBUTION OF SEATS
Party/organization/ Total number of Seats in excess Total number of
coalition seats obtained of 3 seats allowed
1.
APEC
7
4
3
2.
ABA
5
2
3
3.
ALAGAD
4
1
3
4.
VETERANS
FEDERATION
4
1
3
5.
PROMDI
4
1
3
6.
AKO
4
1
3

7.
8.
9.
10.
11.
12.
13.
TOTAL

NCSCFO
4
ABANSE!
PINAY
AKBAYAN!
4
BUTIL
3
SANLAKAS
3
COOP-NATCCO
3
COCOFED
3
52

1
4

1
1

13

3
3
3
3
3
3
3
39

On the basis of the foregoing computations, I reach the following

conclusions:
1. The proclamation by the COMELEC of the 13 parties, which
obtained at least 2 percent of the votes cast for the party-list
system,
should
be
affirmed.
2. The 13 parties should be given two (2) additional seats, with the
exception of APEC which should be allotted only one (1) additional
seat, thus giving each party the maximum three (3) seats allowed
by law, on the basis of votes obtained by them in proportion to the
votes cast for all of them. This means a total of 25 party-list
representatives belonging to the 13 parties will be added to the 14
now in office, bringing to 39 the total number of party-list
representatives
in
the
House.
3. The decision of the COMELEC en banc allocating seats to 38
other parties, all of which failed to obtain at least 2 percent of the
total
votes
cast,
is
set
aside.
4. The proclamation of 25 additional party-list representatives will
leave 13 seats for party-list representatives vacant. While Art. VI.
5(b) of the Constitution fixes a ratio of 80 percent district to 20
percent party-list representatives, does not really require that all
seats allotted to party-list representatives at present 52 be
filled.
The results of the application of the foregoing steps are
summarized and explained in the Consolidated Table appended to
this opinion.
II
The majority holds that "the Niemeyer formula, while no doubt
suitable for Germany, finds no application in the Philippine setting,
because of our three-seat limit and the non-mandatory character of

67
the twenty percent allocation." Claiming that it is "obvious that the
Philippine style party-list system is a unique model which demands
an equally unique formula," the majority instead allocates seats to
the winning groups in a manner which cannot be justified in terms
of the rules in 11. While it disavows any intention to "reinvent or
second-guess [the law]," the majority in reality does so and in the
process
engages
in
a
bit
of
judicial
legislation.
First. In determining the number of seats to which the first party is
entitled, the majority applies the "one seat for every 2 percent"
rule. 6 But after once applying the rule to the highest ranking party,
the majority does not apply it to the rest of the 2 percenters.
Indeed, it cannot consistently do so because it is mathematically
impossible to require that the 52 seats for party-list representatives
be filled at the rate of 2 percent per seat. That would mean that the
votes needed to win the 52 seats is 104 percent of the votes cast in
the election. The majority admits this. It says that its "formula will
be applicable only in determining the number of additional seats
the first party is entitled to. It cannot be used to determine the
additional seats of the other qualified parties."cralaw virtua1aw
library
If the formula applies only to the first party, then it is no formula at
all because it is incapable of consistent and general application. It
is even iniquitous. If a party got 5.5 percent of the votes and is
given two (2) seats. it is hard to see why the next ranking party,
which got 5 percent of the votes should get only one (1) seat.
Indeed, the law does not distinguish between the first ranking party
and the rest of the other 2 percenters insofar as obtaining
additional seats fire concerned. The law provides that "those
garnering more than two percent (2%) of the votes shall be entitled
to additional seats in proportion to their total number of votes." The
operative word is "their" which refers to none other than the total
number of votes cast for the 2 percenters. The plain language of
the law is that the basis for the allocation of additional seats is the
total number of votes cast for the 2 percenters. This rule applies to
all parties obtaining more than 2 percent of the votes cast for the
winning
parties.
Second. In determining the additional seats for the 2 percenters
after determining the number of seats for the first ranking party,

the
majority
uses
the
following
formula:
No of votes of Additional seats concerned party No. of additional for
concerned = x seats allocated to the party No. of
votes
of
first
party
first
party
R.A. No. 7941, 11 requires the determination of two types of
proportions. The first is the determination of the proportion of the
votes obtained by a party in relation to the total number of votes
cast for the party-list. The purpose of the rule is to determine
whether a party was able to hurdle the 2 percent threshold. The
second is the determination of number of votes a party obtained in
proportion to the number of votes cast for all the parties obtaining
at least 2 percent of the votes. The purpose for determining the
second proportion is to allocate the seats left after the initial
allocation of one (1) seat each to every 2 percenter. The total
number of votes obtained by a party in relation to the total number
of votes obtained by all 9 percenters is multiplied by the remaining
number
of
seats.
If an analogy is needed to explain this formula, the remaining 39
seats may be likened to a pie to be distributed among the 2
percenters. The way to distribute it is to use the weight of their
individual votes in relation to their total number of votes. There is
no reason for using the number of votes of the first party as a
divisor since it is not the votes obtained by the first ranking party
which
are
being
distributed.
In truth, 11 does not say that those garnering more than 2 percent
of the votes shall be entitled to additional seats in proportion to
the number of additional seats given to the highest ranking party."
What it says is that such additional seats must be "in proportion to
their total number of votes," the antecedent of "their" being "those
garnering more than two percent (2%) of the votes."
Third. I see no legal or logical basis for the majoritys fixation with
designating the highest ranking participant as a "first" party. This
procedure, as admitted by the majority, assumes that the seats to
be allocated to the qualified parties depend on the seats of the socalled first party. One will search in vain the proceedings of both
Houses of Congress for a discussion of this procedure or even just a

68
reference
to
it.
There
is
none.
Fourth. Still it is argued that there should be a distinction between
the number of seats for the first ranking party and those for the
rest of the 2 percenters. As an example, the majority cites the case
of a first ranking party obtaining 20 percent of the votes and the
second ranking party obtaining 6 percent of the votes. According to
the majority, to give the two parties the same number of seats
would be to violate the proportional representation parameter."
As already stated, however, the majoritys inordinate concern with
the first ranking party is not consistently carried to the other 2
percenters. The result is that if the first ranking party obtains 5.99
percent of the total votes cast, the second ranking party 5.98
percent, and the last ranking party 2.0 percent, under the
majoritys formula, the .01 percent difference between the first and
the second ranking party will justify the difference of one (1) seat
between them. However, the 3.98 percent difference between the
second ranking party and the last ranking party is disregarded by
the majority. Indeed, even under the majoritys novel formula of
proportional representation, its own parameters are violated.
Fifth. In essence, the majority "formula" amounts simply to the
following prescription: (1) follow the "1 seat for every 2%" rule in
allocating seats to the first ranking party only and (2) with respect
to the rest of the 2 percenters, give each party one (1) seat, unless
the first ranking party gets at least six percent, in which case all 2
percenters with at least one-half of the votes of the first ranking
party should get an extra seat. I cannot se how this formula could
have been intended by Congress. Only in a Pickwickian sense can
the result of the application of such "formula" be considered
proportional
representation.
Sixth. The formula adopted by the majority effectively deprives
party-list representatives of representation considering that it
eliminates the ratio 4 district representatives to 1 party-list
representative in the House. This is so because, under the rule
formulated by the majority, it becomes very difficult to reach the
ceiling of 20 percent of the House. In the case at bar, to fill 52 seats
in the House, the first ranking party would have to obtain exactly 6
percent of the votes and 25 other parties must get at least 3
percent. In practical terms, this formula violates the Constitution

insofar as it makes it improbable to obtain the ceiling of 20 percent

thereby preventing the realization of the framerss intent of
opening
up
the
system
to
party-list
representatives.
Seventh. The scheme adopted by the majority will prevent all 2
percenters, which are not the first ranking party, from obtaining the
maximum number of seats. This is so because, with their votes
being proportioned against the votes of the first ranking party,
there will never be an instance where the additional seats of these
parties will be equivalent to 2. Again, this is contrary to R.A. No.
7941, 11 which contemplates the possibility of more than one (1)
party obtaining the maximum number of seats allowed by law.
x
x
x
Already, the proportion of party-list representatives to district
representatives is small compared to the mixed system in Germany
where half of the seats (328) of the Bundestag are district
representatives and the other half (328) are reserved for party-list
representatives. The ruling announced today would ensure that the
proportion
of
party-list
representatives
to
the
district
representatives who constitute 80 percent of the total membership
in the House of Representatives is even less than 20 percent. The
constitutional intent to afford marginalized groups in our society to
be represented in the House is thus frustrated if not subverted.
For these reasons, I vote to grant the petitions in these cases and
to order the Commission on Elections to proclaim as elected one
additional nominee of APEC and two additional nominees of each of
the following parties, organizations, or coalitions: ABA, ALAGAD,
VETERANS FEDERATION, PROMDI, AKO, NCSCFO, ABANSE! PINAY,
AKBAYAN!, BUTIL, SANLAKAS, COOP-NATCCO, and COCOFED.
Kapunan and Quisumbing, JJ., concur.

69
EN BANC
G.R. No. 147589

PANGANIBAN, J.:
June 26, 2001

ANG BAGONG BAYANI-OFW LABOR PARTY (under the acronym

OFW), represented herein by its secretary-general, MOHAMMAD
OMAR
FAJARDO, petitioner,
vs.
ANG BAGONG BAYANI-OFW LABOR PARTY GO! GO!
PHILIPPINES; THE TRUE MARCOS LOYALIST ASSOCIATION OF
THE PHILIPPINES; PHILIPPINE LOCAL AUTONOMY; CITIZENS
MOVEMENT FOR JUSTICE, ECONOMY, ENVIRONMENT AND
PEACE; CHAMBER OF REAL ESTATE BUILDERS ASSOCIATION;
SPORTS & HEALTH ADVANCEMENT FOUNDATION, INC.; ANG
LAKAS NG OVERSEAS CONTRACT WORKERS (OCW); BAGONG
BAYANI
ORGANIZATION
and
others
under
"Organizations/Coalitions" of Omnibus Resolution No. 3785;
PARTIDO NG MASANG PILIPINO; LAKAS NUCD-UMDP;
NATIONALIST
PEOPLE'S
COALITION;
LABAN
NG
DEMOKRATIKONG PILIPINO; AKSYON DEMOKRATIKO; PDPLABAN; LIBERAL PARTY; NACIONALISTA PARTY; ANG BUHAY
HAYAANG YUMABONG; and others under "Political Parties"
of Omnibus Resolution No. 3785. respondents.
x---------------------------------------------------------x
G.R. No. 147613 June 26, 2001
BAYAN
MUNA, petitioner,
vs.
COMMISSION ON ELECTIONS; NATIONALIST PEOPLE'S
COALITION (NPC); LABAN NG DEMOKRATIKONG PILIPINO
(LDP); PARTIDO NG MASANG PILIPINO (PMP); LAKAS-NUCDUMDP; LIBERAL PARTY; MAMAMAYANG AYAW SA DROGA;
CREBA; NATIONAL FEDERATION OF SUGARCANE PLANTERS;
JEEP; and BAGONG BAYANI ORGANIZATION, respondents.

The party-list system is a social justice tool designed not only to

give more law to the great masses of our people who have less in
life, but also to enable them to become veritable lawmakers
themselves, empowered to participate directly in the enactment of
laws designed to benefit them. It intends to make the marginalized
and the underrepresented not merely passive recipients of the
State's benevolence, but active participants in the mainstream of
representative democracy. Thus, allowing all individuals and
groups, including those which now dominate district elections, to
have the same opportunity to participate in party-list elections
would desecrate this lofty objective and mongrelize the social
justice mechanism into an atrocious veneer for traditional politics.
The Case
Before us are two Petitions under Rule 65 of the Rules of Court,
challenging Omnibus Resolution No. 3785 1issued by the
Commission on Elections (Comelec) on March 26, 2001. This
Resolution approved the participation of 154 organizations and
parties, including those herein impleaded, in the 2001 party-list
elections. Petitioners seek the disqualification of private
respondents, arguing mainly that the party-list system was
intended to benefit the marginalized and underrepresented; not the
mainstream
political
parties,
the
non-marginalized
or
overrepresented.
The Factual Antecedents
With the onset of the 2001 elections, the Comelec received several
Petitions for registration filed by sectoral parties, organizations and
political parties. According to the Comelec, "[v]erifications were
made as to the status and capacity of these parties and
organizations and hearings were scheduled day and night until the

70
last party w[as] heard. With the number of these petitions and the
observance of the legal and procedural requirements, review of
these petitions as well as deliberations takes a longer process in
order to arrive at a decision and as a result the two (2) divisions
promulgated a separate Omnibus Resolution and individual
resolution on political parties. These numerous petitions and
processes observed in the disposition of these petition[s] hinder the
early release of the Omnibus Resolutions of the Divisions which
were promulgated only on 10 February 2001." 2
Thereafter, before the February 12, 2001 deadline prescribed under
Comelec Resolution No. 3426 dated December 22, 2000, the
registered parties and organizations filed their respective
Manifestations, stating their intention to participate in the party-list
elections. Other sectoral and political parties and organizations
whose registrations were denied also filed Motions for
Reconsideration, together with Manifestations of their intent to
participate in the party-list elections. Still other registered parties
filed their Manifestations beyond the deadline.
The Comelec gave due course or approved the Manifestations (or
accreditations) of 154 parties and organizations, but denied those
of several others in its assailed March 26, 2001 Omnibus Resolution
No. 3785, which we quote:
"We carefully deliberated the foregoing matters, having in mind
that this system of proportional representation scheme will
encourage multi-partisan [sic] and enhance the inability of small,
new or sectoral parties or organization to directly participate in this
electoral window.
"It will be noted that as defined, the 'party-list system' is a
'mechanism of proportional representation' in the election of
representatives to the House of Representatives from national,
regional, and sectoral parties or organizations or coalitions thereof
registered with the Commission on Elections.

"However, in the course of our review of the matters at bar, we

must recognize the fact that there is a need to keep the number of
sectoral parties, organizations and coalitions, down to a
manageable level, keeping only those who substantially comply
with the rules and regulations and more importantly the sufficiency
of the Manifestations or evidence on the Motions for
Reconsiderations or Oppositions." 3
On April 10, 2001, Akbayan Citizens Action Party filed before the
Comelec a Petition praying that "the names of [some of herein
respondents] be deleted from the 'Certified List of Political
Parties/Sectoral Parties/Organizations/Coalitions Participating in the
Party List System for the May 14, 2001 Elections' and that said
certified list be accordingly amended." It also asked, as an
alternative, that the votes cast for the said respondents not be
counted or canvassed, and that the latter's nominees not be
proclaimed. 4 On April 11, 2001, Bayan Muna and Bayan Muna-Youth
also filed a Petition for Cancellation of Registration and Nomination
against some of herein respondents. 5
On April 18, 2001, the Comelec required the respondents in the two
disqualification cases to file Comments within three days from
notice. It also set the date for hearing on April 26, 2001, 6 but
subsequently reset it to May 3, 2001. 7 During the hearing, however,
Commissioner Ralph C. Lantion merely directed the parties to
submit their respective memoranda. 8
Meanwhile, dissatisfied with the pace of the Comelec, Ang Bagong
Bayani-OFW Labor Party filed a Petition 9before this Court on April
16, 2001. This Petition, docketed as GR No. 147589, assailed
Comelec Omnibus Resolution No. 3785. In its Resolution dated April
17, 2001, 10 the Court directed respondents to comment on the
Petition within a non-extendible period of five days from notice. 11
On April 17, 2001, Petitioner Bayan Muna also filed before this
Court a Petition, 12 docketed as GR No. 147613, also challenging
Comelec Omnibus Resolution No. 3785. In its Resolution dated May
9, 2001, 13 the Court ordered the consolidation of the two Petitions

71
before it; directed respondents named in the second Petition to file
their respective Comments on or before noon of May 15, 2001; and
called the parties to an Oral Argument on May 17, 2001. It added
that the Comelec may proceed with the counting and canvassing of
votes cast for the party-list elections, but barred the proclamation
of any winner therein, until further orders of the Court.

The Petitions are partly meritorious. These cases should be

remanded to the Comelec which will determine, after summary
evidentiary hearings, whether the 154 parties and organizations
enumerated in the assailed Omnibus Resolution satisfy the
requirements of the Constitution and RA 7941, as specified in this
Decision.

Thereafter, Comments 14 on the second Petition were received by

the Court and, on May 17, 2001, the Oral Argument was conducted
as scheduled. In an Order given in open court, the parties were
directed to submit their respective Memoranda simultaneously
within a non-extendible period of five days. 15

First Issue:

Issues:
During the hearing on May 17, 2001, the Court directed the parties
to address the following issues:
"1. Whether or not recourse under Rule 65 is proper under the
premises. More specifically, is there no other plain, speedy or
adequate remedy in the ordinary course of law?
"2. Whether or not political parties may participate in the party-list
elections.
"3. Whether or not the party-list system is exclusive
'marginalized and underrepresented' sectors and organizations.

to

"4. Whether or not the Comelec committed grave abuse of

discretion in promulgating Omnibus Resolution No. 3785." 16

Recourse Under Rule 65

Respondents contend that the recourse of both petitioners under
Rule 65 is improper because there are other plain, speedy and
adequate remedies in the ordinary course of law. 17 The Office of the
Solicitor General argues that petitioners should have filed before
the Comelec a petition either for disqualification or for cancellation
of registration, pursuant to Sections 19, 20, 21 and 22 of Comelec
Resolution No. 3307-A 18 dated November 9, 2000. 19
We disagree. At bottom, petitioners attack the validity of Comelec
Omnibus Resolution 3785 for having been issued with grave abuse
of discretion, insofar as it allowed respondents to participate in the
party-list
elections
of
2001.
Indeed,
under
both
the
20
Constitution and the Rules of Court, such challenge may be
brought before this Court in a verified petition for certiorari under
Rule 65.
Moreover, the assailed Omnibus Resolution was promulgated by
Respondent Commission en banc; hence, no motion for
reconsideration was possible, it being a prohibited pleading under
Section 1 (d), Rule 13 of the Comelec Rules of Procedure. 21

The Court's Ruling

The Court also notes that Petitioner Bayan Muna had filed before
the Comelec a Petition for Cancellation of Registration and
Nomination against some of herein respondents. 22 The Comelec,
however, did not act on that Petition. In view of the pendency of the
elections, Petitioner Bayan Muna sought succor from this Court, for
there was no other adequate recourse at the time. Subsequent

72
events have proven the urgency of petitioner's action; to this date,
the Comelec has not yet formally resolved the Petition before it. But
a resolution may just be a formality because the Comelec, through
the Office of the Solicitor General, has made its position on the
matter quite clear.
In any event, this case presents an exception to the rule that
certiorari shall lie only in the absence of any other plain, speedy
and adequate remedy. 23 It has been held that certiorari is available,
notwithstanding the presence of other remedies, "where the issue
raised is one purely of law, where public interest is involved, and in
case of urgency." 24 Indeed, the instant case is indubitably imbued
with public interest and with extreme urgency, for it potentially
involves the composition of 20 percent of the House of
Representatives.
Moreover, this case raises transcendental constitutional issues on
the party-list system, which this Court must urgently resolve,
consistent with its duty to "formulate guiding and controlling
constitutional principles, precepts, doctrines, or rules." 25
Finally, procedural requirements "may be glossed over to prevent a
miscarriage of justice, when the issue involves the principle of
social justice x x x when the decision sought to be set aside is a
nullity, or when the need for relief is extremely urgent and
certiorari is the only adequate and speedy remedy available." 26
Second Issue:
Participation of Political Parties
In its Petition, Ang Bagong Bayani-OFW Labor Party contends that
"the inclusion of political parties in the party-list system is the most
objectionable portion of the questioned Resolution." 27 For its part,
Petitioner Bayan Muna objects to the participation of "major
political parties." 28 On the other hand, the Office of the Solicitor
General, like the impleaded political parties, submits that the
Constitution and RA No. 7941 allow political parties to participate in

the party-list elections. It argues that the party-list system is, in

fact, open to all "registered national, regional and sectoral parties
or organizations." 29
We now rule on this issue. Under the Constitution and RA 7941,
private respondents cannot be disqualified from the party-list
elections, merely on the ground that they are political parties.
Section 5, Article VI of the Constitution provides that members of
the House of Representatives may "be elected through a party-list
system of registered national, regional, and sectoral parties or
organizations."
Furthermore, under Sections 7 and 8, Article IX (C) of the
Constitution, political parties may be registered under the party-list
system.
"Sec. 7. No votes cast in favor of a political party, organization, or
coalition shall be valid, except for those registered under the partylist system as provided in this Constitution.
"Sec. 8. Political parties, or organizations or coalitions registered
under the party-list system, shall not be represented in the voters'
registration boards, boards of election inspectors, boards of
canvassers, or other similar bodies. However, they shall be entitled
to appoint poll watchers in accordance with law." 30
During the deliberations in the Constitutional Commission, Comm.
Christian S. Monsod pointed out that the participants in the partylist system may "be a regional party, a sectoral party, a national
party, UNIDO, 31Magsasaka, or a regional party in Mindanao." 32 This
was also clear from the following exchange between Comms. Jaime
Tadeo and Blas Ople: 33
"MR. TADEO. Naniniwala ba kayo na ang party list ay pwedeng
paghati-hatian ng UNIDO, PDP-Laban, PNP, Liberal at Nacionalista?
MR. OPLE. Maaari yan sapagkat bukas ang party list system sa
lahat ng mga partido."

73
Indeed, Commissioner Monsod stated that the purpose of the partylist provision was to open up the system, in order to give a chance
to parties that consistently place third or fourth in congressional
district elections to win a seat in Congress. 34 He explained: "The
purpose of this is to open the system. In the past elections, we
found out that there were certain groups or parties that, if we count
their votes nationwide, have about 1,000,000 or 1,500,000 votes.
But they were always third or fourth place in each of the districts.
So, they have no voice in the Assembly. But this way, they would
have five or six representatives in the Assembly even if they would
not win individually in legislative districts. So, that is essentially the
mechanics, the purpose and objectives of the party-list system."
For its part, Section 2 of RA 7941 also provides for "a party-list
system of registered national, regional and sectoral parties or
organizations or coalitions thereof, x x x." Section 3 expressly
states that a "party" is "either a political party or a sectoral party or
a coalition of parties." More to the point, the law defines "political
party" as "an organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of
government and which, as the most immediate means of securing
their adoption, regularly nominates and supports certain of its
leaders and members as candidates for public office."
Furthermore, Section 11 of RA 7941 leaves no doubt as to the
participation of political parties in the party-list system. We quote
the pertinent provision below:
"x x x
"For purposes of the May 1998 elections, the first five (5) major
political parties on the basis of party representation in the House of
Representatives at the start of the Tenth Congress of the Philippines
shall not be entitled to participate in the party-list system.
x x x"

Indubitably, therefore, political parties even the major ones -- may

participate in the party-list elections.
Third Issue:
Marginalized and Underrepresented
That political parties may participate in the party-list elections does
not mean, however, that any political party -- or any organization or
group for that matter -- may do so. The requisite character of these
parties or organizations must be consistent with the purpose of the
party-list system, as laid down in the Constitution and RA 7941.
Section 5, Article VI of the Constitution, provides as follows:
"(1) The House of Representatives shall be composed of not more
than two hundred and fifty members, unless otherwise fixed by law,
who shall be elected from legislative districts apportioned among
the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per
centum of the total number of representatives including those
under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector."
(Emphasis supplied.)
Notwithstanding the sparse language of the provision, a
distinguished member of the Constitutional Commission declared
that the purpose of the party-list provision was to give "genuine
power to our people" in Congress. Hence, when the provision was
discussed, he exultantly announced: "On this first day of August

74
1986, we shall, hopefully, usher in a new chapter to our national
history, by giving genuine power to our people in the legislature." 35

3. who could contribute to the formulation and enactment of

appropriate legislation that will benefit the nation as a whole.

The foregoing provision on the party-list system is not selfexecutory. It is, in fact, interspersed with phrases like "in
accordance with law" or "as may be provided by law"; it was thus
up to Congress to sculpt in granite the lofty objective of the
Constitution. Hence, RA 7941 was enacted. It laid out the statutory
policy in this wise:

The key words in this policy are "proportional representation,"

"marginalized and underrepresented," and "lack ofwell-defined
constituencies."

"SEC. 2. Declaration of Policy. -- The State shall promote

proportional representation in the election of representatives to the
House of Representatives through a party-list system of registered
national, regional and sectoral parties or organizations or coalitions
thereof, which will enable Filipino citizens belonging to marginalized
and underrepresented sectors, organizations and parties, and who
lack well-defined political constituencies but who could contribute
to the formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and
guarantee a full, free and open party system in order to attain the
broadest possible representation of party, sectoral or group
interests in the House of Representatives by enhancing their
chances to compete for and win seats in the legislature, and shall
provide the simplest scheme possible."
The Marginalized and Underrepresented to Become Lawmakers
Themselves
The foregoing provision mandates a state policy of promoting
proportional representation by means of the Filipino-style party-list
system, which will "enable" the election to the House of
Representatives of Filipino citizens,
1. who belong to marginalized and underrepresented sectors,
organizations and parties; and
2. who lack well-defined constituencies; but

"Proportional representation" here does not refer to the number of

people in a particular district, because the party-list election is
national in scope. Neither does it allude to numerical strength in a
distressed or oppressed group. Rather, it refers to the
representation of the "marginalized and underrepresented" as
exemplified by the enumeration in Section 5 of the law; namely,
"labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals."
However, it is not enough for the candidate to claim representation
of the marginalized and underrepresented, because representation
is easy to claim and to feign. The party-list organization or party
must factually and truly represent the marginalized and
underrepresented
constituencies
mentioned
in
Section
5. 36 Concurrently, the persons nominated by the party-list
candidate-organization must be "Filipino citizens belonging to
marginalized and underrepresented sectors, organizations and
parties."
Finally, "lack of well-defined constituenc[y] " refers to the absence
of a traditionally identifiable electoral group, like voters of a
congressional district or territorial unit of government. Rather, it
points again to those with disparate interests identified with the
"marginalized or underrepresented."
In the end, the role of the Comelec is to see to it that only those
Filipinos who are "marginalized and underrepresented" become
members of Congress under the party-list system, Filipino-style.

75
The intent of the Constitution is clear: to give genuine power to the
people, not only by giving more law to those who have less in life,
but more so by enabling them to become veritable lawmakers
themselves. Consistent with this intent, the policy of the
implementing law, we repeat, is likewise clear: "to enable Filipino
citizens belonging to marginalized and underrepresented sectors,
organizations and parties, x x x, to become members of the House
of Representatives." Where the language of the law is clear, it must
be applied according to its express terms. 37
The marginalized and underrepresented sectors to be represented
under the party-list system are enumerated in Section 5 of RA
7941, which states:
"SEC. 5. Registration. -- Any organized group of persons may
register as a party, organization or coalition for purposes of the
party-list system by filing with the COMELEC not later than ninety
(90) days before the election a petition verified by its president or
secretary stating its desire to participate in the party-list system as
a national, regional or sectoral party or organization or a coalition
of such parties or organizations, attaching thereto its constitution,
by-laws, platform or program of government, list of officers,
coalition agreement and other relevant information as the
COMELEC may require: Provided, that the sector shall include labor,
peasant, fisherfolk, urban poor, indigenous cultural communities,
elderly, handicapped, women, youth, veterans, overseas workers,
and professionals."
While the enumeration of marginalized and underrepresented
sectors is not exclusive, it demonstrates the clear intent of the law
that not all sectors can be represented under the party-list system.
It is a fundamental principle of statutory construction that words
employed in a statute are interpreted in connection with, and their
meaning is ascertained by reference to, the words and the phrases
with which they are associated or related. Thus, the meaning of a
term in a statute may be limited, qualified or specialized by those
in immediate association. 38

The Party-List System Desecrated by the OSG Contentions

Notwithstanding the unmistakable statutory policy, the Office of the
Solicitor General submits that RA No. 7941 "does not limit the
participation in the party-list system to the marginalized and
underrepresented sectors of society." 39 In fact, it contends that any
party or group that is not disqualified under Section 6 40 of RA 7941
may participate in the elections. Hence, it admitted during the Oral
Argument that even an organization representing the super rich of
Forbes Park or Dasmarias Village could participate in the party-list
elections. 41
The declared policy of RA 7941 contravenes the position of the
Office of the Solicitor General (OSG). We stress that the party-list
system seeks to enable certain Filipino citizens specifically those
belonging to marginalized and underrepresented sectors,
organizations and parties to be elected to the House of
Representatives. The assertion of the OSG that the party-list
system is not exclusive to the marginalized and underrepresented
disregards the clear statutory policy. Its claim that even the superrich and overrepresented can participate desecrates the spirit of
the party-list system.
Indeed, the law crafted to address the peculiar disadvantages of
Payatas hovel dwellers cannot be appropriated by the mansion
owners of Forbes Park. The interests of these two sectors are
manifestly disparate; hence, the OSG's position to treat them
similarly defies reason and common sense. In contrast, and with
admirable candor, Atty. Lorna Patajo-Kapunan 42 admitted during
the Oral Argument that a group of bankers, industrialists and sugar
planters could not join the party-list system as representatives of
their respective sectors. 43
While the business moguls and the mega-rich are, numerically
speaking, a tiny minority, they are neither marginalized nor
underrepresented, for the stark reality is that their economic clout
engenders political power more awesome than their numerical
limitation. Traditionally, political power does not necessarily

76
emanate from the size of one's constituency; indeed, it is likely to
arise more directly from the number and amount of one's bank
accounts.

system to those who have long been within it -- those privileged

sectors that have long dominated the congressional district
elections.

It is ironic, therefore, that the marginalized and underrepresented

in our midst are the majority who wallow in poverty, destitution and
infirmity. It was for them that the party-list system was enacted -to give them not only genuine hope, but genuine power; to give
them the opportunity to be elected and to represent the specific
concerns of their constituencies; and simply to give them a direct
voice in Congress and in the larger affairs of the State. In its noblest
sense, the party-list system truly empowers the masses and ushers
a new hope for genuine change. Verily, it invites those marginalized
and underrepresented in the past the farm hands, the fisher folk,
the urban poor, even those in the underground movement to
come out and participate, as indeed many of them came out and
participated during the last elections. The State cannot now
disappoint and frustrate them by disabling and desecrating this
social justice vehicle.

The import of the open party-list system may be more vividly

understood when compared to a student dormitory "open house,"
which by its nature allows outsiders to enter the facilities.
Obviously, the "open house" is for the benefit of outsiders only, not
the dormers themselves who can enter the dormitory even without
such special privilege. In the same vein, the open party-list system
is only for the "outsiders" who cannot get elected through regular
elections otherwise; it is not for the non-marginalized or
overrepresented who already fill the ranks of Congress.

Because the marginalized and underrepresented had not been able

to win in the congressional district elections normally dominated by
traditional politicians and vested groups, 20 percent of the seats in
the House of Representatives were set aside for the party-list
system. In arguing that even those sectors who normally controlled
80 percent of the seats in the House could participate in the partylist elections for the remaining 20 percent, the OSG and the
Comelec disregard the fundamental difference between the
congressional district elections and the party-list elections.

Verily, allowing the non-marginalized and overrepresented to vie for

the remaining seats under the party-list system would not only
dilute, but also prejudice the chance of the marginalized and
underrepresented, contrary to the intention of the law to enhance
it. The party-list system is a tool for the benefit of the
underprivileged; the law could not have given the same tool to
others, to the prejudice of the intended beneficiaries.
This Court, therefore, cannot allow the party-list system to be
sullied and prostituted by those who are neither marginalized nor
underrepresented. It cannot let that flicker of hope be snuffed out.
The clear state policy must permeate every discussion of the
qualification of political parties and other organizations under the
party-list system.
Refutation of the Separate Opinions

As earlier noted, the purpose of the party-list provision was to open

up the system, 44 in order to enhance the chance of sectoral groups
and organizations to gain representation in the House of
Representatives through the simplest scheme possible. 45 Logic
shows that the system has been opened to those who have never
gotten a foothold within it -- those who cannot otherwise win in
regular elections and who therefore need the "simplest scheme
possible" to do so. Conversely, it would be illogical to open the

The Separate Opinions of our distinguished colleagues, Justices Jose

C. Vitug and Vicente V. Mendoza, are anchored mainly on the
supposed intent of the framers of the Constitution as culled from
their deliberations.
The fundamental principle in constitutional construction, however,
is that the primary source from which to ascertain constitutional

77
intent or purpose is the language of the provision itself. The
presumption is that the words in which the constitutional provisions
are couched express the objective sought to be attained. 46 In other
words, verba legis still prevails. Only when the meaning of the
words used is unclear and equivocal should resort be made to
extraneous aids of construction and interpretation, such as the
proceedings of the Constitutional Commission or Convention, in
order to shed light on and ascertain the true intent or purpose of
the provision being construed. 47

designed to "enable underrepresented sectors, organizations and

parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole x x x." The criteria
for participation is well defined. Thus, there is no need for recourse
to constitutional deliberations, not even to the proceedings of
Congress. In any event, the framers' deliberations merely express
their individual opinions and are, at best, only persuasive in
construing the meaning and purpose of the constitution or statute.

Indeed, as cited in the Separate Opinion of Justice Mendoza, this

Court stated in Civil Liberties Union v. Executive Secretary 48 that
"the debates and proceedings of the constitutional convention
[may be consulted] in order to arrive at the reason and purpose of
the resulting Constitution x x x only when other guides fail as said
proceedings are powerless to vary the terms of the Constitution
when the meaning is clear. Debates in the constitutional convention
'are of value as showing the views of the individual members, and
as indicating the reason for their votes, but they give us no light as
to the views of the large majority who did not talk, much less of the
mass or our fellow citizens whose votes at the polls gave that
instrument the force of fundamental law. We think it safer to
construe the constitution from what appears upon its face.' The
proper interpretation therefore depends more on how it was
understood by the people adopting it than in the framers'
understanding thereof."

Be it remembered that the constitutionality or validity of Sections 2

and 5 of RA 7941 is not an issue here. Hence, they remain parts of
the law, which must be applied plainly and simply.

Section 5, Article VI of the Constitution, relative to the party-list

system, is couched in clear terms: the mechanics of the system
shall be provided by law. Pursuant thereto, Congress enacted RA
7941. In understanding and implementing party-list representation,
we should therefore look at the law first. Only when we find its
provisions ambiguous should the use of extraneous aids of
construction be resorted to.
But, as discussed earlier, the intent of the law is obvious and clear
from its plain words. Section 2 thereof unequivocally states that the
party-list system of electing congressional representatives was

Fourth Issue:
Grave Abuse of Discretion
From its assailed Omnibus Resolution, it is manifest that the
Comelec failed to appreciate fully the clear policy of the law and
the Constitution. On the contrary, it seems to have ignored the
facet of the party-list system discussed above. The OSG as its
counsel admitted before the Court that any group, even the nonmarginalized and overrepresented, could field candidates in the
party-list elections.
When a lower court, or a quasi-judicial agency like the Commission
on Elections, violates or ignores the Constitution or the law, its
action can be struck down by this Court on the ground of grave
abuse of discretion. 49Indeed, the function of all judicial and quasijudicial instrumentalities is to apply the law as they find it, not to
reinvent or second-guess it. 50
In its Memorandum, Petitioner Bayan Muna passionately pleads for
the outright disqualification of the major political parties
Respondents Lakas-NUCD, LDP, NPC, LP and PMP on the ground
that under Comelec Resolution No. 4073, they have been
accredited as the five (six, including PDP-Laban) major political

78
parties in the May 14, 2001 elections. It argues that because of
this, they have the "advantage of getting official Comelec Election
Returns, Certificates of Canvass, preferred poll watchers x x x." We
note, however, that this accreditation does not refer to the partylist election, but, inter alia, to the election of district representatives
for the purpose of determining which parties would be entitled to
watchers under Section 26 of Republic Act No. 7166.
What is needed under the present circumstances, however, is a
factual determination of whether respondents herein and, for that
matter, all the 154 previously approved groups, have the necessary
qualifications to participate in the party-list elections, pursuant to
the Constitution and the law.
Bayan Muna also urges us to immediately rule out Respondent
Mamamayan Ayaw sa Droga (MAD), because "it is a government
entity using government resources and privileges." This Court,
however, is not a trier of facts. 51 It is not equipped to receive
evidence and determine the truth of such factual allegations.
Basic rudiments of due process require that respondents should
first be given an opportunity to show that they qualify under the
guidelines promulgated in this Decision, before they can be
deprived of their right to participate in and be elected under the
party-list system.

in Section 5 of RA 7941. In other words, it must show -- through its

constitution, articles of incorporation, bylaws, history, platform of
government and track record -- that it represents and seeks to
uplift marginalized and underrepresented sectors. Verily, majority
of its membership should belong to the marginalized and
underrepresented. And it must demonstrate that in a conflict of
interests, it has chosen or is likely to choose the interest of such
sectors.
Second, while even major political parties are expressly allowed by
RA 7941 and the Constitution to participate in the party-list system,
they must comply with the declared statutory policy of enabling
"Filipino citizens belonging to marginalized and underrepresented
sectors x x x to be elected to the House of Representatives." In
other words, while they are not disqualified merely on the ground
that they are political parties, they must show, however, that they
represent the interests of the marginalized and underrepresented.
The counsel of Aksyon Demokratiko and other similarly situated
political parties admitted as much during the Oral Argument, as the
following quote shows:
"JUSTICE PANGANIBAN: I am not disputing that in my question. All I
am saying is, the political party must claim to represent the
marginalized and underrepresented sectors?
ATTY. KAPUNAN: Yes, Your Honor, the answer is yes."52

Guidelines for Screening Party-List Participants

The Court, therefore, deems it proper to remand the case to the
Comelec for the latter to determine, after summary evidentiary
hearings, whether the 154 parties and organizations allowed to
participate in the party-list elections comply with the requirements
of the law. In this light, the Court finds it appropriate to lay down
the following guidelines, culled from the law and the Constitution,
to assist the Comelec in its work.

Third, in view of the objections 53 directed against the registration of

Ang Buhay Hayaang Yumabong, which is allegedly a religious
group, the Court notes the express constitutional provision that the
religious sector may not be represented in the party-list system.
The extent of the constitutional proscription is demonstrated by the
following discussion during the deliberations of the Constitutional
Commission:
"MR. OPLE. x x x

First, the political party, sector, organization or coalition must

represent the marginalized and underrepresented groups identified

79
In the event that a certain religious sect with nationwide and even
international networks of members and supporters, in order to
circumvent this prohibition, decides to form its own political party
in emulation of those parties I had mentioned earlier as deriving
their inspiration and philosophies from well-established religious
faiths, will that also not fall within this prohibition?

(3) It is a foreign party or organization;

MR. MONSOD. If the evidence shows that the intention is to go

around the prohibition, then certainly the Comelec can pierce
through the legal fiction."54

(5) It violates or fails to comply with laws, rules or regulations

relating to elections;

(4) It is receiving support from any foreign government, foreign

political party, foundation, organization, whether directly or through
any of its officers or members or indirectly through third parties for
partisan election purposes;

(6) It declares untruthful statements in its petition;

The following discussion is also pertinent:
(7) It has ceased to exist for at least one (1) year; or
"MR. VILLACORTA. When the Commissioner proposed "EXCEPT
RELIGIOUS GROUPS," he is not, of course, prohibiting priests,
imams or pastors who may be elected by, say, the indigenous
community sector to represent their group.
REV. RIGOS. Not at all, but I am objecting to anybody who
represents the Iglesia ni Kristo, the Catholic Church, the Protestant
Church et cetera."55
Furthermore,
the
Constitution
provides
that
"religious
56
denominations and sects shall not be registered." The prohibition
was explained by a member57 of the Constitutional Commission in
this wise: "[T] he prohibition is on any religious organization
registering as a political party. I do not see any prohibition here
against a priest running as a candidate. That is not prohibited here;
it is the registration of a religious sect as a political party." 58
Fourth, a party or an organization must not be disqualified under
Section 6 of RA 7941, which enumerates the grounds for
disqualification as follows:
"(1) It is a religious sect or denomination, organization or
association organized for religious purposes;
(2) It advocates violence or unlawful means to seek its goal;

(8) It fails to participate in the last two (2) preceding elections or

fails to obtain at least two per centum (2%) of the votes cast under
the party-list system in the two (2) preceding elections for the
constituency in which it has registered." 59
Note should be taken of paragraph 5, which disqualifies a party or
group for violation of or failure to comply with election laws and
regulations. These laws include Section 2 of RA 7941, which states
that the party-list system seeks to "enable Filipino citizens
belonging to marginalized and underrepresented sectors,
organizations and parties x x x to become members of the House of
Representatives." A party or an organization, therefore, that does
not comply with this policy must be disqualified.
Fifth, the party or organization must not be an adjunct of, or a
project organized or an entity funded or assisted by, the
government. By the very nature of the party-list system, the party
or organization must be a group of citizens, organized by citizens
and operated by citizens. It must be independent of the
government. The participation of the government or its officials in
the affairs of a party-list candidate is not only illegal 60 and unfair to
other parties, but also deleterious to the objective of the law: to
enable citizens belonging to marginalized and underrepresented

80
sectors and organizations
Representatives.

to

be

elected

to

the

House

of

Sixth, the party must not only comply with the requirements of the
law; its nominees must likewise do so. Section 9 of RA 7941 reads
as follows:
"SEC. 9. Qualifications of Party-List Nominees. No person shall be
nominated as party-list representative unless he is a natural-born
citizen of the Philippines, a registered voter, a resident of the
Philippines for a period of not less than one (1) year immediately
preceding the day of the election, able to read and write, a bona
fide member of the party or organization which he seeks to
represent for at least ninety (90) days preceding the day of the
election, and is at least twenty-five (25) years of age on the day of
the election.
In case of a nominee of the youth sector, he must at least be
twenty-five (25) but not more than thirty (30) years of age on the
day of the election. Any youth sectoral representative who attains
the age of thirty (30) during his term shall be allowed to continue in
office until the expiration of his term."
Seventh, not only the candidate party or organization must
represent marginalized and underrepresented sectors; so also must
its nominees. To repeat, under Section 2 of RA 7941, the nominees
must be Filipino citizens "who belong to marginalized and
underrepresented sectors, organizations and parties." Surely, the
interests of the youth cannot be fully represented by a retiree;
neither can those of the urban poor or the working class, by an
industrialist. To allow otherwise is to betray the State policy to give
genuine representation to the marginalized and underrepresented.
Eighth, as previously discussed, while lacking a well-defined
political constituency, the nominee must likewise be able to
contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole. Senator Jose Lina
explained during the bicameral committee proceedings that "the

nominee of a party, national or regional, is not going to represent a

particular district x x x."61
Epilogue
The linchpin of this case is the clear and plain policy of the law: "to
enable
Filipino
citizens
belonging
to
marginalized
and
underrepresented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House of
Representatives."
Crucial to the resolution of this case is the fundamental social
justice principle that those who have less in life should have more
in law. The party-list system is one such tool intended to benefit
those who have less in life. It gives the great masses of our people
genuine hope and genuine power. It is a message to the destitute
and the prejudiced, and even to those in the underground, that
change is possible. It is an invitation for them to come out of their
limbo and seize the opportunity.
Clearly, therefore, the Court cannot accept the submissions of the
Comelec and the other respondents that the party-list system is,
without any qualification, open to all. Such position does not only
weaken the electoral chances of the marginalized and
underrepresented; it also prejudices them. It would gut the
substance of the party-list system. Instead of generating hope, it
would create a mirage. Instead of enabling the marginalized, it
would further weaken them and aggravate their marginalization.
In effect, the Comelec would have us believe that the party-list
provisions of the Constitution and RA 7941 are nothing more than a
play on dubious words, a mockery of noble intentions, and an
empty offering on the altar of people empowerment. Surely, this
could not have been the intention of the framers of the Constitution
and the makers of RA 7941.

81
WHEREFORE, this case is REMANDED to the Comelec, which is
hereby DIRECTED to immediately conduct summary evidentiary
hearings on the qualifications of the party-list participants in the
light of the guidelines enunciated in this Decision. Considering the
extreme urgency of determining the winners in the last party-list
elections, the Comelec is directed to begin its hearings for the
parties and organizations that appear to have garnered such
number of votes as to qualify for seats in the House of
Representatives. The Comelec is further DIRECTED to submit to this
Court its compliance report within 30 days from notice
hereof.1wphi1.nt
The Resolution of this Court dated May 9, 2001, directing the
Comelec "to refrain from proclaiming any winner" during the last
party-list election, shall remain in force until after the Comelec itself
will have complied and reported its compliance with the foregoing
disposition.

This Decision is immediately executory upon the Commission on

Elections' receipt thereof. No pronouncement as to costs.
SO ORDERED.
Bellosillo, Melo, Puno, Kapunan, Pardo, Buena, and Gonzaga-Reyes,
JJ., concur.
Davide,
Jr.,
C.J., in
the
result.
Vitug
and
Mendoza,
JJ., see
dissenting
opinion.
Quisumbing, De Leon, Jr., and Sandoval-Gutierrez, JJ., join the
dissent
of J.
Vicente
M.
Mendoza.
Ynares-Santiago, J., abroad on official business.

82
EN BANC
[G.R. NO. 179271 : July 8, 2009]
BARANGAY ASSOCIATION FOR NATIONAL ADVANCEMENT
AND TRANSPARENCY (BANAT), Petitioner, v. COMMISSION ON
ELECTIONS
(sitting
as
the
National
Board
of
Canvassers), Respondent.
ARTS BUSINESS AND SCIENCE PROFESSIONALS, Intervenor.
AANGAT TAYO, Intervenor.
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE
PHILIPPINES, INC. (SENIOR CITIZENS), Intervenor.
[G.R. NO. 179295]
BAYAN MUNA, ADVOCACY FOR TEACHER EMPOWERMENT
THROUGH ACTION, COOPERATION AND HARMONY TOWARDS
EDUCATIONAL
REFORMS,
INC.,
and
ABONO, Petitioners, v. COMMISSION
ON
ELECTIONS, Respondent.
RESOLUTION
CARPIO, J.:
The House of Representatives, represented by Speaker Prospero C.
Nograles, filed a motion for leave to intervene in G.R. NOS. 179271
and 179295. The House of Representatives filed a motion for
clarification in intervention and enumerated the issues for
clarification as follows:
A. There are only 219 legislative districts and not 220. Accordingly,
the alloted seats for party-list representation should only be 54 and
not 55. The House of Representatives seeks clarification on which
of the party-list representatives shall be admitted to the Roll of
Members considering that the Court declared as winners 55 partylist representatives.
B. The House of Representatives wishes to be guided on whether it
should enroll in its Roll of Members the 32 named party-list
representatives enumerated in Table 3 or only such number of
representatives that would complete the 250 member maximum
prescribed by Article VI, Sec. 5(1) of the Constitution. In the event
that it is ordered to admit all 32, will this act not violate the abovecited Constitutional provision considering that the total members
would now rise to 270.

C. The Court declared as unconstitutional the 2% threshold only in

relation to the distribution of additional seats as found in the
second clause of Section 11(b) of R.A. No. 7941. Yet, it
distributed first seats to party-list groups which did not attain the
minimum number of votes that will entitle them to one seat.
Clarification is, therefore, sought whether the term "additional
seats" refer to 2nd and 3rd seats only or all remaining available
seats. Corollary thereto, the House of Representatives wishes to be
clarified whether there is no more minimum vote requirement to
qualify as a party-list representative.
D. For the guidance of the House of Representatives, clarification is
sought as to whether the principle laid down in Veterans that "the
filling up of the allowable seats for party-list representatives is not
mandatory," has been abandoned.1
On the other hand, Armi Jane Roa-Borje (Roa-Borje), third nominee
of Citizens' Battle Against Corruption (CIBAC), filed a motion for
leave for partial reconsideration-in-intervention, alleging that:
The Supreme Court, in ruling on the procedure for distribution of
seats, has deprived without due process and in violation of the
equal
protection
clause,
parties
with
more
significant
constituencies, such as CIBAC, Gabriela and APEC, in favor of
parties who did not even meet the 2% threshold.2
Following the Court's Decision of 21 April 2009, the Commission on
Elections (COMELEC) submitted to this Court on 27 April 2009
National Board of Canvassers (NBC) Resolution No. 09-001. NBC
Resolution No. 09-001 updated the data used by this Court in its
Decision of 21 April 2009. The total votes for party-list is now
15,723,764 following the cancellation of the registration of partylist group Filipinos for Peace, Justice and Progress Movement
(FPJPM). Moreover, the total number of legislative districts is now
219 following the annulment of Muslim Mindanao Autonomy Act No.
201 creating the province of Shariff Kabunsuan. Thus, the
percentage and ranking of the actual winning party-list groups are
different from Table 3 of the Decision in G.R. NOS. 179271 and
179295.
The Number of Members of the House of Representatives
in the 2007 Elections
Section 5(1), Article VI of the 1987 Constitution reads:

83
The House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law,
who shall be elected from legislative districts apportioned among
the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or organizations.
(Emphasis supplied)cralawlibrary
The 1987 Constitution fixes the maximum number of members of
the House of Representatives at 250. However, the 1987
Constitution expressly allows for an increase in the number of
members of the House of Representatives provided a law is
enacted for the purpose. This is clear from the phrase "unless
otherwise provided by law" in Section 5(1), Article VI of the
1987 Constitution. The Legislature has the option to choose
whether the increase in the number of members of the House of
Representatives is done by piecemeal legislation or by enactment
of a law authorizing a general increase. Legislation that makes
piecemeal increases of the number of district representatives is no
less valid than legislation that makes a general increase.
In 1987, there were only 200 legislative districts. Twenty legislative
districts were added by piecemeal legislation after the ratification
of the 1987 Constitution:
Republi Year
Legislative
c Act
Signed
District
into
Law
1
7160
1992
Biliran
2
7675
1994
Mandaluyong
City
3
7854
1994
Makati
(2nd
District)
4
7878
1995
Apayao
5
7896 and 1995
Guimaras
7897
6
7926
1995
Muntinlupa City
7
8470
1998
Compostela
Valley

8487

1998

8526

1998

1
0
1
1
1
2

9229

2003

9230

2003

8508 and
9232

1
3
1
4
1
5
1
6
1
7

9232

1998
and
2003
2003

9269

2004

9355

2006

9357

2006

9360

2006

Taguig City (2nd

District)
Valenzuela City
(2nd District)
Paraaque (2nd
District)
San
Jose
del
Monte City
Antipolo
(1st
District)
Antipolo
(2nd
District)
Zamboanga City
(2nd District)
Dinagat Island
Sultan
Kudarat
(2nd District)
Zamboanga
Sibugay
(2nd
District)
Marikina
City
(2nd District)
Cagayan de Oro
(2nd District)
Navotas City

1
9364
2006
8
1
9371
2007
9
2
9387
2007
0
Thus, for purposes of the 2007 elections, there were only 219
district representatives. Navotas City became a separate district on
24 June 2007, more than a month after the 14 May 2007 elections.
The
Number
of
Party-List
Seats
in the 2007 Elections
Section 5(2), Article VI of the 1987 Constitution reads in part:
The party-list representatives shall constitute twenty per centum of
the total number of representatives including those under the
party-list. x x x
The
1987 x .
= Number
of
Constitution fixes
20
seats available

84
the ratio of partylist
representatives to
district
representatives.
This
ratio
automatically
applies whenever
the number of
district
representatives is
increased by law.
The mathematical
formula
for
determining
the
number of seats
available to partylist
representatives is
Number of seats
available
to
legislative
districts

to
party-list
representative
s

.80
As we stated in our Decision of 21 April 2009, "[t]his formula
allows for the corresponding increase in the number of
seats available for party-list representatives whenever a
legislative district is created by law." Thus, for every four
district representatives, the 1987 Constitution mandates that there
shall be one party-list representative. There is no need for
legislation to create an additional party-list seat whenever four
additional legislative districts are created by law. Section 5(2),
Article VI of the 1987 Constitution automatically creates such
additional party-list seat.
We use the table below to illustrate the relationship between the
number of legislative districts and the number of party-list seats for
every election year after 1987.

Electi
on
Year

Number
of
Legislati
ve
Districts

Num
ber
of
Party
-List
Seats

1992
1995

200
206
New
Districts:
Biliran
Mandaluy
ong City
Makati
(2nd
District)
Apayao
Guimaras
Muntinlup
a City
209
New
Districts:
Compostel
a
Valley
Taguig
City (2nd
District)
Valenzuela
City (2nd
District)
209
214
New
Districts:
Paraaque
City (2nd
District)

50
51

Total
Number of
Members
of
the
House
of
Representa
tives
250
257

52

261

52
53

261
267

1998

2001
2004

85

2007

San Jose
del Monte
City
Antipolo
(1st
District)
Antipolo
(2nd
District)
Zamboang
a
City
(2nd
District)
219
New
Districts:
Dinagat
Island
Sultan
Kudarat
(2nd
District)
Zamboang
a Sibugay
(2nd
District)
Marikina
City (2nd
District)

54

273

The filling-up of all available party-list seats is not mandatory.

Actual occupancy of the party-list seats depends on the number of
participants in the party-list election. If only ten parties participated
in the 2007 party-list election, then, despite the availability of 54
seats, the maximum possible number of occupied party-list seats
would only be 30 because of the three-seat cap. In such a case, the
three-seat cap prevents the mandatory allocation of all the 54
available seats.

Cagayan
de
Oro
(2nd
District)
2010
220
55
275
New
District:
Navotas
City
(assuming
no
additional
districts
are
created)
We see that, as early as the election year of 1995, the total number
of members of the House of Representatives is already beyond the
initial maximum of 250 members as fixed in the 1987 Constitution.
Any change in the number of legislative districts brings a
corresponding change in the number of party-list seats. However,
the increase in the number of members of the House of
Representatives went unnoticed as the available seats for party-list
representatives have never been filled up before. As of the oral
arguments in G.R. NOS. 179271 and 179295, there were 220
legislative districts. Fifty-five party-list seats were thus allocated.
However, the number of legislative districts was subsequently
reduced to 219 with our ruling on 16 July 2008 declaring void the
creation of the Province of Sharif Kabunsuan. 3 Thus, in the 2007
elections, the number of party-list seats available for distribution
should be correspondingly reduced from 55 to 54.
Under Section 11(b) of R.A. No. 7941, garnering 2% of the total
votes cast guarantees a party one seat. This 2% threshold for the
first round of seat allocation does not violate any provision of the
1987 Constitution. Thus, the Court upholds this 2% threshold for
the guaranteed seats as a valid exercise of legislative
power.rbl rl l lbrr
In the second round allocation of additional seats, there is no
minimum vote requirement to obtain a party-list seat because the

86
Court has struck down the application of the 2% threshold in the
allocation of additional seats. Specifically, the provision in Section
11(b) of the Party-List Act stating that "those garnering more than
two percent (2%) of the votes shall be entitled to additional seats in
the proportion to their total number of votes" can no longer be
given any effect. Otherwise, the 20 percent party-list seats in the
total membership of the House of Representatives as provided in
the 1987 Constitution will mathematically be impossible to fill up.
However, a party-list organization has to obtain a sufficient number
of votes to gain a seat in the second round of seat allocation. What
is deemed a sufficient number of votes is dependent upon the
circumstances of each election, such as the number of participating
parties, the number of available party-list seats, and the number of
parties with guaranteed seats received in the first round of seat
allocation. To continue the example above, if only ten parties
participated in the 2007 party-list election and each party received
only one thousand votes, then each of the ten parties would
receive 10% of the votes cast. All are guaranteed one seat, and are
further entitled to receive two more seats in the second round of
seat allocation.
Similarly, a presidential candidate may win the elections even if he
receives only one thousand votes as long as all his opponents
receive less than one thousand votes. A winning presidential
candidate only needs to receive more votes than his opponents.
The same policy applies in every election to public office, from the
presidential to the barangay level. Except for the guaranteed partylist seat, there is no minimum vote requirement before a candidate
in any election, for any elective office, can be proclaimed the
winner. Of course, the winning candidate must receive at least one
vote, assuming he has no opponents or all his opponents do not
receive a single vote.
In the absence of a minimum vote requirement in the second round
of party-list seat allocation, there is no need to belabor the
disparity between the votes obtained by the first and last ranked

winning parties in the 2007 party-list elections. In the same

manner, no one belabors the disparity between the votes obtained
by the highest and lowest ranked winners in the senatorial
elections. However, for those interested in comparing the votes
received by party-list representatives vis-a-vis the votes received
by district representatives, the 162,678 votes cast in favor of TUCP,
the last party to obtain a party-list seat, is significantly higher than
the votes received by 214 of the 218 elected district
representatives.4
The
Actual
Number
of
Party-List
Representatives
in the 2007 Elections
The data used in Table 3 of our Decision promulgated on 21 April
2009 was based on the submissions of the parties. We used the
figures from Party-List Canvass Report No. 32, as of 6:00 p.m. of 31
August 2007. The NBC issued NBC Report No. 33 on 11 June 2008,
updating the 31 August 2007 report. The parties did not furnish
this Court with a copy of NBC Report No. 33. In any case, we
stated in the dispositive portion of our Decision that "[t]he
allocation of additional seats under the Party-List System shall be in
accordance with the procedure used in Table 3 of this decision."
Party-List Canvass Report No. 32 is not part of the
procedure.rbl rl l lbrr
The computation of the COMELEC in NBC No. 09-001 applying the
procedure laid down in our Decision requires correction for
purposes of accuracy. Instead of multiplying the percentage of
votes garnered over the total votes for party-list by 36, the
COMELEC multiplied the percentage by 37. Thirty-six is the proper
multiplier as it is the difference between 54, the number of
available party-list seats, and 18, the number of guaranteed seats.
Only the figures in column (C) are affected. The allocation of
seats to the winning party-list organizations, however,
remains the same as in NBC No. 09-001. Our modification of
the COMELEC's computation in NBC No. 09-001 is shown below:

87

88
1
2
3
4
5
6
7
85
9
1
0
1
1
1
2
1
3
1
4
1
5
1
6
1
7
1
8
1
9
2
0
2
1
2
2

BUHAY
BAYAN
MUNA
CIBAC
GABRIE
LA
APEC
A
Teacher
AKBAYA
N
ALAGAD
COOPNATCCO
BUTIL

1,169,338
979,189

7.44%
6.23%

1
1

2.68
2.24

3
3

N.A.
N.A.

755,735
621,266

4.81%
3.95%

1
1

1.73
1.42

2
2

N.A.
N.A.

619,733
490,853

3.94%
3.12%

1
1

1.42
1.12

2
2

N.A.
N.A.

466,448

2.97%

1.07

N.A.

423,165
409,987

2.69%
2.61%

1
1

1
1

2
2

N.A.
N.A.

409,168

2.60%

N.A.

BATAS

385,956

2.45%

N.A.

ARC

374,349

2.38%

N.A.

ANAKPA
WIS
AMIN

370,323

2.36%

N.A.

347,527

2.21%

N.A.

ABONO

340,002

2.16%

N.A.

YACAP

331,623

2.11%

N.A.

AGAP

328,814

2.09%

N.A.

AN
WARAY
UNIMAD
ABS

321,516

2.04%

N.A.

251,804

1.60%

N.A.

235,152

1.50%

N.A.

ALIF

229,267

1.46%

N.A.

KAKUSA

229,036

1.46%

N.A.

89
2
3
2
4
2
5
2
6
2
7
2
8
2
9
3
0

KABATA
AN
ABAAKO
SENIOR
CITIZEN
S
AT

228,700

1.45%

N.A.

219,363

1.40%

N.A.

213,095

1.36%

N.A.

200,030

1.27%

N.A.

VFP

196,358

1.25%

N.A.

ANAD

188,573

1.20%

N.A.

BANAT

177,068

1.13%

N.A.

ANG
KASANG
GA
BANTAY

170,594

1.08%

N.A.

N.A.

N.A.

N.A.

N.A.

N.A.

3
169,869
1.08%
0
1
3
ABAKAD 166,897
1.06%
0
2
A
3
1-UTAK
165,012
1.05%
0
3
3
TUCP
162,678
1.03%
0
4
3
COCOFE 156,007
0.99%
0
5
D
Total
18
Bagong Alyansang Tagapagtaguyod ng Adhikaing Sambayanan
(BATAS) and Ang Laban ng Indiginong Filipino (ALIF) both have
pending cases before the COMELEC. The COMELEC correctly
deferred the proclamation of both BATAS and ALIF as the outcome
of their cases may affect the final composition of party-list
representatives. The computation and allocation of seats may still
be modified in the event that the COMELEC decides against BATAS
and/or ALIF.
To address Roa-Borje's motion for partial reconsideration-inintervention and for purposes of computing the results in future

54
party-list elections, we reiterate that in the second step of the
second round of seat allocation, the preference in the distribution of
seats should be in accordance with the higher percentage and
higher rank, without limiting the distribution
to parties receiving two-percent of the votes. 6 To limit the
distribution of seats to the two-percenters would mathematically
prevent the filling up of all the available party-list seats.
In the table above, CIBAC cannot claim a third seat from the seat
allocated to TUCP, the last ranked party allocated with a seat.
CIBAC's 2.81% (from the percentage of 4.81% less the 2% for its

90
guaranteed seat) has a lower fractional seat value after the
allocation of its second seat compared to TUCP's 1.03%. CIBAC's
fractional seat after receiving two seats is only 0.03 compared to
TUCP's 0.38 fractional seat. Multiplying CIBAC's 2.81% by 37, the
additional seats for distribution in the second round, gives 1.03
seat, leaving 0.03 fractional seat. Multiplying TUCP's 1.03% by 37
gives a fractional seat of 0.38, higher than CIBAC's fractional seat
of 0.03. The fractional seats become material only in the second
step of the second round of seat allocation to determine the
ranking of parties. Thus, for purposes of the second step in the
second round of seat allocation, 7 TUCP has a higher rank than
CIBAC.
Roa-Borje's position stems from the perceived need for absolute
proportionality in the allocation of party-list seats. However, the
1987 Constitution does not require absolute proportionality in the
allocation of party-list seats. Section 5(1), Article VI of the 1987
Constitution provides:
(1) The House of Representatives shall be composed of not more
than two hundred and fifty members, unless otherwise fixed by law,
who shall be elected from legislative districts apportioned
among the provinces, cities, and the Metropolitan Manila
area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive
ratio, and those who, as provided by law, shall be elected through
a party-list system of registered national, regional, and sectoral
parties and organizations. (Boldfacing and italicization supplied)
The phrase "legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of
a uniform and progressive ratio" in Section 5(1) of Article VI
requires thatlegislative districts shall be apportioned according
to proportional representation. However, this principle of
proportional representation applies only to legislative districts,
not to the party-list system. The allocation of seats under the partylist system is governed by the last phrase of Section 5(1), which
states that the party-list representatives shall be "those who, as
provided by law, shall be elected through a party-list
system," giving the Legislature wide discretion in formulating the

allocation of party-list seats. Clearly, there is no constitutional

requirement for absolute proportional representation in the
allocation of party-list seats in the House of Representatives.
Section 2, on Declaration of Policy, of R.A. No. 7941 provides that
the "State shall promote proportional representation in the election
of representatives to the House of Representatives through a partylist system of registered national, regional and sectoral parties or
organizations or coalitions thereof x x x." However, this proportional
representation in Section 2 is qualified by Section 11(b) 8 of
the same law which mandates a three-seat cap, which is intended
to bar any single party-list organization from dominating the partylist system. Section 11(b) also qualifies this proportional
representation by imposing a two percent cut-off for those entitled
to the guaranteed seats. These statutory qualifications are valid
because they do not violate the Constitution, which does not
require absolute proportional representation for the party-list
system.
To summarize, there are four parameters in a Philippine-style partylist election system:
1. Twenty percent of the total number of the membership of the
House of Representatives is the maximum number of seats
available to party-list organizations, such that there is automatically
one party-list seat for every four existing legislative districts.
2. Garnering two percent of the total votes cast in the party-list
elections guarantees a party-list organization one seat. The
guaranteed seats shall be distributed in a first round of seat
allocation to parties receiving at least two percent of the total
party-list votes.
3. The additional seats, that is, the remaining seats after allocation
of the guaranteed seats, shall be distributed to the party-list
organizations including those that received less than two percent of
the total votes. The continued operation of the two percent
threshold as it applies to the allocation of the additional seats is
now unconstitutional because this threshold mathematically and
physically prevents the filling up of the available party-list seats.
The additional seats shall be distributed to the parties in a second
round of seat allocation according to the two-step procedure laid
down in the Decision of 21 April 2009 as clarified in this Resolution.

91
4. The three-seat cap is constitutional. The three-seat cap is
intended by the Legislature to prevent any party from dominating
the party-list system. There is no violation of the Constitution
because the 1987 Constitution does not require absolute
proportionality for the party-list system. The well-settled rule is that
courts will not question the wisdom of the Legislature as long as it
is not violative of the Constitution.
These four parameters allow the mathematical and practical
fulfillment of the Constitutional provision that party-list
representatives shall comprise twenty percent of the members of
the House of Representatives. At the same time, these four
parameters uphold as much as possible the Party-List Act, striking
down only that provision of the Party-List Act that could not be
reconciled anymore with the 1987 Constitution.
WHEREFORE, the Court's Decision of 21 April 2009 in the present
case is clarified accordingly.
SO ORDERED.

92
EN BANC
G.R. No. 203766
April 2, 2013
ATONG PAGLAUM, INC., represented by its President, Mr.
Alan
Igot, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. Nos. 203818-19
AKO
BICOL
POLITICAL
PARTY
(AKB), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 203922
ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES
(APEC),represented by its President Congressman Ponciano
D.
Payuyo, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 203936
AKSYON MAGSASAKA-PARTIDO TINIG NG MASA, represented
by
its
President
Michael
Abas
Kida,Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 203958
KAPATIRAN NG MGA NAKULONG NA WALANG SALA, INC.
(KAKUSA), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 203960
1st CONSUMERS ALLIANCE FOR RURAL ENERGY, INC. (1CARE), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 203976

ALLIANCE FOR RURAL AND AGRARIAN RECONSTRUCTION,

INC.
(ARARO), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 203981
ASSOCIATION
FOR
RIGHTEOUSNESS
ADVOCACY
ON
LEADERSHIP (ARAL) PARTY-LIST, represented herein by Ms.
Lourdes
L.
Agustin,
the
partys
Secretary
General, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204002
ALLIANCE
FOR
RURAL
CONCERNS, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204094
ALLIANCE
FOR
NATIONALISM
AND
DEMOCRACY
(ANAD), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204100
1-BRO PHILIPPINE GUARDIANS BROTHERHOOD, INC., (1BROPGBI)
formerly
PGBI, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204122
1
GUARDIANS
NATIONALIST
PHILIPPINES,
INC.,
(1GANAP/GUARDIANS), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC composed of SIXTO S.
BRILLANTES,
JR.,
Chairman,
RENE
V.
SARMIENTO,
Commissioner,LUCENITO N. TAGLE, Commissioner,ARMANDO

93
C. VELASCO, Commissioner,ELIAS R. YUSOPH, Commissioner,
andCHRISTIAN ROBERT S. LIM, Commissioner,Respondents.
x-----------------------x
G.R. No. 204125
AGAPAY NG INDIGENOUS PEOPLES RIGHTS ALLIANCE, INC.
(A-IPRA), represented by its Secretary General,Ronald D.
Macaraig, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204126
KAAGAPAY NG NAGKAKAISANG AGILANG PILIPINONG
MAGSASAKA (KAP), formerly known as AKO AGILA NG
NAGKAKAISANG MAGSASAKA (AKO AGILA), represented by
its Secretary General, Leo R. San Buenaventura, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204139
ALAB NG MAMAMAHAYAG (ALAM), represented by Atty.
Berteni
Catalua
Causing, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204141
BANTAY PARTY LIST, represented by Maria Evangelina F.
Palparan,
President, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204153
PASANG MASDA NATIONWIDE PARTY by its President
Roberto
"Ka
Obet"
Martin, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondents.
x-----------------------x
G.R. No. 204158

ABROAD
PARTY
LIST, Petitioner,
vs.
COMMISSION
ON
ELECTIONS,
CHAIRMAN
SIXTO
S.
BRILLANTES, JR., COMMISSIONERS RENE V. SARMIENTO,
ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN
ROBERT S. LIM, MARIA GRACIA CIELO M. PADACA, LUCENITO
TAGLE, AND ALL OTHER PERSONS ACTING ON THEIR
BEHALF,Respondents.
x-----------------------x
G.R. No. 204174
AANGAT TAYO PARTY LIST-PARTY, represented by its
President
Simeon
T.
Silva,
Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204216
COCOFED-PHILIPPINE COCONUT PRODUCERS FEDERATION,
INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204220
ABANG
LINGKOD
PARTY-LIST, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204236
FIRM
24-K
ASSOCIATION,
INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204238
ALLIANCE
OF
BICOLNON
PARTY
(ABP), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204239

94
GREEN FORCE FOR THE ENVIRONMENT SONS AND
DAUGHTERS OF MOTHER EARTH (GREENFORCE),Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204240
AGRI-AGRA NA REPORMA PARA SA MAGSASAKA NG
PILIPINAS MOVEMENT (AGRI), represented by its Secretary
General,
Michael
Ryan
A.
Enriquez, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204263
A BLESSED PARTY LIST A.K.A. BLESSEDFEDERATION OF
FARMERS AND FISHERMEN INTERNATIONAL, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204318
UNITED
MOVEMENT
AGAINST
DRUGS
FOUNDATION
(UNIMAD)
PARTY-LIST, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204321
ANG AGRIKULTURA NATIN ISULONG (AANI), represented by
its Secretary General Jose C. Policarpio, Jr.,Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204323
BAYANI PARTYLIST as represented byHomer Bueno, Fitrylin
Dalhani,Israel de Castro, Dante Navarroand Guiling
Mamondiong, Petitioner,
vs.
COMMISSION
ON
ELECTIONS,
CHAIRMAN
SIXTO
S.
BRILLANTES, JR., COMMISSIONERS RENE V. SARMIENTO,
LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R.

YUSOPH, CHRISTIAN ROBERT S. LIM, and MARIA GRACIA

CIELO M. PADACA, Respondents.
x-----------------------x
G.R. No. 204341
ACTION LEAGUE OF INDIGENOUS MASSES(ALIM) PARTY-LIST,
represented herein by its President Fatani S. Abdul
Malik, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204356
BUTIL
FARMERS
PARTY, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204358
ALLIANCE OF ADVOCATES IN MININGADVANCEMENT FOR
NATIONAL
PROGRESS
(AAMA), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204359
SOCIAL
MOVEMENT
FOR
ACTIVEREFORM
AND
TRANSPARENCY (SMART), represented by its Chairman,
Carlito
B.
Cubelo, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204364
ADHIKAIN AT KILUSAN NG ORDINARYONG-TAO, PARA SA
LUPA, PABAHAY, HANAPBUHAY AT KAUNLARAN (AKO
BUHAY), Petitioner,
vs.
COMMISSION
ON
ELECTIONS
EN
BANC,
SIXTO
S.
BRILLANTES, JR., RENE V. SARMIENTO, LUCENITO N. TAGLE,
ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN
ROBERT S. LIM, and MA. GRACIA CIELO M. PADACA, in their
capacities as Commissioners thereof, Respondents.

95
x-----------------------x
G.R. No. 204367
AKBAY
KALUSUGAN
INCORPORATION(AKIN), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204370
AKO AN BISAYA (AAB), represented by itsSecretary General,
Rodolfo
T.
Tuazon, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204374
BINHI-PARTIDO NG MGA MAGSASAKA PARA SA MGA
MAGSASAKA, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204379
ALAGAD NG SINING (ASIN) represented by its President,
Faye
Maybelle
Lorenz, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204394
ASSOCIATION OF GUARD UTILITY HELPER, AIDER, RIDER,
DRIVER/DOMESTIC HELPER, JANITOR, AGENT AND NANNY OF
THE
PHILIPPINES,
INC.
(GUARDJAN), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204402
KALIKASAN PARTY-LIST, represented by its President,
Clemente G. Bautista, Jr., and Secretary General, Frances Q.
Quimpo, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x

G.R. No. 204408

PILIPINO ASSOCIATION FOR COUNTRY-URBAN POOR YOUTH
ADVANCEMENT
AND
WELFARE
(PACYAW),Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204410
1-UNITED
TRANSPORT
KOALISYON
(1-UTAK), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204421
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE
PHILIPPINES, INC. SENIOR CITIZEN PARTY-LIST, represented
herein by its 1st nominee and Chairman, Francisco G. Datol,
Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204425
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE
PHILIPPINES,
INC., Petitioner,
vs.
COMMISSION ON ELECTIONS and ANY OF ITS OFFICERS AND
AGENTS, ACTING FOR AND IN ITS BEHALF, INCLUDING THE
CHAIR AND MEMBERSOF THE COMMISSION, Respondents.
x-----------------------x
G.R. No. 204426
ASSOCIATION OF LOCAL ATHLETICS ENTREPRENEURS AND
HOBBYISTS,
INC.
(ALA-EH), Petitioner,
vs.
COMMISSION
ON
ELECTIONS
EN
BANC,
SIXTO
S.
BRILLANTES, JR., RENE V. SARMIENTO, LUCENITO N. TAGLE,
ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN
ROBERT S. LIM, and MA. GRACIA CIELO M. PADACA, in their
respective capacities as COMELEC Chairperson and
Commissioners, Respondents.
x-----------------------x

96
G.R. No. 204428
ANG GALING PINOY (AG), represented by its Secretary
General,
Bernardo
R.
Corella,
Jr., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204435
1
ALLIANCE
ADVOCATING
AUTONOMY
PARTY
(1AAAP), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204436
ABYAN ILONGGO PARTY (AI), represented byits Party
President,
Rolex
T.
Suplico, Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204455
MANILA TEACHER SAVINGS AND LOAN ASSOCIATION,
INC., Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204484
PARTIDO NG BAYAN ANG BIDA (PBB), represented by its
Secretary
General,
Roger
M.
Federazo,Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204485
ALLIANCE
OF
ORGANIZATIONS,
NETWORKS
AND
ASSOCIATIONS OF THE PHILIPPINES, INC. (ALONA),Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 204486
1st KABALIKAT NG BAYAN GINHAWANG SANGKATAUHAN (1st
KABAGIS), Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 204490
PILIPINAS
PARA
SA
PINOY
(PPP), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
PERLAS-BERNABE,*
DECISION
CARPIO, J.:
The Cases
These cases constitute 54 Petitions for Certiorari and Petitions
for Certiorari and Prohibition1 filed by 52 party-list groups and
organizations assailing the Resolutions issued by the Commission
on Elections (COMELEC) disqualifying them from participating in the
13 May 2013 party-list elections, either by denial of their petitions
for registration under the party-list system, or cancellation of their
registration and accreditation as party-list organizations.
This Court resolved to consolidate the 54 petitions in the
Resolutions dated 13 November 2012,2 20 November 2012,3 27
November 2012,4 4 December 2012,5 11 December 2012,6 and 19
February 2013.7
The Facts Pursuant to the provisions of Republic Act No. 7941 (R.A.
No. 7941) and COMELEC Resolution Nos. 9366 and 9531,
approximately 280 groups and organizations registered and
manifested their desire to participate in the 13 May 2013 party-list
elections.

97
G.R.
SPP
Group
Grounds for Denial
No.
No.
A. Via the COMELEC En Bancs automatic review of
the
COMELEC
Divisions resolutions approving registration of
groups/organizations
Resolution dated 23 November 20128
1
20437 12-099
Alagad
ng - The "artists" sector
9
(PLM)
Sining (ASIN) is
not
considered
marginalized
and
underrepresented;
- Failure to prove
track
record;
and
Failure
of
the
nominees
to
qualify
under
RA
7941
and
Ang Bagong Bayani.
Omnibus Resolution dated 27 November 20129
2
20445 12-041
Manila
- A non-stock savings
5
(PLM)
Teachers
and
Savings and loan
association
Loan
cannot
be
Association,
considered
Inc.
marginalized
and
(Manila
underrepresented;
Teachers)
and
The
first
and
second
nominees are not
teachers
by
profession.
3
20442 12-011
Association
- Failure to show that
6
(PLM)
of
its
Local
members belong to
Athletics
the
Entrepreneur marginalized;
and

98
s
Failure
of
the
and
nominees
to
Hobbyists,
qualify.
Inc. (ALA-EH)
Resolution dated 27 November 201210
4
20443 12-057
1
Alliance Failure
of
the
5
(PLM)
Advocating
nominees
to
Autonomy
qualify:
although
Party
registering
(1AAAP)
as a regional political
party,
two of the nominees
are
not
residents
of
the
region;
and
four of the five
nominees
do
not belong to the
marginalized
and
underrepresented.
Resolution dated 27 November 201211
5
20436 12-104
Akbay
- Failure of the group
7
(PL)
Kalusugan
to
show
(AKIN), Inc.
that its nominees
belong
to
the
urban
poor
sector.
Resolution dated 29 November 201212
6
20437 12-011
Ako
An - Failure to represent
0
(PP)
Bisaya
a
(AAB)
marginalized sector
of
society, despite the
formation
of a sectoral wing for
the
benefit of farmers of
Region
8;

99

Resolution dated 4
7
20443 12-009
6
(PP),
12-165
(PLM)

Resolution dated 4
8
20448 12-175
5
(PL)

- Constituency has
district
representatives;
- Lack of track record
in
representing
peasants
and
farmers;
and
Nominees
are
neither
farmers
nor
peasants.
December 201213
Abyan
- Failure to show that
Ilonggo
the
Party (AI)
party represents a
marginalized
and
underrepresented
sector,
as
the Province of Iloilo
has
district
representatives;
Untruthful
statements in the
memorandum;
and
- Withdrawal of three
of
its
five nominees.
December 201214
Alliance
of - Failure to establish
Organization
that
the
s,
group can represent
Networks
14
and
sectors; - The sectors
Associations
of
homeowners
of
associations,
the
entrepreneurs

100
Philippines,
Inc. (ALONA)

and cooperatives are

not
marginalized
and
underrepresented;
and
- The nominees do
not
belong
to the marginalized
and
underrepresented.
B. Via the COMELEC En Bancs review on motion for
reconsideration
of the COMELEC Divisions resolutions denying
registration
of
groups
and organizations
Resolution dated 7 November 201215
9
20413 12-127
Alab
ng - Failure to prove
9
(PL)
Mamamahay track
ag
record
as
an
(ALAM)
organization;
- Failure to show that
the
group
actually
represents
the
marginalized
and
underrepresented;
and
- Failure to establish
that
the
group can represent
all
sectors it seeks to
represent.
Resolution dated 7 November 201216
1
20440 12-061
Kalikasan
- The group reflects
0
2
(PP)
Party-List
an
(KALIKASAN)
advocacy
for
the
environment, and is
not

101
representative of the
marginalized
and
underrepresented;
- There is no proof
that
majority
of
its
members
belong
to
the
marginalized
and
underrepresented;
The
group
represents
sectors
with
conflicting
interests;
and
- The nominees do
not
belong
to the sector which
the
group
claims to represent.
Resolution dated 14 November 201217
1
20439 12-145
Association
- Failure to prove
1
4
(PL)
of
membership
base
Guard, Utility and
track
Helper,
record;
Aider,
- Failure to present
Rider, Driver/ activities
Domestic
that
sufficiently
Helper,
benefited
its
Janitor, Agent intended
and
constituency;
and
Nanny of the - The nominees do
Philippines,
not
belong
Inc.
to any of the sectors
(GUARDJAN)
which
the group seeks to
represent.

102
Resolution dated 5 December 201218
1
20449 12-073
Pilipinas Para - Failure to show that
2
0
(PLM)
sa
the
Pinoy (PPP)
group represents a
marginalized
and
underrepresented
sector,
as
Region
12
has
district
representatives; and
- Failure to show a
track
record
of
undertaking
programs for
the
welfare
of
the sector the group
seeks
to
represent.
In a Resolution dated 5 December 2012, 19 the COMELEC En Banc
affirmed the COMELEC Second Divisions resolution to grant Partido
ng Bayan ng Bidas (PBB) registration and accreditation as a
political party in the National Capital Region. However, PBB was
denied participation in the 13 May 2013 party-list elections because
PBB does not represent any "marginalized and underrepresented"
sector; PBB failed to apply for registration as a party-list group; and
PBB failed to establish its track record as an organization that seeks
to uplift the lives of the "marginalized and underrepresented." 20
These 13 petitioners (ASIN, Manila Teachers, ALA-EH, 1AAAP, AKIN,
AAB, AI, ALONA, ALAM, KALIKASAN, GUARDJAN, PPP, and PBB) were
not able to secure a mandatory injunction from this Court. The

COMELEC, on 7 January 2013 issued Resolution No. 9604, 21 and

excluded the names of these 13 petitioners in the printing of the
official ballot for the 13 May 2013 party-list elections.
Pursuant to paragraph 222 of Resolution No. 9513, the COMELEC En
Banc scheduled summary evidentiary hearings to determine
whether the groups and organizations that filed manifestations of
intent to participate in the 13 May 2013 party-list elections have
continually complied with the requirements of R.A. No. 7941 and
Ang Bagong Bayani-OFW Labor Party v. COMELEC23 (Ang Bagong
Bayani). The COMELEC disqualified the following groups and
organizations from participating in the 13 May 2013 party-list
elections:

103
G.R.
No.
Resolution
1
20381
8-19

SPP
No.
dated 10
12-154
(PLM)
12-177
(PLM)

Group

Grounds for Denial

October 201224
AKO
Bicol Retained registration
Political Party and
(AKB)
accreditation as a
political
party,
but
denied
participation
in the May 2013
party-list
elections
- Failure to represent
any
marginalized
and
underrepresented
sector;
- The Bicol region
already
has representatives
in
Congress;
and
- The nominees are
not
marginalized
and
underrepresented.
Omnibus Resolution dated 11 October 201225
2
20376
12-161 Atong
Cancelled registration
6
(PLM)
Paglaum,
and
Inc.
(Atong accreditation
Paglaum)
- The nominees do
not
belong
to the sectors which
the
party
represents;
and
- The party failed to
file
its
Statement
of

104

20398
1

12-187
(PLM)

Association for
Righteousness
Advocacy
on
Leadership
(ARAL)

20400
2

12-188
(PLM)

Alliance
for
Rural Concerns
(ARC)

20431
8

12-220
(PLM)

United
Movement
Against Drugs

Contributions
and Expenditures for
the
2010 Elections.
Cancelled registration
and
accreditation
- Failure to comply,
and
for
violation of election
laws;
- The nominees do
not
represent the sectors
which
the party represents;
and
- There is doubt that
the
party
is
organized
for
religious
purposes.
Cancelled registration
and
accreditation
Failure
of
the
nominees
to
qualify;
and
- Failure of the party
to
prove
that majority of its
members
belong to the sectors
it
seeks
to represent.
Cancelled registration
and
accreditation

105
Foundation
(UNIMAD)

- The sectors of drug

counsellors
and
lecturers,
veterans
and
the
youth,
are
not marginalized and
underrepresented;
- Failure to establish
track
record;
and
Failure
of
the
nominees
to
qualify
as
representatives
of
the youth and young
urban
professionals.
Omnibus Resolution dated 16 October 201226
6
20410
12-196 1-Bro
Cancelled registration
0
(PLM)
Philippine
- Failure to define the
Guardians
sector
Brotherhood,
it seeks to represent;
Inc.
(1BRO- and
PGBI)
- The nominees do
not
belong
to a marginalized and
underrepresented
sector.
7
20412
12-223 1
Guardians Cancelled registration
2
(PLM)
Nationalist
- The party is a
Philippines,
military
Inc.
fraternity;
(1GANAP/
The
sector
of
GUARDIANS)
community
volunteer workers is
too
broad to allow for
meaningful

106

20426

12-257
(PLM)

Blessed
Federation of
Farmers
and
Fishermen
International,
Inc.
(A
BLESSED
Party-List)

Resolution dated 16 October 201227

9
20396
12-260 1st
0
(PLM)
Consumers
Alliance
for
Rural Energy,
Inc. (1-CARE)

representation;
and
- The nominees do
not
appear
to belong to the
sector
of
community volunteer
workers.
Cancelled registration
- Three of the seven
nominees
do
not
belong
to
the sector of farmers
and
fishermen, the sector
sought
to be represented;
and
None
of
the
nominees
are
registered voters of
Region
XI, the region sought
to
be
represented.
Cancelled registration
- The sector of rural
energy
consumers
is
not
marginalized
and
underrepresented;
- The partys track
record
is
related to electric
cooperatives and not
rural
energy
consumers;
and

107
- The nominees do
not
belong
to the sector of rural
energy
consumers.
Resolution dated 16 October 201228
1
20392
12-201 Association of
0
2
(PLM)
Philippine
Electric
Cooperatives
(APEC)

Cancelled registration
and
accreditation
- Failure to represent
a
marginalized
and
underrepresented
sector;
and
- The nominees do
not
belong
to the sector that the
party
claims to represent.

Resolution dated 23 October 201229

1
20417
12-232 Aangat
Tayo Cancelled registration
1
4
(PLM)
Party-List Party and
( AT )
accreditation
The
incumbent
representative
in
Congress
failed to author or
sponsor
bills
that
are
beneficial
to
the
sectors that the party
represents (women,
elderly,
youth, urban poor);
and
- The nominees do
not
belong
to the marginalized

108
sectors
that the party seeks
to
represent.
Omnibus Resolution dated 24 October 201230
1
20397
12-288 Alliance
for Cancelled registration
2
6
(PLM)
Rural
and and
Agrarian
accreditation
Reconstruction - The interests of the
,
peasant
Inc. (ARARO)
and
urban
poor
sectors
that
the party represents
differ;
- The nominees do
not
belong
to the sectors that
the
party
seeks to represent;
- Failure to show that
three
of
the nominees are
bona
fide
party members; and
- Lack of a Board
resolution
to participate in the
party-list
elections.
Omnibus Resolution dated 24 October 201231
1
20424
12-279 Agri-Agra
na Cancelled registration
3
0
(PLM)
Reporma Para - The party ceased to
sa
exist
for
Magsasaka ng more than a year
Pilipinas
immediately
Movement
after the May 2010
(AGRI)
elections;
- The nominees do

109

1
4

20393
6

12-248
(PLM)

Aksyon
MagsasakaPartido
Tinig
ng
Masa (AKMAPTM)

1
5

20412
6

12-263
(PLM)

Kaagapay ng
Nagkakaisang

not
belong
to the sector of
peasants
and
farmers
that
the
party
seeks
to
represent;
- Only four nominees
were
submitted
to
the
COMELEC;
and
- Failure to show
meaningful
activities
for
its
constituency.
Cancelled registration
- Failure to show that
majority
of
its
members
are
marginalized
and
underrepresented;
- Failure to prove that
four
of
its nine nominees
actually
belong to the farmers
sector;
and
- Failure to show that
five
of
its nine nominees
work
on
uplifting the lives of
the
members
of
the
sector.
Cancelled registration
- The Manifestation of

110
Agilang
Pilipinong
Magsasaka
(KAP)

1
6

20436
4

12-180
(PLM)

Adhikain
at
Kilusan
ng
Ordinaryong
Tao Para sa
Lupa, Pabahay,
Hanapbuhay at
Kaunlaran
(AKO-BAHAY)

1
7

20414
1

12-229
(PLM)

The
True
Marcos Loyalist
(for
God,
Country
and
People)
Association of

Intent
and
Certificate
of
Nomination
were not signed by
an
appropriate officer of
the
party;
- Failure to show track
record
for the farmers and
peasants
sector;
and
- Failure to show that
nominees
actually
belong
to
the sector, or that
they
have
undertaken
meaningful
activities
for
the
sector.
Cancelled registration
- Failure to show that
nominees
actually
belong
to
the sector, or that
they
have
undertaken
meaningful
activities
for
the
sector.
Cancelled registration
- Failure to show that
majority
of
its
members
are
marginalized
and
underrepresented;

111
the Philippines,
Inc. (BANTAY)

1
8

20440
8

12-217
(PLM)

Pilipino
Association for
Country

Urban
Poor
Youth
Advancement
and
Welfare
( PA C YAW )

1
9

20415
3

12-277
(PLM)

Pasang Masda
Nationwide
Party (PASANG
MASDA)

and
- Failure to prove that
two
of
its nominees actually
belong
to the marginalized
and
underrepresented.
Cancelled registration
- Change of sector
(from
urban poor youth to
urban
poor) necessitates a
new
application;
- Failure to show track
record
for the marginalized
and
underrepresented;
- Failure to prove that
majority
of
its
members
and
officers are from the
urban
poor
sector;
and
- The nominees are
not
members
of
the
urban
poor
sector.
Cancelled registration
The
party
represents
drivers
and operators, who
may
have
conflicting interests;

112

2
0

20395
8

12-015
(PLM)

Kapatiran
ng
mga Nakulong
na
Walang
Sala,
Inc. (KAKUSA)

and
- Nominees are either
operators or former
operators.
Cancelled registration
- Failure to prove that
na
Walang
Sala,
Inc.
(KAKUSA)
majority of its officers
and
members belong to
the
marginalized
and
underrepresented;
The
incumbent
representative
in
Congress
failed to author or
sponsor
bills
that
are
beneficial
to
the
sector that the party
represents (persons
imprisoned
without
proof
of
guilt
beyond
reasonable
doubt);
- Failure to show track
record
for the marginalized
and
underrepresented;
and
- The nominees did
not
appear
to
be
marginalized
and

113
underrepresented.
Resolution dated 30 October 201232
2
20442
12-256 Ang
Galing Cancelled registration
1
8
(PLM)
Pinoy (AG)
and
accreditation
- Failure to attend the
summary
hearing;
- Failure to show track
record
for the marginalized
and
underrepresented;
and
- The nominees did
not
appear
to
be
marginalized
and
underrepresented.
Resolution dated 7 November 201233
2
20409
12-185 Alliance
for Cancelled registration
2
4
(PLM)
Nationalism
and
and
accreditation
Democracy
- Failure to represent
(ANAD)
an
identifiable
marginalized
and
underrepresented
sector;
Only
three
nominees
were
submitted
to
the
COMELEC;
- The nominees do
not
belong
to
the
marginalized
and
underrepresented;

114
and
- Failure to submit its
Statement
of
Contribution
and Expenditures for
the
2007 Elections.
Omnibus Resolution dated 7 November 201234
2
20423
12-060 Green
Force Cancelled registration
3
9
(PLM)
for
and
the
accreditation
Environment
- The party is an
Sons
and advocacy
Daughters
of group and does not
Mother Earth represent
(GREENFORCE) the marginalized and
underrepresented;
- Failure to comply
with
the
track
record
requirement;
and
- The nominees are
not
marginalized citizens.
2
20423
12-254 Firm
24-K Cancelled registration
4
6
(PLM)
Association,
and
Inc.
accreditation
(FIRM 24-K)
- The nominees do
not
belong to the sector
that
the
party
seeks
to
represent
(urban
poor
and
peasants
of
the National Capital
Region);
- Only two of its

115

2
5

20434
1

12-269
(PLM)

Action League
of Indigenous
Masses (ALIM)

nominees
reside in the National
Capital
Region;
and
- Failure to comply
with
the
track
record
requirement.
Cancelled registration
and
accreditation
- Failure to establish
that
its
nominees
are
members
of
the
indigenous people in
the
Mindanao
and
Cordilleras
sector that the party
seeks
to
represent;
- Only two of the
partys
nominees reside in
the
Mindanao
and
Cordilleras;
and
Three
of
the
nominees
do
not appear to belong
to
the
marginalized.

Resolution dated 7 November 201235

2
20435
12-204 Alliance
of Cancelled registration
6
8
(PLM)
Advocates
in The
sector
it
Mining
represents
is
a

116
Advancement
for
National
Progress
(AAMA)

specifically
defined
group
which may not be
allowed
registration under the
party-list system; and
- Failure to establish
that
the
nominees
actually
belong
to
the sector.

Resolution dated 7 November 201236

2
20435
12-272 Social
Cancelled registration
7
9
(PLM)
Movement for - The nominees are
Active Reform disqualified
from
and
representing
the
Transparency
sectors
that
(SMART)
the party represents;
- Failure to comply
with
the
track
record
requirement;
and
- There is doubt as to
whether
majority
of
its
members
are
marginalized
and
underrepresented.
Resolution dated 7 November 201237
2
20423
12-173 Alliance
of Cancelled registration
8
8
(PLM)
Bicolnon Party and
(ABP)
accreditation
Defective
registration
and
accreditation dating
back
to
2010;
- Failure to represent

117
any
sector;
and
- Failure to establish
that
the
nominees
are
employed
in
the
construction industry,
the
sector it claims to
represent.
Resolution dated 7 November 201238
2
20432
12-210 Bayani
Party Cancelled registration
9
3
(PLM)
List (BAYANI)
and
accreditation
- Failure to prove a
track
record of trying to
uplift
the
marginalized
and
underrepresented
sector
of
professionals;
and
- One nominee was
declared
unqualified
to
represent
the
sector
of
professionals.
Resolution dated 7 November 201239
3
20432
12-252 Ang
Cancelled registration
0
1
(PLM)
Agrikultura
and
Natin Isulong accreditation
(AANI)
- Failure to establish a
track
record of enhancing
the
lives
of the marginalized
and

118
underrepresented
farmers
which it claims to
represent;
and
More
than
a
majority
of
the
partys nominees do
not
belong to the farmers
sector.
Resolution dated 7 November 201240
3
20412
12-292 Agapay
ng Cancelled registration
1
5
(PLM)
Indigenous
and
Peoples Rights accreditation
Alliance,
Inc. - Failure to prove that
(A-IPRA)
its
five
nominees
are
members
of
the
indigenous
people
sector;
- Failure to prove that
its
five
nominees
actively
participated in the
undertakings of the
party;
and
- Failure to prove that
its five nominees are
bona
fide
members.
Resolution dated 7 November 201241
3
20421
12-202 Philippine
Cancelled registration
2
6
(PLM)
Coconut
and
Producers
accreditation
Federation,
The
party
is
Inc.
affiliated
with
(COCOFED)
private
and

119
government
agencies and is not
marginalized;
- The party is assisted
by
the
government
in
various
projects;
and
- The nominees are
not
members
of
the
marginalized
sector
of
coconut
farmers
and
producers.
Resolution dated 7 November 201242
3
20422
12-238 Abang Lingkod Cancelled registration
3
0
(PLM)
Party-List
- Failure to establish a
(ABANG
track
LINGKOD)
record
of
continuously
representing
the
peasant
farmers
sector;
- Failure to show that
its
members
actually
belong
to
the peasant farmers
sector;
and
- Failure to show that
its
nominees
are
marginalized
and
underrepresented,
have

120
actively participated
in
programs
for
the
advancement
of
farmers,
and
adhere
to
its
advocacies.
Resolution dated 14 November 201243
3
20415
12-158 Action
Cancelled registration
4
8
(PLM)
Brotherhood
and
for
Active accreditation - Failure
Dreamers, Inc. to show that the
(ABROAD)
party is actually able
to
represent all of the
sectors
it
claims to represent;
- Failure to show a
complete
track record of its
activities
since its registration;
and
- The nominees are
not
part
of any of the sectors
which
the party seeks to
represent.
Resolution dated 28 November 201244
3
20437
12-228 Binhi-Partido
Cancelled registration
5
4
(PLM)
ng
and
mga
accreditation
Magsasaka
- The party receives
Para sa mga assistance from the
Magsasaka
government through
(BINHI)
the
Department
of

121
Agriculture;
and
- Failure to prove that
the
group is marginalized
and
underrepresented.
Resolution dated 28 November 201245
3
20435
12-136 Butil Farmers Cancelled registration
6
6
(PLM)
Party (BUTIL)
and
accreditation
- Failure to establish
that
the
agriculture
and
cooperative
sectors
are
marginalized
and
underrepresented;
and
The
partys
nominees
neither appear to
belong
to
the sectors they seek
to
represent,
nor
to
have
actively participated
in
the
undertakings of the
party.
Resolution dated 3 December 201246
3
20448
12-194 1st
Cancelled registration
7
6
(PLM)
Kabalikat
ng and
Bayan
accreditation
Ginhawang
Declaration
of
Sangkatauhan
untruthful
(1st
statements;

122
KABAGIS)

- Failure to exist for at

least
one
year;
and
None
of
its
nominees
belong to the labor,
fisherfolk, and urban
poor
indigenous
cultural
communities sectors
which
it
seeks to represent.

Resolution dated 4 December 201247

3
20441
12-198 1-United
Cancelled
8
0
(PLM)
Transport
accreditation
Koalisyon
(1- The
party
UTAK)
represents
drivers
and operators, who
may
have
conflicting interests;
and
The
partys
nominees
do
not
belong
to
any
marginalized
and
underrepresented
sector.
Resolution dated 4 December 201248
3
20442
12-157 Coalition
of Cancelled registration
9
1,
(PLM),
Senior Citizens - The party violated
20442
12-191 in
the election
5
(PLM)
Philippines,
laws
because
its
Inc.
nominees
(SENIOR
had a term-sharing
CITIZENS)
agreement.
These 39 petitioners (AKB, Atong Paglaum, ARAL, ARC, UNIMAD,
1BRO-PGBI, 1GANAP/GUARDIANS, A BLESSED Party-List, 1-CARE,
APEC, AT, ARARO, AGRI, AKMA-PTM, KAP, AKO-BAHAY, BANTAY,

PACYAW, PASANG MASDA, KAKUSA, AG, ANAD, GREENFORCE, FIRM

24-K, ALIM, AAMA, SMART, ABP, BAYANI, AANI, A-IPRA, COCOFED,
ABANG LINGKOD, ABROAD, BINHI, BUTIL, 1st KABAGIS, 1-UTAK,

123
SENIOR CITIZENS) were able to secure a mandatory injunction from
this Court, directing the COMELEC to include the names of these 39
petitioners in the printing of the official ballot for the 13 May 2013
party-list
elections.
Petitioners prayed for the issuance of a temporary restraining order

and/or writ of preliminary injunction. This Court issued Status Quo

Ante Orders in all petitions. This Decision governs only the 54
consolidated petitions that were granted Status Quo Ante Orders,
namely:

124
G.R. No.
Resolution
20381819

SPP No.
Group
dated 13 November 2012
12-154
AKO Bicol Political Party (AKB)
(PLM)
12-177
(PLM)
203981
12-187
Association for Righteousness Advocacy
(PLM)
on
Leadership (ARAL)
204002
12-188
Alliance for Rural Concerns (ARC)
(PLM)
203922
12-201
Association
of
Philippine
Electric
(PLM)
Cooperatives
(APEC)
203960
12-260
1st
(PLM)
Consumers Alliance for Rural Energy, Inc.
(1-CARE)
203936
12-248
Aksyon Magsasaka-Partido Tinig ng Masa
(PLM)
(AKMA-PTM)
203958
12-015
Kapatiran ng mga Nakulong na Walang
(PLM)
Sala,
Inc. (KAKUSA)
203976
12-288
Alliance
for
Rural
and
Agrarian
(PLM)
Reconstruction,
Inc. (ARARO)
Resolution dated 20 November 2012
204094
12-185
Alliance for Nationalism and Democracy
(PLM)
(ANAD)
204125
12-292
Agapay ng Indigenous Peoples Rights
(PLM)
Alliance,
Inc. (A-IPRA)
204100
12-196
1-Bro Philippine Guardians Brotherhood,
(PLM)
Inc.
(1BRO-PGBI)
Resolution dated 27 November 2012
204141
12-229
The True Marcos Loyalist (for God,
(PLM)
Country
and
People)
Association
of
the
Philippines,
Inc.

125
(BANTAY)
Agri-Agra na Reporma Para sa Magsasaka
ng
Pilipinas Movement (AGRI)
204216
12-202
Philippine Coconut Producers Federation,
(PLM)
Inc.
(COCOFED)
204158
12-158
Action Brotherhood for Active Dreamer,
(PLM)
Inc.
(ABROAD)
Resolutions dated 4 December 2012
204122
12-223
1 Guardians Nationalist Philippines, Inc.
(PLM)
(1GANAP/GUARDIANS)
203766
12-161
Atong Paglaum, Inc. (Atong Paglaum)
(PLM)
204318
12-220
United
Movement
Against
Drugs
(PLM)
Foundation
(UNIMAD)
204263
12-257
Blessed Federation of Farmers and
(PLM)
Fishermen
International, Inc. (A BLESSED Party-List)
204174
12-232
Aangat Tayo Party-List Party (AT)
(PLM)
204126
12-263
Kaagapay ng Nagkakaisang Agilang
(PLM)
Pilipinong
Magsasaka (KAP)
204364
12-180
Adhikain at Kilusan ng Ordinaryong Tao
(PLM)
Para
sa
Lupa,
Pabahay,
Hanapbuhay
at
Kaunlaran
(AKO-BAHAY)
204139
12-127 (PL)
Alab ng Mamamahayag (ALAM)
204220
12-238
Abang
Lingkod
Party-List
(ABANG
(PLM)
LINGKOD)
204236
12-254
Firm 24-K Association, Inc. (FIRM 24-K)
(PLM)
204238
12-173
Alliance of Bicolnon Party (ABP)
(PLM)
204239
12-060
Green Force for the Environment Sons
(PLM)
and
204240

12-279
(PLM)

126

204321
204323
204341
204358

204359

12-252
(PLM)
12-210
(PLM)
12-269
(PLM)
12-204
(PLM)

Daughters
of
Mother
Earth
(GREENFORCE)
Ang Agrikultura Natin Isulong (AANI)
Bayani Party List (BAYANI)
Action League of Indigenous Masses
(ALIM)
Alliance
of
Advocates
in
Mining
Advancement
for National Progress (AAMA)
Social Movement for Active Reform and
Transparency (SMART)
Butil Farmers Party (BUTIL)

12-272
(PLM)
204356
12-136
(PLM)
Resolution dated 11 December 2012
204402
12-061 (PL)
Kalikasan Party-List (KALIKASAN)
204394
12-145 (PL)
Association of Guard, Utility Helper,
Aider,
Rider, Driver/Domestic Helper, Janitor,
Agent
and Nanny of the Philippines, Inc.
(GUARDJAN)
204408
12-217
Pilipino Association for Country Urban
(PLM)
Poor
Youth
Advancement
and
Welfare
(PACYAW)
204428
12-256
Ang Galing Pinoy (AG)
(PLM)
204490
12-073
Pilipinas Para sa Pinoy (PPP)
(PLM)
204379
12-099
Alagad ng Sining (ASIN)
(PLM)
204367
12-104 (PL)
Akbay Kalusugan (AKIN)
204426
12-011
Association
of
Local
Athletics
(PLM)
Entrepreneurs
and Hobbyists, Inc. (ALA-EH)
204455
12-041
Manila Teachers Savings and Loan
(PLM)
Association,
Inc. (Manila Teachers)

127
204374

12-228
(PLM)

204370
204435

12-011 (PP)
12-057
(PLM)
12-194
(PLM)
12-198
(PLM)
12-157
(PLM)
12-191
(PLM)
12-009 (PP),
12-165
(PLM)
12-175 (PL)

204486
204410
204421,
204425

204436

204485

Binhi-Partido ng mga Magsasaka Para sa

mga
Magsasaka (BINHI)
Ako An Bisaya (AAB)
1 Alliance Advocating Autonomy Party
(1AAAP)
1st Kabalikat ng Bayan Ginhawang
Sangkatauhan (1st KABAGIS)
1-United Transport Koalisyon (1-UTAK)
Coalition of Senior Citizens
Philippines,
Inc. (SENIOR CITIZENS)

in

the

Abyan Ilonggo Party (AI)

Alliance of Organizations, Networks and

Associations of the Philippines, Inc.
(ALONA)
204484
11-002
Partido ng Bayan ng Bida (PBB)
Resolution dated 11 December 2012
204153
12-277
Pasang Masda Nationwide Party (PASANG
(PLM)
MASDA)
The Issues
We rule upon two issues: first, whether the COMELEC committed
grave abuse of discretion amounting to lack or excess of
jurisdiction in disqualifying petitioners from participating in the 13
May 2013 party-list elections, either by denial of their new petitions
for registration under the party-list system, or by cancellation of
their existing registration and accreditation as party-list
organizations; and second, whether the criteria for participating in
the party-list system laid down in Ang Bagong Bayani and
Barangay Association for National Advancement and Transparency
v. Commission on Elections49 (BANAT) should be applied by the
COMELEC in the coming 13 May 2013 party-list elections.
The Courts Ruling
We hold that the COMELEC did not commit grave abuse of
discretion in following prevailing decisions of this Court in

disqualifying petitioners from participating in the coming 13 May

2013 party-list elections. However, since the Court adopts in this
Decision new parameters in the qualification of national, regional,
and sectoral parties under the party-list system, thereby
abandoning the rulings in the decisions applied by the COMELEC in
disqualifying petitioners, we remand to the COMELEC all the
present petitions for the COMELEC to determine who are qualified
to register under the party-list system, and to participate in the
coming 13 May 2013 party-list elections, under the new parameters
prescribed in this Decision.
The Party-List System
The 1987 Constitution provides the basis for the party-list system of
representation. Simply put, the party-list system is intended to
democratize political power by giving political parties that cannot
win in legislative district elections a chance to win seats in the

128
House of Representatives.50 The voter elects two representatives in
the House of Representatives: one for his or her legislative district,
and another for his or her party-list group or organization of choice.
The 1987 Constitution provides:
Section 5, Article VI
(1) The House of Representatives shall be composed of not more
than two hundred and fifty members, unless otherwise fixed by law,
who shall be elected from legislative districts apportioned among
the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per
centum of the total number of representatives including those
under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector.
Sections 7 and 8, Article IX-C
Sec. 7. No votes cast in favor of a political party, organization, or
coalition shall be valid, except for those registered under the partylist system as provided in this Constitution.
Sec. 8. Political parties, or organizations or coalitions registered
under the party-list system, shall not be represented in the voters
registration boards, boards of election inspectors, boards of
canvassers, or other similar bodies. However, they shall be entitled
to appoint poll watchers in accordance with law.
Commissioner Christian S. Monsod, the main sponsor of the partylist system, stressed that "the party-list system is not
synonymous with that of the sectoral representation."51 The
constitutional provisions on the party-list system should be read in
light of the following discussion among its framers:
MR. MONSOD: x x x.
I would like to make a distinction from the beginning that the
proposal for the party list system is not synonymous with that of

the sectoral representation. Precisely, the party list system seeks to

avoid the dilemma of choice of sectors and who constitute the
members of the sectors. In making the proposal on the party list
system, we were made aware of the problems precisely cited by
Commissioner Bacani of which sectors will have reserved seats. In
effect, a sectoral representation in the Assembly would mean that
certain sectors would have reserved seats; that they will choose
among themselves who would sit in those reserved seats. And
then, we have the problem of which sector because as we will
notice in Proclamation No. 9, the sectors cited were the farmers,
fishermen, workers, students, professionals, business, military,
academic, ethnic and other similar groups. So these are the nine
sectors that were identified here as "sectoral representatives" to be
represented in this Commission. The problem we had in trying to
approach sectoral representation in the Assembly was whether to
stop at these nine sectors or include other sectors. And we went
through the exercise in a caucus of which sector should be included
which went up to 14 sectors. And as we all know, the longer we
make our enumeration, the more limiting the law become because
when we make an enumeration we exclude those who are not in
the enumeration. Second, we had the problem of who comprise the
farmers. Let us just say the farmers and the laborers. These days,
there are many citizens who are called "hyphenated citizens." A
doctor may be a farmer; a lawyer may also be a farmer. And so, it is
up to the discretion of the person to say "I am a farmer" so he
would be included in that sector.
The third problem is that when we go into a reserved seat system
of sectoral representation in the Assembly, we are, in effect, giving
some people two votes and other people one vote. We sought to
avoid these problems by presenting a party list system. Under the
party list system, there are no reserved seats for sectors. Let us
say, laborers and farmers can form a sectoral party or a sectoral
organization that will then register and present candidates of their
party. How do the mechanics go? Essentially, under the party list
system, every voter has two votes, so there is no discrimination.
First, he will vote for the representative of his legislative district.
That is one vote. In that same ballot, he will be asked: What party
or organization or coalition do you wish to be represented in the

129
Assembly? And here will be attached a list of the parties,
organizations or coalitions that have been registered with the
COMELEC and are entitled to be put in that list. This can be a
regional party, a sectoral party, a national party, UNIDO,
Magsasaka or a regional party in Mindanao. One need not be a
farmer to say that he wants the farmers' party to be represented in
the Assembly. Any citizen can vote for any party. At the end of the
day, the COMELEC will then tabulate the votes that had been
garnered by each party or each organization one does not have
to be a political party and register in order to participate as a party
and count the votes and from there derive the percentage of the
votes that had been cast in favor of a party, organization or
coalition.
When such parties register with the COMELEC, we are assuming
that 50 of the 250 seats will be for the party list system. So, we
have a limit of 30 percent of 50. That means that the maximum
that any party can get out of these 50 seats is 15. When the parties
register they then submit a list of 15 names. They have to submit
these names because these nominees have to meet the minimum
qualifications of a Member of the National Assembly. At the end of
the day, when the votes are tabulated, one gets the percentages.
Let us say, UNIDO gets 10 percent or 15 percent of the votes; KMU
gets 5 percent; a womens party gets 2 1/2 percent and anybody
who has at least 2 1/2 percent of the vote qualifies and the 50
seats are apportioned among all of these parties who get at least 2
1/2 percent of the vote.
What does that mean? It means that any group or party who has a
constituency of, say, 500,000 nationwide gets a seat in the National
Assembly. What is the justification for that? When we allocate
legislative districts, we are saying that any district that has 200,000
votes gets a seat. There is no reason why a group that has a
national constituency, even if it is a sectoral or special interest
group, should not have a voice in the National Assembly. It also
means that, let us say, there are three or four labor groups, they all
register as a party or as a group. If each of them gets only one
percent or five of them get one percent, they are not entitled to
any representative. So, they will begin to think that if they really
have a common interest, they should band together, form a

coalition and get five percent of the vote and, therefore, have two
seats in the Assembly. Those are the dynamics of a party list
system.
We feel that this approach gets around the mechanics of sectoral
representation while at the same time making sure that those who
really have a national constituency or sectoral constituency will get
a chance to have a seat in the National Assembly. These sectors or
these groups may not have the constituency to win a seat on a
legislative district basis. They may not be able to win a seat on a
district basis but surely, they will have votes on a nationwide basis.
The purpose of this is to open the system. In the past elections, we
found out that there were certain groups or parties that, if we count
their votes nationwide; have about 1,000,000 or 1,500,000 votes.
But they were always third place or fourth place in each of the
districts. So, they have no voice in the Assembly. But this way, they
would have five or six representatives in the Assembly even if they
would not win individually in legislative districts. So, that is
essentially the mechanics, the purpose and objectives of the party
list system.
BISHOP BACANI: Madam President, am I right in interpreting that
when we speak now of party list system though we refer to sectors,
we would be referring to sectoral party list rather than sectors and
party list?
MR. MONSOD: As a matter of fact, if this body accepts the party list
system, we do not even have to mention sectors because the
sectors would be included in the party list system. They can be
sectoral parties within the party list system.
xxxx
MR. MONSOD. Madam President, I just want to say that we
suggested or proposed the party list system because we wanted to
open up the political system to a pluralistic society through a
multiparty system. x x x We are for opening up the system,
and we would like very much for the sectors to be there.
That is why one of the ways to do that is to put a ceiling on
the number of representatives from any single party that
can sit within the 50 allocated under the party list system. x
x x.
xxx

130
MR. MONSOD. Madam President, the candidacy for the 198
seats is not limited to political parties. My question is this:
Are we going to classify for example Christian Democrats
and Social Democrats as political parties? Can they run
under the party list concept or must they be under the
district legislation side of it only?
MR. VILLACORTA. In reply to that query, I think these parties
that the Commissioner mentioned can field candidates for
the Senate as well as for the House of Representatives.
Likewise, they can also field sectoral candidates for the 20
percent or 30 percent, whichever is adopted, of the seats
that we are allocating under the party list system.
MR. MONSOD. In other words, the Christian Democrats can
field district candidates and can also participate in the
party list system?
MR. VILLACORTA. Why not? When they come to the party list
system, they will be fielding only sectoral candidates.
MR. MONSOD. May I be clarified on that? Can UNIDO
participate in the party list system?
MR. VILLACORTA. Yes, why not? For as long as they field
candidates who come from the different marginalized
sectors that we shall designate in this Constitution.
MR. MONSOD. Suppose Senator Taada wants to run under BAYAN
group and says that he represents the farmers, would he qualify?
MR. VILLACORTA. No, Senator Taada would not qualify.
MR. MONSOD. But UNIDO can field candidates under the party list
system and say Juan dela Cruz is a farmer. Who would pass on
whether he is a farmer or not?
MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin
ito. Political parties, particularly minority political parties,
are not prohibited to participate in the party list election if
they can prove that they are also organized along sectoral
lines.
MR. MONSOD. What the Commissioner is saying is that all political
parties can participate because it is precisely the contention of
political parties that they represent the broad base of citizens and
that all sectors are represented in them. Would the Commissioner
agree?

MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang

UNIDO na isang political party, it will dominate the party list at
mawawalang saysay din yung sector. Lalamunin mismo ng political
parties ang party list system. Gusto ko lamang bigyan ng diin ang
"reserve." Hindi ito reserve seat sa marginalized sectors. Kung
titingnan natin itong 198 seats, reserved din ito sa political parties.
MR. MONSOD. Hindi po reserved iyon kasi anybody can run there.
But my question to Commissioner Villacorta and probably also to
Commissioner Tadeo is that under this system, would UNIDO be
banned from running under the party list system?
MR. VILLACORTA. No, as I said, UNIDO may field sectoral
candidates. On that condition alone, UNIDO may be allowed
to register for the party list system.
MR. MONSOD. May I inquire from Commissioner Tadeo if he
shares that answer?
MR. TADEO. The same.
MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral
lines.
MR. MONSOD: Sino po ang magsasabi kung iyong kandidato ng
UNIDO ay hindi talagang labor leader or isang laborer? Halimbawa,
abogado ito.
MR. TADEO: Iyong mechanics.
MR. MONSOD: Hindi po mechanics iyon because we are trying to
solve an inherent problem of sectoral representation. My question
is: Suppose UNIDO fields a labor leader, would he qualify?
MR. TADEO: The COMELEC may look into the truth of whether
or not a political party is really organized along a specific
sectoral line. If such is verified or confirmed, the political
party may submit a list of individuals who are actually
members of such sectors. The lists are to be published to
give individuals or organizations belonging to such sector
the chance to present evidence contradicting claims of
membership in the said sector or to question the claims of
the existence of such sectoral organizations or parties. This
proceeding shall be conducted by the COMELEC and shall be
summary in character. In other words, COMELEC decisions
on this matter are final and unappealable.52 (Emphasis
supplied)

131
Indisputably, the framers of the 1987 Constitution intended the
party-list system to include not only sectoral parties but also nonsectoral parties. The framers intended the sectoral parties to
constitute a part, but not the entirety, of the party-list system. As
explained by Commissioner Wilfredo Villacorta, political
parties can participate in the party-list system "For as long
as they field candidates who come from the different
marginalized sectors that we shall designate in this
Constitution."53
In fact, the framers voted down, 19-22, a proposal to reserve
permanent seats to sectoral parties in the House of
Representatives, or alternatively, to reserve the party-list system
exclusively to sectoral parties. As clearly explained by Justice Jose
C. Vitug in his Dissenting Opinion in Ang Bagong Bayani:
The draft provisions on what was to become Article VI, Section 5,
subsection (2), of the 1987 Constitution took off from two staunch
positions the first headed by Commissioner Villacorta,
advocating that of the 20 per centum of the total seats in Congress
to be allocated to party-list representatives half were to be
reserved
to
appointees
from
the
marginalized
and
underrepresented sectors. The proposal was opposed by some
Commissioners. Mr. Monsod expressed the difficulty in delimiting
the sectors that needed representation. He was of the view that
reserving seats for the marginalized and underrepresented sectors
would stunt their development into full-pledged parties equipped
with electoral machinery potent enough to further the sectoral
interests to be represented. The Villacorta group, on the other
hand, was apprehensive that pitting the unorganized and lessmoneyed sectoral groups in an electoral contest would be like
placing babes in the lion's den, so to speak, with the bigger and
more established political parties ultimately gobbling them up. R.A.
7941 recognized this concern when it banned the first five major
political parties on the basis of party representation in the House of
Representatives from participating in the party-list system for the
first party-list elections held in 1998 (and to be automatically lifted
starting with the 2001 elections). The advocates for permanent
seats for sectoral representatives made an effort towards a
compromise that the party-list system be open only to

underrepresented and marginalized sectors. This proposal was

further whittled down by allocating only half of the seats under the
party-list system to candidates from the sectors which would garner
the required number of votes. The majority was unyielding. Voting
19-22, the proposal for permanent seats, and in the alternative the
reservation of the party-list system to the sectoral groups, was
voted down. The only concession the Villacorta group was able to
muster was an assurance of reserved seats for selected sectors for
three consecutive terms after the enactment of the 1987
Constitution, by which time they would be expected to gather and
solidify their electoral base and brace themselves in the multi-party
electoral contest with the more veteran political groups. 54(Emphasis
supplied)
Thus, in the end, the proposal to give permanent reserved seats to
certain sectors was outvoted. Instead, the reservation of seats to
sectoral representatives was only allowed for the first three
consecutive terms.55 There can be no doubt whatsoever that the
framers of the 1987 Constitution expressly rejected the proposal to
make the party-list system exclusively for sectoral parties only, and
that they clearly intended the party-list system to include both
sectoral and non-sectoral parties.
The common denominator between sectoral and non-sectoral
parties is that they cannot expect to win in legislative district
elections but they can garner, in nationwide elections, at least the
same number of votes that winning candidates can garner in
legislative district elections. The party-list system will be the entry
point to membership in the House of Representatives for both these
non-traditional parties that could not compete in legislative district
elections.
The indisputable intent of the framers of the 1987 Constitution to
include in the party-list system both sectoral and non-sectoral
parties is clearly written in Section 5(1), Article VI of the
Constitution, which states:
Section 5. (1) The House of Representative shall be composed of
not more that two hundred and fifty members, unless otherwise
fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan
Manila area in accordance with the number of their respective

132
inhabitants, and on the basis of a uniform and progressive ratio,
and those who, as provided by law, shall be elected through
a party-list system of registered national, regional, and
sectoral parties or organizations. (Emphasis supplied)
Section 5(1), Article VI of the Constitution is crystal-clear that there
shall be "a party-list system of registered national, regional,
and sectoral parties or organizations." The commas after the
words "national," and "regional," separate national and regional
parties from sectoral parties. Had the framers of the 1987
Constitution intended national and regional parties to be at the
same time sectoral, they would have stated "national and regional
sectoral parties." They did not, precisely because it was never their
intention to make the party-list system exclusively sectoral.
What the framers intended, and what they expressly wrote in
Section 5(1), could not be any clearer: the party-list system is
composed of three different groups, and the sectoral parties belong
to only one of the three groups. The text of Section 5(1) leaves no
room for any doubt that national and regional parties are separate
from sectoral parties.
Thus, the party-list system is composed of three different
groups: (1) national parties or organizations; (2) regional parties or
organizations; and (3) sectoral parties or organizations. National
and regional parties or organizations are different from sectoral
parties or organizations. National and regional parties or
organizations need not be organized along sectoral lines and need
not represent any particular sector.
Moreover, Section 5(2), Article VI of the 1987 Constitution
mandates that, during the first three consecutive terms of Congress
after the ratification of the 1987 Constitution, "one-half of the seats
allocated to party-list representatives shall be filled, as provided by
law, by selection or election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector."
This provision clearly shows again that the party-list system is not
exclusively for sectoral parties for two obvious reasons.
First, the other one-half of the seats allocated to party-list
representatives would naturally be open to non-sectoral party-list
representatives, clearly negating the idea that the party-list system

is exclusively for sectoral parties representing the "marginalized

and underrepresented." Second, the reservation of one-half of the
party-list seats to sectoral parties applies only for the first "three
consecutive terms after the ratification of this Constitution," clearly
making the party-list system fully open after the end of the first
three congressional terms. This means that, after this period, there
will be no seats reserved for any class or type of party that qualifies
under the three groups constituting the party-list system.
Hence, the clear intent, express wording, and party-list
structure ordained in Section 5(1) and (2), Article VI of the
1987 Constitution cannot be disputed: the party-list system
is not for sectoral parties only, but also for non-sectoral
parties.
Republic Act No. 7941 or the Party-List System Act, which is the law
that implements the party-list system prescribed in the
Constitution, provides:
Section 3. Definition of Terms. (a) The party-list system is a
mechanism of proportional representation in the election of
representatives to the House of Representatives from national,
regional and sectoral parties or organizations or coalitions thereof
registered with the Commission on Elections (COMELEC).
Component parties or organizations of a coalition may participate
independently provided the coalition of which they form part does
not participate in the party-list system.
(b) A party means either a political party or a sectoral party
or a coalition of parties.
(c) A political party refers to an organized group of citizens
advocating an ideology or platform, principles and policies
for the general conduct of government and which, as the
most immediate means of securing their adoption, regularly
nominates and supports certain of its leaders and members
as candidates for public office.
It is a national party when its constituency is spread over the
geographical territory of at least a majority of the regions. It is a
regional party when its constituency is spread over the
geographical territory of at least a majority of the cities and
provinces comprising the region.

133
(d) A sectoral party refers to an organized group of citizens
belonging to any of the sectors enumerated in Section 5
hereof whose principal advocacy pertains to the special
interest and concerns of their sector.
(e) A sectoral organization refers to a group of citizens or a coalition
of groups of citizens who share similar physical attributes or
characteristics, employment, interests or concerns.
(f) A coalition refers to an aggrupation of duly registered national,
regional, sectoral parties or organizations for political and/or
election purposes. (Emphasis supplied)
Section 3(a) of R.A. No. 7941 defines a "party" as "either a
political party or a sectoral party or a coalition of parties."
Clearly, a political party is different from a sectoral party. Section
3(c) of R.A. No. 7941 further provides that a "political party refers
to an organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct of
government." On the other hand, Section 3(d) of R.A. No. 7941
provides that a "sectoral party refers to an organized group of
citizens belonging to any of the sectors enumerated in Section 5
hereof whose principal advocacy pertains to the special
interest and concerns of their sector." R.A. No. 7941 provides
different definitions for a political and a sectoral party. Obviously,
they are separate and distinct from each other.
R.A. No. 7941 does not require national and regional parties
or organizations to represent the "marginalized and
underrepresented" sectors. To require all national and regional
parties under the party-list system to represent the "marginalized
and underrepresented" is to deprive and exclude, by judicial fiat,
ideology-based and cause-oriented parties from the party-list
system. How will these ideology-based and cause-oriented parties,
who cannot win in legislative district elections, participate in the
electoral process if they are excluded from the party-list system? To
exclude them from the party-list system is to prevent them from
joining the parliamentary struggle, leaving as their only option the
armed struggle. To exclude them from the party-list system is,
apart from being obviously senseless, patently contrary to the clear
intent and express wording of the 1987 Constitution and R.A. No.
7941.

Under the party-list system, an ideology-based or cause-oriented

political party is clearly different from a sectoral party. A political
party need not be organized as a sectoral party and need not
represent any particular sector. There is no requirement in R.A. No.
7941 that a national or regional political party must represent a
"marginalized and underrepresented" sector. It is sufficient that the
political party consists of citizens who advocate the same ideology
or
platform,
or
the
same
governance
principles
and
policies, regardless of their economic status as citizens.
Section 5 of R.A. No. 7941 states that "the sectors shall include
labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women,
youth, veterans,
overseas workers, and professionals."56The sectors mentioned in
Section
5
are
not
all
necessarily
"marginalized
and
underrepresented." For sure, "professionals" are not by definition
"marginalized and underrepresented," not even the elderly,
women, and the youth. However, professionals, the elderly, women,
and the youth may "lack well-defined political constituencies," and
can thus organize themselves into sectoral parties in advocacy of
the special interests and concerns of their respective sectors.
Section 6 of R.A. No. 7941 provides another compelling reason for
holding that the law does not require national or regional parties, as
well as certain sectoral parties in Section 5 of R.A. No. 7941, to
represent the "marginalized and underrepresented." Section 6
provides the grounds for the COMELEC to refuse or cancel the
registration of parties or organizations after due notice and hearing.
Section 6. Refusal and/or Cancellation of Registration. The
COMELEC may, motu proprio or upon verified complaint of any
interested party, refuse or cancel, after due notice and hearing, the
registration of any national, regional or sectoral party, organization
or coalition on any of the following grounds:
(1) It is a religious sect or denomination, organization or association
organized for religious purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign
political party, foundation, organization, whether directly or through

134
any of its officers or members or indirectly through third parties for
partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations
relating to elections;
(6) It declares untruthful statements in its petition;
(7) It has ceased to exist for at least one (1) year; or
(8) It fails to participate in the last two (2) preceding elections or
fails to obtain at least two per centum (2%) of the votes cast under
the party-list system in the two (2) preceding elections for the
constituency in which it has registered.
None of the 8 grounds to refuse or cancel registration refers to nonrepresentation of the "marginalized and underrepresented."
The phrase "marginalized and underrepresented" appears only
once in R.A. No. 7941, in Section 2 on Declaration of
Policy.57 Section 2 seeks "to promote proportional representation in
the election of representatives to the House of Representatives
through the party-list system," which will enable Filipinos belonging
to
the"marginalized
and
underrepresented
sectors,
organizations and parties, and who lack well-defined
political constituencies," to become members of the House of
Representatives. While the policy declaration in Section 2 of R.A.
No. 7941 broadly refers to "marginalized and underrepresented
sectors, organizations and parties," the specific implementing
provisions of R.A. No. 7941 do not define or require that the
sectors, organizations or parties must be "marginalized and
underrepresented." On the contrary, to even interpret that all the
sectors mentioned in Section 5 are "marginalized and
underrepresented" would lead to absurdities.
How then should we harmonize the broad policy declaration in
Section 2 of R.A. No. 7941 with its specific implementing provisions,
bearing in mind the applicable provisions of the 1987 Constitution
on the matter?
The phrase "marginalized and underrepresented" should refer
only to the sectors in Section 5 that are, by their nature,
economically "marginalized and underrepresented." These
sectors are: labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, handicapped, veterans, overseas workers,
and other similar sectors. For these sectors, a majority of the

members of the sectoral party must belong to the

"marginalized and underrepresented." The nominees of the
sectoral party either must belong to the sector, or must
have a track record of advocacy for the sector
represented. Belonging
to
the
"marginalized
and
underrepresented" sector does not mean one must "wallow in
poverty, destitution or infirmity." It is sufficient that one, or his or
her sector, is below the middle class. More specifically, the
economically "marginalized and underrepresented" are those who
fall in the low income group as classified by the National Statistical
Coordination Board.58
The recognition that national and regional parties, as well as
sectoral parties of professionals, the elderly, women and the youth,
need not be "marginalized and underrepresented" will allow small
ideology-based and cause-oriented parties who lack "well-defined
political constituencies" a chance to win seats in the House of
Representatives. On the other hand, limiting to the "marginalized
and underrepresented" the sectoral parties for labor, peasant,
fisherfolk,
urban
poor,
indigenous
cultural
communities,
handicapped, veterans, overseas workers, and other sectors that
by their nature are economically at the margins of society, will give
the "marginalized and underrepresented" an opportunity to likewise
win seats in the House of Representatives.
This interpretation will harmonize the 1987 Constitution and R.A.
No. 7941 and will give rise to a multi-party system where those
"marginalized and underrepresented," both in economic and
ideological status, will have the opportunity to send their own
members to the House of Representatives. This interpretation will
also make the party-list system honest and transparent, eliminating
the need for relatively well-off party-list representatives to
masquerade as "wallowing in poverty, destitution and infirmity,"
even as they attend sessions in Congress riding in SUVs.
The major political parties are those that field candidates in the
legislative district elections. Major political parties cannot
participate in the party-list elections since they neither lack "welldefined political constituencies" nor represent "marginalized and
underrepresented" sectors. Thus, the national or regional
parties under the party-list system are necessarily those

135
that do not belong to major political parties. This
automatically reserves the national and regional parties under the
party-list system to those who "lack well-defined political
constituencies," giving them the opportunity to have members in
the House of Representatives.
To recall, Ang Bagong Bayani expressly declared, in its second
guideline for the accreditation of parties under the party-list
system, that "while even major political parties are expressly
allowed by RA 7941 and the Constitution to participate in the partylist system, they must comply with the declared statutory policy of
enabling Filipino citizens belonging to marginalized and
underrepresented sectors xxx to be elected to the House of
Representatives. "However, the requirement in Ang Bagong
Bayani, in its second guideline, that "the political party xxx must
represent the marginalized and underrepresented," automatically
disqualified major political parties from participating in the partylist system. This inherent inconsistency in Ang Bagong Bayani
has been compounded by the COMELECs refusal to register
sectoral wings officially organized by major political parties. BANAT
merely formalized the prevailing practice when it expressly
prohibited major political parties from participating in the partylist system, even through their sectoral wings.
Section 11 of R.A. No. 7941 expressly prohibited the "first five (5)
major political parties on the basis of party representation in the
House of Representatives at the start of the Tenth Congress" from
participating in the May 1988 party-list elections. 59 Thus, major
political parties can participate in subsequent party-list
elections since the prohibition is expressly limited only to
the 1988 party-list elections. However, major political parties
should participate in party-list elections only through their sectoral
wings. The participation of major political parties through their
sectoral wings, a majority of whose members are "marginalized and
underrepresented"
or
lacking
in
"well-defined
political
constituencies," will facilitate the entry of the "marginalized and
underrepresented" and those who "lack well-defined political
constituencies" as members of the House of Representatives.
The 1987 Constitution and R.A. No. 7941 allow major political
parties to participate in party-list elections so as to encourage them

to work assiduously in extending their constituencies to the

"marginalized and underrepresented" and to those who "lack welldefined political constituencies." The participation of major political
parties in party-list elections must be geared towards the entry, as
members of the House of Representatives, of the "marginalized and
underrepresented" and those who "lack well-defined political
constituencies," giving them a voice in law-making. Thus,to
participate in party-list elections, a major political party that fields
candidates in the legislative district elections must organize a
sectoral wing, like a labor, peasant, fisherfolk, urban poor,
professional, women or youth wing, that can register under the
party-list system.
Such sectoral wing of a major political party must have its own
constitution, by-laws, platform or program of government, officers
and members, a majority of whom must belong to the sector
represented. The sectoral wing is in itself an independent sectoral
party, and is linked to a major political party through a coalition.
This linkage is allowed by Section 3 of R.A. No. 7941, which
provides that "component parties or organizations of a coalition
may participate independently (in party-list elections) provided the
coalition of which they form part does not participate in the partylist system."
Section 9 of R.A. No. 7941 prescribes the qualifications of party-list
nominees. This provision prescribes a special qualification only for
the nominee from the youth sector.
Section 9. Qualifications of Party-List Nominees. No person shall be
nominated as party-list representative unless he is a natural-born
citizen of the Philippines, a registered voter, a resident of the
Philippines for a period of not less than one (1) year immediately
preceding the day of the election, able to read and write, a bona
fide member of the party or organization which he seeks to
represent for at least ninety (90) days preceding the day of the
election, and is at least twenty-five (25) years of age on the day of
the election.
In case of a nominee of the youth sector, he must at least be
twenty-five (25) but not more than thirty (30) years of age on the
day of the election.

136
Any youth sectoral representative who attains the age of thirty (30)
during his term shall be allowed to continue in office until the
expiration of his term.1wphi1
A party-list nominee must be a bona fide member of the party or
organization which he or she seeks to represent.In the case of
sectoral parties, to be a bona fide party-list nominee one
must either belong to the sector represented, or have a
track record of advocacy for such sector.
In disqualifying petitioners, the COMELEC used the criteria
prescribed in Ang Bagong Bayani and BANAT. Ang Bagong Bayani
laid down the guidelines for qualifying those who desire to
participate in the party-list system:
First, the political party, sector, organization or coalition
must represent the marginalized and underrepresented
groups identified in Section 5 of RA 7941. x x x
Second, while even major political parties are expressly allowed by
RA 7941 and the Constitution to participate in the party-list system,
they must comply with the declared statutory policy of enabling
"Filipino citizens belonging to marginalized and underrepresented
sectors x x x to be elected to the House of Representatives." x x x.
xxxx
Third, x x x the religious sector may not be represented in the
party-list system. x x x.
xxxx
Fourth, a party or an organization must not be disqualified under
Section 6 of RA 7941, which enumerates the grounds for
disqualification as follows:
"(1) It is a religious sect or denomination, organization or
association, organized for religious purposes;
(2) It advocates violence or unlawful means to seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign government, foreign
political party, foundation, organization, whether directly or through
any of its officers or members or indirectly through third parties for
partisan election purposes;
(5) It violates or fails to comply with laws, rules or regulations
relating to elections;
(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or
fails to obtain at least two per centum (2%) of the votes cast under
the party-list system in the two (2) preceding elections for the
constituency in which it has registered."
Fifth, the party or organization must not be an adjunct of, or a
project organized or an entity funded or assisted by, the
government. x x x.
xxxx
Sixth, the party must not only comply with the requirements of the
law; its nominees must likewise do so. Section 9 of RA 7941 reads
as follows:
"SEC 9. Qualifications of Party-List Nominees. - No person shall be
nominated as party-list representative unless he is a natural-born
citizen of the Philippines, a registered voter, a resident of the
Philippines for a period of not less than one (1)year immediately
preceding the day of the election, able to read and write, a bona
fide member of the party or organization which he seeks to
represent for at least ninety (90) days preceding the day of the
election, and is at least twenty-five (25) years of age on the day of
the election.
In case of a nominee of the youth sector, he must at least be
twenty-five (25) but not more than thirty (30) years of age on the
day of the election. Any youth sectoral representative who attains
the age of thirty (30) during his term shall be allowed to continue in
office until the expiration of his term."
Seventh, not only the candidate party or organization must
represent marginalized and underrepresented sectors; so
also must its nominees. x x x.
Eighth, x x x the nominee must likewise be able to contribute to the
formulation and enactment of appropriate legislation that will
benefit the nation as a whole. (Emphasis supplied)
In 2009, by a vote of 8-7 in BANAT, this Court stretched the Ang
Bagong Bayani ruling further. In BANAT, the majority officially
excluded major political parties from participating in party-list
elections,60 abandoning even the lip-service that Ang Bagong
Bayani accorded to the 1987 Constitution and R.A.No. 7941 that
major political parties can participate in party-list elections.

137
The minority in BANAT, however, believed that major political
parties can participate in the party-list system through their
sectoral wings. The minority expressed that "[e]xcluding the major
political parties in party-list elections is manifestly against the
Constitution, the intent of the Constitutional Commission, and R.A.
No. 7941. This Court cannot engage in socio-political engineering
and judicially legislate the exclusion of major political parties from
the party-list elections in patent violation of the Constitution and
the law."61 The experimentations in socio-political engineering have
only resulted in confusion and absurdity in the party-list system.
Such experimentations, in clear contravention of the 1987
Constitution and R.A. No. 7941, must now come to an end.
We cannot, however, fault the COMELEC for following prevailing
jurisprudence in disqualifying petitioners. In following prevailing
jurisprudence, the COMELEC could not have committed grave
abuse of discretion. However, for the coming 13 May 2013 party-list
elections, we must now impose and mandate the party-list
system actually envisioned and authorized under the 1987
Constitution and R.A. No. 7941. In BANAT, this Court devised a new
formula in the allocation of party-list seats, reversing the
COMELEC's allocation which followed the then prevailing formula in
Ang Bagong Bayani. In BANAT, however, the Court did not declare
that the COMELEC committed grave abuse of discretion. Similarly,
even as we acknowledge here that the COMELEC did not commit
grave abuse of discretion, we declare that it would not be in accord
with the 1987 Constitution and R.A. No. 7941 to apply the criteria
in Ang Bagong Bayani and BANAT in determining who are qualified
to participate in the coming 13 May 2013 party-list
elections. For this purpose, we suspend our rule 62 that a party may
appeal to this Court from decisions or orders of the COMELEC only if
the COMELEC committed grave abuse of discretion.
Thus, we remand all the present petitions to the COMELEC. In
determining who may participate in the coming 13 May 2013 and
subsequent party-list elections, the COMELEC shall adhere to the
following parameters:
1. Three different groups may participate in the party-list system:
(1) national parties or organizations, (2) regional parties or
organizations, and (3) sectoral parties or organizations.

2. National parties or organizations and regional parties or

organizations do not need to organize along sectoral lines and do
not need to represent any "marginalized and underrepresented"
sector.
3. Political parties can participate in party-list elections provided
they register under the party-list system and do not field
candidates in legislative district elections. A political party, whether
major or not, that fields candidates in legislative district elections
can participate in party-list elections only through its sectoral wing
that can separately register under the party-list system. The
sectoral wing is by itself an independent sectoral party, and is
linked to a political party through a coalition.
4. Sectoral parties or organizations may either be "marginalized
and underrepresented" or lacking in "well-defined political
constituencies." It is enough that their principal advocacy pertains
to the special interest and concerns of their sector. The sectors that
are "marginalized and underrepresented" include labor, peasant,
fisherfolk,
urban
poor,
indigenous
cultural
communities,
handicapped, veterans, and overseas workers. The sectors that
lack "well-defined political constituencies" include professionals,
the elderly, women, and the youth.
5. A majority of the members of sectoral parties or organizations
that represent the "marginalized and underrepresented" must
belong to the "marginalized and underrepresented" sector they
represent. Similarly, a majority of the members of sectoral parties
or organizations that lack "well-defined political constituencies"
must belong to the sector they represent. The nominees of sectoral
parties or organizations that represent the "marginalized and
underrepresented," or that represent those who lack "well-defined
political constituencies," either must belong to their respective
sectors, or must have a track record of advocacy for their
respective sectors. The nominees of national and regional parties or
organizations must be bona-fide members of such parties or
organizations.
6. National, regional, and sectoral parties or organizations shall not
be disqualified if some of their nominees are disqualified, provided
that they have at least one nominee who remains qualified.

138
The COMELEC excluded from participating in the 13 May 2013
party-list elections those that did not satisfy these two criteria: (1)
all national, regional, and sectoral groups or organizations must
represent the "marginalized and underrepresented" sectors, and (2)
all
nominees
must
belong
to
the
"marginalized
and
underrepresented" sector they represent. Petitioners may have
been disqualified by the COMELEC because as political or regional
parties they are not organized along sectoral lines and do not
represent the "marginalized and underrepresented." Also,
petitioners' nominees who do not belong to the sectors they
represent may have been disqualified, although they may have a
track record of advocacy for their sectors. Likewise, nominees of
non-sectoral parties may have been disqualified because they do
not belong to any sector. Moreover, a party may have been
disqualified because one or more of its nominees failed to qualify,
even if the party has at least one remaining qualified nominee. As
discussed above, the disqualification of petitioners, and their
nominees, under such circumstances is contrary to the 1987
Constitution and R.A. No. 7941.
This Court is sworn to uphold the 1987 Constitution, apply its
provisions faithfully, and desist from engaging in socio-economic or
political experimentations contrary to what the Constitution has
ordained. Judicial power does not include the power to re-write the
Constitution. Thus, the present petitions should be remanded to the
COMELEC not because the COMELEC committed grave abuse of
discretion in disqualifying petitioners, but because petitioners may
now possibly qualify to participate in the coming 13 May 2013
party-list elections under the new parameters prescribed by this
Court.
WHEREFORE, all the present 54 petitions are GRANTED. The 13
petitions, which have been granted Status Quo Ante Orders but
without mandatory injunction to include the names of petitioners in
the printing of ballots, are remanded to the Commission on
Elections only for determination whether petitioners are qualified to
register under the party-list system under the parameters
prescribed in this Decision but they shall not participate in the 13
May 2013 part-list elections. The 41 petitions, which have been
granted mandatory injunctions to include the names of petitioners

in the printing of ballots, are remanded to the Commission on

Elections for determination whether petitioners are qualified to
register under the party-list system and to participate in the 13 May
2013 party-list elections under the parameters prescribed in this
Decision. The Commission on Elections may conduct summary
evidentiary hearings for this purpose. This Decision is immediately
executory.
SO ORDERED.
(for dissenting and concurring opinions please refer to internet
source:
http://www.lawphil.net/judjuris/juri2013/apr2013/gr_203766_2013.h
tml )

139
G.R. No. 192803

December 10, 2013

ALLIANCE FOR RURAL AND AGRARIAN RECONSTRUCTION,

INC., ALSO KNOWN AS ARARO PARTY-LIST,Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.

as the National Board of Canvassers initially proclaimed twentyeight (28) party-list organizations as winners involving a total of
thirty-five (35) seats guaranteed and additional seats. 4 The result
was based on the Commission on Elections count of one hundred
twenty-one (121) Certificates of Canvass or a total of twenty-nine
million seven hundred fifty thousand and forty-one (29,750,041)
votes for the Party-List System.5

DECISION
The winning party-list groups were the following:6
LEONEN, J.:
PARTY NUMBER OF SEATS
It is beyond human expectations that we charge voters with
knowledge as to which among the many party-list groups listed in
the ballot they are presented with during election day is
disqualified. To do so will amount to their disenfranchisement and
the failure to comply with the proportionality for party-list
representatives required by the Constitution and by law.

1 COALITION OF ASSOCIATIONS OF SENIOR CITIZENS OF THE

PHILIPPINES, INC. 2
2 AKBAYAN! CITIZENS ACTION PARTY 2
3 GABRIELA WOMENS PARTY 2

We are asked to decide the Petition for Review on Certiorari filed by

a party-list group that ran for the 2010 national elections. The
petitioner questions the validity of the formula used by the
Commission on Elections in determining and proclaiming the
winning party-list groups.1

4 COOPERATIVE NATCCO NETWORK PARTY 2

5 ABONO 2
6 BAYAN MUNA 2

We rule that the Petition is moot and academic. However, we

provide guidance for the bench and the bar with respect to the
formula used in determining the winning party-list groups. We
refine the divisor in the formula use din getting the percentage of
votes garnered by a party-list.

7 AN WARAY 2
8 AGRICULTURAL SECTOR ALLIANCE SECTOR OF THE PHILIPPINES,
INC. 1

The facts as established on record are as follows:

9 ALLIANCE FOR BARANGAY CONCERNS PARTY 1

Petitioner, Alliance for Rural and Agrarian Reconstruction, Inc.,

(ARARO) was a duly accredited party-list under Republic Act No.
7941.2Itgarnered a total of one hundred forty-seven thousand two
hundred four (147,204) votes in the May 10, 2010 elections and
ranked fiftieth (50th).3 The Commission on Elections En Banc sitting

10 ANAKPAWIS 1
11 KABATAAN PARTYLIST 1

140
12 ABANTE MINDANAO, INC. 1

TOTAL SEATS 35

13 ACT TEACHERS 1

Petitioner then filed an election protest before the House of

Representatives Electoral Tribunal questioning the Resolution of the
Commission on Elections that proclaimed the 28 party-list groups
listed above.7

14 YOU AGAINST CORRUPTION AND POVERTY 1

15 KASANGGA SA KAUNLARAN, INC. 1

Without waiting for the resolution of the House of Representatives

Electoral Tribunal, the petitioner filed the present Petition for
Review on Certiorari with Prayer for Preliminary Injunction and
Temporary Restraining Order.8The petitioner asks that this Court:

16 BAGONG HENERASYON 1
17 ANG GALING PINOY 1

1. modify the Commission on Elections interpretation of the

formula stated in BANAT v. COMELEC9 by making the divisor for the
computation of the percentage votes, from total number of votes
cast minus the votes for the disqualified party-list candidates, to
the total number of votes cast regardless whether party-list groups
are disqualified;

18 AGBIAG! TIMPUYOG ILOCANO, INC. 1

19 PUWERSA NG BAYANing ATLETA 1
20 ARTS BUSINESS AND SCIENCE PROFESSIONALS 1
21 TRADE UNION CONGRESS PARTY 1
22 ALYANSA NG MGA GRUPONG HALIGI
TEKNOLOHIYA PARA SA MAMAMAYAN, INC. 1

NG

AGHAM

AT

23 DEMOCRATIC INDEPENDENT WORKERS ASSOCIATION, INC. 1

24 KAPATIRAN NG MGA NAKULONG NA WALANG SALA 1
25 KALINGA-ADVOCACY FOR SOCIAL EMPOWERMENT AND NATION
BUILDING THROUGH EASING POVERTY, INC. 1
26 ALAGAD PARTY-LIST 1
27 UNA ANG PAMILYA FORMERLY ALLIANCE OF NEO-CONSERVATIVES
1
28 ALLIANCE OF VOLUNTEER EDUCATORS 1

2. enjoin the public respondent Commission on Elections from

proclaiming the remaining winning party-list candidates until it
modifies the interpretation of the formula used in BANAT v.
COMELEC to the formula proposed by the petitioner; and
3. issue a Temporary Restraining Order against the public
respondent until it modifies the present formula for computing the
number of seats for the winning party-list candidates to the formula
proposed by the petitioner.10This Court did not issue any
Temporary Restraining Order.11By Resolution, the National Board of
Canvassers proclaimed the winning party-list groups with the
following computation:12
WHEREAS, as of May 17, 2010, the projected/maximum total partylist votes cannot go any higher than thirty million two hundred
sixty[-]four
thousand
five
hundred
seventy[-]nine
(30,264,579)given the following statistical data:
DESCRIPTION REGISTERED VOTERS

141
Total party-list votes already canvassed/tabulated 29,750,041
Less: Votes garnered by the eight (8) disqualified parties 308,335
Total party-list votes already canvassed/tabulated after deducting
votes of the eight (8) disqualified parties 29,441,706
Add: Party-list votes still uncanvassed Lanao del Sur 515,488
Local Absentee Voting 19,071
Overseas Absentee Voting 9,299
Due to lowering of threshold 92,740
Precincts reporting Final Testing and Sealing results 186,275
Maximum Total Party-List Votes 30,264,579

Commission on Elections, and [sic] Bayan Muna, Advocacy for

Teacher Empowerment, Cooperation and Harmony Towards
Educational Reforms, Inc., and Abono [v.]Commission on Elections,
the ranking of the participating parties, organizations and coalitions
from highest to lowest based on the number of votes garnered as
of May 17, 2010, and the seats that may be obtained by each party
to complete the allocation of the available 57 party-list seats, are
shown below:13
RANK PARTY VOTES GARNERED VOTES GARNERED OVER TOTAL
VOTES FOR PARTY LIST, in %(A) GUARANTEED SEAT First Round (B)
ADDITIONAL SEATS Second Round(C) (B) plus (C), in whole integers
(D)
1 AKO BICOL POLITICAL PARTY 1,522,986 5.0322% 1 2.26 3
2 COALITION OF ASSOCIATIONS OF SENIOR CITIZENS OF THE
PHILIPPINES, INC. 1,292,182 4.2696% 1 1.92 2

WHEREAS, since there are twohundred twenty-nine (229) legislative

districts, the total number of party-list seats available for the May
10, 2010 automated national and local elections is fifty-seven (57)
based on the following formula: number of legislative districts/0.80
x 0.20;

3 BUHAY HAYAAN YUMABONG 1,249,555 4.1288% 1 1.85 2

WHEREAS, the provision of Section 11 of Republic Act No. 7941

provides, in part, that:

6 COOPERATIVE NATCCO NETWORK PARTY 943,5293.1176% 1 1.40

2

"(b) The parties, organizations, and coalitions receiving at least two

percent (2%) of the total votes cast for the party-list system shall
be entitled to one seat each: Provided, That those garnering more
than two [sic] (2%) of the votes shall be entitled to additional seats
in proportion to their total number of votes: Provided, finally, That
each party, organization or coalitions shall be entitled to not more
than three (3) seats."

7 1ST CONSUMERS ALLIANCE FOR RURAL ENERGY 768,829

2.5404% 1 1.142

4 AKBAYAN! CITIZEN'S ACTION PARTY 1,058,6913.4981% 1 1.57 2

5 GABRIELAWOMENS PARTY 1,001,421 3.3089% 11.482

8 ABONO 766,615 2.5330% 1 1.132

9 BAYAN MUNA 746,019 2.4650% 1 1.102
10 AN WARAY 711,631 2.3514% 1 1.05 2

WHEREAS, applying the formula in the case of Barangay

Association for National Advancement and Transparency (BANAT) v.

142
11 CITIZEN'S BATTLE AGAINST CORRUPTION 647,483 2.1394% 1
0.96 1

26 ALLIANCE FOR
0.9650% 0 1 1

12 ADVOCACY FOR TEACHER EMPOWERMENT THROUGH ACTION

COOPERATION AND HARMONY TOWARDS EDUCATIONAL REFORMS
614,725 2.0312% 1 0.91 1

27 ANG GALING PINOY 269,009 0.8889% 0 1 1

13 AGRICULTURAL SECTOR ALLIANCE SECTOR OF THE PHILIPPINES,

INC. 515,501 1.7033% 0 1 1

29 PUWERSA NG BAYANING ATLETA 258,498 0.8541% 0 1 1

14 BUTIL FARMERS PARTY 506,703 1.6742% 0 1 1

15 ALLIANCE FOR BARANGAY CONCERNS PARTY 469,093 1.5500% 0
11
16 ANAKPAWIS 445,628 1.4724% 0 1 1
17 KABATAAN PARTYLIST 417,923 1.3809% 0 1 1

NATIONALISM

AND

DEMOCRACY

292,057

28 AGBIAG! TIMBUYOG ILOCANO, INC. 262,298 0.8667% 0 1 1

30 ARTS BUSINESS
0.8502% 0 1 1

AND

SCIENCE

PROFESSIONALS

257,301

31 TRADE UNION CONGRESS PARTY 244,623 0.8083% 0 1 1

32 ALYANSA NG MGA GRUPONG HALIGI NG AGHAM AT
TEKNOLOHIYA PARA SA MAMAMAYAN, INC. 241,898 0.7993% 0 1 1
33 DEMOCRATIC INDEPENDENT WORKERS' ASSOCIATION, INC.
238,675 0.7886% 0 1 1

18 LPG MARKETERS ASSOCIATION, INC. 417,600 1.3798% 0 1 1

19 ABANTE MINDANAO, INC. 376,011 1.2424% 0 1 1
20 ACT TEACHERS 369,564 1.2211% 0 1 1
21 ANG ASOSASYON SANG MANGUNGUMA NGA BISAYA-OWA
MANGUNGUMA, INC. 357,009 1.1796% 0 1 1
22 YOU AGAINST CORRUPTION AND POVERTY 335,635 1.1090% 0 1
1
23 ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES 313,359
1.0354% 0 1 1

34 KAPATIRAN NG MGA NAKULONG NA WALANG SALA 234,717

0.7756% 0 1 1
35 KALINGA-ADVOCACY FOR SOCIAL EMPOWERMENT AND NATION
BUILDING THROUGH EASING POVERTY, INC. 229,198 0.7573% 0 1 1
36 ALAGAD PARTY-LIST 227,116 0.7504% 0 1 1
37 1-UNITED TRANSPORT KOALISYON 220,002 0.7269% 0 1 1
38 UNA ANG PAMILYA FORMERLY ALLIANCE OF NEO-CONSERVATIVES
217,032 0.7171% 0 1 1
39 ALLIANCE OF VOLUNTEER EDUCATORS 214,760 0.7096% 0 1

24 KASANGGA SA KAUNLARAN, INC. 296,368 0.9793% 0 1 1

14 0AANGAT TAYO 176,074 0.5818% 0 1 1
25 BAGONG HENERASYON 292,875 0.9677% 0 1 1

143
41 ADHIKAING TINATAGUYOD NG KOOPERATIBA 173,711 0.5740% 0
11
42 ANG LABAN NG INDIGONG FILIPINO 170,304 0.5627% 0 1 1
43 ASSOCIATION OF LABORERS AND EMPLOYEES 167,654 0.5540%
011
44 KASOSYO PRODUCER-CONSUMER EXCHANGE ASSOCIATION, INC.
166,432 0.5499% 0 1 1

55 PARTIDO NG MANGGAGAWA 140,000 0.4626% 0 0 0

56
ALYANSANG
BAYANIHAN
NG
MGA
MAGSASAKA,
MANGGAGAWANG-BUKID AT MANGINGISDA 137,842 0.4555% 0 0 0
57 ALLIANCE TRANSPORT SECTOR 136,710 0.4517% 0 0 0
58 KAUNLARAN NG AGRIKULTURA ASENSADONG PROBINSYA ANGAT
NG BAYAN 130,270 0.4304% 0 0 0
59 BARANGAY NATIN 126,462 0.4179% 0 0 0

45 ALAY BUHAY COMMUNITY DEVELOPMENT FOUNDATION, INC.

163,164 0.5391% 0 1 1

60 1-AKO BABAENG ASTIG AASENSO 120,734 0.3989% 0 0 0

46 AKSYON MAGSASAKA PARTIDO TINIG NG MASA 161,674 0.5342%

011

61 1GUARDIANS NATIONALIST OF THE PHILIPPINES, INC. 120,727

0.3989% 0 0 0

47 KATIPUNAN NG MGA ANAK NG BAYAN ALL FILIPINO DEMOCRATIC

MOVEMENT 160,745 0.5311% 0 0 0

62 BABAE PARA SA KAUNLARAN 117,299 0.3876% 0 0 0

48 ANAK MINDANAO 157,733 0.5212% 0 0 0

63 BAGONG BAYAN NAGTATAGUYOD SA

IDEOLOHIYA AT LAYUNIN 115,428 0.3814% 0 0 0

49 VETERANS FREEDOM PARTY 154,183 0.5095% 0 0 0

64 AHON PINOY 115,197 0.3806% 0 0 0

50 ALLIANCE FOR RURAL RECONSTRUCTION, INC. 147,204 0.4864%

000

65 ACTION FOR DYNAMIC DEVELOPMENT, INC. 115,058 0.3802% 0

00

51 ATONG PAGLAOM 145,435 0.4805% 0 0 0

66 KATRIBU INDIGINOUS PEOPLES SECTORAL PARTY 114,891

0.3796% 0 0 0

52 PILIPINO ASSOCIATION FOR COUNTRY-URBAN POOR YOUTH

ADVANCEMENT AND WELFARE 143,151 0.4730% 0 0 0
53 ABANTE TRIBUNG MAKABANSA 142,013 0.4692% 0 0 0
54 ANGAT ATING KABUHAYAN PILIPINAS, INC. 141,780 0.4685% 0 0
0

DEMOKRATIKONG

67 ANG LADLAD LBGT PARTY 113,187 0.3740% 0 0 0

68 CONFEDERATION OF NON-STOCK SAVINGS
ASSOCIATIONS, INC. 110,759 0.3660% 0 0 0

AND

69 KABALIKAT NG MGA MAMAMAYAN 109,739 0.3626% 0 0 0

LOAN

144
70 ONE ADVOCACY FOR HEALTH, PROGRESS AND OPPORTUNITY
109,682 0.3624% 0 0 0
71 BINHI; PARTIDO NG MGA MAGSASAKA
MAGSASAKA 108,005 0.3569% 0 0 0

PARA

SA

MGA

72 1-AANI 107,970 0.3568% 0 0 0

73 AKAP BATA, INC. 107,154 0.3541% 0 0 0
74 ANG ASOSASYON NG MGA TRABAHADOR AT PAHINANTE 107,135
0.3540% 0 0 0
75 AGILA NG MGA KATUTUBONG PILIPINO, INC. 105,009 0.3470% 0
00
The petitioner suggests that the formula used by the Commission
on Elections is flawed because votes that were spoiled or that were
not made for any party-lists were not counted. According to the
petitioner, around seven million (7,000,000) votes were
disregarded as a result of the Commission on Elections erroneous
interpretation. The figure presented by petitioner resulted from the
following computations:14
37,377,371 (Number of voters who actually voted LESS votes for
disqualified party lists)
less 30,264,579 (Number of votes for party-list candidates LESS
number of votes for disqualified party-list candidates)
7,112,792 (Total number of disregarded votes according to
petitioner ARARO)

hundred
eighty-five
thousand
seven
hundred
six
16
(37,685,706). After subtracting the amounts, the result is thirtyseven million three hundred seventy-seven thousand three hundred
seventy-one (37,377,371)votes.
Second, the number of votes for disqualified party-list groups is
again deducted from the number of votes for party-list candidates
which the petitioner pegged at thirty million five hundred seventytwo thousand nine hundred fourteen votes (30,572,914). 17 The
difference then is thirty million two hundred sixty-four thousand
five hundred seventy-nine (30,264,579) votes.
Lastly, to get the total number of votes disregarded by the
Commission on Elections interpretation, 30,264,579 is subtracted
from 37,377,371.The computation then results to seven million one
hundred twelve thousand seven hundred ninety-two (7,112,792)
votes disregarded using the
Commission on Elections
interpretation.
On the other hand, the formula used by the Commission on
Elections En Banc sitting as the National Board of Canvassers is the
following:
ref
-http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2013/december2013/192803.pdf
Number of seats available to legislative districts___x .20 =Number
of seats available to party-list representatives .80
Thus, the total number of party-list seats available for the May
2010 elections is 57 as shown below:
229______________________________x .20 =57 .80

First, the total number of votes for disqualified party-lists is

deducted from the total number of voters that actually voted. The
total number of votes for disqualified party-list groups is three
hundred eight thousand three hundred thirty-five (308,335). 15 The
total number of voters that actually voted is thirty-seven million six

The National Board of Canvassers Resolution No. 10-009 applies

the formula used in Barangay Association for National
Advancement and Transparency (BANAT) v. COMELEC 18 to arrive at
the winning party-list groups and their guaranteed seats, where:

145
Number of votes of party-list =
Proportion or Percentage of votes garnered by party-list

Section 11. Number of Party-List Representatives. The party-list

representatives shall constitute twenty per centum (20%) of the
total number of the members of the House of Representatives
including those under the party-list.

Total number of votes for party-list candidates

The Proportion or Percentage of votes garnered by party-list should
be greater than or equal to 2% or 0.02 to entitle a party-list
candidate to one (1) seat in the first round. There will be a second
round if the total number of guaranteed seats awarded in the first
round is less than the total number of party-list seats available.
Thus:

For purposes of the May 1998 elections, the first five (5) major
political parties on the basis of party representation in the House of
Representatives at the start of the Tenth Congress of the Philippines
shall not be entitled to participate in the party-list system.
In determining the allocation of seats for the second vote, the
following procedure shall be observed:

Total number of party-list seats available - Number of seats

allocated in first round x Proportion or Percentage of votes garnered
by party-list = Additional seats awarded

(a) The parties, organizations, and coalitions shall be ranked from

the highest to the lowest based on the number of votes they
garnered during the elections.

If the total seats available for party-lists are not yet awarded after
the second round (this is computed by getting the sum of the seats
awarded in the first round and the additional seats awarded in the
second round), the next in the party-list ranking will be given one
(1) seat each until all seats are fully distributed. A three-seat cap
per party-list, however, is imposed on winning groups. Fractional
seats are not rounded off and are disregarded.

(b) The parties, organizations, and coalitions receiving at least two

percent (2%) of the total votes cast for the party-list system shall
be entitled to one seat each: Provided, That those garnering more
than two percent (2%) of the votes shall be entitled to additional
seats in proportion to their total number of votes: Provided, finally,
That each party, organization, or coalition shall be entitled to not
more than three (3) seats.

The petitioner argues that the Commission on Elections

interpretation of the formula used in BANAT v. COMELEC is flawed
because it is not in accordance with the law. 19 The petitioner
distinguishes
the
phrases, valid
votes
cast for
party-list
candidates on the one hand as against votes cast for the party-list
system on the other.

Section 12. Procedure in Allocating Seats for Party-List

Representatives. The COMELEC shall tally all the votes for the
parties, organizations, or coalitions on a nationwide basis, rank
them according to the number of votes received and allocate partylist representatives proportionately according to the percentage of
votes obtained by each party, organization, or coalition as against
the total nationwide votes cast for the party-list system.(Emphasis
provided)

The petitioner puts in issue the interpretation of Sections 11 and 12

of Republic Act No.7941 or "An Act Providing for the Election of
Party-List Representatives Through the Party-List System, and
Appropriating Funds Therefor." The sections provide the guidelines
in allocating seats to party-list representatives:

The petitioner argues that the correct interpretation of the

provisions of Republic Act No. 7941 or the Party-list Law does not
distinguish between valid and invalid votes, to wit:

146
Therefore, votes for specific party lists are not the same as votes
for the party-list system. Hence, people whose votes were spoiled
for instance (like checking or failure to properly shade the ovals in
the ballots, or voted for two party lists when the requirement is
only one, or had erasures on their ballots for instance), or did not
vote for any party-list at all are still voters for the party-list system.
The votes for the party-list system [include] all those people who
voted whether their votes were counted or not as long as the
mechanism for the selection of party-list is in place. 20 (Emphasis
provided)

A. All votes cast for the party-list system less the votes cast for
subsequently disqualified party-list groups and votes declared
spoiled

In its November 12, 2010 Comment, 21 the Commission on Elections

through the Office of the Solicitor General took the position that
invalid or stray votes should not be counted in determining the
divisor. The Commission on Elections argues that this will
contradict Citizens
Battle
Against
Corruption
(CIBAC)
v.
22
COMELEC and Barangay Association for National Advancement
and Transparency (BANAT) v. COMELEC.23 It asserts that:

We decide as follows:

Neither can the phrase be construed to include the number of

voters who did not even vote for any qualified party-list candidate,
as these voters cannot be considered to have cast any vote "for the
party-list system."24
The issues in this case are as follows:
I. Whether the case is already moot and academic
II. Whether petitioners have legal standing
III. Whether the Commission on Elections committed grave abuse of
discretion in its interpretation of the formula used in BANAT v.
COMELEC25 to determine the party-list groups that would be
proclaimed in the 2010 elections
The third issue requires our determination of the computation of
the correct divisor to be used. The options are:

B. The total votes cast

C. The total number of valid votes cast for the party-list system
including votes cast for party-list groups listed in the ballot even if
subsequently declared disqualified. The divisor should not include
votes that are declared spoiled or invalid.

I
This case is moot and academic. Mendoza v. Villas26 defines a moot
and academic case:
A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so that a
declaration thereon would be of no practical value. As a rule, courts
decline jurisdiction over such case, or dismiss it on ground of
mootness.27
Several supervening events have already rendered this case moot
and academic. First, the Commission on Elections En Banc already
proclaimed other winning party-list groups. 28 Second, the term of
office of the winning party-list groups in the May 2010 national
elections ended on June 30, 2013. Finally, the conduct of the May
13, 2013 elections resulted in a new set of party-list groups.
We held that the expiration of the challenged term of office renders
the corresponding Petition moot and academic. 29 This leaves any
ruling on the issues raised by the petitioner with no practical or
useful value.30
However, the following exceptions to the rule of declining
jurisdiction over moot and academic cases are allowed: (1) there

147
was a grave violation of the Constitution; (2) the case involved a
situation of exceptional character and was of paramount public
interest; (3) the issues raised required the formulation of controlling
principles to guide the Bench, the Bar and the public; and (4) the
case was capable of repetition yet evading review. 31 On the
importance of the assailed formula, this Court will discuss the
issues raised by the petitioner as these are capable of repetition
yet evading review32 and for the guidance of the bench, bar, and
public.33

This table clearly shows that the petitioner does not suffer a direct,
substantial or material injury from the application of the formula
interpreted and used in BANAT in proclaiming the winning partylists in the assailed National Board of Canvassers Resolution. The
computation proposed by petitioner ARARO even lowers its chances
to meet the 2% threshold required by law for a guaranteed seat. Its
arguments will neither benefit nor injure the party. Thus, it has no
legal standing to raise the argument in this Court.
III

II
The petitioner is not the real party in interest
"A real party in interest is the party who stands to be benefited or
injured by the judgement in the suit, or the party entitled to the
avails of the suit."34 The partys interest must be direct, substantial,
and material.35 In this case, the petitioner attacks the validity of the
formula used and upheld in BANAT. It also proposes its own
interpretation of the formula to determine the proportional
representation of party-list candidates in the House of
Representatives. However despite any new computation, ARAROs
proposed divisor of total votes cast for the party-list system
whether valid or invalid still fails to secure one seat for ARARO.
Reviewing the figures presented by the petitioner:36
With Divisor of total valid votes cast for party-list system minus
votes cast for disqualified party-lists or invalid votes (30,264,579)
With Divisor of votes cast for the party-list system as proposed by
ARARO (37,377,371)

However, we review the interpretation of the formula used for the

determination of wining party-list candidates with respect to the
divisor used for the guidance of bench and bar and for future
elections.
The textual references for determining the formula to be used are
found in the Constitution and the statute interpreting the relevant
provisions.
Article VI, Section 5,paragraphs 1 and 2 of the 1987 Constitution
provide the following:
1. The House of Representatives shall be composed of not more
than two hundred and fifty members, unless otherwise fixed by law,
who shall be elected from legislative districts apportioned among
the provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of
registered national, regional, and sectoral parties or organizations.

Votes garnered 147,204 147,204

Votes garnered over total votes cast for party-lists (%) 0.4864
0.3939
Guaranteed Seat 0 0

2. The party-list representatives shall constitute twenty per

centum of the total number of representatives including those
under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to
party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor,

148
indigenous cultural communities, women, youth, and such other
sectors as may be provided by law, except the religious sector.
Sections 11 and 12 of Republic Act No. 7941,thus, provide:
Section 11. Number of Party-List Representatives. The party-list
representatives shall constitute twenty per centum (20%) of the
total number of the members of the House of Representatives
including those under the party-list.
For purposes of the May 1998 elections, the first five (5) major
political parties on the basis of party representation in the House of
Representatives at the start of the Tenth Congress of the Philippines
shall not be entitled to participate in the party-list system.
In determining the allocation of seats for the second vote, the
following procedure shall be observed:
(a) The parties, organizations, and coalitions shall be ranked from
the highest to the lowest based on the number of votes they
garnered during the elections.
(b) The parties, organizations, and coalitions receiving at least two
percent (2%) of the total votes cast for the party-list systemshall be
entitled to one seat each: Provided, That those garnering more than
two percent (2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes: Provided, finally, That
each party, organization, or coalition shall be entitled to not more
than three(3) seats.
Section 12. Procedure in Allocating Seats for Party-List
Representatives. The COMELEC shall tally all the votes for the
parties, organizations, or coalitions on a nationwide basis, rank
them according to the number of votes received and allocate partylist representatives proportionately according to the percentage of
votes obtained by each party, organization, or coalition as against
the total nationwide votes cast for the party-list system.(Emphasis
provided)

In Veterans Federation Party v. Commission on Elections,37 we

reversed the Commission on Elections ruling that the respondent
parties, coalitions, and organizations were each entitled to a partylist seat despite their failure to reach the 2% threshold in the 1998
party-list election. Veterans also stated that the 20% requirement in
the Constitution is merely a ceiling.
Veterans laid down the "four inviolable parameters" in determining
the winners in a Philippine-style party-list election based on a
reading of the Constitution and Republic Act No. 7941:
First, the twenty percent allocation-the combined number of all
party-list congressmen shall not exceed twenty percent of the total
membership of the House of Representatives, including those
elected under the party list.
Second, the two percent threshold-only those parties garnering a
minimum of two percent of the total valid votes cast for the partylist system are "qualified" to have a seat in the House of
Representatives.
Third, the three-seat limit-each qualified party, regardless of the
number of votes it actually obtained, is entitled to a maximum of
three seats; that is, one "qualifying" and two additional seats.
Fourth, proportional representation-the additional seats which a
qualified party is entitled to shall be computed "in proportion to
their total number of votes."38 (Emphasis provided)
In Partido ng Manggagawa (PM) and Butil Farmers Party (Butil) v.
COMELEC,39 the petitioning party-list groups sought the immediate
proclamation by the Commission on Elections of their respective
second nominee, claiming that they were entitled to one (1)
additional seat each in the House of Representatives. We held that
the correct formula to be used is the one used in Veterans and
reiterated it in Ang Bagong Bayani OFW Labor Party v.
COMELEC.40 This Court in CIBAC v. COMELEC41 differentiates the

149
formula used in Ang Bagong Bayani but upholds the validity of the
Veterans formula.
In BANAT v. COMELEC,42 we declared the 2% threshold in relation to
the distribution of the additional seats as void. We said in that case
that:
x x x The two percent threshold presents an unwarranted obstacle
to the full implementation of Section 5(2), Article VI of the
Constitution and prevents the attainment of "the broadest possible
representation of party, sectoral or group interests in the House of
Representatives." (Republic Act No. 7941, Section 2)
xxxx
x x x There are two steps in the second round of seat
allocation. First, the percentage is multiplied by the remaining
available seats, 38, which is the difference between the 55
maximum seats reserved under the Party-List System and the 17
guaranteed seats of the two-percenters. The whole integer of the
product of the percentage and of the remaining available seats
corresponds to a partys share in the remaining available
seats.Second, we assign one party-list seat to each of the parties
next in rank until all available seats are completely distributed. We
distributed all of the remaining 38 seats in the second round of seat
allocation. Finally, we apply the three-seat cap to determine the
number of seats each qualified party-list candidate is entitled. 43
The most recent Atong Paglaum v. COMELEC44 does not in any way
modify the formula set in Veterans. It only corrects the definition of
valid party-list groups. We affirmed that party-list groups maybe
national, regional, and sectoral parties or organizations. We
abandoned the requirement introduced in Ang Bagong Bayani that
all party-list groups should prove that they represent a
"marginalized" or "under-represented" sector.
Proportional representation is provided in Section 2 of Republic Act
No. 7941.45 BANAT overturned Veterans interpretation of the

phrase in proportion to their total number of votes. We clarified that

the interpretation that only those that obtained at least 2% of the
votes may get additional seats will not result in proportional
representation because it will make it impossible for the party-list
seats to be filled completely. As demonstrated in BANAT, the 20%
share may never be filled if the 2% threshold is maintained.
The divisor, thus, helps to determine the correct percentage of
representation of party-list groups as intended by the law. This is
part of the index of proportionality of the representation of a partylist to the House of Representatives. 46 It measures the relation
between the share of the total seats and the share of the total
votes of the party-list.47 In Veterans, where the 20% requirement in
the Constitution was treated only as a ceiling, the mandate for
proportional representation was not achieved, and thus, was held
void by this Court.
The petitioner now argues that the votes of all the registered voters
who actually voted in the May 2010 elections should be included in
the computation of the divisor whether valid or invalid. 48 According
to the petitioner, votes cast for the party-list candidates is not the
same as the votes cast under or for the party-list system.
Specifically, it said that: The party list system is not just for the
specific party lists as provided in the ballot, but pertains to the
system of selection of the party list to be part of the House of
Representatives.49 The petitioner claims that there should be no
distinction in law between valid and invalid votes. Invalid votes
include those votes that were made for disqualified party-list
groups, votes that were spoiled due to improper shading, erasures
in the ballots, and even those that did not vote for any party-list
candidate at all.50 All of the votes should be included in the divisor
to determine the 2% threshold.
We agree with the petitioner but only to the extent that
votes later on determined to be invalid due to no cause
attributable to the voter should not be excluded in the
divisor. In other words, votes cast validly for a party-list
group listed in the ballot but later on disqualified should be

150
counted as part of the divisor. To do otherwise would be to
disenfranchise the voters who voted on the basis of good
faith that that ballot contained all the qualified candidates.
However, following this rationale, party-list groups listed in
the ballot but whose disqualification attained finality prior
to the elections and whose disqualification was reasonably
made known by the Commission on Elections to the voters
prior to such elections should not be included in the divisor.
Not all votes cast in the elections should be included in the divisor.
Contrary to the argument of the petitioner, Section 11(b) of
Republic Act No. 7941 is clear that only those votes cast for the
party-list system shall be considered in the computation of the
percentage of representation:
(b) The parties, organizations, and coalitions receiving at least two
percent (2%) of the total votes cast for the party-list systemshall be
entitled to one seat each: Provided, That those garnering more than
two percent (2%) of the votes shall be entitled to additional seats in
proportion to their total number of votes: Provided, finally, That
each party, organization, or coalition shall be entitled to not more
than three (3) seats. (Emphasisprovided)
The total votes cast do not include invalid votes. The invalid votes,
for the determination of the denominator, may be votes that were
spoiled or votes that resulted from the following: improper shading
or having no shade at all;51existence of stray or ambiguous
marks;52 tears in the ballot; and/or ballots rejected by the Precinct
Count Optical Scan (PCOS) machines under the paperbased53automated election system. All these are causes that
nullify the count for that vote that can be attributable to the voters
action.
Votes cast for the party-list system should, however, include all
votes cast for party-list groups contained in the ballot even if
subsequently they are disqualified by the Commission on Elections
or by our courts. Thus, the content of the divisor in the formula to

determine the seat allocation for the party-list component of the

House of Representatives should be amended accordingly.
We qualify that the divisor to be used in interpreting the formula
used in BANAT is the total votes cast for the party-list system. This
should not include the invalid votes. However, so as not to
disenfranchise a substantial portion of the electorate, total votes
cast for the party-list system should mean all the votes validly cast
for all the candidates listed in the ballot. The voter relies on
the ballot when making his or her choices.
To the voter, the listing of candidates in the official ballot
represents the extent of his or her choices for an electoral exercise.
He or she is entitled to the expectation that these names have
properly been vetted by the Commission on Elections. Therefore,
he or she is also by right entitled to the expectation that his or her
choice based on the listed names in the ballot will be counted.
In Reyes v.COMELEC54 as cited in Loreto v. Brion,55 this Court said
"that the votes cast for the disqualified candidate are presumed to
have been cast in the belief that he is qualified." 56 Therefore, the
votes cast for disqualified candidates are presumed to be made
with a sincere belief that the voters choices were qualified
candidates and that they were without any intention to misapply
their franchise.57 Their votes may not be treated as stray, void or
meaningless58for purposes of the divisor in the party-list elections.
Assuming arguendo that petitions for certiorari do not stay the
execution of the judgment or final order or resolution sought to be
reviewed,59 the finality of the disqualification of a candidate should
not be a means for the disenfranchisement of the votes cast for the
party-list system.
Section 10 of the Party-list Law should thus be read in conjunction
with the intention of the law as seen in Section 2, to wit:
Sec. 2. Declaration of Policy. -The State shall promote proportional
representation in the election of representatives to the House of
Representatives through a party-list system of registered national,

151
regional and sectoral parties or organizations or coalitions thereof,
which will enable Filipino citizens belonging to the marginalized and
underrepresented sectors, organizations and parties, and who lack
well-defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will
benefit the nation as a whole, to become members of the House of
Representatives. Towards this end, the State shall develop and
guarantee a full, free and open party system in order to attain the
broadest possible representation of party, sectoral or group
interests in the House of Representatives by enhancing their
chances to compete for and win seats in the legislature, and shall
provide the simplest scheme possible. (Emphasis provided)
Section 10 of Republic Act No. 7941, which governs party-list
elections, states that votes cast for a party-list "not entitled to be
voted for shall not be counted." It does not specify any reckoning
period of the finding of disqualification or cancellation of
registration for the validity or the invalidity of votes unlike that in
Section 72 of the Omnibus Election Code, as amended by Section 6,
Republic Act No. 6646.60 Taking Sections 2 and 10 together, this
Court must consider the intention of the law and the nature of
Philippine style party-list elections. Party-list groups provide for a
different and special representation in Congress. To disregard votes
of party-list groups disqualified after the conduct of the elections
means the disenfranchisement of thousands, if not hundreds of
thousands of votes, of the Filipino people. Definitely, it is not the
voters fault that the party-list group in the ballot it votes for will be
subsequently disqualified. The voter should not be penalized.
The counting of votes for party-list groups in the ballot but
subsequently declared as disqualified is, thus, corollary to the
"fundamental tenet of representative democracy that the people
should be allowed to choose whom they please to govern
them."61 It is also part of the right of suffrage, and the laws
intention to ensure a more representative Congress should be given
priority.

Therefore, the divisor should now include all votes cast for party-list
groups that are subsequently disqualified for so long as they were
presented as a choice to the electorate.
If his or her vote is not counted as part of the divisor, then this
would amount to a disenfranchisement of a basic constitutional
right to be able to choose representatives of the House of
Representatives in two ways. First, his or her vote will be nullified.
Second, he or she will be deprived of choosing another party-list
group to represent his or her interest should the party listed in the
ballot be declared disqualified.
However, there are instances when the Commission on Elections
include the name of the party-list group in the ballot but such group
is disqualified with finality prior to the elections. In applying and
interpreting the provisions of Section 6 of Republic Act No. 6646,we
said in Cayat v. Commission on Elections62 that votes cast in favor
of a candidate "disqualified with finality" should be considered stray
and not be counted. To be consistent, the party-list group in the
ballot that has been disqualified with finality and whose final
disqualification was made known to the electorate by the
Commission on Elections should also not be included in the divisor.
This is to accord weight to the disqualification as well as accord
respect to the inherent right of suffrage of the voters.
Thus, the formula to determine the proportion garnered by the
party-list group would now henceforth be:
Number of votes of party-list ______________________________ =
Proportion or Percentage of votes garnered by party-list Total
number of valid votes for party-list candidates
The total votes cast for the party-list system include those votes
made for party-list groups indicated in the ballot regardless of the
pendency of their motions for reconsideration or petitions before
any tribunal in relation to their cancellation or disqualification
cases. However, votes made for those party-list groups whose
disqualification attained finality prior to the elections should be

152
excluded if the electorate is notified of the finality of their
disqualification by the Commission on Elections. The divisor also
shall not include invalid votes.
WHEREFORE from the above discussion:
1. The prayer to enjoin the Commission on Elections from
proclaiming the qualified party-list groups is denied for being moot
and academic;
2. The formula in determining the winning party-list groups, as used
and interpreted in the case of BANAT v. COMELEC, is MODIFIED as
follows:
Number of votes. of party-list Total number of valid votes for partylist candidates Proportion or Percentage of votes garnered by partylist
The divisor shall be the total number of valid votes cast for the
party-list system including votes cast for party-list groups whose
names are in the ballot but are subsequently disqualified. Party-list
groups listed in the ballot but whose disqualification attained
finality prior to the elections and whose disqualification was
reasonably made known by the Commission on Elections to the
voters prior to such elections should not be included in the divisor.
The divisor shall also not include votes that are declared spoiled or
invalid.
The refined formula shall apply prospectively to succeeding partylist elections from the date of finality of this case.
SO ORDERED.

153
G.R. No. 120265 September 18, 1995
AGAPITO
A.
AQUINO, petitioner,
vs.
COMMISSION ON ELECTIONS, MOVE MAKATI, MATEO BEDON
and JUANITO ICARO, respondents.
KAPUNAN, J.:
The sanctity of the people's will must be observed at all times if our
nascent democracy is to be preserved. In any challenge having the
effect of reversing a democratic choice, expressed through the
ballot, this Court should be ever so vigilant in finding solutions
which would give effect to the will of the majority, for sound public
policy dictates that all elective offices are filled by those who have
received the highest number of votes cast in an election. When a
challenge to a winning candidate's qualifications however becomes
inevitable, the ineligibility ought to be so noxious to the
Constitution that giving effect to the apparent will of the people
would ultimately do harm to our democratic institutions.
On March 20, 1995, petitioner Agapito A. Aquino filed his Certificate
of Candidacy for the position of Representative for the new Second
Legislative District of Makati City. Among others, Aquino provided
the following information in his certificate of candidacy, viz:.
(7) RESIDENCE (Complete Address): 284 AMAPOLA COR. ADALLA
STS., PALM VILLAGE, MAKATI.
xxx xxx xxx
(8) RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE
ELECTED IMMEDIATELY PRECEDING THE ELECTION: ______ Years
and 10 Months.
xxx xxx xxx
THAT I AM ELIGIBLE for said Office; That I will support and defend
the Constitution of the Republic of the Philippines and will maintain
true faith and allegiance thereto; That I will obey the law, rules and
decrees promulgated by the duly constituted authorities; That the
obligation imposed to such is assumed voluntarily, without mental
reservation or purpose of evasion, and that the facts therein are
true to the best of my knowledge. 1
On April 24, 1995, Move Makati, a duly registered political party,
and Mateo Bedon, Chairman of the LAKAS-NUCD-UMDP of Barangay

Cembo, Makati City, filed a petition to disqualify Agapito A.

Aquino 2 on the ground that the latter lacked the residence
qualification as a candidate for congressman which, under Section
6, Art. VI of the 1987 the Constitution, should be for a period not
less than one (1) year immediately preceding the May 8, 1995
elections. The petition was docketed as SPA No. 95-113 and was
assigned to the Second Division of the Commission on Elections
(COMELEC).
On April 25, 1995, a day after said petition for disqualification was
filed, petitioner filed another certificate of candidacy amending the
certificate dated March 20, 1995. This time, petitioner stated in
Item 8 of his certificate that he had resided in the constituency
where he sought to be elected for one (l) year and thirteen (13)
days. 3
On May 2, 1995, petitioner filed his Answer dated April 29, 1995
praying for the dismissal of the disqualification case. 4
On the same day, May 2, 1995, a hearing was conducted by the
COMELEC wherein petitioner testified and presented in evidence,
among others, his Affidavit dated May 2, 1995, 5 lease contract
between petitioner and Leonor Feliciano dated April 1,
1994, 6 Affidavit of Leonor Feliciano dated April 28,1995 7 and
Affidavit of Daniel Galamay dated April 28, 1995. 8
After hearing of the petition for disqualification, the Second Division
of the COMELEC promulgated a Resolution dated May 6, 1995,
the decretal portion of which reads:
WHEREFORE, in view of the foregoing, this Commission (Second
Division) RESOLVES to DISMISS the instant: petition for
Disqualification against respondent AGAPITO AQUINO and declares
him ELIGIBLE to run for the Office of Representative in the Second
Legislative District of Makati City.
SO ORDERED. 9
On May 7, 1995, Move Makati and Mateo Bedon filed a Motion for
Reconsideration of the May 6, 1995 resolution with the
COMELEC en banc.
Meanwhile, on May 8, 1995, elections were held. In Makati City
where three (3) candidates vied for the congressional seat in the
Second District, petitioner garnered thirty eight thousand five
hundred forty seven (38,547) votes as against another candidate,

154
Agusto Syjuco, who obtained thirty five thousand nine hundred ten
(35,910) votes. 10
On May 10, 1995, private respondents Move Makati and Bedon filed
an Urgent Motion Ad Cautelum to Suspend Proclamation of
petitioner. Thereafter, they filed an Omnibus Motion for
Reconsideration of the COMELEC's Second Division resolution dated
May 6, 1995 and a 2nd Urgent Motion Ad Cautelum to Suspend
Proclamation of petitioner.
On May 15, 1995, COMELEC en banc issued an Order suspending
petitioner's proclamation. The dispositive portion of the order
reads:
WHEREFORE, pursuant to the provisions of Section 6 of Republic
Act No. 6646, the Board of Canvassers of the City of Makati is
hereby directed to complete the canvassing of election returns of
the Second District of Makati, but to suspend the proclamation of
respondent Agapito A. Aquino should he obtain the winning number
of votes for the position of Representative of the Second District of
the City of Makati, until the motion for reconsideration filed by the
petitioners on May 7, 1995, shall have been resolved by the
Commission.
The Executive Director, this Commission, is directed to cause the
immediate implementation of this Order. The Clerk of Court of the
Commission is likewise directed to inform the parties by the fastest
means available of this Order, and to calendar the hearing of the
Motion for Reconsideration on May 17, 1995, at 10:00 in the
morning, PICC Press Center, Pasay City.
SO ORDERED. 11
On May 16, 1995, petitioner filed his Comment/Opposition with
urgent motion to lift order of suspension of proclamation.
On June 1, 1995, petitioner filed a "Motion to File Supplemental
Memorandum and Motion to Resolve Urgent Motion to Resolve
Motion to Lift Suspension of Proclamation" wherein he manifested
his intention to raise, among others, the issue of whether of not the
determination of the qualifications of petitioner after the elections
is lodged exclusively in the House of Representatives Electoral
Tribunal pursuant to Section 17, Article VI of the 1987 Constitution.

Resolving petitioner's motion to lift suspension of his proclamation,

the COMELEC en banc issued an Order on June 2, 1995, the
decretal portion thereof residing:
Pursuant to the said provisions and considering the attendant
circumstances of the case, the Commission RESOLVED to proceed
with the promulgation but to suspend its rules, to accept the filing
of the aforesaid motion, and to allow the parties to be heard
thereon because the issue of jurisdiction now before the
Commission has to be studied with more reflection and
judiciousness. 12
On the same day, June 2, 1995, the COMELEC en banc issued a
Resolution reversing the resolution of the Second Division dated
May 6, 1995. The fallo reads as follows:
WHEREFORE, in view of the foregoing, petitioners' Motion for
Reconsideration of the Resolution of the Second Division,
promulgated on May 6, 1995, is GRANTED. Respondent Agapito A.
Aquino is declared ineligible and thus disqualified as a candidate for
the Office of Representative of the Second Legislative District of
Makati City in the May 8, 1995 elections, for lack of the
constitutional qualification of residence. Consequently, the order of
suspension of proclamation of the respondent should he obtain the
winning number of votes, issued by this Commission on May 15,
1995 is now made permanent.
Upon the finality of this Resolution, the Board of Canvassers of the
City of Makati shall immediately reconvene and, on the basis of the
completed canvass of election returns, determine the winner out of
the remaining qualified candidates, who shall be immediately be
proclaimed.
SO ORDERED. 13
Hence, the instant Petition for Certiorari 14 assailing the orders
dated May 15, 1995 and June 2, 1995, as well as the resolution
dated June 2, 1995 issued by the COMELEC en banc. Petitioner's
raises the following errors for consideration, to wit:
A
THE COMELEC HAS NO JURISDICTION TO DETERMINE AND ADJUDGE
THE DISQUALIFICATION ISSUE INVOLVING CONGRESSIONAL
CANDIDATES AFTER THE MAY 8, 1995 ELECTIONS, SUCH

155
DETERMINATION BEING RESERVED TO AND LODGE EXCLUSIVELY
WITH THE HOUSE OF REPRESENTATIVE ELECTORAL TRIBUNAL
B
ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION,
SAID JURISDICTION CEASED IN THE INSTANT CASE AFTER THE
ELECTIONS, AND THE REMEDY/IES AVAILABLE TO THE ADVERSE
PARTIES LIE/S IN ANOTHER FORUM WHICH, IT IS SUBMITTED, IS THE
HRET CONSISTENT WITH SECTION 17, ARTICLE VI OF THE 1987
CONSTITUTION
C
THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT
PROCEEDED TO PROMULGATE ITS QUESTIONED DECISION (ANNEX
"C", PETITION) DESPITE IT OWN RECOGNITION THAT A THRESHOLD
ISSUE OF JURISDICTION HAS TO BE JUDICIOUSLY REVIEWED AGAIN,
ASSUMING ARGUENDO THAT THE COMELEC HAS JURISDICTION, THE
COMELEC COMMITTED GRAVE ABUSE OF DISCRETION, AND
SERIOUS ERROR IN DIRECTING WITHOUT NOTICE THE SUSPENSION
OF THE PROCLAMATION OF THE PETITIONER AS THE WINNING
CONGRESSIONAL CANDIDATE AND DESPITE THE MINISTERIAL
NATURE OF SUCH DUTY TO PROCLAIM (PENDING THE FINALITY OF
THE DISQUALIFICATION CASE AGAINST THE PETITIONER) IF ONLY
NOT TO THWART THE PEOPLE'S WILL.
D
THE COMELEC'S FINDING OF NON-COMPLIANCE WITH THE
RESIDENCY REQUIREMENT OF ONE YEAR AGAINST THE PETITIONER
IS CONTRARY TO EVIDENCE AND TO APPLICABLE LAWS AND
JURISPRUDENCE.
E
IN ANY CASE, THE COMELEC CRITICALLY ERRED IN FAILING TO
APPRECIATE THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE
YEAR RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES
IN NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY
EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION
AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER'S
DISTRICT IN MAKATI OF CONGRESSIONAL.
F
THE COMELEC COMMITTED SERIOUS ERROR AMOUNTING TO LACK
OF JURISDICTION WHEN IT ORDERED THE BOARD OF CANVASSERS

TO "DETERMINE AND PROCLAIM THE WINNER OUT OF THE

REMAINING QUALIFIED CANDIDATES" AFTER THE ERRONEOUS
DISQUALIFICATION OF YOUR PETITIONER IN THAT SUCH DIRECTIVE
IS IN TOTAL DISREGARD OF THE WELL SETTLED DOCTRINE THAT A
SECOND PLACE CANDIDATE OR PERSON WHO WAS REPUDIATED BY
THE ELECTORATE IS A LOSER AND CANNOT BE PROCLAIMED AS
SUBSTITUTE
WINNER. 15
I
In his first three assignments of error, petitioner vigorously
contends that after the May 8, 1995 elections, the COMELEC lost its
jurisdiction over the question of petitioner's qualifications to run for
member of the House of Representatives. He claims that
jurisdiction over the petition for disqualification is exclusively
lodged with the House of Representatives Electoral Tribunal (HRET).
Given the yet unresolved question of jurisdiction, petitioner avers
that the COMELEC committed serious error and grave abuse of
discretion in directing the suspension of his proclamation as the
winning candidate in the Second Congressional District of Makati
City. We disagree.
Petitioner conveniently confuses the distinction between an
unproclaimed candidate to the House of Representatives and a
member of the same. Obtaining the highest number of votes in an
election does not automatically vest the position in the winning
candidate. Section 17 of Article VI of the 1987 Constitution reads:
The Senate and the House of Representatives shall have an
Electoral Tribunal which shall be the sole judge of all contests
relating to the election, returns and qualifications of their
respective Members.
Under the above-stated provision, the electoral tribunal clearly
assumes jurisdiction over all contests relative to the election,
returns and qualifications of candidates for either the Senate or the
House only when the latter become members of either the Senate
or the House of Representatives. A candidate who has not been
proclaimed 16 and who has not taken his oath of office cannot be
said to be a member of the House of Representatives subject to
Section. 17 of the Constitution. While the proclamation of a winning
candidate in an election is ministerial, B.P. 881 in conjunction with

156
Sec 6 of R.A. 6646 allows suspension of proclamation under
circumstances mentioned therein. Thus, petitioner's contention that
"after the conduct of the election and (petitioner) has been
established the winner of the electoral exercise from the moment of
election, the COMELEC is automatically divested of authority to
pass upon the question of qualification" finds no basis, because
even after the elections the COMELEC is empowered by Section 6
(in relation to Section 7) of R.A. 6646 to continue to hear and
decide questions relating to qualifications of candidates Section 6
states:
Sec. 6. Effect of Disqualification Case. Any candidate, who has
been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of guilt is
strong.
Under the above-quoted provision, not only is a disqualification
case against a candidate allowed to continue after the election (and
does not oust the COMELEC of its jurisdiction), but his obtaining the
highest number of votes will not result in the suspension or
termination of the proceedings against him when the evidence of
guilt is strong. While the phrase "when the evidence of guilt is
strong" seems to suggest that the provisions of Section 6 ought to
be applicable only to disqualification cases under Section 68 of the
Omnibus Election Code, Section 7 of R.A. 6646 allows the
application of the provisions of Section 6 to cases involving
disqualification based on ineligibility under Section 78 of B.P. 881.
Section 7 states:
Sec. 7. Petition to Deny Due Course or to Cancel a Certificate of
Candidacy. The procedure hereinabove provided shall apply to
petition to deny due course to or cancel a certificate of candidacy
based on Sec. 78 of Batas Pambansa 881.
II

We agree with COMELEC's contention that in order that petitioner

could qualify as a candidate for Representative of the Second
District of Makati City the latter "must prove that he has
established not just residence but domicileof choice. 17
The Constitution requires that a person seeking election to the
House of Representatives should be a resident of the district in
which he seeks election for a period of not less than one (l) year
prior to the elections. 18 Residence, for election law purposes, has a
settled meaning in our jurisdiction.
In Co v. Electoral Tribunal of the House of Representatives 19 this
Court held that the term "residence" has always been understood
as synonymous with "domicile" not only under the previous
Constitutions but also under the 1987 Constitution. The Court there
held: 20
The deliberations of the Constitutional Commission reveal that the
meaning of residence vis-a-vis the qualifications of a candidate for
Congress continues to remain the same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971
Constitutional Convention, there was an attempt to require
residence in the place not less than one year immediately
preceding the day of elections. So my question is: What is the
Committee's concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of
the National Assembly are concerned, the proposed section merely
provides, among others, and a resident thereof', that is, in the
district, for a period of not less than one year preceding the day of
the election. This was in effect lifted from the 1973
Constitution, the interpretation given to it was domicile (emphasis
ours) Records of the 1987 Constitutional Convention, Vol. II, July 22,
1986, p. 87).
xxx xxx xxx
Mrs. Rosario Braid: The next question is on section 7, page 2. I think
Commissioner Nolledo has raised the same point that "resident"
has been interpreted at times as a matter of intention rather than
actual residence.
Mr. De Los Reyes: Domicile.

157
Ms. Rosario Braid: Yes, So, would the gentlemen consider at the
proper time to go back to actual residence rather than mere
intention to reside?
Mr. De los Reyes: But We might encounter some difficulty especially
considering that the provision in the Constitution in the Article on
Suffrage says that Filipinos living abroad may vote as enacted by
law. So, we have to stick to the original concept that it should be by
domicile and not physical and actual residence. (Records of the
1987 Constitutional Commission, Vol. II, July 22, 1986, p. 110).
The framers of the Constitution adhered to the earlier definition
given to the word "residence" which regarded it as having the same
meaning as domicile.
Clearly, the place "where a party actually or constructively has his
permanent home," 21 where he, no matter where he may be found
at any given time, eventually intends to return and remain, i.e., his
domicile, is that to which the Constitution refers when it speaks of
residence for the purposes of election law. The manifest purpose of
this deviation from the usual conceptions of residency in law as
explained in Gallego vs. Vera at 22 is "to exclude strangers or
newcomers unfamiliar with the conditions and needs of the
community" from taking advantage of favorable circumstances
existing in that community for electoral gain. While there is nothing
wrong with the practice of establishing residence in a given area for
meeting election law requirements, this nonetheless defeats the
essence of representation, which is to place through the assent of
voters those most cognizant and sensitive to the needs of a
particular district, if a candidate falls short of the period of
residency mandated by law for him to qualify. That purpose could
be obviously best met by individuals who have either had actual
residence in the area for a given period or who have been
domiciled in the same area either by origin or by choice. It would,
therefore, be imperative for this Court to inquire into the threshold
question as to whether or not petitioner actually was a resident for
a period of one year in the area now encompassed by the Second
Legislative District of Makati at the time of his election or whether
or not he was domiciled in the same.
As found by the COMELEC en banc petitioner in his Certificate of
Candidacy for the May 11, 1992 elections, indicated not only that

he was a resident of San Jose, Concepcion, Tarlac in 1992 but that

he was a resident of the same for 52 years immediately preceding
that election. 23 At the time, his certificate indicated that he was
also a registered voter of the same district. 24 His birth certificate
places Concepcion, Tarlac as the birthplace of both of his parents
Benigno and Aurora. 25 Thus, from data furnished by petitioner
himself to the COMELEC at various times during his political career,
what stands consistently clear and unassailable is that
this domicile of origin of record up to the time of filing of his most
recent certificate of candidacy for the 1995 elections was
Concepcion, Tarlac.
Petitioner's alleged connection with the Second District of Makati
City is an alleged lease agreement of condominium unit in the area.
As the COMELEC, in its disputed Resolution noted:
The intention not to establish a permanent home in Makati City is
evident in his leasing a condominium unit instead of buying one.
While a lease contract maybe indicative of respondent's intention
to reside in Makati City it does not engender the kind of
permanency
required
to
prove
abandonment
of
one's
original domicile especially since, by its terms, it is only for a period
of two (2) years, and respondent Aquino himself testified that his
intention was really for only one (l) year because he has other
"residences" in Manila or Quezon City. 26
While property ownership is not and should never be an indicia of
the right to vote or to be voted upon, the fact that petitioner
himself claims that he has other residences in Metro Manila coupled
with the short length of time he claims to be a resident of the
condominium unit in Makati (and the fact, of his stated domicile in
Tarlac) "indicate that the sole purpose of (petitioner) in transferring
his physical residence" 27 is not to acquire's new residence
ordomicile "but only to qualify as a candidate for Representative of
the Second District of Makati City." 28 The absence of clear and
positive proof showing a successful abandonment of domicile under
the conditions stated above, the lack of identification
sentimental, actual or otherwise with the area, and the
suspicious circumstances under which the lease agreement was
effected all belie petitioner's claim of residency for the period

158
required by the Constitution, in the Second District of Makati. As
the COMELEC en banc emphatically pointed out:
[T]he lease agreement was executed mainly to support the one
year residence requirement as a qualification for a candidate of
Representative, by establishing a commencement date of his
residence. If a perfectly valid lease agreement cannot, by itself
establish; a domicile of choice, this particular lease agreement
cannot do better. 29
Moreover, his assertion that he has transferred his domicile from
Tarlac to Makati is a bare assertion which is hardly supported by the
facts in the case at bench. Domicile of origin is not easily lost. To
successfully effect a change of domicile, petitioner must prove an
actual removal or an actual change of domicile; a bona
fide intention of abandoning the former place of residence and
establishing a new one and definite acts which correspond with the
purpose. 30 These requirements are hardly met by the evidence
adduced in support of petitioner's claims of a change
of domicile from Tarlac to the Second District of Makati. In the
absence of clear and positive proof, the domicile of origin be
deemed to continue requirements are hardly met by the evidence
adduced in support of petitioner's claims of a change of domicile
from Tarlac to the Second District of Makati. In the absence of clear
and positive proof, the domicile of origin should be deemed to
continue.
Finally, petitioner's submission that it would be legally impossible to
impose the one year residency requirement in a newly created
political district is specious and lacks basis in logic. A new political
district is not created out of thin air. It is carved out from part of a
real and existing geographic area, in this case the old Municipality
of Makati. That people actually lived or were domiciled in the area
encompassed by the new Second District cannot be denied.
Modern-day carpetbaggers cannot be allowed take advantage of
the creation of new political districts by suddenly transplanting
themselves in such new districts, prejudicing their genuine
residents in the process of taking advantage of existing conditions
in these areas. It will be noted, as COMELEC did in its assailed
resolution, that petitioner was disqualified from running in the
Senate because of the constitutional two-term limit, and had to

shop around for a place where he could run for public office.
Nothing wrong with that, but he must first prove with reasonable
certainty that he has effected a change of residence for election
law purposes for the period required by law. This he has not
effectively done.
III
The next issue here is whether or not the COMELEC erred in issuing
it Order instructing the Board of Canvassers of Makati City to
proclaim as winner the candidate receiving the next higher number
of votes. The answer must be in the negative.
To contend that Syjuco should be proclaimed because he was the
"first" among the qualified candidates in the May 8, 1995 elections
is to misconstrue the nature of the democratic electoral process
and the sociological and psychological underpinnings behind
voters' preferences. The result suggested by private respondent
would lead not only to our reversing the doctrines firmly
entrenched in the two cases of Labo vs. Comelec 31 but also to a
massive disenfranchisement of the thousands of voters who cast
their vote in favor of a candidate they believed could be validly
voted for during the elections. Had petitioner been disqualified
before the elections, the choice, moreover, would have been
different. The votes for Aquino given the acrimony which attended
the campaign, would not have automatically gone to second placer
Syjuco. The nature of the playing field would have substantially
changed. To simplistically assume that the second placer would
have received the other votes would be to substitute our judgment
for the mind of the voter. The second placer is just that, a second
placer. He lost the elections. He was repudiated by either a majority
or plurality of voters. He could not be considered the first among
qualified candidates because in a field which excludes the
disqualified candidate, the conditions would have substantially
changed. We are not prepared to extrapolate the results under such
circumstances.
In these cases, the pendulum of judicial opinion in our country has
swung from one end to the other. In the early case of Topacio
v. Paredes. 32 we declared as valid, votes cast in favor of a
disqualified, ineligilble or dead candidate provided the people who
voted for such candidate believed in good faith that at the time of

159
the elections said candidate was either qualified, eligible or alive.
The votes cast in favor of a disqualified, ineligible or dead
candidate who obtained the next higher number of votes cannot be
proclaimed as winner. According to this Court in the said case,
"there is not, strictly speaking, a contest, that wreath of victory
cannot be transferred from an ineligible candidate to any other
candidate when the sole question is the eligibility of the one
receiving the plurality of the legally cast ballots."
Then in Ticson v. Comelec, 33 this Court held that votes cast in favor
of a non-candidate in view of his unlawful change of party affiliation
(which was then a ground for disqualification) cannot be considered
in the canvassing of election returns and the votes fall into the
category of invalid and nonexistent votes because a disqualified
candidate is no candidate at all and is not a candidate in the eyes
of the law. As a result, this Court upheld the proclamation of the
only candidate left in the disputed position.
In Geronimo v. Ramos 34 we reiterated our ruling in Topacio
v. Paredes that the candidate who lost in an election cannot be
proclaimed the winner in the event the candidate who ran for the
portion is ineligible. We held in Geronimo:
[I]t would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who has
not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the
majority of which have positively declared through their ballots that
they do not choose him.
Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election
for that office, and it is fundamental idea in all republican forms of
government that no one can be declared elected and no measure
can be declared carried unless he or it receives a majority or
plurality of the legal votes cast in the elections. (20 Corpus Juris
2nd, S 243, p. 676.)
However, in Santos v. Comelec 35 we made a turnabout from our
previous ruling in Geronimo v. Ramos and pronounced that "votes
cast for a disqualified candidate fall within the category of invalid or
non-existent votes because a disqualified candidate is no candidate

at all in the eyes of the law," reverting to our earlier ruling in Ticson
v. Comelec.
In the more recent cases of Labo, Jr. v. Comelec 36 Abella
v. Comelec; 37 and Benito v. Comelec, 38 this Court reiterated and
upheld the ruling in Topacio v. Paredes and Geronimo v. Ramos to
the effect that the ineligibility of a candidate receiving the next
higher number of votes to be declared elected, and that a minority
or defeated candidate cannot be declared elected to the office. In
these cases, we put emphasis on our pronouncement in Geronimo
v. Ramos that:
The fact that a candidate who obtained the highest number of
votes is later declared to be disqualified or not eligible for the office
to which he was elected does not necessarily entitle the candidate
who obtained the second highest number of votes to be declared
the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may be valid to vote the winner
into office or maintain him there. However, in the absence of a
statute which clearly asserts a contrary political and legislative
policy on the matter, if the votes were cast in sincere belief that
candidate was alive, qualified, or eligible; they should not be
treated as stray, void or meaningless.
Synthesizing these rulings we declared in the latest case of Labo,
Jr. v. COMELEC that: 39
While Ortega may have garnered the second highest number of
votes for the office of city mayor, the fact remains that he was not
the choice of the sovereign will. Petitioner Labo was
overwhelmingly voted by the electorate for the office of mayor in
the belief that he was then qualified to serve the people of Baguio
City and his subsequent disqualification does not make respondent
Ortega the mayor-elect. This is the import of the recent case
of Abella v. Comelec (201 SCRA 253 [1991]), wherein we held that:
While it is true that SPC No. 88-546 was originally a petition to
deny due course to the certificate of candidacy of Larrazabal and
was filed before Larrazabal could be proclaimed the fact remains
that the local elections of Feb. 1, 1988 in the province of
Leyte proceeded with Larrazabal considered as a bona fide
candidate. The voters of the province voted for her in the sincere
belief that she was a qualified candidate for the position of

160
governor. Her votes was counted and she obtained the highest
number of votes. The net effect is that petitioner lost in the
election. He was repudiated by the electorate. . . What matters is
that in the event a candidate for an elected position who is voted
for and who obtains the highest number of votes is disqualified for
not possessing the eligibility, requirements at the time of the
election as provided by law, the candidate who obtains the second
highest number of votes for the same position cannot assume the
vacated position. (Emphasis supplied).
Our ruling in Abella applies squarely to the case at bar and we see
no compelling reason to depart therefrom. Like Abella, petitioner
Ortega lost in the election. He was repudiated by the electorate. He
was obviously not the choice of the people of Baguio City.
Thus, while respondent Ortega (G.R. No. 105111) originally filed a
disqualification case with the Comelec (docketed as SPA-92-029)
seeking to deny due course to petitioner's (Labo's) candidacy, the
same did not deter the people of Baguio City from voting for
petitioner Labo, who, by then, was allowed by the respondent
Comelec to be voted upon, the resolution for his disqualification
having yet to attain the degree of finality (Sec. 78, Omnibus
Election Code).
And in the earlier case of Labo v. Comelec. (supra), We held:
Finally, there is the question of whether or not the private
respondent, who filed the quo warranto petition, can replace the
petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election,
he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court in this issue is Santos v. Commission
on Election, (137 SCRA 740) decided in 1985. In that case, the
candidate who placed second was proclaimed elected after the
votes for his winning rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregarded as stray. In effect,
the second placer won by default. That decision was supported by
eight members of the Court then (Cuevas J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay,
and Aquino, JJ., concurring) with three dissenting (Teehankee,
actingC.J., Abad Santos and Melencio-Herrera) and another two

reserving their votes (Plana and Gutierrez, Jr.). One was on official
leave (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it
should be reversed in favor of the earlier case of Geronimo
v. Santos (136 SCRA 435), which represents the more logical and
democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio vs.Paredes (23 Phil. 238) was
supported by ten members of the Court. . . .
The rule, therefore, is: the ineligibility of a candidate receiving
majority votes does not entitle the eligible candidate receiving the
next highest number of votes to be declared elected. A minority or
defeated candidate cannot be deemed elected to the office.
Indeed, this has been the rule in the United States since 1849
(State ex rel. Dunning v. Giles, 52 Am. Dec. 149).
It is therefore incorrect to argue that since a candidate has been
disqualified, the votes intended for the disqualified candidate
should, in effect, be considered null and void. This would amount to
disenfranchising the electorate in whom, sovereignty resides. At
the risk of being repetitious, the people of Baguio City opted to
elect petitioner Labo bona fide without any intention to missapply
their franchise, and in the honest belief that Labo was then
qualified to be the person to whom they would entrust the exercise
of the powers of the government. Unfortunately, petitioner Labo
turned out to be disqualified and cannot assume the office.
Whether or not the candidate whom the majority voted for can or
cannot be installed, under no circumstances can a minority or
defeated candidate be deemed elected to the office. Surely, the
12,602 votes cast for petitioner Ortega is not a larger number than
the 27,471 votes cast for petitioner Labo (as certified by the
Election Registrar of Baguio City; rollo, p. 109; G.R. No. 105111).
This, it bears repeating, expresses the more logical and democratic
view. We cannot, in another shift of the pendulum, subscribe to the
contention that the runner-up in an election in which the winner has
been disqualified is actually the winner among the remaining
qualified candidates because this clearly represents a minority view
supported only by a scattered number of obscure American state
and English court decisions. 40 These decisions neglect the
possibility that the runner-up, though obviously qualified, could

161
receive votes so measly and insignificant in number that the votes
they receive would be tantamount to rejection. Theoretically, the
"second placer" could receive just one vote. In such a case, it is
absurd to proclaim the totally repudiated candidate as the voters'
"choice." Moreover, even in instances where the votes received by
the second placer may not be considered numerically insignificant,
voters preferences are nonetheless so volatile and unpredictable
that the result among qualified candidates, should the equation
change because of the disqualification of an ineligible candidate,
would not be self-evident. Absence of the apparent though
ineligible winner among the choices could lead to a shifting of votes
to candidates other than the second placer. By any mathematical
formulation, the runner-up in an election cannot be construed to
have obtained a majority or plurality of votes cast where an
"ineligible" candidate has garnered either a majority or plurality of
the votes.
In fine, we are left with no choice but to affirm the COMELEC's
conclusion declaring herein petitioner ineligible for the elective
position of Representative of Makati City's Second District on the
basis of respondent commission's finding that petitioner lacks the
one year residence in the district mandated by the 1987
Constitution. A democratic government is necessarily a government
of laws. In a republican government those laws are themselves
ordained by the people. Through their representatives, they dictate
the qualifications necessary for service in government positions.
And as petitioner clearly lacks one of the essential qualifications for
running for membership in the House of Representatives, not even
the will of a majority or plurality of the voters of the Second District
of Makati City would substitute for a requirement mandated by the
fundamental law itself.
WHEREFORE, premises considered, the instant petition is hereby
DISMISSED. Our Order restraining respondent COMELEC from
proclaiming the candidate garnering the next highest number of
votes in the congressional elections for the Second District of
Makati City is made PERMANENT.
SO ORDERED.
Regalado, Melo, Puno and Hermosisima, Jr., JJ., concur.
Feliciano, J., is on leave.

SEPARATE OPINION
PADILLA, J., concurring:
I agree with the conclusion reached by the majority that petitioner
Aquino has not shown by clear and convincing evidence that he
had established his residence in the second district of Makati City
for a period of not less than one (1) year prior to the 8 May 1995
elections. However, I do not fully subscribe to its proposition that
petitioner's residence (in Makati) should be his "domicile of choice".
Article VI, Section 6 of the Constitution provides that:
No person shall be a member of the House of Representatives
unless he is a natural-born citizen of the Philippines and on the day
of the election, is at least twenty-five years of age, able to read and
write, and, except the party list representatives, a registered voter
in the district in which he shall be elected, and a resident thereof
for a period of not less than one year immediately preceding the
day of the election. (emphasis supplied).
In G.R. No. 119976, Marcos vs. Comelec, I have maintained that the
phrase "a resident thereof for a period of not less than one year"
means actual and physical presence in the legislative district of the
congressional candidate, and that said period of one year must be
satisfied regardless of whether or not a person's residence or
domicile coincides.
To my mind, petitioner should be declared disqualified to run as
representative in the 2nd district of Makati City in the 8 May 1995
elections not because he failed to prove his residence therein as his
domicile of choice, but because he failed altogether to prove that
he had actually and physically resided therein for a period of not
less than one (1) year immediately preceding the 8 May 1995
elections.
Noteworthy is the established fact before the Comelec that
petitioner admits having maintained other residencesin Metro
Manila apart from his leased condominium unit in Makati's 2nd
district. 1 This clear admission made by petitioner against his
interest weakens his argument that "where a party decides to
transfer his legal residence so he can qualify for public office, he is
free to do so." (see p. 20, Petition).

162
Petitioner evidently wants to impress the Court that his other
residences in Metro Manila could never have become his domicile
of choice because it never entered his mind and suddenly,
seemingly not contented with these other residences, he rents a
condominium unit in Makati, and calls it his domicile of choice all
these without adding clear and convincing evidence that he
did actually live and reside in Makati for at least one year prior to 8
May 1995 and that he no longer lived and resided in his other
residences during said one year period.
It follows, likewise, that the lease contract relied upon by petitioner,
standing alone, established only the alleged date (April 25, 1994) of
its due execution. Stated otherwise, the lease contract tells us that
petitioner had been leasing a condominium unit in Makati City for
more than a year prior to 8 May 1995, but it does not prove that
petitioner actually and physically resided therein for the same
period, in the light of his admission that he maintained other
residences in Metro Manila.
In light of petitioner's disqualification, the corrollary issue to be
resolved is whether or not jurisdiction continued to be vested in the
Comelec to order the Makati Board of Canvassers" to determine
and proclaim the winner out of the remaining qualified candidates"
after petitioner had been declared post 8 May 1995 as disqualified.
I agree with the proposition advanced by the Solicitor General that
sec. 6 of R.A. 6646 clearly provides that votes cast for a disqualified
candidate shall not be counted, thus:
Sec. 6. Effect of Disqualification Case. Any candidate who has
been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt
is strong.
There can be no dispute that if a final judgment is
rendered before the election, declaring a particular candidate as

disqualified, such disqualified candidate shall not be voted for and

votes cast for him shall not be counted, thus posing no problem in
proclaiming the candidate who receives the highest number of
votes among the qualified candidates.
But what about after the election? Sec. 6 appears categorical
enough in stating: "if any reason" no final judgment of
disqualification is rendered before the elections, and the candidate
facing disqualification is voted for and receives the winning number
of votes, the Comelec or the Court is not ousted of its jurisdiction to
hear and try the case up to final judgment, hence, the power to
even suspend the proclamation of the erstwhile winning candidate
when evidence of his guilt is strong.
It thus appears clear that the law does not dichotomize the effect of
a final judgment of disqualification in terms of time considerations.
There is only one natural and logical effect: the disqualified
candidate shall not be voted and, if voted, the votes cast for him
shall not be counted. Ubi lex non distinguit nec nos distinguere
debemus (where the law does not distinguish, we should not
distinguish.)
At this point, what I said in Marcos, supra, follows:
What happens then when after the elections are over, one is
declared disqualified? Then, votes cast for him "shall not be
counted" and in legal contemplation, he no longer received the
highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the
second placer the winner simply because a "winning candidate is
disqualified," but that the law considers him as the candidate who
had obtained the highest number of votes as a result of the votes
cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then
there is no reason why this Court should not re-examine and
consequently abandon the doctrine in the Jun Labo case. It has
been stated that "the qualifications prescribed for elective office
cannot be erased by the electorate alone. The will of the people as
expressed through the ballot cannot cure the vice of ineligibility"
most especially when it is mandated by no less than the
Constitution.

163
Therefore the candidate who received the highest number of
votes from among the qualified candidates, should be proclaimed
ACCORDINGLY, I vote to DISMISS the petition.
FRANCISCO, J., concurring and dissenting:
I concur with the well written ponencia of my most esteemed
colleague, Mr. Justice Kapunan. I wish, however, to express my
views on some issues raised by the petitioner, viz., (1) jurisdiction
over the disqualification suit, (2)domicile, (3) theory of legal
impossibility, and (4) "second placer rule".
Petitioner emphatically maintains that only the House of
Representatives Electoral Tribunal (HRET) can declare his
disqualification, especially after the elections. To bolster this stand,
the cases of Co v. HRET, 199 SCRA 692 (1991); Robles v. HRET, 181
SCRA 780 (1990); Lazatin v. HRET, 168 SCRA 391 (1988);
and Lachica v. Yap, 25 SCRA 140 (1968), have been cited as
supporting authorities. To my mind, this position is untenable.
Section 17 of Article VI of the 1987 Constitution is clear and
unambiguous that HRET jurisdiction applies only to the members of
the House of Representatives. The operative acts necessary for an
electoral candidate's rightful assumption of the office for which he
ran are his proclamation and his taking an oath of office. Petitioner
cannot in anyway be considered as a member of the House of
Representatives for the purpose of divesting the Commission on
Elections of jurisdiction to declare his disqualification and invoking
instead HRET's jurisdiction, it indubitably appearing that he has yet
to be proclaimed, much less has he taken an oath of office. Clearly,
petitioner's reliance on the aforecited cases which when perused
involved Congressional members, is totally misplaced, if not wholly
inapplicable. That the jurisdiction conferred upon HRET extends
only to Congressional members is further established by judicial
notice
of
HRET
Rules
of
procedure, 1 and
HRET
2
decisions consistently holding that the proclamation the essential
requisite vesting jurisdiction on the HRET.
Moreover, a perusal of the records shows that the question on
COMELEC's jurisdiction is now barred by estoppel. It is to be noted
that in his May 2, 1995 Answer, as well as in his Memorandum and
Supplemental Memorandum filed before the COMELEC's Second

Division, petitioner never assailed COMELEC's lacks of jurisdiction

to rule on his qualification. On the contrary, he asked that the
disqualification suit against him be dismissed on the following
grounds: that it was filed outside the reglementary period; that the
one year residence requirement of the 1987 Constitution is
inapplicable due to the recent conversion of the municipality of
Makati into a city under R.A. No. 7854; that he committed a simple
inadvertence in filing up his certificate of candidacy; that the
proper
procedure
to
attack
his
qualification
is
by a
quo warranto proceeding; that he had actually and physically
resided in Makati for more than a year; and for lack of merit, the
case should be outrightly dismissed. In a hearing conducted by the
COMELEC on May 2, 1995, petitioner even submitted his evidence
(e.g. affidavits, amended certificate of candidacy, copy of the lease
contract) to prove that he is qualified for the position.
Subsequently, on May 16, 1995, in response to the COMELEC En
Banc's May 15, 1995 Order suspending the proclamation of the
winner, petitioner filed his Comment/Opposition with Urgent Motion
To Lift Order of Suspension of Proclamation asking for the lifting of
the COMELEC's order of suspension. On May 19, 1995, petitioner
again filed a Memorandum and averred that the recent conversion
of Makati into a city made the one-year residence requirement
inapplicable; that he resided in Makati for more than a year;
that quo warranto is the right remedy to question his qualification.
In passing, petitioner also alleged that the issue on his qualification
should be "properly" ventilated in a full-dress hearing before the
HRET, albeit praying for the dismissal of the motion for
reconsideration for utter lack of merit (and not for lack of
jurisdiction), and for lifting the suspension of his proclamation. It
was only on June 01, 1995, in his Motion to File Supplemental
Memorandum and Urgent Motion to Resolve Motion to Lift
Suspension of Proclamation, when the petitioner raised COMELEC's
alleged lack of jurisdiction to resolve the question on his
qualification. Clearly then, petitioner has actively participated in
the proceedings both before the COMELEC's Second Division and
the COMELEC En Banc asking therein affirmative reliefs. The settled
rule is that a party who objects to the jurisdiction of the court and
alleges at the same time any non-jurisdictional ground for

164
dismissing the action is deemed to have submitted himself to the
jurisdiction of the court. 3 Where a party voluntary submits to the
jurisdiction of the court and thereafter loses on the merits, he may
not thereafter be heard to say that the court had no
jurisdiction. 4 In Jimenez v. Macaraig, 5 the Court, citing Crisostomo
v. Court of Appeals, 32 SCRA 54, 60 (1970), elaborated on the
rationale for this doctrine in this wise:
The petitioners, to borrow the language of Mr. Justice Bautista
Angelo (People vs. Archilla, G.R. No. L-15632, February 28, 1961, 1
SCRA 699, 700-701), cannot adopt a posture of double-dealing
without running afoul of the doctrine of estoppel. The principle of
estoppel is in the interest of a sound administration of the laws. It
should deter those who are disposed to trifle with the courts by
taking inconsistent positions contrary to the elementary principles
of right dealing and good faith (People v. Acierto, 92 Phil. 534, 541,
[1953]). 6
It is not right for a party who has affirmed and invoked the
jurisdiction of a court in a particular matter to secure an affirmative
relief to afterwards deny that same jurisdiction to escape an
adverse decision. 7Perforce, petitioner's asseveration that the
COMELEC has no jurisdiction to rule on his qualification must fail.
Petitioner insists that domicile is a matter of personal intention.
Thus, petition asserts that if he decides to transfer his legal
residence so he can qualify for public office then he is entirely free
to do so. Thus argument to hold water, must be supported by a
clear and convincing proofs that petitioner has effectively
abandoned his former domicile and that his intention is not
doubtful. Indeed, domicile once established is considered to
continue and will not be deemed lost until a new one is established
(Co v. Electoral Tribunal House of Representatives, 199 SCRA 692,
711 [1991]). Petitioner from childhood until his last election as
senator has consistently maintained Concepcion, Tarlac, as his
domicile. He moved to Amapola Street, Palm Village, Makati, and
thereafter claimed the same to be his new domicile. This claim,
however, is dismally unsupported by the records. The lease
contract entered into by petitioner for a period of two years on the
third floor condominium unit in Palm Village, Makati, in my view,
does not prove his intent to abandon his domicile of origin. The

intention to establish domicile must be an intention to remain

indefinitely or permanently in the new place. 8 This element is
lacking in this instance. Worse, public respondent Commission even
found that "respondent Aquino himself testified that his intention
was really for only one (1) year because he has other 'residences'
in Manila or in Quezon City ([citing] TSN, May 2, 1995,
p. 92)". 9 Noting that petitioner is already barred from running for
senator due to the constitutional consecutive two-term limit, his
search for a place where he could further and continue his political
career and sudden transfer thereto make his intent suspect. The
best
test
of
intention
to
establish
legal
residence
comes from one's acts and not by mere declarations alone. 10 To
acquire, or effect a change of domicile, the intention must
be bonafide and unequivocal (28 C.J.S. 11). Petitioner, in my view,
miserably failed to show a bonafide and unequivocal intention to
effect the change of his domicile.
The theory of legal impossibility is advanced to justify noncompliance with the constitutional qualification on residency.
Petitioner explains his theory in this wise:
. . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE
THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR
RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN
NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY
EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION
AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER'S
DISTRICT IN MAKATI. 11
Apparently, this theory is an offshoot of Republic Act. No. 7854, an
act converting the municipality of Makati into a highly urbanized
city. This law enacted on January 2, 1995, established a second
Congressional district in Makati in which petitioner ran as a
Congressional candidate. Since the second district, according to
petitioner, is barely four (4) months old then the one (1) year
residence qualification provided by the Constitution is inapplicable.
Petitioner's acts, however, as borne by the records, belie his own
theory. Originally, he placed in his certificate of candidacy an entry
of ten (10) months residence in Makati. Petitioner then had it
amended to one (1) year and thirteen (13) days to correct what
claims as a mere inadvertent mistake. I doubt the sincerity of this

165
representation. If petitioner is indeed persuaded by his own theory,
the ten months residence he initially wrote would have more than
sufficiently qualified him to run in the barely four-month old Makati
district. The amendment only reveals the true intent of petitioner to
comply with one year constitutional requirement for residence,
adding an extra thirteen (13) days full measure. Petitioner
apparently wanted to argue one way (theory of legal impossibility),
but at the same time played it safe in the other (the constitutional
one year residence requirement). And that is not all. If we were to
adhere to petitioner's theory of legal impossibility, then residents in
that district shorn of the constitutional six months residence
requirement for prospective voters (Article V, Section 1 of the 1987
Constitution) would have certainly qualified to vote. That would
have legitimized the entry and electoral exercise of flying voters
one of the historic nemeses of a clean and honest election.
Furthermore, to subscribe to petitioner's contention that the
constitutional qualification of candidates should be brushed aside in
view of the enactment of R.A. No. 7854 will indubitably violate the
manner and procedure for the amendment or revision of the
constitution outlined under Article XVIII of the 1987 Constitution. A
legislative enactment, it has to be emphasized, cannot render
nugatory the constitution. The constitution is superior to a statute.
It is the fundamental and organic law of the land to which every
statute must conform and harmonize.
Finally, it has been contended that a second place candidate
cannot be proclaimed a substitute winner. I find the proposition
quite unacceptable. A disqualified "candidate" is not a candidate
and the votes which may have been cast in his favor are nothing
but stray votes of no legal consequence. A disqualified person like
the petitioner receives no vote or zero vote. In short,
no-candidate-no vote. Petitioner had therefore no right, in fact and
in law, to claim first place for he has nothing to base his right. The
legislative intent is clear as provided by R.A. 6646, Section 6, in
that votes cast for a disqualified candidate shall not be counted as
they are considered stray (Section 211, Rule 24, Omnibus Election
Code). It is only from the ranks of qualified candidates can one be
chosen as first placer and not from without. Necessarily, petitioner,
a disqualified candidate, cannot be a first placer as he claims

himself to be. To count the votes for a disqualified candidate would,

in my view, disenfranchise voters who voted for a qualified
candidate. Legitimate votes cast for a qualified candidate should
not be penalized alongside a disqualified candidate. With this in
mind, the other qualified candidate who garnered the highest
number of votes should be proclaimed the duly elected
representative of the district. I feel that the Labo doctrine ought to
be abandoned.
I therefore vote to deny the petition and to lift the temporary
restraining order issued by the Court dated June 6, 1995.
DAVIDE, JR., J., dissenting:
In sustaining the COMELEC's acts of suspending the proclamation of
petitioner Agapito A. Aquino and of proceeding to hear the
disqualification case against him, the majority opinion relies on
Section 6 of R.A. No. 6646 which it claims to be applicable by virtue
of Section 7 thereof to petitions to deny due course to or cancel a
certificate of candidacy under Section 78 of the Omnibus Election
Code (B.P. Blg. 881).
I disagree.
In the first place, the petition to disqualify the petitioner in SPA No.
95-113 is not a petition to deny due course to or cancel a certificate
of candidacy under Section 78, which reads:
Sec. 78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any
personexclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall
be decided, after due notice and hearing, not later than fifteen days
before the election. (emphasis supplied)
Nowhere in the petition in SPA No. 95-113 is it alleged by the
private respondents that a material representation contained in the
petitioner's certificate of candidacy is false. What is being attacked
therein is the petitioner's lack of the one-year residence
qualification in the new Second Legislative District of Makati City
where he sought to he elected for the office of Congressman.

166
The rule governing disqualification cases on the ground of
ineligibility, which is also invoked by the private respondents, is
Rule 25 of the COMELEC Rules of Procedure, as amended on 15
February 1993. The amendment allows the, filing of a petition to
disqualify a candidate on the ground that he does not possess all
the qualifications provided for by the Constitution or by existing
laws. In its original form, the rule only applied to petitions for
disqualification based on the commission of any act declared by
law to be a ground for disqualification. The rule as thus amended
now reads as follows:
Rule 25 Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any candidate who does not
possess all the qualifications of a candidate as provided for by the
Constitution or by existing law or who commits any act declared by
law to be grounds for disqualification may be disqualified from
continuing as a candidate.
Sec. 2. Who May File Petition for Disqualification. Any citizen of
voting age, or duly registered political party, organization or
coalition of political parties may file with the Law Department of the
Commission a petition to disqualify a candidate on grounds
provided by law.
Sec. 3. Period to File Petition. The petition shall be filed any day
after the last day for filing of certificates of candidacy but not later
than the date of proclamation.
Sec. 4. Summary Proceeding. The petition shall be heard
summarily after due notice.
Sec. 5. Effect of Petition if Unresolved Before Completion of
Canvass. If the petition, for reasons beyond the control of the
Commission, cannot be decided before the completion of the
canvass, the votes cast for the respondent may be included in the
counting and in the canvassing; however, if the evidence of guilt is
strong, his proclamation shall be suspended notwithstanding the
fact that he received the winning number of votes in such election.
The underscored portion is the amendment to Rule 25, which the
COMELEC must have deemed necessary to fill up a
procedural hiatus in cases of disqualifications based on other
grounds in the light of this Court's interpretation in Loong
vs. Commission on Elections (216 SCRA 760 [1992]) that Rule 25

refers only to disqualifications under Sections 12 and 68 of the

Omnibus Election Code. This Court explicitly stated therein as
follows:
We do not agree with private respondent Ututalum's contention
that the petition for disqualification, as in the case at bar, may be
filed at any time after the last day for filing a certificate of
candidacy but not later than the date of proclamation, applying
Section 3, Rule 25 of the Comelec Rules of Procedure.
Rule 25 of the Comelec Rules of Procedure refers to Disqualification
of Candidates; and Section 1 of said rule provides that any
candidate who commits any act declared by law to be a ground for
disqualification maybe disqualified from continuing as a candidate.
The grounds for disqualification as expressed in Sections 12 and 68
of the Code, are the following:
Sec. 12. Disqualification. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced
by final judgment for subversion, insurrection, rebellion or for any
offense for which he has been sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
Sec. 63 DisquaIifications. Any candidate who, in an action or
protest in which he is a party is declared by final decision of 4
competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent
in his election campaign an amount in excess of that allowed by
this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated
any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and
cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under
this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the
residence requirement provided for in the election laws.

167
The petition filed by private respondent Ututalum with the
respondent Comelec to disqualify petitioner Loong on the ground
that the latter made a false representation in his certificate of
candidacy as to his age, clearly does not fall under the grounds of
disqualification as provided for in Rule 25 but is expressly covered
by Rule 23 of the Comelec Rules of Procedure governing petitions to
cancel certificate of candidacy. Moreover, Section 3, Rule 25 which
allows the filing of the petition at any time after the last day for the
filing of certificates of candidacy but not later than the date of
proclamation, is merely a procedural rule issued by respondent
Commission which, although a constitutional body, has no
legislative powers. Thus, it can not supersede Section 78 of the
Omnibus Election Code which is a legislative enactment.
Second, even if we assume for the sake of argument that the
petition in SPA No. 95-113 fall under Section 78 of the Omnibus
Election Code, still Section 6 of R.A. No. 6646 cannot be applied by
virtue of Section 7 thereof. Sections 6 and 7 reads:
Sec. 6. Effect of Disqualification Case. Any candidate who has
been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt
is strong.
Sec. 71 Petition to Deny Due Course to or Cancel a Certificate of
Candidacy. The procedure hereinabove provided shall apply to
petitions to deny due course to or cancel a certificate of candidacy
as provided in Section 78 of Batas Pambansa Blg. 881.
The "procedure hereinabove provided" mentioned in Section 7
cannot be construed to refer to Section 6 whichdoes not provide for
a procedure but for the EFFECTS of disqualification cases. It can
only refer to the procedureprovided in Section 5 of the said Act on
nuisance candidates which reads as follows:

Sec. 5. Procedure in Cases of Nuisance Candidates. A verified

petition to declare a duly registered candidate as a nuisance
candidate under Section 69 .f Batas Pambansa Blg. 881 shall be
filed personally or through duly authorized representative with the
Commission by any registered candidate for the same office within
five (5) days from the last day for the filing of certificates of
candidacy. Filing by mail shall not be allowed.
(b) Within three (3) days from the filing of the petition, the
Commission shall issue summons to the respondent candidate
together with a copy of the petition and its enclosures, if any.
(c) The respondent shall be given three (3) days from receipt of the
summons within which to file his verified answer (not a motion to
dismiss) to the petition, serving copy thereof upon the petitioner.
Grounds for a motion to dismiss may be raised as affirmative
defenses.
(d) The Commission may designate any of its officials who are
lawyers to hear the case and receive evidence. The proceeding
shall be summary in nature. In lieu of oral testimonies, the parties
may be required to submit position papers together with affidavits
or counter-affidavits and other documentary evidence. The hearing
officer shall immediately submit to the Commission his findings,
reports, and recommendations within five (5) days from the
completion of such submission of evidence. The Commission shall
render its decision within five (5) days from receipt thereof.
(e) The decision, order, or ruling of the Commission shall, after five
(5) days from receipt of a copy thereof by the parties, be final and
executory unless stayed by the Supreme Court.
(f) The Commission shall within twenty-four hours, through the
fastest available means, disseminate its decision or the decision of
the Supreme Court or the city or municipal election registrars,
boards of election inspectors, and the general public in the political
subdivision concerned.
and which is the only procedure that precedes Section 7 of the said
Act. Heretofore, no law provided for the procedure to govern cases
under Section 78. Applying to such cases, through Section 7 of R.A.
No. 6646, the procedure applicable to cases of nuisance candidates
is prudent and wise, for both cases necessarily require that they be
decided before the day of the election; hence, only summary

168
proceedings thereon can adequately respond to the urgency of the
matter.
Third, Section 6 merely supplements Section 72 of the Omnibus
Election Code providing as follows:
Sec. 72. Effects of disqualification cases and priority. The
Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a
final decision shall be rendered not later than seven days before
the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall
not be counted. Nevertheless, if for any reason, a candidate is not
declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such
election, his violation of the provisions of the preceding sections
shall not prevent his proclamation and assumption to office.
by granting the COMELEC or the Court the authority to continue
hearing the case and to suspend the proclamation if the evidence
of guilt is strong. As observed by this Court in its majority "the
phrase 'when the evidence of guilt is strong' seems to suggest that
the provisions of Section 6 ought to be applicable only to
disqualification cases under Section 68 of the Omnibus Election
Code."
Fourth, the amended Rule 25 of the COMELEC Rules of Procedure,
which is the only rule governing petitions filed before election or
proclamation for the disqualification of a candidate on the ground
that he lacks the qualifications provided for by the Constitution or
by law, does not, as can be gathered from Section 5 thereof,
authorize the COMELEC to continue hearing the case after the
election.
Fifth, even assuming that the second sentence of Section 6 of R.A.
to No. 6646 is applicable to disqualification cases based on the
ground of lack of qualification, it cannot be applied to a case does
not involve elective regional, provincial, and city officials, and
where suspension of proclamation is not warranted because of the
absence of strong evidence of guilt or ineligibility. In such a case
the candidate sought to be disqualified but who obtains the highest
number of votes has to be proclaimed. Once he is proclaimed, the

COMELEC cannot continue with the case, and the remedy of the
opponent is to contest the winning candidate's eligibility within ten
days from proclamation in a quo warranto proceeding which is
within the jurisdiction of the metropolitan or municipal trial courts,
in the case of barangay officials; the regional trial courts, in case of
municipal officials (Section 2(2), Article IX-C, Constitution; Section
253, paragraph 2, B.P. Blg. 881); the House of Representatives
Electoral Tribunal, in the case of Congressmen; the Senate Electoral
Tribunal, in the case of Senators (Section 17, Article VI,
Constitution); and the Supreme Court en banc, in the case of the
President or Vice-President (Section 4, Article VII, Constitution).
If what is involved is an elective regional, provincial, or city official,
and the case cannot be decided before the election, the COMELEC
can, even after the proclamation of the candidate sought to be
disqualified, proceed with the case by treating it as a petition
for quo warranto, since such a case properly pertains to the
exclusive jurisdiction of the COMELEC (Section 2(2), Article IX-C,
Constitution; Section 253, B.P. Blg. 881).
But even granting for the sake of argument that Sections 6 and 7 of
R.A. No. 6646, in relation to Section 78 of the Omnibus Election
Code and the amended Rule 25 of the COMELEC Rules of
Procedure, are applicable, the order of suspension of the
petitioner's proclamation issued on 15 May 1995 is null and void for
having been issued with grave abuse of discretion. What was
before the COMELEC en banc at that stage was the decision of the
Second Division of 6 May 1995 dismissing the petition to
disqualify the petitioner and declaring him qualified for the
position. That decision is a direct and positive rejection of any claim
that the evidence of the petitioner's guilt is strong. Note that it was
only on 2 June 1995, when the COMELEC en banc reversed the
decision of the Second Division, that it was found that the evidence
of the petitioner's ineligibility is strong. It would have been
otherwise if the Second Division had disqualified the petitioner.
Besides, at the time the questioned order was issued, there was no
hearing yet on the private respondents' motions for the suspension
of the petitioner's proclamation. In fact, in that order the
COMELEC en banc admitted that the said motions could not be
resolved without hearing, thus:

169
Pending
the
resolution
of
the
petitioners'
Motion
for
Reconsideration filed on May 7, 1995; Urgent Motion Ad
Cautelam to Suspend Proclamation of Respondent (May 10, 1995)
filed on May 10, 1995; and OMNIBUS MOTION (For Reconsideration
of the Honorable Commission's [Second Division] Resolution dated
May 6, 1995, and 2nd Urgent Motion Ad Cautelam to Suspend
Proclamation of Respondent Aquino, which cannot be resolved
without hearing, without violating the right of the respondent to
due process. . . .
For being void from the beginning; it is as if the order of 15 May
1995 had not existed and could not, therefore, be made permanent
by the COMELEC en banc through its resolution of 2 June 1995
whose dispositive portion reads in part: [c]onsequently, the order of
suspension of the respondent should he obtain the winning number
of votes, issued by this Commission on 15 May 1995 is now made
permanent."
Absent a valid finding before the election or after the canvass of
election returns that the evidence of the petitioner's guilt or
ineligibility is strong, the COMELEC should not have suspended the
proclamation of the petitioner. After the completion of the canvass
the petitioner should have been proclaimed.
This case then must be distinguished from that of Imelda
Romualdez-Marcos vs. Commission on Elections, G.R. No. 119976,
where the COMELEC en banc affirmed before the elections, or on 7
May 1995, the Second Division's resolution of 24 April 1995
disqualifying Mrs. Marcos.
Accordingly, the order of 15 May 1995 and the resolution of 2 June
1995 of the COMELEC en banc must be annulled and set aside, and
the COMELEC, through its City Board of Canvassers of Makati, must
be ordered to immediately proclaim the petitioner, without
prejudice to the right of his opponents to file a petition for quo
warranto with the House of Representatives Electoral Tribunal,
which is the sole judge of all contests relating to the election,
returns and qualifications of the Members of the House of
Representatives (Section 17, Article VI, Constitution).
In view of the foregoing, a disquisition on the merits of the ground
for the petitioner's disqualification will no longer be proper.

I vote to GRANT the instant petition, to ANNUL and SET ASIDE the
challenged order and resolution of the Commission on Elections en
banc, and to DIRECT the Board of Canvassers of Makati City to
reconvene and proclaim the petitioner as the winning candidate,
without prejudice on the part of any aggrieved party to file the
appropriate action in the House of Representatives Electoral
Tribunal.
Romero and Bellosillo, JJ., concur.
VITUG, J., separate opinion:
I find what I would consider as the relevant issues in this petition as
similar in almost all material respects to those obtaining in G.R. No.
119976 (Imelda Romualdez-Marcos vs. Commission on Elections
and Cirilo Roy Montejo). Let me then here just reiterate what I have
there said in my separate opinion.
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our
legal system that sets up ideals and directions and render steady
our strides hence. It only looks back so as to ensure that mistakes
in the past are not repeated. A complaint transience of a
constitution belittles its basic function and weakens its goals. A
constitution may well become outdated by the realities of time.
When it does, it must be changed but while it remains, we owe it
respect and allegiance. Anarchy, open or subtle, has never been,
nor must it ever be, the answer to perceived transitory needs, let
alone societal attitudes, or the Constitution might lose its very
essence.
Constitutional provisions must be taken to be mandatory in
character unless, either by express statement or by necessary
implication, a different intention is manifest (see Marcelino vs. Cruz,
121 SCRA 51).
The two provisions initially brought to focus are Section 6 and
Section 17 of Article VI of the fundamental law. These provisions
read:
Sec. 6. No person shall be a Member of the House of
Representatives unless he is a natural-born citizen of the
Philippines and, on the day of the election, is at least twenty-five
years of age, able to read and write, and, except the party-list

170
representatives, a registered voter in the district in which he shall
be elected, and a resident thereof for a period of not less than one
year immediately preceding the day of the election.
Sec. 17. The Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed of
nine Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives, as
the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or
organizations registered under the party-list system represented
therein. The senior Justice in the Electoral Tribunal shall be its
Chairman.
The Commission on Election (the "COMELEC") is constitutionally
bound to enforce and administer "all laws and regulations relative
to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that,
there being nothing said to the contrary, should include its
authority to pass upon the qualification and disqualification
prescribed by law ofcandidates to an elective office. Indeed, preproclamation controversies are expressly placed under the
COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3,
Constitution).
The matter before us specifically calls for the observance of the
constitutional one-year residency requirement. This issue (whether
or not there is here such compliance), to my mind, is basically a
question of fact or at least inextricably linked to such
determination. The findings and judgment of the COMELEC, in
accordance with the long established rule and subject only to a
number of exceptions under the basic heading of "grave abuse of
discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to
me to be a plain matter. Generally, the term "residence" has a
broader
connotation
that
mean permanent (domicile), official (place where one's official
duties may require him to stay) or temporary (the place where he
sojourns during a considerable length of time). For Civil law

purposes, i.e., as regards the exercise of civil rights and the

fulfillment of civil obligations, the domicile of a natural person is the
place of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore announced by
this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban
City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as
synonymous terms, thus: "(t)he term "residence" as used in the
election law is synonymous with "domicile," which imports not only
an intention to reside in a fixed place but also personal presence in
that place, coupled with conduct indicative of such intention."
"Domicile" denotes a fixed permanent residence to which when
absent for business or pleasure, or for like reasons, one intends to
return. . . . Residence thus acquired, however, may be lost by
adopting another choice of domicile. In order, in turn, to acquire a
new domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and
(3) an intention to abandon the old domicile. In other words, there
must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice
must be for an indefinite period of time; the change of residence
must be voluntary, and the residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that we can charge the
COMELEC with having committed grave abuse of discretion in its
assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections,
ends when the jurisdiction of the Electoral Tribunal concerned
begins. It signifies that the protestee must have theretofore been
duly proclaimed and has since become a "member" of the Senate
or the House of Representatives. The question can be asked on
whether or not the proclamation of a candidate is just a ministerial
function of the Commission on Elections dictated solely on the
number of votes cast in an election exercise. I believe, it is not. A
ministerial duty is an obligation the performance of which, being
adequately defined, does not allow the use of further judgment or
discretion. The COMELEC; in its particular case, is tasked with the

171
full responsibility of ascertaining all the facts and conditions such
as may be required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any
undue encroachment on the ultimate exercise of authority by the
Electoral Tribunals on matters which, by no less than a
constitutional fiat, are explicitly within their exclusive domain. The
nagging question, if it were otherwise, would be the effect of the
Court's peremptory pronouncement on the ability of the Electoral
Tribunal to later come up with its own judgment in a contest
"relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base
on the applicability to this case of Section 6 of Republic Act No.
6646, in relation to Section 72 of Batas Pambansa Blg. 881, each
providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case. Any candidate who has
been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt
is strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. The
Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a
final decision shall be rendered not later than seven days before
the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall
not be counted. Nevertheless, if for any reason, a candidate is not
declared by final judgment before an election to be disqualified,

and he is voted for and receives the winning number of votes in

such election, his violation of the provisions of the preceding
sections shall not prevent his proclamation and assumption to
office.
I realize that in considering the significance of the law, it may be
preferable to look for not so much the specific instances they
ostensibly would cover as the principle they clearly convey. Thus, I
will not scoff at the argument that it should be sound to say that
votes cast in favor of the disqualified candidate, whenever
ultimately declared as such, should not be counted in his or her
favor and must accordingly be considered to be stray votes. The
argument, nevertheless, is far outweighed by the rationale of the
now prevailing doctrine first enunciated in the case of Topacio
vs. Paredes (23 Phil. 238 (1912]) which, although later abandoned
in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos
vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the
interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by
the Labo (176 SCRA 1 [1989]), Abella (201 SCRA 253
[1991]), Labo (211
SCRA
297
[1992])
and,
most
recently, Benito (235
SCRA
436
(1994])
rulings. Benito
vs.Comelec was a unanimous decision penned by Justice Kapunan
and concurred in by Chief Justice Narvasa, Justices Feliciano,
Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were on official
leave).
For
easy
reference,
let
me
quote
from
the
first Labo decision:
Finally, there is the question of whether or not the private
respondent, who filed the quo warrantopetition, can replace the
petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election,
he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission
on Elections, (137 SCRA 740) decided in 1985. In that case, the
candidate who placed second was proclaimed elected after the
votes for his winning rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregard as stray. In effect,
the second placer won by default. That decision was supported by
eight members of the Court then, (Cuevas, J., ponente, with

172
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay
and Aquino, JJ., concurring.) with three dissenting (Teehankee,
Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two
reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official
leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it
should be reversed in favor of the earlier case of Geronimo
v. Ramos, (136 SCRA 435) which represents the more logical and
democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio v.Paredes, (23 Phil. 238) was
supported by ten members of the Court, (Gutierrez, Jr., ponente,
with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin,
Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without
any
dissent,
although
one
reserved
his
vote,
(Makasiar, J.) another took no part, (Aquino, J.) and two others were
on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court
held:
. . . it would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who has
not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the
majority of which have positively declared through their ballots that
they do not choose him.
Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election
for that office, and it is a fundamental idea in all republican forms
of government that no one can be declared elected and no
measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris
2nd, S 234, p. 676.)
The fact that the candidate who obtained the highest number of
votes is later declared to be disqualified or not eligible for the office
to which he was elected does not necessarily entitle the candidate
who obtained the second highest number of votes to be declared
the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the
winner into office or maintain him there. However, in the absence
of a statute which clearly asserts a contrary political and legislative

policy on the matter, if the votes were cast in the sincere belief that
the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless. (at pp. 20-21)
Accordingly, I am constrained to vote for the dismissal of the
petition.
MENDOZA, J., separate opinion:
For the reasons expressed in my separate opinion in the companion
case. G.R. No. 119976. Imelda Romualdez-Marcos v. Commission
on Elections. I am of the opinion that the Commission on Elections
has no jurisdiction over petitions for disqualification of candidates
based on alleged ineligibility for the office to which they seek
election.
The May 15, 1995 resolution of the COMELEC en banc, suspending
he obtain the highest number of votes of Representative of the
Second District of Makati, Metro Manila, purports to have been
issued pursuant to 6 of R.A. No. 6646. This provision authorizes
the COMELEC to order the suspension of the proclamation
"whenever the evidence of his guilt is strong." As explained in my
separate opinion in G.R. No. 119976, however, this provision refers
to proceedings under 68 of the Omnibus Election Code which
provides for the disqualification of candidates found guilty of using
what in political parlance have been referred to as "guns goons or
gold" to influence the outcome of elections. Since the
disqualification of petitioner in this case was not sought on this
ground, the application of 6 of R.A.. No. 6646 is clearly a grave
abuse of discretion on the part of the COMELEC.
Nor may the petition to disqualify petitioner in the COMELEC be
justified under 78 of the OEC which authorizes the filing of a
petition for the cancellation of certificates of candidacy since such
a petition maybe filed "exclusivelyon the ground that a material
representation contained [in the certificate] as required under
section 74 is false." There was no allegation that in stating in his
certificate of candidacy that he is a resident of Amapola St., Palm
Village, Guadalupe Viejo, Makati, Metro Manila, petitioner made any
false representation.
For this reason, I am of the opinion that the COMELEC had no
jurisdiction over SPA No. 95-113; that its proceedings in SPA No. 95-

173
113, including the questioned orders, are void; and that the
qualifications of petitioner Agapito A. Aquino for the position of
Representative of the Second District of the City of Makati may only
be inquired into by the House of Representatives Electoral Tribunal.
This conclusion makes it unnecessary for me to express my view at
this time on the question whether, in the event the candidate who
obtained the highest number of votes is declared ineligible, the one
who received the next highest number of votes is entitled to be
declared the winner.
Accordingly, I vote (1) to grant the petition in this case and (2) to
annul the proceedings of the Commission on Elections in SPA No.
95-113, including the questioned orders, dated May 6, 1995. May
15, 1995, and the two orders both dated June 2, 1995, so far as
they declare petitioner Agapito A. Aquino to be ineligible for the
position of Representative of the Second District of the City of
Makati and direct the City Board of Canvassers of Makati to
determine and proclaim the winner out of the remaining qualified
candidates.
Narvasa, J., concurs.
Separate Opinions
PADILLA, J., concurring:
I agree with the conclusion reached by the majority that petitioner
Aquino has not shown by clear and convincing evidence that he
had established his residence in the second district of Makati City
for a period of not less than one (1) year prior to the 8 May 1995
elections. However, I do not fully subscribe to its proposition that
petitioner's residence (in Makati) should be his "domicile of choice".
Article VI, Section 6 of the Constitution provides that:
No person shall be a member of the House of Representatives
unless he is a natural-born citizen of the Philippines and on the day
of the election, is at least twenty-five years of age, able to read and
write, and, except the party list representatives, a registered voter
in the district in which he shall be elected, and a resident thereof
for a period of not less than one year immediately preceding the
day of the election. (emphasis supplied).
In G.R. No. 119976, Marcos vs. Comelec, I have maintained that the
phrase "a resident thereof for a period of not less than one year"

means actual and physical presence in the legislative district of the

congressional candidate, and that said period of one year must be
satisfied regardless of whether or not a person's residence or
domicile coincides.
To my mind, petitioner should be declared disqualified to run as
representative in the 2nd district of Makati City in the 8 May 1995
elections not because he failed to prove his residence therein as his
domicile of choice, but because he failed altogether to prove that
he had actually and physically resided therein for a period of not
less than one (1) year immediately preceding the 8 May 1995
elections.
Noteworthy is the established fact before the Comelec that
petitioner admits having maintained other residencesin Metro
Manila apart from his leased condominium unit in Makati's 2nd
district. 1 This clear admission made by petitioner against his
interest weakens his argument that "where a party decides to
transfer his legal residence so he can qualify for public office, he is
free to do so." (see p. 20, Petition).
Petitioner evidently wants to impress the Court that his other
residences in Metro Manila could never have become his domicile
of choice because it never entered his mind and suddenly,
seemingly not contented with these other residences, he rents a
condominium unit in Makati, and calls it his domicile of choice all
these without adding clear and convincing evidence that he
did actually live and reside in Makati for at least one year prior to 8
May 1995 and that he no longer lived and resided in his other
residences during said one year period.
It follows, likewise, that the lease contract relied upon by petitioner,
standing alone, established only the alleged date (April 25, 1994) of
its due execution. Stated otherwise, the lease contract tells us that
petitioner had been leasing a condominium unit in Makati City for
more than a year prior to 8 May 1995, but it does not prove that
petitioner actually and physically resided therein for the same
period, in the light of his admission that he maintained other
residences in Metro Manila.
In light of petitioner's disqualification, the corrollary issue to be
resolved is whether or not jurisdiction continued to be vested in the
Comelec to order the Makati Board of Canvassers" to determine

174
and proclaim the winner out of the remaining qualified candidates"
after petitioner had been declared post 8 May 1995 as disqualified.
I agree with the proposition advanced by the Solicitor General that
sec. 6 of R.A. 6646 clearly provides that votes cast for a disqualified
candidate shall not be counted, thus:
Sec. 6. Effect of Disqualification Case. Any candidate who has
been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt
is strong.
There can be no dispute that if a final judgment is
rendered before the election, declaring a particular candidate as
disqualified, such disqualified candidate shall not be voted for and
votes cast for him shall not be counted, thus posing no problem in
proclaiming the candidate who receives the highest number of
votes among the qualified candidates.
But what about after the election? Sec. 6 appears categorical
enough in stating: "if any reason" no final judgment of
disqualification is rendered before the elections, and the candidate
facing disqualification is voted for and receives the winning number
of votes, the Comelec or the Court is not ousted of its jurisdiction to
hear and try the case up to final judgment, hence, the power to
even suspend the proclamation of the erstwhile winning candidate
when evidence of his guilt is strong.
It thus appears clear that the law does not dichotomize the effect of
a final judgment of disqualification in terms of time considerations.
There is only one natural and logical effect: the disqualified
candidate shall not be voted and, if voted, the votes cast for him
shall not be counted. Ubi lex non distinguit nec nos distinguere
debemus (where the law does not distinguish, we should not
distinguish.)
At this point, what I said in Marcos, supra, follows:

What happens then when after the elections are over, one is
declared disqualified? Then, votes cast for him "shall not be
counted" and in legal contemplation, he no longer received the
highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the
second placer the winner simply because a "winning candidate is
disqualified," but that the law considers him as the candidate who
had obtained the highest number of votes as a result of the votes
cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then
there is no reason why this Court should not re-examine and
consequently abandon the doctrine in the Jun Labo case. It has
been stated that "the qualifications prescribed for elective office
cannot be erased by the electorate alone. The will of the people as
expressed through the ballot cannot cure the vice of ineligibility"
most especially when it is mandated by no less than the
Constitution.
Therefore the candidate who received the highest number of
votes from among the qualified candidates, should be proclaimed
ACCORDINGLY, I vote to DISMISS the petition.
FRANCISCO, J., concurring and dissenting:
I concur with the well written ponencia of my most esteemed
colleague, Mr. Justice Kapunan. I wish, however, to express my
views on some issues raised by the petitioner, viz., (1) jurisdiction
over the disqualification suit, (2)domicile, (3) theory of legal
impossibility, and (4) "second placer rule".
Petitioner emphatically maintains that only the House of
Representatives Electoral Tribunal (HRET) can declare his
disqualification, especially after the elections. To bolster this stand,
the cases of Co v. HRET, 199 SCRA 692 (1991); Robles v. HRET, 181
SCRA 780 (1990); Lazatin v. HRET, 168 SCRA 391 (1988);
and Lachica v. Yap, 25 SCRA 140 (1968), have been cited as
supporting authorities. To my mind, this position is untenable.
Section 17 of Article VI of the 1987 Constitution is clear and
unambiguous that HRET jurisdiction applies only to the members of
the House of Representatives. The operative acts necessary for an
electoral candidate's rightful assumption of the office for which he

175
ran are his proclamation and his taking an oath of office. Petitioner
cannot in anyway be considered as a member of the House of
Representatives for the purpose of divesting the Commission on
Elections of jurisdiction to declare his disqualification and invoking
instead HRET's jurisdiction, it indubitably appearing that he has yet
to be proclaimed, much less has he taken an oath of office. Clearly,
petitioner's reliance on the aforecited cases which when perused
involved Congressional members, is totally misplaced, if not wholly
inapplicable. That the jurisdiction conferred upon HRET extends
only to Congressional members is further established by judicial
notice
of
HRET
Rules
of
procedure, 1 and
HRET
2
decisions consistently holding that the proclamation the essential
requisite vesting jurisdiction on the HRET.
Moreover, a perusal of the records shows that the question on
COMELEC's jurisdiction is now barred by estoppel. It is to be noted
that in his May 2, 1995 Answer, as well as in his Memorandum and
Supplemental Memorandum filed before the COMELEC's Second
Division, petitioner never assailed COMELEC's lacks of jurisdiction
to rule on his qualification. On the contrary, he asked that the
disqualification suit against him be dismissed on the following
grounds: that it was filed outside the reglementary period; that the
one year residence requirement of the 1987 Constitution is
inapplicable due to the recent conversion of the municipality of
Makati into a city under R.A. No. 7854; that he committed a simple
inadvertence in filing up his certificate of candidacy; that the
proper
procedure
to
attack
his
qualification
is
by a
quo warranto proceeding; that he had actually and physically
resided in Makati for more than a year; and for lack of merit, the
case should be outrightly dismissed. In a hearing conducted by the
COMELEC on May 2, 1995, petitioner even submitted his evidence
(e.g. affidavits, amended certificate of candidacy, copy of the lease
contract) to prove that he is qualified for the position.
Subsequently, on May 16, 1995, in response to the COMELEC En
Banc's May 15, 1995 Order suspending the proclamation of the
winner, petitioner filed his Comment/Opposition with Urgent Motion
To Lift Order of Suspension of Proclamation asking for the lifting of
the COMELEC's order of suspension. On May 19, 1995, petitioner
again filed a Memorandum and averred that the recent conversion

of Makati into a city made the one-year residence requirement

inapplicable; that he resided in Makati for more than a year;
that quo warranto is the right remedy to question his qualification.
In passing, petitioner also alleged that the issue on his qualification
should be "properly" ventilated in a full-dress hearing before the
HRET, albeit praying for the dismissal of the motion for
reconsideration for utter lack of merit (and not for lack of
jurisdiction), and for lifting the suspension of his proclamation. It
was only on June 01, 1995, in his Motion to File Supplemental
Memorandum and Urgent Motion to Resolve Motion to Lift
Suspension of Proclamation, when the petitioner raised COMELEC's
alleged lack of jurisdiction to resolve the question on his
qualification. Clearly then, petitioner has actively participated in
the proceedings both before the COMELEC's Second Division and
the COMELEC En Banc asking therein affirmative reliefs. The settled
rule is that a party who objects to the jurisdiction of the court and
alleges at the same time any non-jurisdictional ground for
dismissing the action is deemed to have submitted himself to the
jurisdiction of the court. 3 Where a party voluntary submits to the
jurisdiction of the court and thereafter loses on the merits, he may
not thereafter be heard to say that the court had no
jurisdiction. 4 In Jimenez v. Macaraig, 5 the Court, citing Crisostomo
v. Court of Appeals, 32 SCRA 54, 60 (1970), elaborated on the
rationale for this doctrine in this wise:
The petitioners, to borrow the language of Mr. Justice Bautista
Angelo (People vs. Archilla, G.R. No. L-15632, February 28, 1961, 1
SCRA 699, 700-701), cannot adopt a posture of double-dealing
without running afoul of the doctrine of estoppel. The principle of
estoppel is in the interest of a sound administration of the laws. It
should deter those who are disposed to trifle with the courts by
taking inconsistent positions contrary to the elementary principles
of right dealing and good faith (People v. Acierto, 92 Phil. 534, 541,
[1953]). 6
It is not right for a party who has affirmed and invoked the
jurisdiction of a court in a particular matter to secure an affirmative
relief to afterwards deny that same jurisdiction to escape an
adverse decision. 7Perforce, petitioner's asseveration that the
COMELEC has no jurisdiction to rule on his qualification must fail.

176
Petitioner insists that domicile is a matter of personal intention.
Thus, petition asserts that if he decides to transfer his legal
residence so he can qualify for public office then he is entirely free
to do so. Thus argument to hold water, must be supported by a
clear and convincing proofs that petitioner has effectively
abandoned his former domicile and that his intention is not
doubtful. Indeed, domicile once established is considered to
continue and will not be deemed lost until a new one is established
(Co v. Electoral Tribunal House of Representatives, 199 SCRA 692,
711 [1991]). Petitioner from childhood until his last election as
senator has consistently maintained Concepcion, Tarlac, as his
domicile. He moved to Amapola Street, Palm Village, Makati, and
thereafter claimed the same to be his new domicile. This claim,
however, is dismally unsupported by the records. The lease
contract entered into by petitioner for a period of two years on the
third floor condominium unit in Palm Village, Makati, in my view,
does not prove his intent to abandon his domicile of origin. The
intention to establish domicile must be an intention to remain
indefinitely or permanently in the new place. 8 This element is
lacking in this instance. Worse, public respondent Commission even
found that "respondent Aquino himself testified that his intention
was really for only one (1) year because he has other 'residences'
in Manila or in Quezon City ([citing] TSN, May 2, 1995,
p. 92)". 9 Noting that petitioner is already barred from running for
senator due to the constitutional consecutive two-term limit, his
search for a place where he could further and continue his political
career and sudden transfer thereto make his intent suspect. The
best
test
of
intention
to
establish
legal
residence
comes from one's acts and not by mere declarations alone. 10 To
acquire, or effect a change of domicile, the intention must
be bonafide and unequivocal (28 C.J.S. 11). Petitioner, in my view,
miserably failed to show a bonafide and unequivocal intention to
effect the change of his domicile.
The theory of legal impossibility is advanced to justify noncompliance with the constitutional qualification on residency.
Petitioner explains his theory in this wise:
. . . THE COMELEC CRITICALLY ERRED IN FAILING TO APPRECIATE
THE LEGAL IMPOSSIBILITY OF ENFORCING THE ONE YEAR

RESIDENCY REQUIREMENT OF CONGRESSIONAL CANDIDATES IN

NEWLY CREATED POLITICAL DISTRICTS WHICH WERE ONLY
EXISTING FOR LESS THAN A YEAR AT THE TIME OF THE ELECTION
AND BARELY FOUR MONTHS IN THE CASE OF PETITIONER'S
DISTRICT IN MAKATI. 11
Apparently, this theory is an offshoot of Republic Act. No. 7854, an
act converting the municipality of Makati into a highly urbanized
city. This law enacted on January 2, 1995, established a second
Congressional district in Makati in which petitioner ran as a
Congressional candidate. Since the second district, according to
petitioner, is barely four (4) months old then the one (1) year
residence qualification provided by the Constitution is inapplicable.
Petitioner's acts, however, as borne by the records, belie his own
theory. Originally, he placed in his certificate of candidacy an entry
of ten (10) months residence in Makati. Petitioner then had it
amended to one (1) year and thirteen (13) days to correct what
claims as a mere inadvertent mistake. I doubt the sincerity of this
representation. If petitioner is indeed persuaded by his own theory,
the ten months residence he initially wrote would have more than
sufficiently qualified him to run in the barely four-month old Makati
district. The amendment only reveals the true intent of petitioner to
comply with one year constitutional requirement for residence,
adding an extra thirteen (13) days full measure. Petitioner
apparently wanted to argue one way (theory of legal impossibility),
but at the same time played it safe in the other (the constitutional
one year residence requirement). And that is not all. If we were to
adhere to petitioner's theory of legal impossibility, then residents in
that district shorn of the constitutional six months residence
requirement for prospective voters (Article V, Section 1 of the 1987
Constitution) would have certainly qualified to vote. That would
have legitimized the entry and electoral exercise of flying voters
one of the historic nemeses of a clean and honest election.
Furthermore, to subscribe to petitioner's contention that the
constitutional qualification of candidates should be brushed aside in
view of the enactment of R.A. No. 7854 will indubitably violate the
manner and procedure for the amendment or revision of the
constitution outlined under Article XVIII of the 1987 Constitution. A
legislative enactment, it has to be emphasized, cannot render

177
nugatory the constitution. The constitution is superior to a statute.
It is the fundamental and organic law of the land to which every
statute must conform and harmonize.
Finally, it has been contended that a second place candidate
cannot be proclaimed a substitute winner. I find the proposition
quite unacceptable. A disqualified "candidate" is not a candidate
and the votes which may have been cast in his favor are nothing
but stray votes of no legal consequence. A disqualified person like
the petitioner receives no vote or zero vote. In short,
no-candidate-no vote. Petitioner had therefore no right, in fact and
in law, to claim first place for he has nothing to base his right. The
legislative intent is clear as provided by R.A. 6646, Section 6, in
that votes cast for a disqualified candidate shall not be counted as
they are considered stray (Section 211, Rule 24, Omnibus Election
Code). It is only from the ranks of qualified candidates can one be
chosen as first placer and not from without. Necessarily, petitioner,
a disqualified candidate, cannot be a first placer as he claims
himself to be. To count the votes for a disqualified candidate would,
in my view, disenfranchise voters who voted for a qualified
candidate. Legitimate votes cast for a qualified candidate should
not be penalized alongside a disqualified candidate. With this in
mind, the other qualified candidate who garnered the highest
number of votes should be proclaimed the duly elected
representative of the district. I feel that the Labo doctrine ought to
be abandoned.
I therefore vote to deny the petition and to lift the temporary
restraining order issued by the Court dated June 6, 1995.
DAVIDE, JR., J., dissenting:
In sustaining the COMELEC's acts of suspending the proclamation of
petitioner Agapito A. Aquino and of proceeding to hear the
disqualification case against him, the majority opinion relies on
Section 6 of R.A. No. 6646 which it claims to be applicable by virtue
of Section 7 thereof to petitions to deny due course to or cancel a
certificate of candidacy under Section 78 of the Omnibus Election
Code (B.P. Blg. 881).
I disagree.

In the first place, the petition to disqualify the petitioner in SPA No.
95-113 is not a petition to deny due course to or cancel a certificate
of candidacy under Section 78, which reads:
Sec. 78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any
personexclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall
be decided, after due notice and hearing, not later than fifteen days
before the election. (emphasis supplied)
Nowhere in the petition in SPA No. 95-113 is it alleged by the
private respondents that a material representation contained in the
petitioner's certificate of candidacy is false. What is being attacked
therein is the petitioner's lack of the one-year residence
qualification in the new Second Legislative District of Makati City
where he sought to he elected for the office of Congressman.
The rule governing disqualification cases on the ground of
ineligibility, which is also invoked by the private respondents, is
Rule 25 of the COMELEC Rules of Procedure, as amended on 15
February 1993. The amendment allows the, filing of a petition to
disqualify a candidate on the ground that he does not possess all
the qualifications provided for by the Constitution or by existing
laws. In its original form, the rule only applied to petitions for
disqualification based on the commission of any act declared by
law to be a ground for disqualification. The rule as thus amended
now reads as follows:
Rule 25 Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any candidate who does not
possess all the qualifications of a candidate as provided for by the
Constitution or by existing law or who commits any act declared by
law to be grounds for disqualification may be disqualified from
continuing as a candidate.
Sec. 2. Who May File Petition for Disqualification. Any citizen of
voting age, or duly registered political party, organization or
coalition of political parties may file with the Law Department of the

178
Commission a petition to disqualify a candidate on grounds
provided by law.
Sec. 3. Period to File Petition. The petition shall be filed any day
after the last day for filing of certificates of candidacy but not later
than the date of proclamation.
Sec. 4. Summary Proceeding. The petition shall be heard
summarily after due notice.
Sec. 5. Effect of Petition if Unresolved Before Completion of
Canvass. If the petition, for reasons beyond the control of the
Commission, cannot be decided before the completion of the
canvass, the votes cast for the respondent may be included in the
counting and in the canvassing; however, if the evidence of guilt is
strong, his proclamation shall be suspended notwithstanding the
fact that he received the winning number of votes in such election.
The underscored portion is the amendment to Rule 25, which the
COMELEC must have deemed necessary to fill up a
procedural hiatus in cases of disqualifications based on other
grounds in the light of this Court's interpretation in Loong
vs. Commission on Elections (216 SCRA 760 [1992]) that Rule 25
refers only to disqualifications under Sections 12 and 68 of the
Omnibus Election Code. This Court explicitly stated therein as
follows:
We do not agree with private respondent Ututalum's contention
that the petition for disqualification, as in the case at bar, may be
filed at any time after the last day for filing a certificate of
candidacy but not later than the date of proclamation, applying
Section 3, Rule 25 of the Comelec Rules of Procedure.
Rule 25 of the Comelec Rules of Procedure refers to Disqualification
of Candidates; and Section 1 of said rule provides that any
candidate who commits any act declared by law to be a ground for
disqualification maybe disqualified from continuing as a candidate.
The grounds for disqualification as expressed in Sections 12 and 68
of the Code, are the following:
Sec. 12. Disqualification. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced
by final judgment for subversion, insurrection, rebellion or for any
offense for which he has been sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude, shall be

disqualified to be a candidate and to hold any office, unless he has

been given plenary pardon or granted amnesty.
Sec. 63 DisquaIifications. Any candidate who, in an action or
protest in which he is a party is declared by final decision of 4
competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent
in his election campaign an amount in excess of that allowed by
this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated
any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and
cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under
this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the
residence requirement provided for in the election laws.
The petition filed by private respondent Ututalum with the
respondent Comelec to disqualify petitioner Loong on the ground
that the latter made a false representation in his certificate of
candidacy as to his age, clearly does not fall under the grounds of
disqualification as provided for in Rule 25 but is expressly covered
by Rule 23 of the Comelec Rules of Procedure governing petitions to
cancel certificate of candidacy. Moreover, Section 3, Rule 25 which
allows the filing of the petition at any time after the last day for the
filing of certificates of candidacy but not later than the date of
proclamation, is merely a procedural rule issued by respondent
Commission which, although a constitutional body, has no
legislative powers. Thus, it can not supersede Section 78 of the
Omnibus Election Code which is a legislative enactment.
Second, even if we assume for the sake of argument that the
petition in SPA No. 95-113 fall under Section 78 of the Omnibus
Election Code, still Section 6 of R.A. No. 6646 cannot be applied by
virtue of Section 7 thereof. Sections 6 and 7 reads:
Sec. 6. Effect of Disqualification Case. Any candidate who has
been declared by final judgment to be disqualified shall not be

179
voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt
is strong.
Sec. 71 Petition to Deny Due Course to or Cancel a Certificate of
Candidacy. The procedure hereinabove provided shall apply to
petitions to deny due course to or cancel a certificate of candidacy
as provided in Section 78 of Batas Pambansa Blg. 881.
The "procedure hereinabove provided" mentioned in Section 7
cannot be construed to refer to Section 6 whichdoes not provide for
a procedure but for the EFFECTS of disqualification cases. It can
only refer to the procedureprovided in Section 5 of the said Act on
nuisance candidates which reads as follows:
Sec. 5. Procedure in Cases of Nuisance Candidates. A verified
petition to declare a duly registered candidate as a nuisance
candidate under Section 69 .f Batas Pambansa Blg. 881 shall be
filed personally or through duly authorized representative with the
Commission by any registered candidate for the same office within
five (5) days from the last day for the filing of certificates of
candidacy. Filing by mail shall not be allowed.
(b) Within three (3) days from the filing of the petition, the
Commission shall issue summons to the respondent candidate
together with a copy of the petition and its enclosures, if any.
(c) The respondent shall be given three (3) days from receipt of the
summons within which to file his verified answer (not a motion to
dismiss) to the petition, serving copy thereof upon the petitioner.
Grounds for a motion to dismiss may be raised as affirmative
defenses.
(d) The Commission may designate any of its officials who are
lawyers to hear the case and receive evidence. The proceeding
shall be summary in nature. In lieu of oral testimonies, the parties
may be required to submit position papers together with affidavits
or counter-affidavits and other documentary evidence. The hearing

officer shall immediately submit to the Commission his findings,

reports, and recommendations within five (5) days from the
completion of such submission of evidence. The Commission shall
render its decision within five (5) days from receipt thereof.
(e) The decision, order, or ruling of the Commission shall, after five
(5) days from receipt of a copy thereof by the parties, be final and
executory unless stayed by the Supreme Court.
(f) The Commission shall within twenty-four hours, through the
fastest available means, disseminate its decision or the decision of
the Supreme Court or the city or municipal election registrars,
boards of election inspectors, and the general public in the political
subdivision concerned.
and which is the only procedure that precedes Section 7 of the said
Act. Heretofore, no law provided for the procedure to govern cases
under Section 78. Applying to such cases, through Section 7 of R.A.
No. 6646, the procedure applicable to cases of nuisance candidates
is prudent and wise, for both cases necessarily require that they be
decided before the day of the election; hence, only summary
proceedings thereon can adequately respond to the urgency of the
matter.
Third, Section 6 merely supplements Section 72 of the Omnibus
Election Code providing as follows:
Sec. 72. Effects of disqualification cases and priority. The
Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a
final decision shall be rendered not later than seven days before
the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall
not be counted. Nevertheless, if for any reason, a candidate is not
declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such
election, his violation of the provisions of the preceding sections
shall not prevent his proclamation and assumption to office.
by granting the COMELEC or the Court the authority to continue
hearing the case and to suspend the proclamation if the evidence
of guilt is strong. As observed by this Court in its majority "the
phrase 'when the evidence of guilt is strong' seems to suggest that

180
the provisions of Section 6 ought to be applicable only to
disqualification cases under Section 68 of the Omnibus Election
Code."
Fourth, the amended Rule 25 of the COMELEC Rules of Procedure,
which is the only rule governing petitions filed before election or
proclamation for the disqualification of a candidate on the ground
that he lacks the qualifications provided for by the Constitution or
by law, does not, as can be gathered from Section 5 thereof,
authorize the COMELEC to continue hearing the case after the
election.
Fifth, even assuming that the second sentence of Section 6 of R.A.
to No. 6646 is applicable to disqualification cases based on the
ground of lack of qualification, it cannot be applied to a case does
not involve elective regional, provincial, and city officials, and
where suspension of proclamation is not warranted because of the
absence of strong evidence of guilt or ineligibility. In such a case
the candidate sought to be disqualified but who obtains the highest
number of votes has to be proclaimed. Once he is proclaimed, the
COMELEC cannot continue with the case, and the remedy of the
opponent is to contest the winning candidate's eligibility within ten
days from proclamation in a quo warranto proceeding which is
within the jurisdiction of the metropolitan or municipal trial courts,
in the case of barangay officials; the regional trial courts, in case of
municipal officials (Section 2(2), Article IX-C, Constitution; Section
253, paragraph 2, B.P. Blg. 881); the House of Representatives
Electoral Tribunal, in the case of Congressmen; the Senate Electoral
Tribunal, in the case of Senators (Section 17, Article VI,
Constitution); and the Supreme Court en banc, in the case of the
President or Vice-President (Section 4, Article VII, Constitution).
If what is involved is an elective regional, provincial, or city official,
and the case cannot be decided before the election, the COMELEC
can, even after the proclamation of the candidate sought to be
disqualified, proceed with the case by treating it as a petition
for quo warranto, since such a case properly pertains to the
exclusive jurisdiction of the COMELEC (Section 2(2), Article IX-C,
Constitution; Section 253, B.P. Blg. 881).
But even granting for the sake of argument that Sections 6 and 7 of
R.A. No. 6646, in relation to Section 78 of the Omnibus Election

Code and the amended Rule 25 of the COMELEC Rules of

Procedure, are applicable, the order of suspension of the
petitioner's proclamation issued on 15 May 1995 is null and void for
having been issued with grave abuse of discretion. What was
before the COMELEC en banc at that stage was the decision of the
Second Division of 6 May 1995 dismissing the petition to
disqualify the petitioner and declaring him qualified for the
position. That decision is a direct and positive rejection of any claim
that the evidence of the petitioner's guilt is strong. Note that it was
only on 2 June 1995, when the COMELEC en banc reversed the
decision of the Second Division, that it was found that the evidence
of the petitioner's ineligibility is strong. It would have been
otherwise if the Second Division had disqualified the petitioner.
Besides, at the time the questioned order was issued, there was no
hearing yet on the private respondents' motions for the suspension
of the petitioner's proclamation. In fact, in that order the
COMELEC en banc admitted that the said motions could not be
resolved without hearing, thus:
Pending
the
resolution
of
the
petitioners'
Motion
for
Reconsideration filed on May 7, 1995; Urgent Motion Ad
Cautelam to Suspend Proclamation of Respondent (May 10, 1995)
filed on May 10, 1995; and OMNIBUS MOTION (For Reconsideration
of the Honorable Commission's [Second Division] Resolution dated
May 6, 1995, and 2nd Urgent Motion Ad Cautelam to Suspend
Proclamation of Respondent Aquino, which cannot be resolved
without hearing, without violating the right of the respondent to
due process. . . .
For being void from the beginning; it is as if the order of 15 May
1995 had not existed and could not, therefore, be made permanent
by the COMELEC en banc through its resolution of 2 June 1995
whose dispositive portion reads in part: [c]onsequently, the order of
suspension of the respondent should he obtain the winning number
of votes, issued by this Commission on 15 May 1995 is now made
permanent."
Absent a valid finding before the election or after the canvass of
election returns that the evidence of the petitioner's guilt or
ineligibility is strong, the COMELEC should not have suspended the

181
proclamation of the petitioner. After the completion of the canvass
the petitioner should have been proclaimed.
This case then must be distinguished from that of Imelda
Romualdez-Marcos vs. Commission on Elections, G.R. No. 119976,
where the COMELEC en banc affirmed before the elections, or on 7
May 1995, the Second Division's resolution of 24 April 1995
disqualifying Mrs. Marcos.
Accordingly, the order of 15 May 1995 and the resolution of 2 June
1995 of the COMELEC en banc must be annulled and set aside, and
the COMELEC, through its City Board of Canvassers of Makati, must
be ordered to immediately proclaim the petitioner, without
prejudice to the right of his opponents to file a petition for quo
warranto with the House of Representatives Electoral Tribunal,
which is the sole judge of all contests relating to the election,
returns and qualifications of the Members of the House of
Representatives (Section 17, Article VI, Constitution).
In view of the foregoing, a disquisition on the merits of the ground
for the petitioner's disqualification will no longer be proper.
I vote to GRANT the instant petition, to ANNUL and SET ASIDE the
challenged order and resolution of the Commission on Elections en
banc, and to DIRECT the Board of Canvassers of Makati City to
reconvene and proclaim the petitioner as the winning candidate,
without prejudice on the part of any aggrieved party to file the
appropriate action in the House of Representatives Electoral
Tribunal.
Romero and Bellosillo, JJ., concur.
VITUG, J., separate opinion:
I find what I would consider as the relevant issues in this petition as
similar in almost all material respects to those obtaining in G.R. No.
119976 (Imelda Romualdez-Marcos vs. Commission on Elections
and Cirilo Roy Montejo). Let me then here just reiterate what I have
there said in my separate opinion.
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our
legal system that sets up ideals and directions and render steady
our strides hence. It only looks back so as to ensure that mistakes
in the past are not repeated. A complaint transience of a

constitution belittles its basic function and weakens its goals. A

constitution may well become outdated by the realities of time.
When it does, it must be changed but while it remains, we owe it
respect and allegiance. Anarchy, open or subtle, has never been,
nor must it ever be, the answer to perceived transitory needs, let
alone societal attitudes, or the Constitution might lose its very
essence.
Constitutional provisions must be taken to be mandatory in
character unless, either by express statement or by necessary
implication, a different intention is manifest (see Marcelino vs. Cruz,
121 SCRA 51).
The two provisions initially brought to focus are Section 6 and
Section 17 of Article VI of the fundamental law. These provisions
read:
Sec. 6. No person shall be a Member of the House of
Representatives unless he is a natural-born citizen of the
Philippines and, on the day of the election, is at least twenty-five
years of age, able to read and write, and, except the party-list
representatives, a registered voter in the district in which he shall
be elected, and a resident thereof for a period of not less than one
year immediately preceding the day of the election.
Sec. 17. The Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed of
nine Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives, as
the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or
organizations registered under the party-list system represented
therein. The senior Justice in the Electoral Tribunal shall be its
Chairman.
The Commission on Election (the "COMELEC") is constitutionally
bound to enforce and administer "all laws and regulations relative
to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that,
there being nothing said to the contrary, should include its
authority to pass upon the qualification and disqualification

182
prescribed by law ofcandidates to an elective office. Indeed, preproclamation controversies are expressly placed under the
COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3,
Constitution).
The matter before us specifically calls for the observance of the
constitutional one-year residency requirement. This issue (whether
or not there is here such compliance), to my mind, is basically a
question of fact or at least inextricably linked to such
determination. The findings and judgment of the COMELEC, in
accordance with the long established rule and subject only to a
number of exceptions under the basic heading of "grave abuse of
discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to
me to be a plain matter. Generally, the term "residence" has a
broader
connotation
that
mean permanent (domicile), official (place where one's official
duties may require him to stay) or temporary (the place where he
sojourns during a considerable length of time). For Civil law
purposes, i.e., as regards the exercise of civil rights and the
fulfillment of civil obligations, the domicile of a natural person is the
place of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore announced by
this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban
City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as
synonymous terms, thus: "(t)he term "residence" as used in the
election law is synonymous with "domicile," which imports not only
an intention to reside in a fixed place but also personal presence in
that place, coupled with conduct indicative of such intention."
"Domicile" denotes a fixed permanent residence to which when
absent for business or pleasure, or for like reasons, one intends to
return. . . . Residence thus acquired, however, may be lost by
adopting another choice of domicile. In order, in turn, to acquire a
new domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and
(3) an intention to abandon the old domicile. In other words, there
must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice

must be for an indefinite period of time; the change of residence

must be voluntary, and the residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that we can charge the
COMELEC with having committed grave abuse of discretion in its
assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections,
ends when the jurisdiction of the Electoral Tribunal concerned
begins. It signifies that the protestee must have theretofore been
duly proclaimed and has since become a "member" of the Senate
or the House of Representatives. The question can be asked on
whether or not the proclamation of a candidate is just a ministerial
function of the Commission on Elections dictated solely on the
number of votes cast in an election exercise. I believe, it is not. A
ministerial duty is an obligation the performance of which, being
adequately defined, does not allow the use of further judgment or
discretion. The COMELEC; in its particular case, is tasked with the
full responsibility of ascertaining all the facts and conditions such
as may be required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any
undue encroachment on the ultimate exercise of authority by the
Electoral Tribunals on matters which, by no less than a
constitutional fiat, are explicitly within their exclusive domain. The
nagging question, if it were otherwise, would be the effect of the
Court's peremptory pronouncement on the ability of the Electoral
Tribunal to later come up with its own judgment in a contest
"relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base
on the applicability to this case of Section 6 of Republic Act No.
6646, in relation to Section 72 of Batas Pambansa Blg. 881, each
providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case. Any candidate who has
been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the

183
winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt
is strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. The
Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a
final decision shall be rendered not later than seven days before
the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall
not be counted. Nevertheless, if for any reason, a candidate is not
declared by final judgment before an election to be disqualified,
and he is voted for and receives the winning number of votes in
such election, his violation of the provisions of the preceding
sections shall not prevent his proclamation and assumption to
office.
I realize that in considering the significance of the law, it may be
preferable to look for not so much the specific instances they
ostensibly would cover as the principle they clearly convey. Thus, I
will not scoff at the argument that it should be sound to say that
votes cast in favor of the disqualified candidate, whenever
ultimately declared as such, should not be counted in his or her
favor and must accordingly be considered to be stray votes. The
argument, nevertheless, is far outweighed by the rationale of the
now prevailing doctrine first enunciated in the case of Topacio
vs. Paredes (23 Phil. 238 (1912]) which, although later abandoned
in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos
vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the
interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by
the Labo (176 SCRA 1 [1989]), Abella (201 SCRA 253
[1991]), Labo (211
SCRA
297
[1992])
and,
most
recently, Benito (235
SCRA
436
(1994])
rulings. Benito
vs.Comelec was a unanimous decision penned by Justice Kapunan

and concurred in by Chief Justice Narvasa, Justices Feliciano,

Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were on official
leave).
For
easy
reference,
let
me
quote
from
the
first Labo decision:
Finally, there is the question of whether or not the private
respondent, who filed the quo warrantopetition, can replace the
petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election,
he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission
on Elections, (137 SCRA 740) decided in 1985. In that case, the
candidate who placed second was proclaimed elected after the
votes for his winning rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregard as stray. In effect,
the second placer won by default. That decision was supported by
eight members of the Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay
and Aquino, JJ., concurring.) with three dissenting (Teehankee,
Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two
reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official
leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it
should be reversed in favor of the earlier case of Geronimo
v. Ramos, (136 SCRA 435) which represents the more logical and
democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio v.Paredes, (23 Phil. 238) was
supported by ten members of the Court, (Gutierrez, Jr., ponente,
with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin,
Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without
any
dissent,
although
one
reserved
his
vote,
(Makasiar, J.) another took no part, (Aquino, J.) and two others were
on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court
held:
. . . it would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who has
not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the

184
majority of which have positively declared through their ballots that
they do not choose him.
Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election
for that office, and it is a fundamental idea in all republican forms
of government that no one can be declared elected and no
measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris
2nd, S 234, p. 676.)
The fact that the candidate who obtained the highest number of
votes is later declared to be disqualified or not eligible for the office
to which he was elected does not necessarily entitle the candidate
who obtained the second highest number of votes to be declared
the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the
winner into office or maintain him there. However, in the absence
of a statute which clearly asserts a contrary political and legislative
policy on the matter, if the votes were cast in the sincere belief that
the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless. (at pp. 20-21)
Accordingly, I am constrained to vote for the dismissal of the
petition.
MENDOZA, J., separate opinion:
For the reasons expressed in my separate opinion in the companion
case. G.R. No. 119976. Imelda Romualdez-Marcos v. Commission
on Elections. I am of the opinion that the Commission on Elections
has no jurisdiction over petitions for disqualification of candidates
based on alleged ineligibility for the office to which they seek
election.
The May 15, 1995 resolution of the COMELEC en banc, suspending
he obtain the highest number of votes of Representative of the
Second District of Makati, Metro Manila, purports to have been
issued pursuant to 6 of R.A. No. 6646. This provision authorizes
the COMELEC to order the suspension of the proclamation
"whenever the evidence of his guilt is strong." As explained in my
separate opinion in G.R. No. 119976, however, this provision refers
to proceedings under 68 of the Omnibus Election Code which
provides for the disqualification of candidates found guilty of using

what in political parlance have been referred to as "guns goons or

gold" to influence the outcome of elections. Since the
disqualification of petitioner in this case was not sought on this
ground, the application of 6 of R.A.. No. 6646 is clearly a grave
abuse of discretion on the part of the COMELEC.
Nor may the petition to disqualify petitioner in the COMELEC be
justified under 78 of the OEC which authorizes the filing of a
petition for the cancellation of certificates of candidacy since such
a petition maybe filed "exclusivelyon the ground that a material
representation contained [in the certificate] as required under
section 74 is false." There was no allegation that in stating in his
certificate of candidacy that he is a resident of Amapola St., Palm
Village, Guadalupe Viejo, Makati, Metro Manila, petitioner made any
false representation.
For this reason, I am of the opinion that the COMELEC had no
jurisdiction over SPA No. 95-113; that its proceedings in SPA No. 95113, including the questioned orders, are void; and that the
qualifications of petitioner Agapito A. Aquino for the position of
Representative of the Second District of the City of Makati may only
be inquired into by the House of Representatives Electoral Tribunal.
This conclusion makes it unnecessary for me to express my view at
this time on the question whether, in the event the candidate who
obtained the highest number of votes is declared ineligible, the one
who received the next highest number of votes is entitled to be
declared the winner.
Accordingly, I vote (1) to grant the petition in this case and (2) to
annul the proceedings of the Commission on Elections in SPA No.
95-113, including the questioned orders, dated May 6, 1995. May
15, 1995, and the two orders both dated June 2, 1995, so far as
they declare petitioner Agapito A. Aquino to be ineligible for the
position of Representative of the Second District of the City of
Makati and direct the City Board of Canvassers of Makati to
determine and proclaim the winner out of the remaining qualified
candidates.
Narvasa, J., concurs.

185
G.R. No. 119976 September 18, 1995
IMELDA
ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION
ON
ELECTIONS
and
CIRILO
ROY
MONTEJO, respondents.
KAPUNAN, J.:
A constitutional provision should be construed as to give it effective
operation and suppress the mischief at which it is aimed. 1 The
1987 Constitution mandates that an aspirant for election to the
House of Representatives be "a registered voter in the district in
which he shall be elected, and a resident thereof for a period of not
less than one year immediately preceding the election." 2 The
mischief which this provision reproduced verbatim from the 1973
Constitution seeks to prevent is the possibility of a "stranger or
newcomer unacquainted with the conditions and needs of a
community and not identified with the latter, from an elective office
to serve that community." 3
Petitioner Imelda Romualdez-Marcos filed her Certificate of
Candidacy for the position of Representative of the First District of
Leyte with the Provincial Election Supervisor on March 8, 1995,
providing the following information in item no. 8: 4
RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED
IMMEDIATELY PRECEDING THE ELECTION: __________ Years
and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the
incumbent Representative of the First District of Leyte and a
candidate for the same position, filed a "Petition for Cancellation
and Disqualification" 5 with the Commission on Elections alleging
that petitioner did not meet the constitutional requirement for
residency. In his petition, private respondent contended that Mrs.
Marcos lacked the Constitution's one year residency requirement
for candidates for the House of Representatives on the evidence of
declarations made by her in Voter Registration Record 94-No.
3349772 6and in her Certificate of Candidacy. He prayed that "an
order be issued declaring (petitioner) disqualified and canceling the
certificate of candidacy." 7

On March 29, 1995, petitioner filed an Amended/Corrected

Certificate of Candidacy, changing the entry "seven" months to
"since childhood" in item no. 8 of the amended certificate. 8 On the
same day, the Provincial Election Supervisor of Leyte informed
petitioner that:
[T]his office cannot receive or accept the aforementioned
Certificate of Candidacy on the ground that it is filed out of time,
the deadline for the filing of the same having already lapsed on
March 20, 1995. The Corrected/Amended Certificate of Candidacy
should have been filed on or before the March 20, 1995 deadline. 9
Consequently, petitioner filed the Amended/Corrected Certificate of
Candidacy with the COMELEC's Head Office in Intramuros, Manila
on
March 31, 1995. Her Answer to private respondent's petition in SPA
No. 95-009 was likewise filed with the head office on the same day.
In said Answer, petitioner averred that the entry of the word
"seven" in her original Certificate of Candidacy was the result of an
"honest misinterpretation" 10 which she sought to rectify by adding
the words "since childhood" in her Amended/Corrected Certificate
of Candidacy and that "she has always maintained Tacloban City as
her domicile or residence. 11 Impugning respondent's motive in
filing the petition seeking her disqualification, she noted that:
When respondent (petitioner herein) announced that she was
intending to register as a voter in Tacloban City and run for
Congress in the First District of Leyte, petitioner immediately
opposed her intended registration by writing a letter stating that
"she is not a resident of said city but of Barangay Olot, Tolosa,
Leyte. After respondent had registered as a voter in Tolosa following
completion of her six month actual residence therein, petitioner
filed a petition with the COMELEC to transfer the town of Tolosa
from the First District to the Second District and pursued such a
move up to the Supreme Court, his purpose being to remove
respondent as petitioner's opponent in the congressional election in
the First District. He also filed a bill, along with other Leyte
Congressmen, seeking the creation of another legislative district to
remove the town of Tolosa out of the First District, to achieve his
purpose. However, such bill did not pass the Senate. Having failed
on such moves, petitioner now filed the instant petition for the

186
same objective, as it is obvious that he is afraid to submit along
with respondent for the judgment and verdict of the electorate of
the First District of Leyte in an honest, orderly, peaceful, free and
clean elections on May 8, 1995. 12
On April 24, 1995, the Second Division of the Commission on
Elections (COMELEC), by a vote of 2 to 1, 13 came up with a
Resolution
1)
finding
private
respondent's
Petition
for
Disqualification in SPA 95-009 meritorious; 2) striking off
petitioner's Corrected/Amended Certificate of Candidacy of March
31, 1995; and 3) canceling her original Certificate of
Candidacy. 14 Dealing with two primary issues, namely, the validity
of amending the original Certificate of Candidacy after the lapse of
the deadline for filing certificates of candidacy, and petitioner's
compliance with the one year residency requirement, the Second
Division held:
Respondent raised the affirmative defense in her Answer that the
printed word "Seven" (months) was a result of an "honest
misinterpretation or honest mistake" on her part and, therefore, an
amendment should subsequently be allowed. She averred that she
thought that what was asked was her "actual and physical"
presence in Tolosa and not residence of origin or domicile in the
First Legislative District, to which she could have responded "since
childhood." In an accompanying affidavit, she stated that her
domicile is Tacloban City, a component of the First District, to which
she always intended to return whenever absent and which she has
never abandoned. Furthermore, in her memorandum, she tried to
discredit petitioner's theory of disqualification by alleging that she
has been a resident of the First Legislative District of Leyte since
childhood, although she only became a resident of the Municipality
of Tolosa for seven months. She asserts that she has always been a
resident of Tacloban City, a component of the First District, before
coming to the Municipality of Tolosa.
Along this point, it is interesting to note that prior to her
registration in Tolosa, respondent announced that she would be
registering in Tacloban City so that she can be a candidate for the
District. However, this intention was rebuffed when petitioner wrote
the Election Officer of Tacloban not to allow respondent since she is

a resident of Tolosa and not Tacloban. She never disputed this claim
and instead implicitly acceded to it by registering in Tolosa.
This incident belies respondent's claim of "honest misinterpretation
or honest mistake." Besides, the Certificate of Candidacy only asks
for RESIDENCE. Since on the basis of her Answer, she was quite
aware of "residence of origin" which she interprets to be Tacloban
City, it is curious why she did not cite Tacloban City in her
Certificate of Candidacy. Her explanation that she thought what
was asked was her actual and physical presence in Tolosa is not
easy to believe because there is none in the question that
insinuates about Tolosa. In fact, item no. 8 in the Certificate of
Candidacy
speaks
clearly
of
"Residency in
the
CONSTITUENCY where I seek to be elected immediately preceding
the election." Thus, the explanation of respondent fails to be
persuasive.
From the foregoing, respondent's defense of an honest mistake or
misinterpretation, therefore, is devoid of merit.
To further buttress respondent's contention that an amendment
may be made, she cited the case ofAlialy v. COMELEC (2 SCRA
957). The reliance of respondent on the case of Alialy is misplaced.
The case only applies to the "inconsequential deviations which
cannot affect the result of the election, or deviations from
provisions intended primarily to secure timely and orderly conduct
of elections." The Supreme Court in that case considered the
amendment only as a matter of form. But in the instant case, the
amendment cannot be considered as a matter of form or an
inconsequential deviation. The change in the number of years of
residence in the place where respondent seeks to be elected is a
substantial matter which determines her qualification as a
candidacy, specially those intended to suppress, accurate material
representation in the original certificate which adversely affects the
filer. To admit the amended certificate is to condone the evils
brought by the shifting minds of manipulating candidate, of the
detriment of the integrity of the election.
Moreover, to allow respondent to change the seven (7) month
period of her residency in order to prolong it by claiming it was
"since childhood" is to allow an untruthfulness to be committed
before this Commission. The arithmetical accuracy of the 7 months

187
residency the respondent indicated in her certificate of candidacy
can be gleaned from her entry in her Voter's Registration Record
accomplished on January 28, 1995 which reflects that she is a
resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time of the
said registration (Annex A, Petition). Said accuracy is further
buttressed by her letter to the election officer of San Juan, Metro
Manila, dated August 24, 1994, requesting for the cancellation of
her registration in the Permanent List of Voters thereat so that she
can be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. The
dates of these three (3) different documents show the respondent's
consistent conviction that she has transferred her residence to Olot,
Tolosa, Leyte from Metro Manila only for such limited period of time,
starting in the last week of August 1994 which on March 8, 1995
will only sum up to 7 months. The Commission, therefore, cannot
be persuaded to believe in the respondent's contention that it was
an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected Certificate of
Candidacy cannot be admitted by this Commission.
xxx xxx xxx
Anent the second issue, and based on the foregoing discussion, it is
clear that respondent has not complied with the one year residency
requirement of the Constitution.
In election cases, the term "residence" has always been considered
as synonymous with "domicile" which imports not only the intention
to reside in a fixed place but also personal presence in-that place,
coupled with conduct indicative of such intention. Domicile denotes
a fixed permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return. (Perfecto Faypon
vs. Eliseo Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226
SCRA 408). In respondent's case, when she returned to the
Philippines in 1991, the residence she chose was not Tacloban but
San Juan, Metro Manila. Thus, her animus revertendi is pointed to
Metro Manila and not Tacloban.
This Division is aware that her claim that she has been a resident of
the First District since childhood is nothing more than to give her a
color of qualification where she is otherwise constitutionally
disqualified. It cannot hold ground in the face of the facts admitted

by the respondent in her affidavit. Except for the time that she
studied and worked for some years after graduation in Tacloban
City, she continuously lived in Manila. In 1959, after her husband
was elected Senator, she lived and resided in San Juan, Metro
Manila where she was a registered voter. In 1965, she lived in San
Miguel, Manila where she was again a registered voter. In 1978, she
served as member of the Batasang Pambansa as the representative
of the City of Manila and later on served as the Governor of Metro
Manila. She could not have served these positions if she had not
been a resident of the City of Manila. Furthermore, when she filed
her certificate of candidacy for the office of the President in 1992,
she claimed to be a resident of San Juan, Metro Manila. As a matter
of fact on August 24, 1994, respondent wrote a letter with the
election officer of San Juan, Metro Manila requesting for the
cancellation of her registration in the permanent list of voters that
she may be re-registered or transferred to Barangay Olot, Tolosa,
Leyte. These facts manifest that she could not have been a resident
of Tacloban City since childhood up to the time she filed her
certificate of candidacy because she became a resident of many
places, including Metro Manila. This debunks her claim that prior to
her residence in Tolosa, Leyte, she was a resident of the First
Legislative District of Leyte since childhood.
In this case, respondent's conduct reveals her lack of intention to
make Tacloban her domicile. She registered as a voter in different
places and on several occasions declared that she was a resident of
Manila. Although she spent her school days in Tacloban, she is
considered to have abandoned such place when she chose to stay
and reside in other different places. In the case of Romualdez
vs. RTC(226 SCRA 408) the Court explained how one acquires a
new domicile by choice. There must concur: (1) residence or bodily
presence in the new locality; (2) intention to remain there; and (3)
intention to abandon the old domicile. In other words there must
basically be animus manendi withanimus non revertendi. When
respondent chose to stay in Ilocos and later on in Manila, coupled
with her intention to stay there by registering as a voter there and
expressly declaring that she is a resident of that place, she is
deemed to have abandoned Tacloban City, where she spent her
childhood and school days, as her place of domicile.

188
Pure intention to reside in that place is not sufficient, there must
likewise be conduct indicative of such intention. Respondent's
statements to the effect that she has always intended to return to
Tacloban, without the accompanying conduct to prove that
intention, is not conclusive of her choice of residence. Respondent
has not presented any evidence to show that her conduct, one year
prior the election, showed intention to reside in Tacloban. Worse,
what was evident was that prior to her residence in Tolosa, she had
been a resident of Manila.
It is evident from these circumstances that she was not a resident
of the First District of Leyte "since childhood."
To further support the assertion that she could have not been a
resident of the First District of Leyte for more than one year,
petitioner correctly pointed out that on January 28, 1995
respondent registered as a voter at precinct No. 18-A of Olot,
Tolosa, Leyte. In doing so, she placed in her Voter Registration
Record that she resided in the municipality of Tolosa for a period of
six months. This may be inconsequential as argued by the
respondent since it refers only to her residence in Tolosa, Leyte. But
her failure to prove that she was a resident of the First District of
Leyte prior to her residence in Tolosa leaves nothing but a
convincing proof that she had been a resident of the district for six
months only. 15
In a Resolution promulgated a day before the May 8, 1995
elections, the COMELEC en banc denied petitioner's Motion for
Reconsideration 16 of the April 24, 1995 Resolution declaring her
not qualified to run for the position of Member of the House of
Representatives for the First Legislative District of Leyte. 17 The
Resolution tersely stated:
After deliberating on the Motion for Reconsideration, the
Commission RESOLVED to DENY it, no new substantial matters
having been raised therein to warrant re-examination of the
resolution granting the petition for disqualification. 18
On May 11, 1995, the COMELEC issued a Resolution allowing
petitioner's proclamation should the results of the canvass show
that she obtained the highest number of votes in the congressional
elections in the First District of Leyte. On the same day, however,
the COMELEC reversed itself and issued a second Resolution

directing that the proclamation of petitioner be suspended in the

event that she obtains the highest number of votes. 19
In a Supplemental Petition dated 25 May 1995, petitioner averred
that she was the overwhelming winner of the elections for the
congressional seat in the First District of Leyte held May 8, 1995
based on the canvass completed by the Provincial Board of
Canvassers on May 14, 1995. Petitioner alleged that the canvass
showed that she obtained a total of 70,471 votes compared to the
36,833 votes received by Respondent Montejo. A copy of said
Certificate of Canvass was annexed to the Supplemental Petition.
On account of the Resolutions disqualifying petitioner from running
for the congressional seat of the First District of Leyte and the
public respondent's Resolution suspending her proclamation,
petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental
Petitions. The principal issues may be classified into two general
areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for election purposes, of
the First District of Leyte for a period of one year at the time of the
May 9, 1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised its jurisdiction in
disqualifying petitioner outside the period mandated by the
Omnibus Election Code for disqualification cases under Article 78 of
the said Code.
b) After the Elections
Whether or not the House of Representatives Electoral Tribunal
assumed exclusive jurisdiction over the question of petitioner's
qualifications after the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division
reveals a startling confusion in the application of settled concepts
of "Domicile" and "Residence" in election law. While the COMELEC
seems to be in agreement with the general proposition that for the
purposes of election law, residence is synonymous with domicile,
the Resolution reveals a tendency to substitute or mistake the

189
concept of domicile for actual residence, a conception not intended
for the purpose of determining a candidate's qualifications for
election to the House of Representatives as required by the 1987
Constitution. As it were, residence, for the purpose of meeting the
qualification for an elective position, has a settled meaning in our
jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil
rights and the fulfillment of civil obligations, the domicile of natural
persons is their place of habitual residence." In Ong
vs. Republic 20 this court took the concept of domicile to mean an
individual's "permanent home", "a place to which, whenever absent
for business or for pleasure, one intends to return, and depends on
facts and circumstances in the sense that they disclose
intent." 21 Based on the foregoing, domicile includes the twin
elements of "the fact of residing or physical presence in a fixed
place" and animus manendi, or the intention of returning there
permanently.
Residence, in its ordinary conception, implies the factual
relationship of an individual to a certain place. It is the physical
presence of a person in a given area, community or country. The
essential distinction between residence and domicile in law is that
residence involves the intent to leave when the purpose for which
the resident has taken up his abode ends. One may seek a place for
purposes such as pleasure, business, or health. If a person's intent
be to remain, it becomes his domicile; if his intent is to leave as
soon as his purpose is established it is residence. 22 It is thus, quite
perfectly normal for an individual to have different residences in
various places. However, a person can only have a single domicile,
unless, for various reasons, he successfully abandons his domicile
in
favor
of
another
domicile
of
choice.
In Uytengsu
vs. Republic, 23 we laid this distinction quite clearly:
There is a difference between domicile and residence. "Residence"
is used to indicate a place of abode, whether permanent or
temporary; "domicile" denotes a fixed permanent residence to
which, when absent, one has the intention of returning. A man may
have a residence in one place and a domicile in another. Residence
is not domicile, but domicile is residence coupled with the intention
to remain for an unlimited time. A man can have but one domicile

for the same purpose at any time, but he may have numerous
places of residence. His place of residence is generally his place of
domicile, but it is not by any means necessarily so since no length
of residence without intention of remaining will constitute domicile.
For political purposes the concepts of residence and domicile are
dictated by the peculiar criteria of political laws. As these concepts
have evolved in our election law, what has clearly and
unequivocally emerged is the fact that residence for election
purposes is used synonymously with domicile.
In Nuval vs. Guray, 24 the Court held that "the term residence. . . is
synonymous with domicile which imports not only intention to
reside in a fixed place, but also personal presence in that place,
coupled with conduct indicative of such intention." 25 Larena
vs. Teves 26 reiterated the same doctrine in a case involving the
qualifications of the respondent therein to the post of Municipal
President
of
Dumaguete,
Negros
Oriental. Faypon
27
vs. Quirino, held that the absence from residence to pursue
studies or practice a profession or registration as a voter other than
in the place where one is elected does not constitute loss of
residence. 28 So settled is the concept (of domicile) in our election
law that in these and other election law cases, this Court has stated
that the mere absence of an individual from his permanent
residence without the intention to abandon it does not result in a
loss or change of domicile.
The deliberations of the 1987 Constitution on the residence
qualification for certain elective positions have placed beyond
doubt the principle that when the Constitution speaks of
"residence" in election law, it actually means only "domicile" to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971
Constitutional Convention, there was an attempt to require
residence in the place not less than one year immediately
preceding the day of the elections. So my question is: What is the
Committee's concept of residence of a candidate for the
legislature? Is it actual residence or is it the concept of domicile or
constructive residence?
Mr. Davide: Madame President, insofar as the regular members of
the National Assembly are concerned, the proposed section merely
provides, among others, "and a resident thereof", that is, in the

190
district for a period of not less than one year preceding the day of
the election. This was in effect lifted from the 1973 Constitution,
the interpretation given to it was domicile. 29
xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2. I
think Commissioner Nolledo has raised the same point that
"resident" has been interpreted at times as a matter of intention
rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman consider at the
proper time to go back to actual residence rather than mere
intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially
considering that a provision in the Constitution in the Article on
Suffrage says that Filipinos living abroad may vote as enacted by
law. So, we have to stick to the original concept that it should be by
domicile and not physical residence. 30
In Co vs. Electoral Tribunal of the House of Representatives, 31 this
Court concluded that the framers of the 1987 Constitution
obviously adhered to the definition given to the term residence in
election law, regarding it as having the same meaning as
domicile. 32
In the light of the principles just discussed, has petitioner Imelda
Romualdez Marcos satisfied the residency requirement mandated
by Article VI, Sec. 6 of the 1987 Constitution? Of what significance
is the questioned entry in petitioner's Certificate of Candidacy
stating her residence in the First Legislative District of Leyte as
seven (7) months?
It is the fact of residence, not a statement in a certificate of
candidacy which ought to be decisive in determining whether or
not and individual has satisfied the constitution's residency
qualification requirement. The said statement becomes material
only when there is or appears to be a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible. It would be plainly ridiculous for a candidate to
deliberately and knowingly make a statement in a certificate of
candidacy which would lead to his or her disqualification.

It stands to reason therefore, that petitioner merely committed an

honest mistake in jotting the word "seven" in the space provided
for the residency qualification requirement. The circumstances
leading to her filing the questioned entry obviously resulted in the
subsequent confusion which prompted petitioner to write down the
period of her actual stay in Tolosa, Leyte instead of her period of
residence in the First district, which was "since childhood" in the
space provided. These circumstances and events are amply
detailed in the COMELEC's Second Division's questioned resolution,
albeit with a different interpretation. For instance, when herein
petitioner announced that she would be registering in Tacloban City
to make her eligible to run in the First District, private respondent
Montejo opposed the same, claiming that petitioner was a resident
of Tolosa, not Tacloban City. Petitioner then registered in her place
of actual residence in the First District, which is Tolosa, Leyte, a fact
which she subsequently noted down in her Certificate of Candidacy.
A close look at said certificate would reveal the possible source of
the confusion: the entry for residence (Item No. 7) is followed
immediately by the entry for residence in the constituency where a
candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte
POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot,
Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO
BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________
Years and Seven Months.
Having been forced by private respondent to register in her place of
actual residence in Leyte instead of petitioner's claimed domicile, it
appears that petitioner had jotted down her period of stay in her
legal residence or domicile. The juxtaposition of entries in Item 7
and Item 8 the first requiring actual residence and the second
requiring domicile coupled with the circumstances surrounding
petitioner's registration as a voter in Tolosa obviously led to her
writing down an unintended entry for which she could be
disqualified. This honest mistake should not, however, be allowed
to negate the fact of residence in the First District if such fact were
established by means more convincing than a mere entry on a
piece of paper.

191
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not
possibly be in the First District of Leyte, the Second Division of the
COMELEC, in its assailed Resolution of April 24,1995 maintains that
"except for the time when (petitioner) studied and worked for some
years after graduation in Tacloban City, she continuously lived in
Manila." The Resolution additionally cites certain facts as indicative
of the fact that petitioner's domicile ought to be any place where
she lived in the last few decades except Tacloban, Leyte. First,
according to the Resolution, petitioner, in 1959, resided in San Juan,
Metro Manila where she was also registered voter. Then, in 1965,
following the election of her husband to the Philippine presidency,
she lived in San Miguel, Manila where she as a voter. In 1978 and
thereafter, she served as a member of the Batasang Pambansa and
Governor of Metro Manila. "She could not, have served these
positions if she had not been a resident of Metro Manila," the
COMELEC stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does not
lose his domicile even if he has lived and maintained residences in
different places. Residence, it bears repeating, implies a factual
relationship to a given place for various purposes. The absence
from legal residence or domicile to pursue a profession, to study or
to do other things of a temporary or semi-permanent nature does
not constitute loss of residence. Thus, the assertion by the
COMELEC that "she could not have been a resident of Tacloban City
since childhood up to the time she filed her certificate of candidacy
because she became a resident of many places" flies in the face of
settled jurisprudence in which this Court carefully made distinctions
between (actual) residence and domicile for election law purposes.
In Larena vs. Teves, 33 supra, we stressed:
[T]his court is of the opinion and so holds that a person who has his
own house wherein he lives with his family in a municipality without
having ever had the intention of abandoning it, and without having
lived either alone or with his family in another municipality, has his
residence in the former municipality, notwithstanding his having
registered as an elector in the other municipality in question and
having been a candidate for various insular and provincial

positions, stating every time that he is a resident of the latter

municipality.
More significantly, in Faypon vs. Quirino, 34 We explained that:
A citizen may leave the place of his birth to look for "greener
pastures," as the saying goes, to improve his lot, and that, of
course includes study in other places, practice of his avocation, or
engaging in business. When an election is to be held, the citizen
who left his birthplace to improve his lot may desire to return to his
native town to cast his ballot but for professional or business
reasons, or for any other reason, he may not absent himself from
his professional or business activities; so there he registers himself
as voter as he has the qualifications to be one and is not willing to
give up or lose the opportunity to choose the officials who are to
run the government especially in national elections. Despite such
registration, the animus revertendi to his home, to his domicile or
residence of origin has not forsaken him. This may be the
explanation why the registration of a voter in a place other than his
residence of origin has not been deemed sufficient to constitute
abandonment or loss of such residence. It finds justification in the
natural desire and longing of every person to return to his place of
birth. This strong feeling of attachment to the place of one's birth
must be overcome by positive proof of abandonment for another.
From the foregoing, it can be concluded that in its above-cited
statements supporting its proposition that petitioner was ineligible
to run for the position of Representative of the First District of
Leyte, the COMELEC was obviously referring to petitioner's various
places of (actual) residence, not her domicile. In doing so, it not
only ignored settled jurisprudence on residence in election law and
the deliberations of the constitutional commission but also the
provisions of the Omnibus Election Code (B.P. 881). 35
What is undeniable, however, are the following set of facts which
establish the fact of petitioner's domicile, which we lift verbatim
from the COMELEC's Second Division's assailed Resolution: 36
In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She
studied in the Holy Infant Academy in Tacloban from 1938 to 1949
when she graduated from high school. She pursued her college
studies in St. Paul's College, now Divine Word University in

192
Tacloban, where she earned her degree in Education. Thereafter,
she taught in the Leyte Chinese School, still in Tacloban City. In
1952 she went to Manila to work with her cousin, the late speaker
Daniel Z. Romualdez in his office in the House of Representatives.
In 1954, she married ex-President Ferdinand E. Marcos when he
was still a congressman of Ilocos Norte and registered there as a
voter. When her husband was elected Senator of the Republic in
1959, she and her husband lived together in San Juan, Rizal where
she registered as a voter. In 1965, when her husband was elected
President of the Republic of the Philippines, she lived with him in
Malacanang Palace and registered as a voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her family were
abducted and kidnapped to Honolulu, Hawaii. In November 1991,
she came home to Manila. In 1992, respondent ran for election as
President of the Philippines and filed her Certificate of Candidacy
wherein she indicated that she is a resident and registered voter of
San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC,
what is inescapable is that petitioner held various residences for
different purposes during the last four decades. None of these
purposes unequivocally point to an intention to abandon her
domicile of origin in Tacloban, Leyte. Moreover, while petitioner was
born in Manila, as a minor she naturally followed the domicile of her
parents. She grew up in Tacloban, reached her adulthood there and
eventually established residence in different parts of the country
for various reasons. Even during her husband's presidency, at the
height of the Marcos Regime's powers, petitioner kept her close ties
to her domicile of origin by establishing residences in Tacloban,
celebrating her birthdays and other important personal milestones
in her home province, instituting well-publicized projects for the
benefit of her province and hometown, and establishing a political
power base where her siblings and close relatives held positions of
power either through the ballot or by appointment, always with
either her influence or consent. These well-publicized ties to her
domicile of origin are part of the history and lore of the quarter
century of Marcos power in our country. Either they were entirely
ignored in the COMELEC'S Resolutions, or the majority of the

COMELEC did not know what the rest of the country always knew:
the fact of petitioner's domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was not
petitioner's domicile of origin because she did not live there until
she was eight years old. He avers that after leaving the place in
1952, she "abandoned her residency (sic) therein for many years
and . . . (could not) re-establish her domicile in said place by merely
expressing her intention to live there again." We do not agree.
First, minor follows the domicile of his parents. As domicile, once
acquired is retained until a new one is gained, it follows that in
spite of the fact of petitioner's being born in Manila, Tacloban, Leyte
was her domicile of origin by operation of law. This domicile was
not established only when her father brought his family back to
Leyte contrary to private respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect a
change of domicile, one must demonstrate: 37
1. An actual removal or an actual change of domicile;
2. A bona fide intention of abandoning the former place of
residence and establishing a new one; and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these criteria,
the residence of origin should be deemed to continue. Only with
evidence showing concurrence of all three requirements can the
presumption of continuity or residence be rebutted, for a change of
residence requires an actual and deliberate abandonment, and one
cannot have two legal residences at the same time. 38 In the case
at bench, the evidence adduced by private respondent plainly lacks
the degree of persuasiveness required to convince this court that
an abandonment of domicile of origin in favor of a domicile of
choice indeed occurred. To effect an abandonment requires the
voluntary act of relinquishing petitioner's former domicile with
an intent to supplant the former domicile with one of her own
choosing (domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner lost
her domicile of origin by operation of law as a result of her
marriage to the late President Ferdinand E. Marcos in 1952. For
there is a clearly established distinction between the Civil Code
concepts of "domicile" and "residence." 39 The presumption that the

193
wife automatically gains the husband's domicile by operation of law
upon marriage cannot be inferred from the use of the term
"residence" in Article 110 of the Civil Code because the Civil Code is
one area where the two concepts are well delineated. Dr. Arturo
Tolentino, writing on this specific area explains:
In the Civil Code, there is an obvious difference between domicile
and residence. Both terms imply relations between a person and a
place; but in residence, the relation is one of fact while in domicile
it is legal or juridical, independent of the necessity of physical
presence. 40
Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the residence of the family. But
the court may exempt the wife from living with the husband if he
should live abroad unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts
of domicile or residence as they affect the female spouse upon
marriage yields nothing which would suggest that the female
spouse automatically loses her domicile of origin in favor of the
husband's choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil
Code of 1889 which states:
La mujer esta obligada a seguir a su marido donde quiera que fije
su residencia. Los Tribunales, sin embargo, podran con justa causa
eximirla de esta obligacion cuando el marido transende su
residencia a ultramar o' a pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in
the
aforequoted
article,
which
means
wherever
(the
husband) wishes to establish residence. This part of the article
clearly contemplates only actual residence because it refers to a
positive act of fixing a family home or residence. Moreover, this
interpretation is further strengthened by the phrase "cuando el
marido translade su residencia" in the same provision which
means, "when the husband shall transfer his residence," referring
to another positive act of relocating the family to another home or
place of actual residence. The article obviously cannot be
understood
to
refer
to
domicile
which
is
a
fixed,
fairly-permanent concept when it plainly connotes the possibility of
transferring from one place to another not only once, but as often

as the husband may deem fit to move his family, a circumstance

more consistent with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony
with the intention of the law to strengthen and unify the family,
recognizing the fact that the husband and the wife bring into the
marriage different domiciles (of origin). This difference could, for
the sake of family unity, be reconciled only by allowing the husband
to fix a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found under Title
V under the heading: RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE. Immediately preceding Article 110 is Article
109 which obliges the husband and wife to live together, thus:
Art. 109. The husband and wife are obligated to live together,
observe mutual respect and fidelity and render mutual help and
support.
The duty to live together can only be fulfilled if the husband and
wife are physically together. This takes into account the situations
where the couple has many residences (as in the case of the
petitioner). If the husband has to stay in or transfer to any one of
their residences, the wife should necessarily be with him in order
that they may "live together." Hence, it is illogical to conclude that
Art. 110 refers to "domicile" and not to "residence." Otherwise, we
shall be faced with a situation where the wife is left in the domicile
while the husband, for professional or other reasons, stays in one of
their (various) residences. As Dr. Tolentino further explains:
Residence and Domicile Whether the word "residence" as used
with reference to particular matters is synonymous with "domicile"
is a question of some difficulty, and the ultimate decision must be
made from a consideration of the purpose and intent with which
the word is used. Sometimes they are used synonymously, at other
times they are distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring to the physical
presence of a person in a place. A person can have two or more
residences, such as a country residence and a city residence.
Residence is acquired by living in place; on the other hand,
domicile can exist without actually living in the place. The
important thing for domicile is that, once residence has been

194
established in one place, there be an intention to stay there
permanently, even if residence is also established in some other
place. 41
In fact, even the matter of a common residence between the
husband and the wife during the marriage is not an iron-clad
principle; In cases applying the Civil Code on the question of a
common matrimonial residence, our jurisprudence has recognized
certain situations 42 where the spouses could not be compelled to
live with each other such that the wife is either allowed to maintain
a residence different from that of her husband or, for obviously
practical reasons, revert to her original domicile (apart from being
allowed to opt for a new one). In De la Vina vs. Villareal 43 this Court
held that "[a] married woman may acquire a residence or domicile
separate from that of her husband during the existence of the
marriage where the husband has given cause for divorce." 44 Note
that the Court allowed the wife either to obtain new residence or to
choose a new domicile in such an event. In instances where the
wife actually opts, .under the Civil Code, to live separately from her
husband either by taking new residence or reverting to her domicile
of origin, the Court has held that the wife could not be compelled to
live with her husband on pain of contempt. In Arroyo vs. Vasques
de Arroyo45 the Court held that:
Upon examination of the authorities, we are convinced that it is not
within the province of the courts of this country to attempt to
compel one of the spouses to cohabit with, and render conjugal
rights to, the other. Of course where the property rights of one of
the pair are invaded, an action for restitution of such rights can be
maintained. But we are disinclined to sanction the doctrine that an
order, enforcible (sic) by process of contempt, may be entered to
compel the restitution of the purely personal right of consortium. At
best such an order can be effective for no other purpose than to
compel the spouses to live under the same roof; and he experience
of those countries where the courts of justice have assumed to
compel the cohabitation of married people shows that the policy of
the practice is extremely questionable. Thus in England, formerly
the Ecclesiastical Court entertained suits for the restitution of
conjugal rights at the instance of either husband or wife; and if the
facts were found to warrant it, that court would make a mandatory

decree, enforceable by process of contempt in case of

disobedience, requiring the delinquent party to live with the other
and render conjugal rights. Yet this practice was sometimes
criticized even by the judges who felt bound to enforce such orders,
and in Weldon v. Weldon (9 P.D. 52), decided in 1883, Sir James
Hannen, President in the Probate, Divorce and Admiralty Division of
the High Court of Justice, expressed his regret that the English law
on the subject was not the same as that which prevailed in
Scotland, where a decree of adherence, equivalent to the decree
for the restitution of conjugal rights in England, could be obtained
by the injured spouse, but could not be enforced by imprisonment.
Accordingly, in obedience to the growing sentiment against the
practice, the Matrimonial Causes Act (1884) abolished the remedy
of imprisonment; though a decree for the restitution of conjugal
rights can still be procured, and in case of disobedience may serve
in appropriate cases as the basis of an order for the periodical
payment of a stipend in the character of alimony.
In the voluminous jurisprudence of the United States, only one
court, so far as we can discover, has ever attempted to make a
preemptory order requiring one of the spouses to live with the
other; and that was in a case where a wife was ordered to follow
and live with her husband, who had changed his domicile to the
City of New Orleans. The decision referred to (Bahn v. Darby, 36 La.
Ann., 70) was based on a provision of the Civil Code of Louisiana
similar to article 56 of the Spanish Civil Code. It was decided many
years ago, and the doctrine evidently has not been fruitful even in
the State of Louisiana. In other states of the American Union the
idea of enforcing cohabitation by process of contempt is rejected.
(21 Cyc., 1148).
In a decision of January 2, 1909, the Supreme Court of Spain
appears to have affirmed an order of the Audiencia Territorial de
Valladolid requiring a wife to return to the marital domicile, and in
the alternative, upon her failure to do so, to make a particular
disposition of certain money and effects then in her possession and
to deliver to her husband, as administrator of the ganancial
property, all income, rents, and interest which might accrue to her
from the property which she had brought to the marriage. (113 Jur.
Civ., pp. 1, 11) But it does not appear that this order for the return

195
of the wife to the marital domicile was sanctioned by any other
penalty than the consequences that would be visited upon her in
respect to the use and control of her property; and it does not
appear that her disobedience to that order would necessarily have
been followed by imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman
Marcos, in 1954, petitioner was obliged by virtue of Article 110 of
the Civil Code to follow her husband's actual place of residence
fixed by him. The problem here is that at that time, Mr. Marcos had
several places of residence, among which were San Juan, Rizal and
Batac, Ilocos Norte. There is no showing which of these places Mr.
Marcos did fix as his family's residence. But assuming that Mr.
Marcos had fixed any of these places as the conjugal residence,
what petitioner gained upon marriage was actual residence. She
did not lose her domicile of origin.
On the other hand, the common law concept of "matrimonial
domicile" appears to have been incorporated, as a result of our
jurisprudential experiences after the drafting of the Civil Code of
1950, into the New Family Code. To underscore the difference
between the intentions of the Civil Code and the Family Code
drafters, the term residence has been supplanted by the term
domicile in an entirely new provision (Art. 69) distinctly different in
meaning and spirit from that found in Article 110. The provision
recognizes revolutionary changes in the concept of women's rights
in the intervening years by making the choice of domicile a product
of mutual agreement between the spouses. 46
Without as much belaboring the point, the term residence may
mean one thing in civil law (or under the Civil Code) and quite
another thing in political law. What stands clear is that insofar as
the Civil Code is concerned-affecting the rights and obligations of
husband and wife the term residence should only be interpreted
to mean "actual residence." The inescapable conclusion derived
from this unambiguous civil law delineation therefore, is that when
petitioner married the former President in 1954, she kept her
domicile of origin and merely gained a new home, not a domicilium
necessarium.
Even assuming for the sake of argument that petitioner gained a
new "domicile" after her marriage and only acquired a right to

choose a new one after her husband died, petitioner's acts

following her return to the country clearly indicate that she not only
impliedly but expressly chose her domicile of origin (assuming this
was lost by operation of law) as her domicile. This "choice" was
unequivocally expressed in her letters to the Chairman of the PCGG
when petitioner sought the PCGG's permission to "rehabilitate (our)
ancestral house in Tacloban and Farm in Olot, Leyte. . . to make
them livable for the Marcos family to have a home in our
homeland." 47 Furthermore, petitioner obtained her residence
certificate in 1992 in Tacloban, Leyte, while living in her brother's
house, an act which supports the domiciliary intention clearly
manifested in her letters to the PCGG Chairman. She could not
have gone straight to her home in San Juan, as it was in a state of
disrepair, having been previously looted by vandals. Her "homes"
and "residences" following her arrival in various parts of Metro
Manila merely qualified as temporary or "actual residences," not
domicile. Moreover, and proceeding from our discussion pointing
out specific situations where the female spouse either reverts to
her domicile of origin or chooses a new one during the subsistence
of the marriage, it would be highly illogical for us to assume that
she cannot regain her original domicile upon the death of her
husband absent a positive act of selecting a new one where
situations exist within the subsistence of the marriage itself where
the wife gains a domicile different from her husband.
In the light of all the principles relating to residence and domicile
enunciated by this court up to this point, we are persuaded that the
facts established by the parties weigh heavily in favor of a
conclusion supporting petitioner's claim of legal residence or
domicile in the First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already
lapsed considering that the assailed resolutions were rendered on
April 24, 1995, fourteen (14) days before the election in violation of
Section 78 of the Omnibus Election Code. 48 Moreover, petitioner
contends that it is the House of Representatives Electoral Tribunal
and not the COMELEC which has jurisdiction over the election of
members of the House of Representatives in accordance with
Article VI Sec. 17 of the Constitution. This is untenable.

196
It is a settled doctrine that a statute requiring rendition of judgment
within a specified time is generally construed to be merely
directory, 49 "so that non-compliance with them does not invalidate
the judgment on the theory that if the statute had intended such
result it would have clearly indicated it." 50 The difference between
a mandatory and a directory provision is often made on grounds of
necessity. Adopting the same view held by several American
authorities, this court inMarcelino vs. Cruz held that: 51
The difference between a mandatory and directory provision is
often determined on grounds of expediency, the reason being that
less injury results to the general public by disregarding than
enforcing the letter of the law.
In Trapp v. Mc Cormick, a case calling for the interpretation of a
statute containing a limitation of thirty (30) days within which a
decree may be entered without the consent of counsel, it was held
that "the statutory provisions which may be thus departed from
with impunity, without affecting the validity of statutory
proceedings, are usually those which relate to the mode or time of
doing that which is essential to effect the aim and purpose of the
Legislature or some incident of the essential act." Thus, in said
case, the statute under examination was construed merely to be
directory.
The mischief in petitioner's contending that the COMELEC should
have abstained from rendering a decision after the period stated in
the Omnibus Election Code because it lacked jurisdiction, lies in the
fact that our courts and other quasi-judicial bodies would then
refuse to render judgments merely on the ground of having failed
to reach a decision within a given or prescribed period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646
in relation to Section 78 of B.P. 881, 52 it is evident that the
respondent Commission does not lose jurisdiction to hear and
decide a pending disqualification case under Section 78 of B.P. 881
even after the elections.
As to the House of Representatives Electoral Tribunal's supposed
assumption of jurisdiction over the issue of petitioner's
qualifications after the May 8, 1995 elections, suffice it to say that
HRET's jurisdiction as the sole judge of all contests relating to the
elections, returns and qualifications of members of Congress begins

only after a candidate has become a member of the House of

Representatives. 53 Petitioner not being a member of the House of
Representatives, it is obvious that the HRET at this point has no
jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the
1987 Constitution for us to either to ignore or deliberately make
distinctions in law solely on the basis of the personality of a
petitioner in a case. Obviously a distinction was made on such a
ground here. Surely, many established principles of law, even of
election laws were flouted for the sake perpetuating power during
the pre-EDSA regime. We renege on these sacred ideals, including
the meaning and spirit of EDSA ourselves bending established
principles of principles of law to deny an individual what he or she
justly deserves in law. Moreover, in doing so, we condemn
ourselves to repeat the mistakes of the past.
WHEREFORE, having determined that petitioner possesses the
necessary residence qualifications to run for a seat in the House of
Representatives in the First District of Leyte, the COMELEC's
questioned Resolutions dated April 24, May 7, May 11, and May 25,
1995 are hereby SET ASIDE. Respondent COMELEC is hereby
directed to order the Provincial Board of Canvassers to proclaim
petitioner as the duly elected Representative of the First District of
Leyte.
SO ORDERED.
Feliciano, J., is on leave.
SEPARATE OPINONS
PUNO, J., concurring:
It was Aristotle who taught mankind that things that are alike
should be treated alike, while things that are unalike should be
treated unalike in proportion to their unalikeness. 1 Like other
candidates, petitioner has clearly met the residence requirement
provided by Section 6, Article VI of the Constitution. 2 We cannot
disqualify her and treat her unalike, for the Constitution guarantees
equal protection of the law. I proceed from the following factual and
legal propositions:
First. There is no question that petitioner's original domicile is in
Tacloban, Leyte. Her parents were domiciled in Tacloban. Their

197
ancestral house is in Tacloban. They have vast real estate in the
place. Petitioner went to school and thereafter worked there. I
consider Tacloban as her initial domicile, both her domicile of origin
and her domicile of choice. Her domicile of origin as it was the
domicile of her parents when she was a minor; and her domicile of
choice, as she continued living there even after reaching the age of
majority.
Second. There is also no question that in May, 1954, petitioner
married the late President Ferdinand E. Marcos. By contracting
marriage, her domicile became subject to change by law, and the
right to change it was given by Article 110 of the Civil Code
provides:
Art. 110. The husband shall fix the residence of the family. But the
court may exempt the wife from living with the husband if he
should live abroad unless in the service of the Republic. 3 (Emphasis
supplied)
In De la Via v. Villareal and Geopano, 4 this Court explained why
the domicile of the wife ought to follow that of the husband. We
held: "The reason is founded upon the theoretic identity of person
and interest between the husband and the wife, and the
presumption that, from the nature of the relation, the home of one
is the home of the other. It is intended to promote, strengthen, and
secure their interests in this relation, as it ordinarily exists, where
union and harmony prevail." 5 In accord with this objective, Article
109 of the Civil Code also obligated the husband and wife "to live
together."
Third. The difficult issues start as we determine whether
petitioner's marriage to former President Marcos ipso facto resulted
in the loss of her Tacloban domicile. I respectfully submit that her
marriage by itself alone did not cause her to lose her Tacloban
domicile. Article 110 of the Civil Code merely gave the husband the
right to fix the domicile of the family. In the exercise of the right,
the husband may explicitly choose the prior domicile of his wife, in
which case, the wife's domicile remains unchanged. The husband
can also implicitly acquiesce to his wife's prior domicile even if it is
different. So we held in de la Via, 6
. . . . When married women as well as children subject to parental
authority live, with the acquiescence of their husbands or fathers,

in a place distinct from where the latter live, they have their
own independent domicile. . . .
It is not, therefore, the mere fact of marriage but the deliberate
choice of a different domicile by the husband that will change the
domicile of a wife from what it was prior to their marriage. The
domiciliary decision made by the husband in the exercise of the
right conferred by Article 110 of the Civil Code binds the wife. Any
and all acts of a wife during her coverture contrary to the
domiciliary choice of the husband cannot change in any way the
domicile legally fixed by the husband. These acts are void not only
because the wife lacks the capacity to choose her domicile but also
because they are contrary to law and public policy.
In the case at bench, it is not disputed that former President Marcos
exercised his right to fix the family domicile and established it in
Batac, Ilocos Norte, where he was then the congressman. At that
particular point of time and throughout their married life, petitioner
lost her domicile in Tacloban, Leyte. Since petitioner's Batac
domicile has been fixed by operation of law, it was not affected in
1959 when her husband was elected as Senator, when they lived in
San Juan, Rizal and where she registered as a voter. It was not also
affected in 1965 when her husband was elected President, when
they lived in Malacaang Palace, and when she registered as a
voter in San Miguel, Manila. Nor was it affected when she served as
a member of the Batasang Pambansa, Minister of Human
Settlements and Governor of Metro Manila during the incumbency
of her husband as President of the nation. Under Article 110 of the
Civil Code, it was only her husband who could change the family
domicile in Batac and the evidence shows he did not effect any
such change. To a large degree, this follows the common law that
"a woman on her marriage loses her own domicile and by operation
of law, acquires that of her husband, no matter where the wife
actually lives or what she believes or intends." 7
Fourth. The more difficult task is how to interpret the effect of
the death on September 28, 1989 of former President Marcos on
petitioner's Batac domicile. The issue is of first impression in our
jurisdiction and two (2) schools of thought contend for acceptance.
One is espoused by our distinguished colleague, Mr. Justice Davide,
Jr., heavily relying on American authorities. 8 He echoes the

198
theory that after the husband's death, the wife retains the last
domicile of her husband until she makes an actual change.
I do not subscribe to this submission. The American case law that
the wife still retains her dead husband's domicile is based
on ancient common law which we can no longer apply in the
Philippine setting today. The common law identified the domicile of
a wife as that of the husband and denied to her the power of
acquiring a domicile of her own separate and apart from
him. 9 Legal scholars agree that two (2) reasons support this
common law doctrine. The first reason as pinpointed by the
legendary Blackstone is derived from the view that "the very being
or legal existence of the woman is suspended during
the marriage, or at least is incorporated and consolidated into that
of the husband." 10 The second reason lies in "the desirability of
having the interests of each member of the family unit governed by
the same law." 11 The presumption that the wife retains the domicile
of her deceased husband is an extension of this common law
concept. The concept and its extension have provided some of the
most iniquitous jurisprudence against women. It was under
common law that the 1873 American case of Bradwell
v. Illinois 12 was decided where women were denied the right to
practice law. It was unblushingly ruled that "the natural and proper
timidity and delicacy which belongs to the female sex evidently
unfits it for many of the occupations of civil life . . . This is the law
of the Creator." Indeed, the rulings relied upon by Mr. Justice Davide
in CJS 13and AM JUR 2d 14 are American state court decisions handed
down between the years 1917 15 and 1938, 16 or before the time
when women were accorded equality of rights with men.
Undeniably, the women's liberation movement resulted in farranging state legislations in the United States to eliminate gender
inequality. 17 Starting in the decade of the seventies, the courts
likewise liberalized their rulings as they started invalidating laws
infected with gender-bias. It was in 1971 when the US Supreme
Court in Reed v. Reed, 18 struck a big blow for women equality when
it declared as unconstitutional an Idaho law that required probate
courts to choose male family members over females as estate
administrators. It held that mere administrative inconvenience
cannot justify a sex-based distinction. These significant changes

both in law and in case law on the status of women virtually

obliterated the iniquitous common law surrendering the rights of
married women to their husbands based on the dubious theory of
the parties' theoretic oneness. The Corpus Juris Secundum editors
did not miss the relevance of this revolution on women's right as
they observed: "However, it has been declared that under modern
statutes changing the status of married women and departing from
the common law theory of marriage, there is no reason why a wife
may not acquire a separate domicile for every purpose known to
the law." 19 In publishing in 1969 theRestatement of the Law,
Second (Conflict of Laws 2d), the reputable American Law Institute
also categorically stated that the view of Blackstone ". . . is no
longer held. As the result of statutes and court decisions, a wife
now possesses practically the same rights and powers as her
unmarried sister." 20
In the case at bench, we have to decide whether we should
continue clinging to the anachronistic common lawthat demeans
women, especially married women. I submit that the Court has no
choice except to break away from this common law rule, the root of
the many degradations of Filipino women. Before 1988, our laws
particularly the Civil Code, were full of gender discriminations
against women. Our esteemed colleague, Madam Justice Flerida
Ruth Romero, cited a few of them as follows: 21
xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under the Civil Code, wives
suffer under certain restrictions or disabilities. For instance, the
wife cannot accept gifts from others, regardless of the sex of the
giver or the value of the gift, other than from her very close
relatives, without her husband's consent. She may accept only
from, say, her parents, parents-in-law, brothers, sisters and the
relatives within the so-called fourth civil degree. She may not
exercise her profession or occupation or engage in business if her
husband objects on serious grounds or if his income is sufficient to
support their family in accordance with their social standing. As to
what constitutes "serious grounds" for objecting, this is within the
discretion of the husband.
xxx xxx xxx

199
Because of the present inequitable situation, the amendments to
the Civil Law being proposed by the University of the Philippines
Law Center would allow absolute divorce which severes the
matrimonial ties, such that the divorced spouses are free to get
married a year after the divorce is decreed by the courts. However,
in order to place the husband and wife on an equal footing insofar
as the bases for divorce are concerned, the following are specified
as the grounds for absolute divorce: (1) adultery or having a
paramour committed by the respondent in any of the ways
specified in the Revised Penal Code or (2) an attempt by the
respondent against the life of the petitioner which amounts to
attempted parricide under the Revised Penal Code; (3)
abandonment of the petitioner by the respondent without just
cause for a period of three consecutive years; or (4) habitual
maltreatment.
With respect to property relations, the husband is automatically the
administrator of the conjugal property owned in common by the
married couple even if the wife may be the more astute or
enterprising partner. The law does not leave it to the spouses to
decide who shall act as such administrator. Consequently, the
husband is authorized to engage in acts and enter into transactions
beneficial to the conjugal partnership. The wife, however, cannot
similarly bind the partnership without the husband's consent.
And while both exercise joint parental authority over their children,
it is the father whom the law designates as the legal administrator
of the property pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally
through legislations, to eliminate inequality between men and
women in our land. The watershed came on August 3, 1988 when
our Family Code took effect which, among others, terminated the
unequal treatment of husband and wife as to their rights and
responsibilities. 22
The Family Code attained this elusive objective by giving new rights
to married women and by abolishing sex-based privileges of
husbands. Among others, married women are now given the joint
right to administer the family property, whether in the absolute
community system or in the system of conjugal partnership; 23 joint
parental authority over their minor children, both over their persons

as well as their properties; 24 joint responsibility for the support of

the family; 25 the right to jointly manage the household; 26 and, the
right to object to their husband's exercise of profession, occupation,
business or activity. 27 Of particular relevance to the case at bench
is Article 69 of the Family Code which took away the exclusive right
of the husband to fix the family domicile and gave it jointly to the
husband and the wife, thus:
Art. 69. The husband and wife shall fix the family domicile. In case
of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the
latter should live abroad or there are other valid and compelling
reasons for the exemption. However, such exemption shall not
apply if the same is not compatible with the solidarity of the family.
(Emphasis supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on
the duty of the husband and wife to live together, former Madam
Justice Alice Sempio-Diy of the Court of Appeals specified the
instances when a wife may now refuse to live with her husband,
thus: 28
(2) The wife has the duty to live with her husband, but she may
refuse to do so in certain cases like:
(a) If the place chosen by the husband as family residence is
dangerous to her Life;
(b) If the husband subjects her to maltreatment or abusive conduct
or insults, making common life impossible;
(c) If the husband compels her to live with his parents, but she
cannot get along with her mother-in-law and they have constant
quarrels (Del Rosario v. Del Rosario, CA, 46 OG 6122);
(d) Where the husband has continuously carried illicit relations for
10 years with different women and treated his wife roughly and
without consideration. (Dadivas v. Villanueva, 54 Phil. 92);
(e) Where the husband spent his time in gambling, giving no money
to his family for food and necessities, and at the same time
insulting his wife and laying hands on her. (Panuncio v. Sula, CA, 34
OG 129);
(f) If the husband has no fixed residence and lives a vagabond life
as a tramp (1 Manresa 329);

200
(g) If the husband is carrying on a shameful business at home
(Gahn v. Darby, 38 La. Ann. 70).
The inescapable conclusion is that our Family Code has completely
emancipated the wife from the control of the husband, thus
abandoning the parties' theoretic identity of interest. No less than
the late revered Mr. Justice J.B.L. Reyes who chaired the Civil Code
Revision Committee of the UP Law Center gave this insightful view
in one of his rare lectures after retirement: 29
xxx xxx xxx
The Family Code is primarily intended to reform the family law so as
to emancipate the wife from the exclusive control of the husband
and to place her at parity with him insofar as the family is
concerned. The wife and the husband are now placed on equal
standing by the Code. They are now joint administrators of the
family properties and exercise joint authority over the persons and
properties of their children. This means a dual authority in the
family. The husband will no longer prevail over the wife but she has
to agree on all matters concerning the family. (Emphasis supplied)
In light of the Family Code which abrogated the inequality between
husband and wife as started and perpetuated by the common
law, there is no reason in espousing the anomalous rule that the
wife still retains the domicile of her dead husband. Article 110 of
the Civil Code which provides the statutory support for this stance
has been repealed by Article 69 of the Family Code. By its repeal, it
becomes a dead-letter law, and we are not free to resurrect it by
giving it further effect in any way or manner such as by ruling that
the petitioner is still bound by the domiciliary determination of her
dead husband.
Aside from reckoning with the Family Code, we have to consider our
Constitution and its firm guarantees of due process and equal
protection
of
30
law. It can hardly be doubted that the common law imposition on
a married woman of her dead husband's domicile even beyond his
grave is patently discriminatory to women. It is a gender-based
discrimination and is not rationally related to the objective of
promoting family solidarity. It cannot survive a constitutional
challenge. Indeed, compared with our previous fundamental
laws, the 1987 Constitution is more concerned with equality

between sexes as it explicitly commands that the State ". . . shall

ensure fundamental equality before the law of women and men." To
be exact, section 14, Article II provides: "The State recognizes the
role of women in nation building, and shall ensure fundamental
equality before the law of women and men. We shall be
transgressing the sense and essence of this constitutional mandate
if we insist on giving our women the caveman's treatment.
Prescinding from these premises, I respectfully submit that the
better stance is to rule that petitioner reacquired her Tacloban
domicile upon the death of her husband in 1989. This is the
necessary consequence of the view that petitioner's Batac dictated
domicile did not continue after her husband's death; otherwise, she
would have no domicile and that will violate the universal rule that
no person can be without a domicile at any point of time. This
stance also restores the right of petitioner to choose her domicile
before it was taken away by Article 110 of the Civil Code, a right
now recognized by the Family Code and protected by the
Constitution. Likewise, I cannot see the fairness of the common law
requiring petitioner to choose again her Tacloban domicile before
she could be released from her Batac domicile. She lost her
Tacloban domicile not through her act but through the act of her
deceased husband when he fixed their domicile in Batac. Her
husband is dead and he cannot rule her beyond the grave. The law
disabling her to choose her own domicile has been repealed.
Considering all these, common law should not put the burden on
petitioner to prove she has abandoned her dead husband's
domicile. There is neither rhyme nor reason for this gender-based
burden.
But even assuming arguendo that there is need for convincing
proof that petitioner chose to reacquire her Tacloban domicile, still,
the records reveal ample evidence to this effect. In her affidavit
submitted to the respondent COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to our beloved country, after
several requests for my return were denied by President Corazon C.
Aquino, and after I filed suits for our Government to issue me my
passport.

201
37. But I came home without the mortal remains of my beloved
husband, President Ferdinand E. Marcos, which the Government
considered a threat to the national security and welfare.
38. Upon my return to the country, I wanted to immediately live
and reside in Tacloban City or in Olot, Tolosa, Leyte, even if my
residences there were not livable as they had been destroyed and
cannibalized. The PCGG, however, did not permit and allow me.
39. As a consequence, I had to live at various times in the Westin
Philippine Plaza in Pasay City, a friend's apartment on Ayala
Avenue, a house in South Forbes Park which my daughter rented,
and Pacific Plaza, all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the
residence of my brother in San Jose, Tacloban City, and pursued my
negotiations with PCGG to recover my sequestered residences in
Tacloban City and Barangay Olot, Tolosa, Leyte.
40.1 In preparation for my observance of All Saints' Day and All
Souls' Day that year, I renovated my parents' burial grounds and
entombed their bones which had been excalvated, unearthed and
scattered.
41. On November 29, 1993, I formally wrote PCGG Chairman
Magtanggol Gunigundo for permissions to
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and
farmhouse in Olot, Leyte . . . to make them livable for us the Marcos
family to have a home in our own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman
Gunigundo, in his letter to Col. Simeon Kempis, Jr., PCGG Region 8
Representative, allowed me to repair and renovate my Leyte
residences. I quote part of his letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this Commission,
that she intends to visit our sequestered properties in Leyte, please
allow her access thereto. She may also cause repairs and
renovation of the sequestered properties, in which event, it shall be
understood that her undertaking said repairs is not authorization
for her to take over said properties, and that all expenses shall be
for her account and not reimbursable. Please extend the necessary
courtesy to her.

xxx xxx xxx

43. I was not permitted, however, to live and stay in the Sto. Nio
Shrine residence in Tacloban City where I wanted to stay and
reside, after repairs and renovations were completed. In August
1994, I transferred from San Jose, Tacloban City, to my residence in
Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay and
live there.
It is then clear that in 1992 petitioner reestablished her domicile in
the First District of Leyte. It is not disputed that in 1992, she first
lived at the house of her brother in San Jose, Tacloban City and
later, in August 1994, she transferred her residence in Barangay
Olot, Tolosa, Leyte. Both Tacloban City and the municipality of Olot
are within the First District of Leyte. Since petitioner reestablished
her old domicile in 1992 in the First District of Leyte, she more than
complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding
the day of the election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to negate the
Tacloban domicile of petitioner is nil. He presented petitioner's
Voter's Registration Record filed with the Board of Election
Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein
she stated that her period of residence in said barangay was six (6)
months as of the date of her filing of said Voter's Registration
Record on January 28, 1995. 31 This statement in petitioner's Voter's
Registration Record is a non-prejudicial admission. The Constitution
requires at least one (1) year residence in thedistrict in which the
candidate shall be elected. In the case at bench, the reference is
the First District of Leyte. Petitioner's statement proved that she
resided in Olot six (6) months before January 28, 1995 but did not
disprove that she has also resided in Tacloban City starting 1992.
As aforestated, Olot and Tacloban City are both within the First
District of Leyte, hence, her six (6) months residence in Olot should
be counted not against, but in her favor. Private respondent also
presented petitioner's Certificate of Candidacy filed on March 8,
1995 32 where she placed seven (7) months after Item No. 8 which
called for information regarding "residence in the constituency
where I seek to be elected immediately preceding the election."
Again, this original certificate of candidacy has no evidentiary value

202
because an March 1, 1995 it was corrected by petitioner. In her
Amended/Corrected Certificate of Candidacy, 33 petitioner wrote
"since childhood" after Item No. 8. The amendment of a certificate
of candidacy to correct a bona fide mistake has been allowed by
this Court as a matter of course and as a matter of right. As we
held in Alialy v. COMELEC, 34 viz.:
xxx xxx xxx
The absence of the signature of the Secretary of the local chapter
N.P in the original certificate of candidacy presented before the
deadline September 11, 1959, did not render the certificate
invalid.The amendment of the certificate, although at a date after
the deadline, but before the election, was substantial compliance
with the law, and the defect was cured.
It goes without saying that petitioner's erroneous Certificate of
Candidacy filed on March 8, 1995 cannot be used as evidence
against her. Private respondent's petition for the disqualification of
petitioner rested alone on these two (2) brittle pieces of
documentary evidence petitioner's Voter's Registration Record
and her original Certificate of Candidacy. Ranged against the
evidence of the petitioner showing her ceaseless contacts with
Tacloban, private respondent's two (2) pieces of evidence are too
insufficient to disqualify petitioner, more so, to deny her the right to
represent the people of the First District of Leyte who have
overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution mandates that
"bona fide candidates for any public office shall be free from any
form of harassment and discrimination." 35 A detached reading of
the records of the case at bench will show that all forms of legal
and extra-legal obstacles have been thrown against petitioner to
prevent her from running as the people's representative in the First
District of Leyte. In petitioner's Answer to the petition to disqualify
her, she averred: 36
xxx xxx xxx
10. Petitioner's (herein private respondent Montejo) motive in filing
the instant petition is devious. When respondent (petitioner herein)
announced that she was intending to register as a voter in Tacloban
City and run for Congress in the First District of Leyte, petitioner
(Montejo) immediately opposed her intended registration by writing

a letter stating that "she is not a resident of said city but of

Barangay Olot, Tolosa, Leyte." (Annex "2" of respondent's affidavit,
Annex "2"). After respondent (petitioner herein) had registered as a
voter in Tolosa following completion of her six-month actual
residence therein, petitioner (Montejo) filed a petition with the
COMELEC to transfer the town of Tolosa from the First District to the
Second District and pursued such move up to the Supreme Court in
G.R. No. 118702, his purpose being to remove respondent
(petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along
with other Leyte Congressmen, seeking to create another
legislative district, to remove the town of Tolosa out of the First
District and to make it a part of the new district, to achieve his
purpose. However, such bill did not pass the Senate. Having, failed
on such moves, petitioner now filed the instant petition, for the
same objective, as it is obvious that he is afraid to submit himself
along with respondent (petitioner herein) for the judgment and
verdict of the electorate of the First District of Leyte in an honest,
orderly, peaceful, free and clean elections on May 8, 1995.
These allegations which private respondent did not challenge were
not
lost
to the perceptive eye of Commissioner Maambong who in his
Dissenting Opinion, 37 held:
xxx xxx xxx
Prior to the registration date January 28, 1995 the petitioner
(herein private respondent Montejo) wrote the Election Officer of
Tacloban City not to allow respondent (petitioner herein) to register
thereat since she is a resident of Tolosa and not Tacloban City. The
purpose of this move of the petitioner (Montejo) is not lost to (sic)
the Commission. In UND No. 95-001 (In the matter of the
Legislative Districts of the Provinces of Leyte, Iloilo, and South
Cotabato, Out of Which the New Provinces of Biliran, Guimaras and
Saranggani Were Respectively Created), . . . Hon. Cirilo Roy G.
Montejo, Representative, First District of Leyte, wanted the
Municipality of Tolosa, in the First District of Leyte, transferred to
the Second District of Leyte. The Hon. Sergio A.F. Apostol,
Representative of the Second District of Leyte, opposed the move
of the petitioner (Montejo). Under Comelec Resolution No. 2736

203
(December 29, 1994), the Commission on Elections refused to
make the proposed transfer. Petitioner (Montejo) filed "Motion for
Reconsideration
of
Resolution
No. 2736" which the Commission denied in a Resolution
promulgated on February 1, 1995. Petitioner (Montejo) filed a
petition for certiorari before the Honorable Supreme Court (Cirilo
Roy G. Montejo vs. Commission on Elections, G.R. No. 118702)
questioning the resolution of the Commission. Believing that he
could get a favorable ruling from the Supreme Court, petitioner
(Montejo) tried to make sure that the respondent (petitioner herein)
will register as a voter in Tolosa so that she will be forced to run as
Representative not in the First but in the Second District.
It did not happen. On March 16, 1995, the Honorable Supreme
Court unanimously promulgated a "Decision," penned by Associate
Justice Reynato S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it
transferred the municipality of Capoocan of the Second District and
the municipality of Palompon of the Fourth District to the Third
District of the province of Leyte, is annulled and set aside. We also
deny the Petition praying for the transfer of the municipality of
Tolosa from the First District to the Second District of the province
of Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent
(petitioner herein) was constrained to register in the Municipality of
Tolosa where her house is instead of Tacloban City, her domicile. In
any case, both Tacloban City and Tolosa are in the First Legislative
District.
All these attempts to misuse our laws and legal processes are
forms of rank harassments and invidious discriminations against
petitioner to deny her equal access to a public office. We cannot
commit any hermeneutic violence to the Constitution by torturing
the meaning of equality, the end result of which will allow the
harassment and discrimination of petitioner who has lived a
controversial life, a past of alternating light and shadow. There is
but one Constitution for all Filipinos. Petitioner cannot be adjudged
by a "different" Constitution, and the worst way to interpret the
Constitution is to inject in its interpretation, bile and bitterness.

Sixth. In Gallego v. Vera, 38 we explained that the reason for this

residence requirement is "to exclude a stranger or newcomer,
unacquainted, with the conditions and needs of a community and
not identified with the latter, from an elective office to serve that
community . . . ." Petitioner's lifetime contacts with the First District
of Leyte cannot be contested. Nobody can claim that she is not
acquainted with its problems because she is a stranger to the
place. None can argue she cannot satisfy the intent of the
Constitution.
Seventh. In resolving election cases, a dominant consideration is
the need to effectuate the will of the electorate. The election
results show that petitioner received Seventy Thousand Four
Hundred Seventy-one (70,471) votes, while private respondent got
only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833)
votes. Petitioner is clearly the overwhelming choice of the
electorate of the First District of Leyte and this is not a sleight of
statistics. We cannot frustrate this sovereign will on highly arguable
technical considerations. In case of doubt, we should lean towards
a rule that will give life to the people's political judgment.
A final point. The case at bench provides the Court with the rare
opportunity to rectify the inequality of status between women and
men by rejecting the iniquitous common law precedents on the
domicile of married women and by redefining domicile in accord
with our own culture, law, and Constitution. To rule that a married
woman is eternally tethered to the domicile dictated by her dead
husband is to preserve the anachronistic and anomalous balance of
advantage of a husband over his wife. We should not allow the
dead to govern the living even if the glories of yesteryears seduce
us to shout long live the dead! The Family Code buried this genderbased discrimination against married women and we should not
excavate what has been entombed. More importantly, the
Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner
qualified for the position of Representative of the First

204
Congressional District of Leyte. I wish, however, to express a few
comments on the issue of petitioner's domicile.
Domicile has been defined as that place in which a person's
habitation is fixed, without any present intention of removing
therefrom, and that place is properly the domicile of a person in
which he has voluntarily fixed his abode, or habitation, not for a
mere special or temporary purpose, but with a present intention of
making it his permanent home (28 C.J.S. 1). It denotes a fixed
permanent residence to which when absent for business, or
pleasure, or for like reasons one intends to return, and depends on
facts and circumstances, in the sense that they disclose intent.
(Ong Huan Tin v. Republic, 19 SCRA 966, 969)
Domicile is classified into domicile of origin and domicile of choice.
The law attributes to every individual a domicile of origin, which is
the domicile of his parents, or of the head of his family, or of the
person on whom he is legally dependent at the time of his birth.
While the domicile of origin is generally the place where one is born
or reared, it maybe elsewhere (28 C.J.S. 5). Domicile of choice, on
the other hand, is the place which the person has elected and
chosen for himself to displace his previous domicile; it has for its
true basis or foundation the intention of the person (28 C.J.S. 6). In
order to hold that a person has abandoned his domicile and
acquired a new one called domicile of choice, the following
requisites must concur, namely, (a) residence or bodily presence in
the new locality, (b) intention to remain there or animus manendi,
and (c) an intention to abandon the old domicile oranimus non
revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408,
415). A third classification is domicile by operation of law which
attributes to a person a domicile independent of his own intention
or actual residence, ordinarily resulting from legal domestic
relations, as that of the wife arising from marriage, or the relation
of a parent and a child (28 C.J.S. 7).
In election law, when our Constitution speaks of residence for
election purposes it means domicile (Co v. Electoral Tribunal of the
House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52
Phil. 645, 651). To my mind, public respondent Commission on
Elections misapplied this concept, of domicile which led to
petitioner's disqualification by ruling that petitioner failed to comply

with
the
constitutionally
mandated
one-year
residence
requirement. Apparently, public respondent Commission deemed as
conclusive petitioner's stay and registration as voter in many
places as conduct disclosing her intent to abandon her established
domicile of origin in Tacloban, Leyte. In several decisions, though,
the Court has laid down the rule that registration of a voter in a
place other than his place of origin is not sufficient to constitute
abandonment or loss of such residence (Faypon v. Quirino, 96 Phil.
294, 300). Respondent Commission offered no cogent reason to
depart from this rule except to surmise petitioner's intent of
abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was
supplanted by a new domicile due to her marriage, a domicile by
operation of law. The proposition is that upon the death of her
husband in 1989 she retains her husband's domicile, i.e., Batac,
Ilocos Norte, until she makes an actual change thereof. I find this
proposition quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was
involuntarily supplanted with another, i.e., Batac, Ilocos Norte,
upon her marriage in 1954 with then Congressman Marcos. By legal
fiction she followed the domicile of her husband. In my view, the
reason for the law is for the spouses to fully and effectively perform
their marital duties and obligations to one another. 1 The question
of domicile, however, is not affected by the fact that it was the
legal or moral duty of the individual to reside in a given place (28
C.J.S. 11). Thus, while the wife retains her marital domicile so long
as the marriage subsists, she automatically loses it upon the
latter's termination, for the reason behind the law then ceases.
Otherwise, petitioner, after her marriage was ended by the death of
her husband, would be placed in a quite absurd and unfair situation
of having been freed from all wifely obligations yet made to hold on
to one which no longer serves any meaningful purpose.
It is my view therefore that petitioner reverted to her original
domicile of Tacloban, Leyte upon her husband's death without even
signifying her intention to that effect. It is for the private
respondent to prove, not for petitioner to disprove, that petitioner
has effectively abandoned Tacloban, Leyte for Batac, Ilocos Norte or
for some other place/s. The clear rule is that it is the party (herein

205
private respondent) claiming that a person has abandoned or lost
his residence of origin who must show and prove preponderantly
such abandonment or loss (Faypon v. Quirino, supra at 298; 28
C.J.S. 16), because the presumption is strongly in favor of an
original or former domicile, as against an acquired one (28 C.J.S.
16). Private respondent unfortunately failed to discharge this
burden as the record is devoid of convincing proof that petitioner
has acquired whether voluntarily or involuntarily, a new domicile to
replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has
complied with the constitutional one-year residence requirement.
After her exile abroad, she returned to the Philippines in 1991 to
reside in Olot, Tolosa, Leyte, but the Presidential Commission on
Good Government which sequestered her residential house and
other properties forbade her necessitating her transient stay in
various places in Manila (Affidavit p.6, attached as Annex I of the
Petition). In 1992, she ran for the position of president writing in her
certificate of candidacy her residence as San Juan, Metro Manila.
After her loss therein, she went back to Tacloban City, acquired her
residence certificate 2and resided with her brother in San Jose. She
resided in San Jose, Tacloban City until August of 1994 when she
was allowed by the PCGG to move and reside in her sequestered
residential house in Olot, Tolosa, Leyte (Annex I, p. 6). 3 It was in the
same month of August when she applied for the cancellation of her
previous registration in San Juan, Metro Manila in order to register
anew as voter of Olot, Tolosa, Leyte, which she did on January 28,
1995. From this sequence of events, I find it quite improper to use
as the reckoning period of the one-year residence requirement the
date when she applied for the cancellation of her previous
registration in San Juan, Metro Manila. The fact which private
respondent never bothered to disprove is that petitioner transferred
her residence after the 1992 presidential election from San Juan,
Metro Manila to San Jose, Tacloban City, and resided therein until
August of 1994. She later transferred to Olot, Tolosa, Leyte (Annex
I, p. 7). It appearing that both Tacloban City and Tolosa, Leyte are
within the First Congressional District of Leyte, it indubitably stands
that she had more than a year of residence in the constituency she
sought to be elected. Petitioner, therefore, has satisfactorily

complied with the one-year qualification required by the 1987

Constitution.
I vote to grant the petition.
ROMERO, J., separate opinion:
Petitioner has appealed to this Court for relief after the COMELEC
ruled that she was disqualified from running for Representative of
her District and that, in the event that she should, nevertheless,
muster a majority vote, her proclamation should be suspended. Not
by a straightforward ruling did the COMELEC pronounce its decision
as has been its unvarying practice in the past, but by a startling
succession of "reverse somersaults." Indicative of its shifting
stance vis-a-vis petitioner's certificate of candidacy were first, the
action of its Second Division disqualifying her and canceling her
original Certificate of Candidacy by a vote of 2-1 on April 24, 1995;
then the denial by the COMELEC en banc of her Motion for
Reconsideration on May 7, 1995, a day before the election; then
because
she
persisted
in
running,
its
decision
on
May 11, 1995 or three days after the election, allowing her
proclamation in the event that the results of the canvass should
show that she obtained the highest number of votes (obviously
noting that petitioner had won overwhelmingly over her opponent),
but almost simultaneously reversing itself by directing that even if
she wins, her proclamation should nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by
the case at bench is the interpretation to be given to the one-year
residency requirement imposed by the Constitution on aspirants for
a Congressional seat. 1
Bearing in mind that the term "resident" has been held to be
synonymous with "domicile" for election purposes, it is important to
determine whether petitioner's domicile was in the First District of
Leyte and if so, whether she had resided there for at least a period
of one year. Undisputed is her domicile of origin, Tacloban, where
her parents lived at the time of her birth. Depending on what
theory one adopts, the same may have been changed when she
married Ferdinand E. Marcos, then domiciled in Batac, by operation
of law. Assuming it did, his death certainly released her from the
obligation to live with him at the residence fixed by him during his

206
lifetime. What may confuse the layman at this point is the fact that
the term "domicile" may refer to "domicile of origin," "domicile of
choice," or "domicile by operation of law," which subject we shall
not belabor since it has been amply discussed by the ponente and
in the other separate opinions.
In any case, what assumes relevance is the divergence of legal
opinion as to the effect of the husband's death on the domicile of
the widow. Some scholars opine that the widow's domicile remains
unchanged; that the deceased husband's wishes perforce still bind
the wife he has left behind. Given this interpretation, the widow
cannot possibly go far enough to sever the domiciliary tie imposed
by her husband.
It is bad enough to interpret the law as empowering the husband
unilaterally to fix the residence or domicile of the family, as laid
down in the Civil Code, 2 but to continue giving obeisance to his
wishes even after the rationale underlying the mutual duty of the
spouses to live together has ceased, is to close one's eyes to the
stark realities of the present.
At the other extreme is the position that the widow automatically
reverts to her domicile of origin upon the demise of her husband.
Does the law so abhor a vacuum that the widow has to be endowed
somehow with a domicile? To answer this question which is far from
rhetorical, one will have to keep in mind the basic principles of
domicile. Everyone must have a domicile. Then one must have only
a single domicile for the same purpose at any given time. Once
established, a domicile remains until a new one is acquired, for no
person lives who has no domicile, as defined by the law be is
subject to.
At this juncture, we are confronted with an unexplored legal terrain
in this jurisdiction, rendered more murky by the conflicting opinions
of foreign legal authorities. This being the state of things, it is
imperative as it is opportune to illumine the darkness with the
beacon light of truth, as dictated by experience and the necessity
of according petitioner her right to choose her domicile in keeping
with the enlightened global trend to recognize and protect the
human rights of women, no less than men.
Admittedly, the notion of placing women at par with men, insofar as
civil, political and social rights are concerned, is a relatively recent

phenomenon that took seed only in the middle of this century. It is

a historical fact that for over three centuries, the Philippines had
been colonized by Spain, a conservative, Catholic country which
transplanted to our shores the Old World cultures, mores and
attitudes and values. Through the imposition on our government of
the Spanish Civil Code in 1889, the people, both men and women,
had no choice but to accept such concepts as the husband's being
the head of the family and the wife's subordination to his authority.
In such role, his was the right to make vital decisions for the family.
Many instances come to mind, foremost being what is related to
the issue before us, namely, that "the husband shall fix the
residence of the family." 3 Because he is made responsible for the
support of the wife and the rest of the family, 4 he is also
empowered to be the administrator of the conjugal property, with a
few exceptions 5 and may, therefore, dispose of the conjugal
partnership property for the purposes specified under the
law; 6 whereas, as a general rule, the wife cannot bind the conjugal
partnership without the husband's consent. 7 As regards the
property pertaining to the children under parental authority, the
father is the legal administrator and only in his absence may the
mother assume his powers. 8 Demeaning to the wife's dignity are
certain strictures on her personal freedoms, practically relegating
her to the position of minors and disabled persons. To illustrate a
few: The wife cannot, without the husband's consent, acquire any
gratuitous title, except from her ascendants, descendants, parentsin-law, and collateral relatives within the fourth degree. 9 With
respect to her employment, the husband wields a veto power in the
case the wife exercises her profession or occupation or engages in
business, provided his income is sufficient for the family, according
to its social standing and his opposition is founded on serious and
valid grounds. 10 Most offensive, if not repulsive, to the liberalminded is the effective prohibition upon a widow to get married till
after three hundred days following the death of her husband, unless
in the meantime, she has given birth to a child. 11 The mother who
contracts a subsequent marriage loses the parental authority over
her children, unless the deceased husband, father of the latter, has
expressly provided in his will that his widow might marry again, and
has ordered that in such case she should keep and exercise

207
parental authority over their children. 12 Again, an instance of a
husband's overarching influence from beyond the grave.
All these indignities and disabilities suffered by Filipino wives for
hundreds of years evoked no protest from them until the concept of
human rights and equality between and among nations and
individuals found hospitable lodgment in the United Nations Charter
of which the Philippines was one of the original signatories. By
then, the Spanish "conquistadores" had been overthrown by the
American forces at the turn of the century. The bedrock of the U.N.
Charter was firmly anchored on this credo: "to reaffirm faith in the
fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women." (Emphasis
supplied)
It took over thirty years before these egalitarian doctrines bore
fruit, owing largely to the burgeoning of the feminist movement.
What may be regarded as the international bill of rights for women
was implanted in the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) adopted by the U.N.
General Assembly which entered into force as an international
treaty on September 3, 1981. In ratifying the instrument, the
Philippines bound itself to implement its liberating spirit and letter,
for its Constitution, no less, declared that "The Philippines. . .
adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all
nations." 13 One such principle embodied in the CEDAW is granting
to men and women "the same rights with regard to the law relating
to the movement of persons and the freedom to choose their
residence and domicile."14 (Emphasis supplied).
CEDAW's pro-women orientation which was not lost on Filipino
women was reflected in the 1987 Constitution of the Philippines
and later, in the Family Code, 15 both of which were speedily
approved by the first lady President of the country, Corazon C.
Aquino. Notable for its emphasis on the human rights of all
individuals and its bias for equality between the sexes are the
following provisions: "The State values the dignity of every human
person and guarantees full respect for human rights" 16 and "The
State recognizes the role of women in nation-building, and shall

ensure the fundamental equality before the law of women and

men." 17
A major accomplishment of women in their quest for equality with
men and the elimination of discriminatory provisions of law was the
deletion in the Family Code of almost all of the unreasonable
strictures on wives and the grant to them of personal rights equal
to that of their husbands. Specifically, the husband and wife are
now giventhe right jointly to fix the family domicile; 18 concomitant
to the spouses' being jointly responsible for the support of the
family is the right and duty of both spouses to manage the
household; 19 the administration and the enjoyment of the
community property shall belong to both spouses jointly; 20 the
father and mother shall now jointly exercise legal guardianship over
the property of their unemancipated common child 21 and several
others.
Aware of the hiatus and continuing gaps in the law, insofar as
women's rights are concerned, Congress passed a law popularly
known as "Women in Development and Nation Building
Act" 22 Among the rights given to married women evidencing their
capacity to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans and
execute security and credit arrangements under the same
conditions as men;
(2) Women shall have equal access to all government and private
sector programs granting agricultural credit, loans and non material
resources and shall enjoy equal treatment in agrarian reform and
land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter
into insurance contracts; and
(4) Married women shall have rights equal to those of married men
in applying for passports, secure visas and other travel documents,
without need to secure the consent of their spouses.
As the world draws the curtain on the Fourth World Conference of
Women in Beijing, let this Court now be the first to respond to its
clarion call that "Women's Rights are Human Rights" and that "All
obstacles to women's full participation in decision-making at all
levels, including the family" should be removed. Having been
herself a Member of the Philippine Delegation to the International

208
Women's Year Conference in Mexico in 1975, this writer is only too
keenly aware of the unremitting struggle being waged by women
the world over, Filipino women not excluded, to be accepted as
equals of men and to tear down the walls of discrimination that
hold them back from their proper places under the sun.
In light of the inexorable sweep of events, local and global,
legislative, executive and judicial, according more rights to women
hitherto denied them and eliminating whatever pockets of
discrimination still exist in their civil, political and social life, can it
still be insisted that widows are not at liberty to choose their
domicile upon the death of their husbands but must retain the
same, regardless?
I submit that a widow, like the petitioner and others similarly
situated, can no longer be bound by the domicile of the departed
husband, if at all she was before. Neither does she automatically
revert to her domicile of origin, but exercising free will, she may opt
to reestablish her domicile of origin. In returning to Tacloban and
subsequently, to Barangay Olot, Tolosa, both of which are located in
the First District of Leyte, petitioner amply demonstrated by overt
acts, her election of a domicile of choice, in this case, a reversion to
her domicile of origin. Added together, the time when she set up
her domicile in the two places sufficed to meet the one-year
requirement to run as Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the petition.
VITUG, J., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our
legal system that sets up ideals and directions and render steady
our strides hence. It only looks back so as to ensure that mistakes
in the past are not repeated. A compliant transience of a
constitution belittles its basic function and weakens its goals. A
constitution may well become outdated by the realities of time.
When it does, it must be changed but while it remains, we owe it
respect and allegiance. Anarchy, open or subtle, has never been,
nor must it ever be, the answer to perceived transitory needs, let
alone societal attitudes, or the Constitution might lose its very
essence.

Constitutional provisions must be taken to be mandatory in

character unless, either by express statement or by necessary
implication, a different intention is manifest (see Marcelino vs. Cruz,
121 SCRA 51).
The two provisions initially brought to focus are Section 6 and
Section 17 of Article VI of the fundamental law. These provisions
read:
Sec. 6. No person shall be a Member of the House of
Representatives unless he is a natural-born citizen of the
Philippines and, on the day of the election, is at least twenty-five
years of age, able to read and write, and, except the party-list
representatives, a registered voter in the district in which he shall
be elected, and a resident thereof for a period of not less than one
year immediately preceding the day of the election.
Sec. 17. The Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed of
nine Members, three of whom shall be Justices of the Supreme
Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives, as
the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or
organizations registered under the party-list system represented
therein. The senior Justice in the Electoral Tribunal shall be its
Chairman.
The Commission on Election (the "COMELEC") is constitutionally
bound to enforce and administer "all laws and regulations relative
to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that,
there being nothing said to the contrary, should include its
authority to pass upon the qualification and disqualification
prescribed by law ofcandidates to an elective office. Indeed, preproclamation controversies are expressly placed under the
COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3,
Constitution).
The matter before us specifically calls for the observance of the
constitutional one-year residency requirement. The issue (whether
or not there is here such compliance), to my mind, is basically a

209
question of fact or at least inextricably linked to such
determination. The findings and judgment of the COMELEC, in
accordance with the long established rule and subject only to a
number of exceptions under the basic heading of "grave abuse of
discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to
me to be a plain matter. Generally, the term "residence" has a
broader
connotation
that
may
mean permanent (domicile), official (place where one's official
duties may require him to stay) or temporary (the place where he
sojourns during a considerable length of time). For civil law
purposes, i.e., as regards the exercise of civil rights and the
fulfillment of civil obligations, the domicile of a natural person is the
place of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore announced by
this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban
City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as
synonymous terms, thus: "(t)he term "residence" as used in the
election law is synonymous with "domicile," which imports not only
an intention to reside in a fixed place but also personal presence in
that place, coupled with conduct indicative of such intention."
"Domicile" denotes a fixed permanent residence to which when
absent for business or pleasure, or for like reasons, one intends to
return. . . . . Residence thus acquired, however, may be lost by
adopting another choice of domicile. In order, in turn, to acquire a
new domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and
(3) an intention to abandon the old domicile. In other words, there
must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice
must be for an indefinite period of time; the change of residence
must be voluntary; and the residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that we can
charge the COMELEC with having committed grave abuse of
discretion in its assailed resolution.

The COMELEC's jurisdiction, in the case of congressional elections,

ends when the jurisdiction of the Electoral Tribunal concerned
begins. It signifies that the protestee must have theretofore been
duly proclaimed and has since become a "member" of the Senate
or the House of Representatives. The question can be asked on
whether or not the proclamation of a candidate is just a ministerial
function of the Commission on Elections dictated solely on the
number of votes cast in an election exercise. I believe, it is not. A
ministerial duty is an obligation the performance of which, being
adequately defined, does not allow the use of further judgment or
discretion. The COMELEC, in its particular case, is tasked with the
full responsibility of ascertaining all the facts and conditions such
as may be required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any
undue encroachment on the ultimate exercise of authority by the
Electoral Tribunals on matters which, by no less than a
constitutional fiat, are explicitly within their exclusive domain. The
nagging question, if it were otherwise, would be the effect of the
Court's peremptory pronouncement on the ability of the Electoral
Tribunal to later come up with its own judgment in a contest
"relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base
on the applicability to this case of Section 6 of Republic Act No.
6646, in relation to Section 72 of Batas Pambansa Blg. 881, each
providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case. Any candidate who has
been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt
is strong.

210
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. The
Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a
final decision shall be rendered not later than seven days before
the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall
not be counted. Nevertheless, if for any reason, a candidate is not
declared by final, judgment before an election to be disqualified,
and he is voted for and receives the winning number of votes in
such election, his violation of the provisions of the preceding
sections shall not prevent his proclamation and assumption to
office.
I realize that in considering the significance of the law, it may be
preferable to look for not so much the specific instances they
ostensibly would cover as the principle they clearly convey. Thus, I
will not scoff at the argument that it should be sound to say that
votes cast in favor of the disqualified candidate, whenever
ultimately declared as such, should not be counted in his or her
favor and must accordingly be considered to be stray votes. The
argument, nevertheless, is far outweighed by the rationale of the
now prevailing doctrine first enunciated in the case of Topacio
vs. Paredes (23 Phil. 238 [1912]) which, although later abandoned
in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos
vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the
interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by
the Labo (176
SCRA
1
(1989]), Abella (201
SCRA
253
[1991]), Labo (211
SCRA
297
[1992])
and,
most
recently, Benito (235
SCRA
436
[1994])
rulings. Benito
vs.Comelec was a unanimous decision penned by Justice Kapunan
and concurred in by Chief Justice Narvasa, Justices Feliciano,
Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were on official
leave).
For
easy
reference,
let
me
quote
from
the
first Labo decision:

Finally, there is the question of whether or not the private

respondent, who filed the quo warrantopetition, can replace the
petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election,
he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission
on Elections, (137 SCRA 740) decided in 1985. In that case, the
candidate who placed second was proclaimed elected after the
votes for his winning rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregard as stray. In effect,
the second placer won by default. That decision was supported by
eight members of the Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay
and Aquino, JJ., concurring.) with three dissenting (Teehankee,
Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two
reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official
leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it
should be reversed in favor of the earlier case of Geronimo
v. Ramos, (136 SCRA 435) which represents the more logical and
democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio v.Paredes, (23 Phil. 238) was
supported by ten members of the Court, (Gutierrez, Jr., ponente,
with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin,
Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without
any dissent, although one reserved his vote, (Makasiar, J.) another
took no part, (Aquino, J.) and two others were on leave.
(Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who has
not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the
majority of which have positively declared through their ballots that
they do not choose him.
Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election
for that office, and it is a fundamental idea in all republican forms
of government that no one can be declared elected and no

211
measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris
2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of
votes is later declared to be disqualified or not eligible for the office
to which he was elected does not necessarily entitle the candidate
who obtained the second highest number of votes to be declared
the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the
winner into office or maintain him there. However, in the absence
of a statute which clearly asserts a contrary political and legislative
policy on the matter, if the votes were cast in the sincere belief that
the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote for the
dismissal of the petition.
MENDOZA, J., separate opinion:
In my view the issue in this case is whether the Commission on
Elections has the power to disqualify candidates on the ground that
they lack eligibility for the office to which they seek to be elected. I
think that it has none and that the qualifications of candidates may
be questioned only in the event they are elected, by filing a petition
forquo warranto or an election protest in the appropriate forum, not
necessarily in the COMELEC but, as in this case, in the House of
Representatives Electoral Tribunal. That the parties in this case took
part in the proceedings in the COMELEC is of no moment. Such
proceedings were unauthorized and were not rendered valid by
their agreement to submit their dispute to that body.
The various election laws will be searched in vain for authorized
proceedings for determining a candidate's qualifications for an
office before his election. There are none in the Omnibus Election
Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987 (R.A. No.
6646), or in the law providing for synchronized elections (R.A. No.
7166). There are, in other words, no provisions for pre-proclamation
contests but only election protests or quo warranto proceedings
against winning candidates.

To be sure, there are provisions denominated for "disqualification,"

but they are not concerned with a declaration of the ineligibility of a
candidate. These provisions are concerned with the incapacity (due
to insanity, incompetence or conviction of an offense) of a person
either to be a candidate or to continue as a candidate for public
office. There is also a provision for the denial or cancellation of
certificates of candidacy, but it applies only to cases involving false
representations as to certain matters required by law to be stated
in the certificates.
These provisions are found in the following parts of the Omnibus
Election Code:
12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced
by final judgment for subversion, insurrection, rebellion or for any
offense for which he has been sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be
deemed removed upon the declaration by competent authority that
said insanity or incompetence had been removed or after the
expiration of a period of five years from his service of sentence,
unless within the same period he again becomes disqualified.
(Emphasis added)
68. Disqualifications. Any candidate who, in an action or
protest in which he is a party is declared by final decision of a
competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent
in his election campaign an amount in excess of that allowed by
this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated
any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and
cc, sub-paragraph 6, shall be disqualifiedfrom continuing as a
candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under

212
this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the
residence requirement provided for in the election laws. (Emphasis
added)
78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall
be decided, after due notice and hearing, not later than fifteen days
before the election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry or protest
and; upon motion for the complainant or any intervenor, may
during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt
is strong. (Emphasis added).
7. Petition to Deny Due Course to or Cancel a Certificate of
Candidacy. The procedure hereinabove provided shall apply to
petitions to deny due course to or cancel a certificate of candidacy
as provided in Section 78 of Batas Pambansa Blg. 881.
and the Local Government Code of 1991 (R.A. No. 7160):
40. Disqualifications. The following persons are disqualified
from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year or
more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of
allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitive from justice in criminal or nonpolitical cases here or
abroad;
(f) Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the
same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the
COMELEC, while entitled "For Cancellation and Disqualification,"
contained no allegation that private respondent Imelda RomualdezMarcos made material representations in her certificate of
candidacy which were false, it sought her disqualification on the
ground that "on the basis of her Voter Registration Record and
Certificate of Candidacy, [she] is disqualified from running for the
position of Representative, considering that on election day, May 8,
1995, [she] would have resided less than ten (10) months in the
district where she is seeking to be elected." For its part, the
COMELEC's Second Division, in its resolution of April 24, 1995,
cancelled her certificate of candidacy and corrected certificate of
candidacy on the basis of its finding that petitioner is "not qualified
to run for the position of Member of the House of Representatives
for the First Legislative District of Leyte" and not because of any
finding that she had made false representations as to material
matters in her certificate of candidacy.
Montejo's petition before the COMELEC was therefore not a petition
for cancellation of certificate of candidacy under 78 of the
Omnibus Election Code, but essentially a petition to declare private
respondent ineligible. It is important to note this, because, as will
presently be explained, proceedings under 78 have for their
purpose to disqualify a person from being a candidate,
whereas quo warranto proceedings have for their purpose to
disqualify a person from holding public office. Jurisdiction over quo
warranto proceedings involving members of the House of
Representatives is vested in the Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for
the cancellation of certificates of candidacy, the allegations were
that the respondent candidates had made false representations in
their
certificates
of
candidacy
with
regard
to

213
their citizenship, 1 age, 2 or residence. 3 But in the generality of
cases in which this Court passed upon the qualifications of
respondents for office, this Court did so in the context of election
protests 4 or quo
warranto proceedings 5 filed after
the
proclamation of the respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized
proceeding for determining before electionthe qualifications of a
candidate.
First is the fact that unless a candidate wins and is proclaimed
elected, there is no necessity for determining his eligibility for the
office. In contrast, whether an individual should be disqualified as a
candidate for acts constituting election offenses (e.g., vote buying,
over spending, commission of prohibited acts) is a prejudicial
question which should be determined lest he wins because of the
very acts for which his disqualification is being sought. That is why
it is provided that if the grounds for disqualification are established,
a candidate will not be voted for; if he has been voted for, the votes
in his favor will not be counted; and if for some reason he has been
voted for and he has won, either he will not be proclaimed or his
proclamation will be set aside. 6
Second is the fact that the determination of a candidate's eligibility,
e.g., his citizenship or, as in this case, his domicile, may take a long
time to make, extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion case (G.R. No.
120265, Agapito A. Aquino v. COMELEC) where the determination of
Aquino's residence was still pending in the COMELEC even after the
elections of May 8, 1995. This is contrary to the summary character
of proceedings relating to certificates of candidacy. That is why the
law makes the receipt of certificates of candidacy a ministerial duty
of the COMELEC and its officers. 7 The law is satisfied if candidates
state in their certificates of candidacy that they are eligible for the
position which they seek to fill, leaving the determination of their
qualifications to be made after the election and only in the event
they are elected. Only in cases involving charges of false
representations made in certificates of candidacy is the COMELEC
given jurisdiction.
Third is the policy underlying the prohibition against preproclamation cases in elections for President, Vice President,

Senators and members of the House of Representatives. (R.A. No.

7166, 15) The purpose is to preserve the prerogatives of the
House of Representatives Electoral Tribunal and the other Tribunals
as
"sole
judges"
under
the
Constitution
of
the election, returns and qualifications of members of Congress or
of the President and Vice President, as the case may be.
By providing in 253 for the remedy of quo warranto for
determining an elected official's qualifications after the results of
elections are proclaimed, while being conspicuously silent about a
pre-proclamation remedy based on the same ground, the Omnibus
Election Code, or OEC, by its silence underscores the policy of not
authorizing any inquiry into the qualifications of candidates unless
they have been elected.
Apparently realizing the lack of an authorized proceeding for
declaring the ineligibility of candidates, the COMELEC amended its
rules on February 15, 1993 so as to provide in Rule 25, 1 the
following:
Grounds for disqualification. Any candidate who does not
possess all the qualifications of a candidate as provided for by the
Constitution or by existing law or who commits any act declared by
law to be grounds for disqualification may be disqualified from
continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates,
however, cannot be supplied by a mere rule. Such an act is
equivalent to the creation of a cause of action which is a
substantive matter which the COMELEC, in the exercise of its
rulemaking power under Art. IX, A, 6 of the Constitution, cannot
do. It is noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the right to
vote, which essentially involves an inquiry into qualifications based
on age, residence and citizenship of voters. (Art. IX, C, 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds for
ineligibility into grounds for disqualification is contrary to the
evident intention of the law. For not only in their grounds but also in
their consequences are proceedings for "disqualification" different
from those for a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds specified in
12 and 68 of the Omnibus Election Code and in 40 of the Local

214
Government Code and are for the purpose of barring an individual
from becoming a candidate or from continuing as a candidate for
public office. In a word, their purpose is to eliminate a candidate
from the race either from the start or during its progress.
"Ineligibility," on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for
holding public office and the purpose of the proceedings for
declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a
public office does not imply that he is not disqualified from
becoming a candidate or continuing as a candidate for a public
office and vice versa. We have this sort of dichotomy in our
Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in 2 of the law does not imply that he
does not suffer from any of disqualifications provided in 4.
Indeed, provisions for disqualifications on the ground that the
candidate is guilty of prohibited election practices or offenses, like
other pre-proclamation remedies, are aimed at the detestable
practice of "grabbing the proclamation and prolonging the election
protest," 8 through the use of "manufactured" election returns or
resort to other trickery for the purpose of altering the results of the
election. This rationale does not apply to cases for determining a
candidate's qualifications for office before the election. To the
contrary, it is the candidate against whom a proceeding for
disqualification is brought who could be prejudiced because he
could be prevented from assuming office even though in end he
prevails.
To summarize, the declaration of ineligibility of a candidate may
only be sought in an election protest or action forquo warranto filed
pursuant to 253 of the Omnibus Election Code within 10 days
after his proclamation. With respect to elective local officials (e.g.,
Governor, Vice Governor, members of the Sangguniang
Panlalawigan, etc.) such petition must be filed either with the
COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as
provided in Art. IX, C, 2(2) of the Constitution. In the case of the
President and Vice President, the petition must be filed with the
Presidential Electoral Tribunal (Art. VII, 4, last paragraph), and in
the case of the Senators, with the Senate Electoral Tribunal, and in

the case of Congressmen, with the House of Representatives

Electoral Tribunal. (Art. VI, 17) There is greater reason for not
allowing before the election the filing of disqualification
proceedings based on alleged ineligibility in the case of candidates
for President, Vice President, Senators and members of the House
of Representatives, because of the same policy prohibiting the filing
of pre-proclamation cases against such candidates.
For these reasons, I am of the opinion that the COMELEC had no
jurisdiction over SPA No. 95-009; that its proceedings in that case,
including its questioned orders, are void; and that the eligibility of
petitioner
Imelda
Romualdez-Marcos
for
the
office
of
Representative of the First District of Leyte may only be inquired
into by the HRET.
Accordingly, I vote to grant the petition and to annul the
proceedings of the Commission on Elections in SPA No. 95-009,
including its questioned orders doted April 24, 1995, May 7, 1995,
May 11, 1995 and May 25, 1995, declaring petitioner Imelda
Romualdez-Marcos ineligible and ordering her proclamation as
Representative of the First District of Leyte suspended. To the
extent that Rule 25 of the COMELEC Rules of Procedure authorizes
proceedings for the disqualification of candidates on the ground of
ineligibility for the office, it should considered void.
The provincial board of canvassers should now proceed with the
proclamation of petitioner.
Narvasa, C.J., concurs.
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as expressed in the
well-written ponencia of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the
inquiry must begin and end with the provision itself. The
controversy should not be blurred by what, to me, are academic
disquisitions. In this particular controversy, the Constitutional
provision on point states that "no person shall be a member of
the House of Representatives unless he is a natural-born citizen of
the Philippines, and on the day of the election, is at least twentyfive (25) years of age, able to read and write, and except the party
list representatives, a registered voter in the district in which he

215
shall be elected, and a resident thereof for a period of not less than
one year immediately preceding the day of the election." (Article
VI, section 6)
It has been argued that for purposes of our election laws, the
term residence has been understood as synonymous with domicile.
This argument has been validated by no less than the Court in
numerous
cases 1where
significantly
the factual
circumstances clearly and convincingly proved that a person does
not effectively lose his domicile of origin if the intention to reside
therein is manifest with his personal presence in the place, coupled
with conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to conceive
of different modalities within which the phrase "a resident thereof
(meaning, the legislative district) for a period of not less than one
year" would fit.
The first instance is where a person's residence and domicile
coincide in which case a person only has to prove that he has been
domiciled in a permanent location for not less than a year before
the election.
A second situation is where a person maintains a residence apart
from his domicile in which case he would have the luxury of district
shopping, provided of course, he satisfies the one-year residence
period in the district as the minimum period for eligibility to the
position of congressional representative for the district.
In either case, one would not be constitutionally disqualified for
abandoning his residence in order to return to his domicile of origin,
or better still, domicile of choice; neither would one be disqualified
for abandoning altogether his domicile in favor of his residence in
the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a
person maintains several residences in different districts. Since his
domicile of origin continues as an option as long as there is no
effective abandonment (animus non revertendi), he can practically
choose the district most advantageous for him.
All these theoretical scenarios, however, are tempered by the
unambiguous limitation that "for a period of not less than one year
immediately preceding the day of the election", he must be a
resident in the district where he desires to be elected.

To my mind, the one year residence period is crucial regardless of

whether or not the term "residence" is to be synonymous with
"domicile." In other words, the candidate's intent and actual
presence in one district must in allsituations satisfy the length of
time prescribed by the fundamental law. And this, because of a
definite Constitutional purpose. He must be familiar with the
environment and problems of a district he intends to represent in
Congress and the one-year residence in said district would be the
minimum period to acquire such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts are
distinctly set out in the now assailed decision of the Comelec 2nd
Division dated 24 April 1995 (as affirmed by the Comelec en banc)

In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She
studied in the Holy Infant Academy in Tacloban from 1938 to 1948
when she graduated from high school. She pursued her college
studies in St. Paul's College, now Divine Word University of
Tacloban, where she earned her degree in Education. Thereafter,
she taught in the Leyte Chinese High School, still in Tacloban City.
In 1952 she went to Manila to work with her cousin, the late
Speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-president Ferdinand
Marcos when he was still a congressman of Ilocos Norte. She lived
with him in Batac, Ilocos Norte and registered there as a voter.
When her husband was elected Senator of the Republic in 1959,
she and her husband lived together in San Juan, Rizal where she
registered as a voter. In 1965 when her husband was elected
President of the Republic of the Philippines, she lived with him in
Malacanang Palace and registered as a voter in San Miguel, Manila.
During the Marcos presidency, respondent served as a Member of
the Batasang Pambansa, Minister of Human Settlements and
Governor of Metro Manila. She claimed that in February 1986, she
and her family were abducted and kidnapped to Honolulu, Hawaii.
In November 1991, she came home to Manila. In 1992 respondent
ran for election as President of the Philippines and filed her
Certificate of Candidacy wherein she indicated that she is a
resident and registered voter of San Juan, Metro Manila. On August

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24, 1994, respondent filed a letter with the election officer of San
Juan, Metro Manila, requesting for cancellation of her registration in
the Permanent List of Voters in Precinct No. 157 of San Juan, Metro
Manila, in order that she may be re-registered or transferred to
Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On August 31, 1994,
respondent filed her Sworn Application for Cancellation of Voter's
Previous Registration (Annex 2-C, Answer) stating that she is a duly
registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she
intends to register at Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent registered as a voter at Precinct
No. 18-A of Olot, Tolosa, Leyte. She filed with the Board of Election
Inspectors CE Form No. 1, Voter Registration Record No. 943349772, wherein she alleged that she has resided in the
municipality of Tolosa for a period of 6 months (Annex A, Petition).
On March 8, 1995, respondent filed with the Office of the Provincial
Election Supervisor, Leyte, a Certificate of Candidacy for the
position of Representative of the First District of Leyte wherein she
also alleged that she has been a resident in the constituency where
she seeks to be elected for a period of 7 months. The pertinent
entries therein are as follows:
7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social
Worker
8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte
Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte
9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE
ELECTED
IMMEDIATELY
PRECEDING
ELECTION:
________
Years SevenMonths
10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A
FOREIGN COUNTRY.
THAT I AM ELIGIBLE for said office; That I will support and defend
the Constitution of the Republic of the Philippines and will maintain
true faith and allegiance thereto; That I will obey the laws, legal
orders and decrees promulgated by the duly-constituted
authorities; That the obligation imposed by my oath is assumed
voluntarily, without mental reservation or purpose of evasion; and
That the facts stated herein are true to the best of my knowledge.
(Sgd.)
Imelda
Romualdez-Marcos
2
(Signature of Candidate)

Petitioner's aforestated certificate of candidacy filed on 8 March

1995 contains the decisive component or seed of her
disqualification. It is contained in her answer under oath of "seven
months" to the query of "residence in the constituency wherein I
seek to be elected immediately preceding the election."
It follows from all the above that the Comelec committed no grave
abuse of discretion in holding that petitioner is disqualified from the
position of representative for the 1st congressional district of Leyte
in
the
elections
of
8 May 1995, for failure to meet the "not less than one-year
residence in the constituency (1st district, Leyte) immediately
preceding
the
day
of
election
(8 May 1995)."
Having arrived at petitioner's disqualification to be a representative
of the first district of Leyte, the next important issue to resolve is
whether or not the Comelec can order the Board of Canvassers to
determine and proclaim the winner out of the remaining
qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this Court in the
case of Labo vs. Comelec, G.R. 86564, August 1, 1989, 176 SCRA 1
which gave the rationale as laid down in the early 1912 case
of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public elective offices are filled by
those who have received the highest number of votes cast in the
election for that office, and it is a fundamental idea in all republican
forms of government that no one can be declared elected and no
measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris
2nd, S 243, p. 676)
The fact that the candidate who obtained the highest number of
votes is later declared to be disqualified or not eligible for the office
to which he was elected does not necessarily entitle the candidate
who obtained the second highest number of votes to be declared
the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the
winner into office or maintain him there. However, in the absence
of a statute which clearly asserts a contrary political and legislative
policy on the matter, if the votes were cast in the sincere belief that

217
the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the
Electoral System and for other purposes) (84 O.G. 905, 22 February
1988) it is provided that:
. . . Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared
by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and
hearing of the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may, during the pendency thereof
order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the plain
and unambiguous meaning of the provision quoted above. As the
law now stands, the legislative policy does not limit its concern with
the effect of a final judgement of disqualification only before the
election, but even during or after the election. The law is clear that
in all situations, the votes cast for a disqualified candidate SHALL
NOT BE COUNTED. The law has also validated the jurisdiction of the
Court or Commission on Election to continue hearing the petition
for disqualification in case a candidate is voted for and receives the
highest number of votes, if for any reason, he is not declared by
final judgment before an election to be disqualified.
Since the present case is an after election scenario, the power to
suspend proclamation (when evidence of his guilt is strong) is also
explicit under the law. What happens then when after the elections
are over, one is declared disqualified? Then, votes cast for him
"shall not be counted" and in legal contemplation, he no longer
received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the
second placer the winner simply because a "winning candidate is
disqualified," but that the law considers him as the candidate who
had obtained the highest number of votes as a result of the votes
cast for the disqualified candidate not being counted or considered.

As this law clearly reflects the legislative policy on the matter, then
there is no reason why this Court should not re-examine and
consequently abandon the doctrine in the Jun Labo case. It has
been stated that "the qualifications prescribed for elective office
cannot be erased by the electorate alone. The will of the people as
expressed through the ballot cannot cure the vice of ineligibility"
most especially when it is mandated by no less than the
Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the
Provincial Board of Canvassers of Leyte to proclaim the candidate
receiving the highest number of votes, from among the qualified
candidates, as the duly elected representative of the 1st district of
Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
While I agree with same of the factual bases of the majority
opinion, I cannot arrive conjointly at the same conclusion drawn
therefrom Hence, this dissent which assuredly is not formulated "on
the basis of the personality of a petitioner in a case."
I go along with the majority in their narration of antecedent facts,
insofar as the same are pertinent to this case, and which I have
simplified as follows:
1. Petitioner, although born in Manila, resided during her childhood
in the present Tacloban City, she being a legitimate daughter of
parents who appear to have taken up permanent residence therein.
She also went to school there and, for a time, taught in one of the
schools in that city.
2. When she married then Rep. Ferdinand E. Marcos who was then
domiciled in Batac, Ilocos Norte, by operation of law she acquired a
new domicile in that place in 1954.
3. In the successive years and during the events that happened
thereafter, her husband having been elected as a Senator and then
as President, she lived with him and their family in San Juan, Rizal
and then in Malacanang Palace in San Miguel, Manila.
4. Over those years, she registered as a voter and actually voted in
Batac, Ilocos Norte, then in San Juan, Rizal, and also in San Miguel,
Manila, all these merely in the exercise of the right of suffrage.

218
5. It does not appear that her husband, even after he had assumed
those lofty positions successively, ever abandoned his domicile of
origin in Batac, Ilocos Norte where he maintained his residence and
invariably voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and
the sojourn of the Marcos family in Honolulu, Hawaii, U.S.A., she
eventually returned to the Philippines in 1991 and resided in
different places which she claimed to have been merely temporary
residences.
7. In 1992, petitioner ran for election as President of the Philippines
and in her certificate of candidacy she indicated that she was then
a registered voter and resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for the cancellation of her
registration in the Permanent List of Voters in Precinct No. 157 of
San Juan, Metro Manila in order that she may "be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she
followed this up with her Sworn Application for Cancellation of
Voter's Previous Registration wherein she stated that she was a
registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan,
Metro Manila and that she intended to register in Brgy. Olot, Tolosa,
Leyte.
9. On January 28, 1995, petitioner registered as a voter at Precinct
No. 18-A of Olot, Tolosa, Leyte, for which purpose she filed with the
therein Board of Election Inspectors a voter's registration record
form alleging that she had resided in that municipality for six
months.
10. On March 8, 1995, petitioner filed her certificate of candidacy
for the position of Representative of the First District of Leyte
wherein she alleged that she had been a resident for
"Seven Months" of the constituency where she sought to be
elected.
11. On March 29, 1995, she filed an "Amended/Corrected
Certificate of Candidacy" wherein her answer in the original
certificate of candidacy to item "8. RESIDENCE IN THE
CONSTITUENCY WHERE I SEEK, TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION:" was changed or replaced with a new
entry reading "SINCE CHILDHOOD."

The sole issue for resolution is whether, for purposes of her

candidacy, petitioner had complied with the residency requirement
of one year as mandated by no less than Section 6, Article VI of the
1987 Constitution.
I do not intend to impose upon the time of my colleagues with a
dissertation on the difference between residence and domicile. We
have had enough of that and I understand that for purposes of
political law and, for that matter of international law, residence is
understood to be synonymous with domicile. That is so understood
in our jurisprudence and in American Law, in contradistinction to
the concept of residence for purposes of civil, commercial and
procedural laws whenever an issue thereon is relevant or
controlling.
Consequently, since in the present case the question of petitioner's
residence is integrated in and inseparable from her domicile, I am
addressing the issue from the standpoint of the concept of the
latter term, specifically its permutations into the domicile of origin,
domicile of choice and domicile by operation of law, as understood
in American law from which for this case we have taken our
jurisprudential bearings.
My readings inform me that the domicile of the parents at the time
of birth, or what is termed the "domicile of origin," constitutes the
domicile of an infant until abandoned, or until the acquisition of a
new domicile in a different place. 1 In the instant case, we may
grant that petitioner's domicile of origin, 2 at least as of 1938, was
what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be of three
kinds, that is, domicile by birth, domicile by choice, and domicile by
operation of law. The first is the common case of the place of birth
or domicilium originis, the second is that which is voluntarily
acquired by a party or domicilium propio motu; the last which is
consequential, as that of a wife arising from marriage, 3 is
sometimes called domicilium necesarium. There is no debate that
the domicile of origin can be lost or replaced by a domicile of
choice or a domicile by operation of law subsequently acquired by
the party.
When petitioner contracted marriage in 1954 with then Rep.
Marcos, by operation of law, not only international or American but

219
of our own enactment, 4 she acquired her husband's domicile of
origin in Batac, Ilocos Norte and correspondingly lost her own
domicile of origin in Tacloban City.
Her subsequent changes of residence to San Juan, Rizal, then to
San Miguel, Manila, thereafter to Honolulu, Hawaii, and back to now
San Juan, Metro Manila do not appear to have resulted in her
thereby acquiring new domiciles of choice. In fact, it appears that
her having resided in those places was by reason of the fortunes or
misfortunes of her husband and his peregrinations in the
assumption of new official positions or the loss of them. Her
residence in Honolulu and, of course, those after her return to the
Philippines were, as she claimed, against her will or only for
transient purposes which could not have invested them with the
status of domiciles of choice. 5
After petitioner's return to the Philippines in 1991 and up to the
present imbroglio over her requisite residency in Tacloban City or
Olot, Tolosa, Leyte, there is no showing that she ever attempted to
acquire any other domicile of choice which could have resulted in
the abandonment of her legal domicile in Batac, Ilocos Norte. On
that score, we note the majority's own submission 6 that, to
successfully effect a change of domicile, one must demonstrate (a)
an actual removal or an actual change of domicile, (b) a bona
fide intention of abandoning the former place of residence and
establishing a new one, and (c) acts which correspond with the
purpose.
We consequently have to also note that these requirements for the
acquisition of a domicile of choice apply whether what is sought to
be changed or substituted is a domicile of origin (domicilium
originis) or a domicile by operation of law (domicilium necesarium).
Since petitioner had lost her domicilium originis which had been
replaced by her domicilium necesarium, it is therefore her
continuing domicile in Batac, Ilocos Norte which, if at all, can be the
object of legal change under the contingencies of the case at bar.
To get out of this quandary, the majority decision echoes the
dissenting opinion of Commissioner Regalado E. Maambong in SPA
95-009 of the Commission on Elections, 7 and advances this novel
proposition.

It may be said that petitioner lost her domicile of origin by

operation of law as a result of her marriage to the late President
Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law
(domicilium necesarium), her legal domicile at the time of her
marriage became Batac, Ilocos Norte although there were no
indications of an intention on her part to abandon her domicile of
origin. Because of her husband's subsequent death and through the
operation of the provisions of the New Family Code already in force
at the time, however, her legal domicile automatically reverted to
her domicile of origin. . . . (Emphasis supplied).
Firstly, I am puzzled why although it is conceded that petitioner had
acquired a domicilium necesarium in Batac, Ilocos Norte, the
majority insists on making a qualification that she did not intend to
abandon her domicile of origin. I find this bewildering since, in this
situation, it is the law that declares where petitioner's domicile is at
any given time, and not her self-serving or putative intent to hold
on to her former domicile. Otherwise, contrary to their own
admission that one cannot have more than one domicile at a
time, 8 the majority would be suggesting that petitioner retained
Tacloban City as (for lack of a term in law since it does not exist
therein) the equivalent of what is fancied as a reserved, dormant,
potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be
recovered likewise in accordance with law. However, we are here
being titillated with the possibility of an automatic reversion to or
reacquisition of a domicile of origin after the termination of the
cause for its loss by operation of law. The majority agrees that since
petitioner lost her domicile of origin by her marriage, the
termination of the marriage also terminates that effect thereof. I am
impressed by the ingeniousness of this theory which proves that,
indeed, necessity is the mother of inventions. Regretfully, I find
some difficulty in accepting either the logic or the validity of this
argument.
If a party loses his domicile of origin by obtaining a new domicile of
choice, he thereby voluntarily abandons the former in favor of the
latter. If, thereafter, he abandons that chosen domicile, he does
not per se recover his original domicile unless, by subsequent acts
legally indicative thereof, he evinces his intent and desire to

220
establish the same as his new domicile, which is precisely what
petitioner belatedly and, evidently just for purposes of her
candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of choice cannot
automatically restore his domicile of origin, not only because there
is no legal authority therefor but because it would be absurd
Pursued to its logical consequence, that theory of ipso
jure reversion would rule out the fact that said party could already
very well have obtained another domicile, either of choice or by
operation of law, other than his domicile of origin. Significantly and
obviously for this reason, the Family Code, which the majority
inexplicably invokes, advisedly does not regulate this contingency
since it would impinge on one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily
abandoned her domicile of choice (unless we assume that she
entered into the marital state against her will) but, on top of that,
such abandonment was further affirmed through her acquisition of
a new domicile by operation of law. In fact, this is even a case of
both voluntary andlegal abandonment of a domicile of origin. With
much more reason, therefore, should we reject the proposition that
with the termination of her marriage in 1989, petitioner had
supposedly per se and ipso facto reacquired her domicile of origin
which she lost in 1954. Otherwise, this would be tantamount to
saying that during the period of marital coverture, she was
simultaneously in possession and enjoyment of a domicile of origin
which was only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the
husband's death the wife has the right to elect her own
domicile, 9 she nevertheless retains the last domicile of her
deceased husband until she makes an actual change. 10 In the
absence of affirmative evidence, to the contrary, the presumption
is that a wife's domicile or legal residence follows that of her
husband and will continue after his death. 11
I cannot appreciate the premises advanced in support of the
majority's theory based on Articles 68 and 69 of the Family Code.
All that is of any relevance therein is that under this new code, the
right and power to fix the family domicile is now shared by the
spouses. I cannot perceive how that joint right, which in the first

place was never exercised by the spouses, could affect the domicile
fixed by the law for petitioner in 1954 and, for her husband, long
prior thereto. It is true that a wife now has the coordinate power to
determine the conjugal or family domicile, but that has no bearing
on this case. With the death of her husband, and each of her
children having gotten married and established their own
respective domiciles, the exercise of that joint power was and is no
longer called for or material in the present factual setting of this
controversy. Instead, what is of concern in petitioner's case was the
matter of her having acquired or not her own domicile of choice.
I agree with the majority's discourse on the virtues of the growing
and expanded participation of women in the affairs of the nation,
with equal rights and recognition by Constitution and statutory
conferment. However, I have searched in vain for a specific law or
judicial pronouncement which either expressly or by necessary
implication supports the majority's desired theory of automatic
reacquisition of or reversion to the domicilium originis of petitioner.
Definitely, as between the settled and desirable legal norms that
should govern this issue, there is a world of difference; and,
unquestionably, this should be resolved by legislative articulation
but not by the eloquence of the well-turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin
since 1954 and not having automatically reacquired any domicile
therein, she cannot legally claim that her residency in the political
constituency of which it is a part continued since her birth up to the
present. Respondent commission was, therefore, correct in
rejecting her pretension to that effect in her amended/corrected
certificate of candidacy, and in holding her to her admission in the
original certificate that she had actually resided in that
constituency for only seven months prior to the election. These
considerations render it unnecessary to further pass upon the
procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for
lack of merit.
DAVIDE, JR., J., dissenting:

221
I respectfully dissent from the opinion of the majority written by Mr.
Justice Santiago M. Kapunan, more particularly on the issue of the
petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the Constitution,
decisions, orders, or rulings of the COMELEC may be brought to this
Court only by the special civil action for certiorari under Rule 65 of
the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251 [1979]; Dario
vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the
COMELEC has acted without or in excess of jurisdiction or with
grave abuse of discretion (Section 1, Rule 65, Rules of Court). Since
the COMELEC has, undoubtedly, jurisdiction over the private
respondent's petition, the only issue left is whether it acted with
grave abuse of discretion in disqualifying the petitioner.
My careful and meticulous perusal of the challenged resolution of
24 April 1995 of the COMELEC Second Division and the En
Banc resolution of 7 May 1995 discloses total absence of abuse of
discretion, much less grave abuse thereof. The resolution of the
Second Division dispassionately and objectively discussed in
minute details the facts which established beyond cavil that herein
petitioner was disqualified as a candidate on the ground of lack of
residence in the First Congressional District of Leyte. It has not
misapplied, miscomprehended, or misunderstood facts or
circumstances of substance pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELEC's findings
of fact for lack of proof that the petitioner has abandoned Tolosa as
her domicile of origin, which is allegedly within the First
Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the
COMELEC, either by admission or by documentary evidence,
overwhelming proof of the loss or abandonment of her domicile of
origin, which is Tacloban City and not Tolosa, Leyte. Assuming that
she decided to live again in her domicile of origin, that became her
second domicile of choice, where her stay, unfortunately, was for
only seven months before the day of the election. She was then
disqualified to be a candidate for the position of Representative of
the First Congressional District of Leyte. A holding to the contrary
would be arbitrary.

It may indeed be conceded that the petitioner's domicile of choice

was either Tacloban City or Tolosa, Leyte. Nevertheless, she lost it
by operation of law sometime in May 1954 upon her marriage to
the then Congressman (later, President) Ferdinand E. Marcos. A
domicile by operation of law is that domicile which the law
attributes to a person, independently of his own intention or actual
residence, as results from legal domestic relations as that of the
wife arising from marriage (28 C.J.S. Domicile 7, 11). Under the
governing law then, Article 110 of the Civil Code, her new domicile
or her domicile of choice was the domicile of her husband, which
was Batac, Ilocos Norte. Said Article reads as follows:
Art. 110. The husband shall fix the residence of the family. But the
court may exempt the wife from living with the husband if he
should live abroad unless in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino states:
Although the duty of the spouses to live together is mutual, the
husband has a predominant right because he is empowered by law
to fix the family residence. This right even predominates over some
rights recognized by law in the wife. For instance, under article 117
the wife may engage in business or practice a profession or
occupation. But because of the power of the husband to fix
the family domicile he may fix it at such a place as would make it
impossible for the wife to continue in business or in her profession.
For justifiable reasons, however, the wife may be exempted from
living in the residence chosen by the husband. The husband cannot
validly allege desertion by the wife who refuses to follow him to a
new place of residence, when it appears that they have lived for
years in a suitable home belonging to the wife, and that his choice
of a different home is not made in good faith. (Commentaries and
Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed.,
339).
Under common law, a woman upon her marriage loses her own
domicile and, by operation of law, acquires that of her husband, no
matter where the wife actually lives or what she believes or
intends. Her domicile is fixed in the sense that it is declared to be
the same as his, and subject to certain limitations, he can change
her domicile by changing his own (25 Am Jur 2d Domicile 48, 37).

222
It must, however, be pointed out that under Article 69 of the Family
Code, the fixing of the family domicile is no longer the sole
prerogative of the husband, but is now a joint decision of the
spouses, and in case of disagreement the court shall decide. The
said article uses the term "family domicile," and not family
residence, as "the spouses may have multiple residences, and the
wife may elect to remain in one of such residences, which may
destroy the duty of the spouses to live together and its
corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the
Family Code of the Philippines, [1988], 102).
The theory of automatic restoration of a woman's domicile of origin
upon the death of her husband, which the majority opinion adopts
to overcome the legal effect of the petitioner's marriage on her
domicile, is unsupported by law and by jurisprudence. The settled
doctrine is that after the husband's death the wife has a right to
elect her own domicile, but she retains the last domicile of her
husband until she makes an actual change (28 C.J.S. Domicile 12,
27). Or, on the death of the husband, the power of the wife to
acquire her own domicile is revived, but until she exercises the
power her domicile remains that of the husband at the time of his
death (25 Am Jur 2d Domicile 62, 45). Note that what is revived is
not her domicile of origin but her power to acquire her own
domicile.
Clearly, even after the death of her husband, the petitioner's
domicile was that of her husband at the time of his death which
was Batac, Ilocos Norte, since their residences in San Juan, Metro
Manila, and San Miguel, Manila, were their residences for
convenience to enable her husband to effectively perform his
official duties. Their residence in San Juan was a conjugal home,
and it was there to which she returned in 1991 when she was
already a widow. In her sworn certificate of candidacy for the Office
of the President in the synchronized elections of May 1992, she
indicated therein that she was a resident of San Juan, Metro Manila.
She also voted in the said elections in that place.
On the basis of her evidence, it was only on 24 August 1994 when
she exercised her right as a widow to acquire her own domicile in
Tolosa, Leyte, through her sworn statement requesting the Election
Officer of San Juan, Metro Manila, to cancel her registration in the

permanent list of voters in Precinct 157 thereat and praying that

she be "re-registered or transferred to Brgy. Olot, Tolosa, Leyte, the
place of [her] birth and permanent residence" (photocopy of Exhibit
"B," attached as Annex "2" of private respondent Montejo's
Comment). Notably, she contradicted this sworn statement
regarding her place of birth when, in her Voter's Affidavit sworn to
on 15 March 1992 (photocopy of Exhibit "C," attached as Annex
"3," Id.), her Voter Registration Record sworn to on 28 January 1995
(photocopy of Exhibit "E," attached as Annex "5," Id.), and her
Certificate of Candidacy sworn to on 8 March 1995 (photocopy of
Exhibit "A," attached as Annex "1," Id.), she solemnly declared that
she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it
Tacloban City or Tolosa, Leyte? In the affidavit attached to her
Answer to the petition for disqualification (Annex "I" of Petition),
she declared under oath that her "domicile or residence is Tacloban
City." If she did intend to return to such domicile or residence of
origin why did she inform the Election Officer of San Juan that she
would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's
Registration Record and in her certificate of candidacy that her
residence is Olot, Tolosa, Leyte? While this uncertainty is not
important insofar as residence in the congressional district is
concerned, it nevertheless proves that forty-one years had already
lapsed since she had lost or abandoned her domicile of origin by
virtue of marriage and that such length of time diminished her
power of recollection or blurred her memory.
I find to be misplaced the reliance by the majority opinion
on Faypon vs. Quirino (96 Phil. 294 [1954]), and the subsequent
cases which established the principle that absence from original
residence or domicile of origin to pursue studies, practice one's
profession, or engage in business in other states does not
constitute loss of such residence or domicile. So is the reliance on
Section 117 of the Omnibus Election Code which provides that
transfer of residence to any other place by reason of one's
"occupation; profession; employment in private and public service;
educational activities; work in military or naval reservations;
service in the army, navy or air force, the constabulary or national
police force; or confinement or detention in government institutions

223
in accordance with law" is not deemed as loss of original residence.
Those cases and legal provision do not include marriage of a
woman. The reason for the exclusion is, of course, Article 110 of the
Civil Code. If it were the intention of this Court or of the legislature
to consider the marriage of a woman as a circumstance which
would not operate as an abandonment of domicile (of origin or of
choice), then such cases and legal provision should have expressly
mentioned the same.
This Court should not accept as gospel truth the self-serving claim
of the petitioner in her affidavit (Annex "A" of her Answer in
COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile
or residence of origin is Tacloban City," and that she "never
intended to abandon this domicile or residence of origin to which
[she] always intended to return whenever absent." Such a claim of
intention cannot prevail over the effect of Article 110 of the Civil
Code. Besides, the facts and circumstances or the vicissitudes of
the petitioner's life after her marriage in 1954 conclusively
establish that she had indeed abandoned her domicile of origin and
had acquired a new oneanimo et facto (KOSSUTH KENT KENNAN, A
Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the petitioner's
claim that she "merely committed an honest mistake" in writing
down the word "seven" in the space provided for the residency
qualification requirement in the certificate of candidacy. Such a
claim is self-serving and, in the light of the foregoing disquisitions,
would be all sound and fury signifying nothing. To me, she did not
commit any mistake, honest or otherwise; what she stated was the
truth.
The majority opinion also disregards a basic rule in evidence that
he who asserts a fact or the affirmative of an issue has the burden
of proving it (Imperial Victory Shipping Agency vs. NLRC, 200 SCRA
178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221 SCRA 19
[1993]). Having admitted marriage to the then Congressman
Marcos, the petitioner could not deny the legal consequence
thereof on the change of her domicile to that of her husband. The
majority opinion rules or at least concludes that "[b]y operation of
law (domicilium necesarium), her legal domicile at the time of her
marriage automatically became Batac, Ilocos Norte." That

conclusion is consistent with Article 110 of the Civil Code. Since she
is presumed to retain her deceased husband's domicile until she
exercises her revived power to acquire her own domicile, the
burden is upon her to prove that she has exercised her right to
acquire her own domicile. She miserably failed to discharge that
burden.
I vote to deny the petition.
Separate Opinions
PUNO, J., concurring:
It was Aristotle who taught mankind that things that are alike
should be treated alike, while things that are unalike should be
treated unalike in proportion to their unalikeness. 1 Like other
candidates, petitioner has clearly met the residence requirement
provided by Section 6, Article VI of the Constitution. 2 We cannot
disqualify her and treat her unalike, for the Constitution guarantees
equal protection of the law. I proceed from the following factual and
legal propositions:
First. There is no question that petitioner's original domicile is in
Tacloban, Leyte. Her parents were domiciled in Tacloban. Their
ancestral house is in Tacloban. They have vast real estate in the
place. Petitioner went to school and thereafter worked there. I
consider Tacloban as her initial domicile, both her domicile of origin
and her domicile of choice. Her domicile of origin as it was the
domicile of her parents when she was a minor; and her domicile of
choice, as she continued living there even after reaching the age of
majority.
Second. There is also no question that in May, 1954, petitioner
married the late President Ferdinand E. Marcos. By contracting
marriage, her domicile became subject to change by law, and the
right to change it was given by Article 110 of the Civil Code
provides:
Art. 110. The husband shall fix the residence of the family. But the
court may exempt the wife from living with the husband if he
should live abroad unless in the service of the Republic. 3 (Emphasis
supplied)
In De la Via v. Villareal and Geopano, 4 this Court explained why
the domicile of the wife ought to follow that of the husband. We

224
held: "The reason is founded upon the theoretic identity of person
and interest between the husband and the wife, and the
presumption that, from the nature of the relation, the home of one
is the home of the other. It is intended to promote, strengthen, and
secure their interests in this relation, as it ordinarily exists, where
union and harmony prevail." 5 In accord with this objective, Article
109 of the Civil Code also obligated the husband and wife "to live
together."
Third. The difficult issues start as we determine whether
petitioner's marriage to former President Marcos ipso facto resulted
in the loss of her Tacloban domicile. I respectfully submit that her
marriage by itself alone did not cause her to lose her Tacloban
domicile. Article 110 of the Civil Code merely gave the husband the
right to fix the domicile of the family. In the exercise of the right,
the husband may explicitly choose the prior domicile of his wife, in
which case, the wife's domicile remains unchanged. The husband
can also implicitly acquiesce to his wife's prior domicile even if it is
different. So we held in de la Via, 6
. . . . When married women as well as children subject to parental
authority live, with the acquiescence of their husbands or fathers,
in a place distinct from where the latter live, they have their
own independent domicile. . . .
It is not, therefore, the mere fact of marriage but the deliberate
choice of a different domicile by the husband that will change the
domicile of a wife from what it was prior to their marriage. The
domiciliary decision made by the husband in the exercise of the
right conferred by Article 110 of the Civil Code binds the wife. Any
and all acts of a wife during her coverture contrary to the
domiciliary choice of the husband cannot change in any way the
domicile legally fixed by the husband. These acts are void not only
because the wife lacks the capacity to choose her domicile but also
because they are contrary to law and public policy.
In the case at bench, it is not disputed that former President Marcos
exercised his right to fix the family domicile and established it in
Batac, Ilocos Norte, where he was then the congressman. At that
particular point of time and throughout their married life, petitioner
lost her domicile in Tacloban, Leyte. Since petitioner's Batac
domicile has been fixed by operation of law, it was not affected in

1959 when her husband was elected as Senator, when they lived in
San Juan, Rizal and where she registered as a voter. It was not also
affected in 1965 when her husband was elected President, when
they lived in Malacaang Palace, and when she registered as a
voter in San Miguel, Manila. Nor was it affected when she served as
a member of the Batasang Pambansa, Minister of Human
Settlements and Governor of Metro Manila during the incumbency
of her husband as President of the nation. Under Article 110 of the
Civil Code, it was only her husband who could change the family
domicile in Batac and the evidence shows he did not effect any
such change. To a large degree, this follows the common law that
"a woman on her marriage loses her own domicile and by operation
of law, acquires that of her husband, no matter where the wife
actually lives or what she believes or intends." 7
Fourth. The more difficult task is how to interpret the effect of
the death on September 28, 1989 of former President Marcos on
petitioner's Batac domicile. The issue is of first impression in our
jurisdiction and two (2) schools of thought contend for acceptance.
One is espoused by our distinguished colleague, Mr. Justice Davide,
Jr., heavily relying on American authorities. 8 He echoes the
theory that after the husband's death, the wife retains the last
domicile of her husband until she makes an actual change.
I do not subscribe to this submission. The American case law that
the wife still retains her dead husband's domicile is based
on ancient common law which we can no longer apply in the
Philippine setting today. The common law identified the domicile of
a wife as that of the husband and denied to her the power of
acquiring a domicile of her own separate and apart from
him. 9 Legal scholars agree that two (2) reasons support this
common law doctrine. The first reason as pinpointed by the
legendary Blackstone is derived from the view that "the very being
or legal existence of the woman is suspended during
the marriage, or at least is incorporated and consolidated into that
of the husband." 10 The second reason lies in "the desirability of
having the interests of each member of the family unit governed by
the same law." 11 The presumption that the wife retains the domicile
of her deceased husband is an extension of this common law
concept. The concept and its extension have provided some of the

225
most iniquitous jurisprudence against women. It was under
common law that the 1873 American case of Bradwell
v. Illinois 12 was decided where women were denied the right to
practice law. It was unblushingly ruled that "the natural and proper
timidity and delicacy which belongs to the female sex evidently
unfits it for many of the occupations of civil life . . . This is the law
of the Creator." Indeed, the rulings relied upon by Mr. Justice Davide
in CJS 13and AM JUR 2d 14 are American state court decisions handed
down between the years 1917 15 and 1938, 16 or before the time
when women were accorded equality of rights with men.
Undeniably, the women's liberation movement resulted in farranging state legislations in the United States to eliminate gender
inequality. 17 Starting in the decade of the seventies, the courts
likewise liberalized their rulings as they started invalidating laws
infected with gender-bias. It was in 1971 when the US Supreme
Court in Reed v. Reed, 18 struck a big blow for women equality when
it declared as unconstitutional an Idaho law that required probate
courts to choose male family members over females as estate
administrators. It held that mere administrative inconvenience
cannot justify a sex-based distinction. These significant changes
both in law and in case law on the status of women virtually
obliterated the iniquitous common law surrendering the rights of
married women to their husbands based on the dubious theory of
the parties' theoretic oneness. The Corpus Juris Secundum editors
did not miss the relevance of this revolution on women's right as
they observed: "However, it has been declared that under modern
statutes changing the status of married women and departing from
the common law theory of marriage, there is no reason why a wife
may not acquire a separate domicile for every purpose known to
the law." 19 In publishing in 1969 theRestatement of the Law,
Second (Conflict of Laws 2d), the reputable American Law Institute
also categorically stated that the view of Blackstone ". . . is no
longer held. As the result of statutes and court decisions, a wife
now possesses practically the same rights and powers as her
unmarried sister." 20
In the case at bench, we have to decide whether we should
continue clinging to the anachronistic common lawthat demeans
women, especially married women. I submit that the Court has no

choice except to break away from this common law rule, the root of
the many degradations of Filipino women. Before 1988, our laws
particularly the Civil Code, were full of gender discriminations
against women. Our esteemed colleague, Madam Justice Flerida
Ruth Romero, cited a few of them as follows: 21
xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under the Civil Code, wives
suffer under certain restrictions or disabilities. For instance, the
wife cannot accept gifts from others, regardless of the sex of the
giver or the value of the gift, other than from her very close
relatives, without her husband's consent. She may accept only
from, say, her parents, parents-in-law, brothers, sisters and the
relatives within the so-called fourth civil degree. She may not
exercise her profession or occupation or engage in business if her
husband objects on serious grounds or if his income is sufficient to
support their family in accordance with their social standing. As to
what constitutes "serious grounds" for objecting, this is within the
discretion of the husband.
xxx xxx xxx
Because of the present inequitable situation, the amendments to
the Civil Law being proposed by the University of the Philippines
Law Center would allow absolute divorce which severes the
matrimonial ties, such that the divorced spouses are free to get
married a year after the divorce is decreed by the courts. However,
in order to place the husband and wife on an equal footing insofar
as the bases for divorce are concerned, the following are specified
as the grounds for absolute divorce: (1) adultery or having a
paramour committed by the respondent in any of the ways
specified in the Revised Penal Code or (2) an attempt by the
respondent against the life of the petitioner which amounts to
attempted parricide under the Revised Penal Code; (3)
abandonment of the petitioner by the respondent without just
cause for a period of three consecutive years; or (4) habitual
maltreatment.
With respect to property relations, the husband is automatically the
administrator of the conjugal property owned in common by the
married couple even if the wife may be the more astute or

226
enterprising partner. The law does not leave it to the spouses to
decide who shall act as such administrator. Consequently, the
husband is authorized to engage in acts and enter into transactions
beneficial to the conjugal partnership. The wife, however, cannot
similarly bind the partnership without the husband's consent.
And while both exercise joint parental authority over their children,
it is the father whom the law designates as the legal administrator
of the property pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally
through legislations, to eliminate inequality between men and
women in our land. The watershed came on August 3, 1988 when
our Family Code took effect which, among others, terminated the
unequal treatment of husband and wife as to their rights and
responsibilities. 22
The Family Code attained this elusive objective by giving new rights
to married women and by abolishing sex-based privileges of
husbands. Among others, married women are now given the joint
right to administer the family property, whether in the absolute
community system or in the system of conjugal partnership; 23 joint
parental authority over their minor children, both over their persons
as well as their properties; 24 joint responsibility for the support of
the family; 25 the right to jointly manage the household; 26 and, the
right to object to their husband's exercise of profession, occupation,
business or activity. 27 Of particular relevance to the case at bench
is Article 69 of the Family Code which took away the exclusive right
of the husband to fix the family domicile and gave it jointly to the
husband and the wife, thus:
Art. 69. The husband and wife shall fix the family domicile. In case
of disagreement, the court shall decide.
The court may exempt one spouse from living with the other if the
latter should live abroad or there are other valid and compelling
reasons for the exemption. However, such exemption shall not
apply if the same is not compatible with the solidarity of the family.
(Emphasis supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on
the duty of the husband and wife to live together, former Madam
Justice Alice Sempio-Diy of the Court of Appeals specified the

instances when a wife may now refuse to live with her husband,
thus: 28
(2) The wife has the duty to live with her husband, but she may
refuse to do so in certain cases like:
(a) If the place chosen by the husband as family residence is
dangerous to her Life;
(b) If the husband subjects her to maltreatment or abusive conduct
or insults, making common life impossible;
(c) If the husband compels her to live with his parents, but she
cannot get along with her mother-in-law and they have constant
quarrels (Del Rosario v. Del Rosario, CA, 46 OG 6122);
(d) Where the husband has continuously carried illicit relations for
10 years with different women and treated his wife roughly and
without consideration. (Dadivas v. Villanueva, 54 Phil. 92);
(e) Where the husband spent his time in gambling, giving no money
to his family for food and necessities, and at the same time
insulting his wife and laying hands on her. (Panuncio v. Sula, CA, 34
OG 129);
(f) If the husband has no fixed residence and lives a vagabond life
as a tramp (1 Manresa 329);
(g) If the husband is carrying on a shameful business at home
(Gahn v. Darby, 38 La. Ann. 70).
The inescapable conclusion is that our Family Code has completely
emancipated the wife from the control of the husband, thus
abandoning the parties' theoretic identity of interest. No less than
the late revered Mr. Justice J.B.L. Reyes who chaired the Civil Code
Revision Committee of the UP Law Center gave this insightful view
in one of his rare lectures after retirement: 29
xxx xxx xxx
The Family Code is primarily intended to reform the family law so as
to emancipate the wife from the exclusive control of the husband
and to place her at parity with him insofar as the family is
concerned. The wife and the husband are now placed on equal
standing by the Code. They are now joint administrators of the
family properties and exercise joint authority over the persons and
properties of their children. This means a dual authority in the
family. The husband will no longer prevail over the wife but she has
to agree on all matters concerning the family. (Emphasis supplied)

227
In light of the Family Code which abrogated the inequality between
husband and wife as started and perpetuated by the common
law, there is no reason in espousing the anomalous rule that the
wife still retains the domicile of her dead husband. Article 110 of
the Civil Code which provides the statutory support for this stance
has been repealed by Article 69 of the Family Code. By its repeal, it
becomes a dead-letter law, and we are not free to resurrect it by
giving it further effect in any way or manner such as by ruling that
the petitioner is still bound by the domiciliary determination of her
dead husband.
Aside from reckoning with the Family Code, we have to consider our
Constitution and its firm guarantees of due process and equal
protection
of
30
law. It can hardly be doubted that the common law imposition on
a married woman of her dead husband's domicile even beyond his
grave is patently discriminatory to women. It is a gender-based
discrimination and is not rationally related to the objective of
promoting family solidarity. It cannot survive a constitutional
challenge. Indeed, compared with our previous fundamental
laws, the 1987 Constitution is more concerned with equality
between sexes as it explicitly commands that the State ". . . shall
ensure fundamental equality before the law of women and men." To
be exact, section 14, Article II provides: "The State recognizes the
role of women in nation building, and shall ensure fundamental
equality before the law of women and men. We shall be
transgressing the sense and essence of this constitutional mandate
if we insist on giving our women the caveman's treatment.
Prescinding from these premises, I respectfully submit that the
better stance is to rule that petitioner reacquired her Tacloban
domicile upon the death of her husband in 1989. This is the
necessary consequence of the view that petitioner's Batac dictated
domicile did not continue after her husband's death; otherwise, she
would have no domicile and that will violate the universal rule that
no person can be without a domicile at any point of time. This
stance also restores the right of petitioner to choose her domicile
before it was taken away by Article 110 of the Civil Code, a right
now recognized by the Family Code and protected by the
Constitution. Likewise, I cannot see the fairness of the common law

requiring petitioner to choose again her Tacloban domicile before

she could be released from her Batac domicile. She lost her
Tacloban domicile not through her act but through the act of her
deceased husband when he fixed their domicile in Batac. Her
husband is dead and he cannot rule her beyond the grave. The law
disabling her to choose her own domicile has been repealed.
Considering all these, common law should not put the burden on
petitioner to prove she has abandoned her dead husband's
domicile. There is neither rhyme nor reason for this gender-based
burden.
But even assuming arguendo that there is need for convincing
proof that petitioner chose to reacquire her Tacloban domicile, still,
the records reveal ample evidence to this effect. In her affidavit
submitted to the respondent COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to our beloved country, after
several requests for my return were denied by President Corazon C.
Aquino, and after I filed suits for our Government to issue me my
passport.
37. But I came home without the mortal remains of my beloved
husband, President Ferdinand E. Marcos, which the Government
considered a threat to the national security and welfare.
38. Upon my return to the country, I wanted to immediately live
and reside in Tacloban City or in Olot, Tolosa, Leyte, even if my
residences there were not livable as they had been destroyed and
cannibalized. The PCGG, however, did not permit and allow me.
39. As a consequence, I had to live at various times in the Westin
Philippine Plaza in Pasay City, a friend's apartment on Ayala
Avenue, a house in South Forbes Park which my daughter rented,
and Pacific Plaza, all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the
residence of my brother in San Jose, Tacloban City, and pursued my
negotiations with PCGG to recover my sequestered residences in
Tacloban City and Barangay Olot, Tolosa, Leyte.
40.1 In preparation for my observance of All Saints' Day and All
Souls' Day that year, I renovated my parents' burial grounds and
entombed their bones which had been excalvated, unearthed and
scattered.

228
41. On November 29, 1993, I formally wrote PCGG Chairman
Magtanggol Gunigundo for permissions to
. . . rehabilitate . . . (o)ur ancestral house in Tacloban and
farmhouse in Olot, Leyte . . . to make them livable for us the Marcos
family to have a home in our own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman
Gunigundo, in his letter to Col. Simeon Kempis, Jr., PCGG Region 8
Representative, allowed me to repair and renovate my Leyte
residences. I quote part of his letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this Commission,
that she intends to visit our sequestered properties in Leyte, please
allow her access thereto. She may also cause repairs and
renovation of the sequestered properties, in which event, it shall be
understood that her undertaking said repairs is not authorization
for her to take over said properties, and that all expenses shall be
for her account and not reimbursable. Please extend the necessary
courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Nio
Shrine residence in Tacloban City where I wanted to stay and
reside, after repairs and renovations were completed. In August
1994, I transferred from San Jose, Tacloban City, to my residence in
Barangay Olot, Tolosa, Leyte, when PCGG permitted me to stay and
live there.
It is then clear that in 1992 petitioner reestablished her domicile in
the First District of Leyte. It is not disputed that in 1992, she first
lived at the house of her brother in San Jose, Tacloban City and
later, in August 1994, she transferred her residence in Barangay
Olot, Tolosa, Leyte. Both Tacloban City and the municipality of Olot
are within the First District of Leyte. Since petitioner reestablished
her old domicile in 1992 in the First District of Leyte, she more than
complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding
the day of the election," i.e., the May 8, 1995 elections.
The evidence presented by the private respondent to negate the
Tacloban domicile of petitioner is nil. He presented petitioner's

Voter's Registration Record filed with the Board of Election

Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein
she stated that her period of residence in said barangay was six (6)
months as of the date of her filing of said Voter's Registration
Record on January 28, 1995. 31 This statement in petitioner's Voter's
Registration Record is a non-prejudicial admission. The Constitution
requires at least one (1) year residence in thedistrict in which the
candidate shall be elected. In the case at bench, the reference is
the First District of Leyte. Petitioner's statement proved that she
resided in Olot six (6) months before January 28, 1995 but did not
disprove that she has also resided in Tacloban City starting 1992.
As aforestated, Olot and Tacloban City are both within the First
District of Leyte, hence, her six (6) months residence in Olot should
be counted not against, but in her favor. Private respondent also
presented petitioner's Certificate of Candidacy filed on March 8,
1995 32 where she placed seven (7) months after Item No. 8 which
called for information regarding "residence in the constituency
where I seek to be elected immediately preceding the election."
Again, this original certificate of candidacy has no evidentiary value
because an March 1, 1995 it was corrected by petitioner. In her
Amended/Corrected Certificate of Candidacy, 33 petitioner wrote
"since childhood" after Item No. 8. The amendment of a certificate
of candidacy to correct a bona fide mistake has been allowed by
this Court as a matter of course and as a matter of right. As we
held in Alialy v. COMELEC, 34 viz.:
xxx xxx xxx
The absence of the signature of the Secretary of the local chapter
N.P in the original certificate of candidacy presented before the
deadline September 11, 1959, did not render the certificate
invalid.The amendment of the certificate, although at a date after
the deadline, but before the election, was substantial compliance
with the law, and the defect was cured.
It goes without saying that petitioner's erroneous Certificate of
Candidacy filed on March 8, 1995 cannot be used as evidence
against her. Private respondent's petition for the disqualification of
petitioner rested alone on these two (2) brittle pieces of
documentary evidence petitioner's Voter's Registration Record
and her original Certificate of Candidacy. Ranged against the

229
evidence of the petitioner showing her ceaseless contacts with
Tacloban, private respondent's two (2) pieces of evidence are too
insufficient to disqualify petitioner, more so, to deny her the right to
represent the people of the First District of Leyte who have
overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution mandates that
"bona fide candidates for any public office shall be free from any
form of harassment and discrimination." 35 A detached reading of
the records of the case at bench will show that all forms of legal
and extra-legal obstacles have been thrown against petitioner to
prevent her from running as the people's representative in the First
District of Leyte. In petitioner's Answer to the petition to disqualify
her, she averred: 36
xxx xxx xxx
10. Petitioner's (herein private respondent Montejo) motive in filing
the instant petition is devious. When respondent (petitioner herein)
announced that she was intending to register as a voter in Tacloban
City and run for Congress in the First District of Leyte, petitioner
(Montejo) immediately opposed her intended registration by writing
a letter stating that "she is not a resident of said city but of
Barangay Olot, Tolosa, Leyte." (Annex "2" of respondent's affidavit,
Annex "2"). After respondent (petitioner herein) had registered as a
voter in Tolosa following completion of her six-month actual
residence therein, petitioner (Montejo) filed a petition with the
COMELEC to transfer the town of Tolosa from the First District to the
Second District and pursued such move up to the Supreme Court in
G.R. No. 118702, his purpose being to remove respondent
(petitioner herein) as petitioner's (Montejo's) opponent in the
congressional election in the First District. He also filed a bill, along
with other Leyte Congressmen, seeking to create another
legislative district, to remove the town of Tolosa out of the First
District and to make it a part of the new district, to achieve his
purpose. However, such bill did not pass the Senate. Having, failed
on such moves, petitioner now filed the instant petition, for the
same objective, as it is obvious that he is afraid to submit himself
along with respondent (petitioner herein) for the judgment and
verdict of the electorate of the First District of Leyte in an honest,
orderly, peaceful, free and clean elections on May 8, 1995.

These allegations which private respondent did not challenge were

not
lost
to the perceptive eye of Commissioner Maambong who in his
Dissenting Opinion, 37 held:
xxx xxx xxx
Prior to the registration date January 28, 1995 the petitioner
(herein private respondent Montejo) wrote the Election Officer of
Tacloban City not to allow respondent (petitioner herein) to register
thereat since she is a resident of Tolosa and not Tacloban City. The
purpose of this move of the petitioner (Montejo) is not lost to (sic)
the Commission. In UND No. 95-001 (In the matter of the
Legislative Districts of the Provinces of Leyte, Iloilo, and South
Cotabato, Out of Which the New Provinces of Biliran, Guimaras and
Saranggani Were Respectively Created), . . . Hon. Cirilo Roy G.
Montejo, Representative, First District of Leyte, wanted the
Municipality of Tolosa, in the First District of Leyte, transferred to
the Second District of Leyte. The Hon. Sergio A.F. Apostol,
Representative of the Second District of Leyte, opposed the move
of the petitioner (Montejo). Under Comelec Resolution No. 2736
(December 29, 1994), the Commission on Elections refused to
make the proposed transfer. Petitioner (Montejo) filed "Motion for
Reconsideration
of
Resolution
No. 2736" which the Commission denied in a Resolution
promulgated on February 1, 1995. Petitioner (Montejo) filed a
petition for certiorari before the Honorable Supreme Court (Cirilo
Roy G. Montejo vs. Commission on Elections, G.R. No. 118702)
questioning the resolution of the Commission. Believing that he
could get a favorable ruling from the Supreme Court, petitioner
(Montejo) tried to make sure that the respondent (petitioner herein)
will register as a voter in Tolosa so that she will be forced to run as
Representative not in the First but in the Second District.
It did not happen. On March 16, 1995, the Honorable Supreme
Court unanimously promulgated a "Decision," penned by Associate
Justice Reynato S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it
transferred the municipality of Capoocan of the Second District and
the municipality of Palompon of the Fourth District to the Third
District of the province of Leyte, is annulled and set aside. We also

230
deny the Petition praying for the transfer of the municipality of
Tolosa from the First District to the Second District of the province
of Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent
(petitioner herein) was constrained to register in the Municipality of
Tolosa where her house is instead of Tacloban City, her domicile. In
any case, both Tacloban City and Tolosa are in the First Legislative
District.
All these attempts to misuse our laws and legal processes are
forms of rank harassments and invidious discriminations against
petitioner to deny her equal access to a public office. We cannot
commit any hermeneutic violence to the Constitution by torturing
the meaning of equality, the end result of which will allow the
harassment and discrimination of petitioner who has lived a
controversial life, a past of alternating light and shadow. There is
but one Constitution for all Filipinos. Petitioner cannot be adjudged
by a "different" Constitution, and the worst way to interpret the
Constitution is to inject in its interpretation, bile and bitterness.
Sixth. In Gallego v. Vera, 38 we explained that the reason for this
residence requirement is "to exclude a stranger or newcomer,
unacquainted, with the conditions and needs of a community and
not identified with the latter, from an elective office to serve that
community . . . ." Petitioner's lifetime contacts with the First District
of Leyte cannot be contested. Nobody can claim that she is not
acquainted with its problems because she is a stranger to the
place. None can argue she cannot satisfy the intent of the
Constitution.
Seventh. In resolving election cases, a dominant consideration is
the need to effectuate the will of the electorate. The election
results show that petitioner received Seventy Thousand Four
Hundred Seventy-one (70,471) votes, while private respondent got
only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833)
votes. Petitioner is clearly the overwhelming choice of the
electorate of the First District of Leyte and this is not a sleight of
statistics. We cannot frustrate this sovereign will on highly arguable
technical considerations. In case of doubt, we should lean towards
a rule that will give life to the people's political judgment.

A final point. The case at bench provides the Court with the rare
opportunity to rectify the inequality of status between women and
men by rejecting the iniquitous common law precedents on the
domicile of married women and by redefining domicile in accord
with our own culture, law, and Constitution. To rule that a married
woman is eternally tethered to the domicile dictated by her dead
husband is to preserve the anachronistic and anomalous balance of
advantage of a husband over his wife. We should not allow the
dead to govern the living even if the glories of yesteryears seduce
us to shout long live the dead! The Family Code buried this genderbased discrimination against married women and we should not
excavate what has been entombed. More importantly, the
Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner
qualified for the position of Representative of the First
Congressional District of Leyte. I wish, however, to express a few
comments on the issue of petitioner's domicile.
Domicile has been defined as that place in which a person's
habitation is fixed, without any present intention of removing
therefrom, and that place is properly the domicile of a person in
which he has voluntarily fixed his abode, or habitation, not for a
mere special or temporary purpose, but with a present intention of
making it his permanent home (28 C.J.S. 1). It denotes a fixed
permanent residence to which when absent for business, or
pleasure, or for like reasons one intends to return, and depends on
facts and circumstances, in the sense that they disclose intent.
(Ong Huan Tin v. Republic, 19 SCRA 966, 969)
Domicile is classified into domicile of origin and domicile of choice.
The law attributes to every individual a domicile of origin, which is
the domicile of his parents, or of the head of his family, or of the
person on whom he is legally dependent at the time of his birth.
While the domicile of origin is generally the place where one is born
or reared, it maybe elsewhere (28 C.J.S. 5). Domicile of choice, on
the other hand, is the place which the person has elected and

231
chosen for himself to displace his previous domicile; it has for its
true basis or foundation the intention of the person (28 C.J.S. 6). In
order to hold that a person has abandoned his domicile and
acquired a new one called domicile of choice, the following
requisites must concur, namely, (a) residence or bodily presence in
the new locality, (b) intention to remain there or animus manendi,
and (c) an intention to abandon the old domicile oranimus non
revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408,
415). A third classification is domicile by operation of law which
attributes to a person a domicile independent of his own intention
or actual residence, ordinarily resulting from legal domestic
relations, as that of the wife arising from marriage, or the relation
of a parent and a child (28 C.J.S. 7).
In election law, when our Constitution speaks of residence for
election purposes it means domicile (Co v. Electoral Tribunal of the
House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52
Phil. 645, 651). To my mind, public respondent Commission on
Elections misapplied this concept, of domicile which led to
petitioner's disqualification by ruling that petitioner failed to comply
with
the
constitutionally
mandated
one-year
residence
requirement. Apparently, public respondent Commission deemed as
conclusive petitioner's stay and registration as voter in many
places as conduct disclosing her intent to abandon her established
domicile of origin in Tacloban, Leyte. In several decisions, though,
the Court has laid down the rule that registration of a voter in a
place other than his place of origin is not sufficient to constitute
abandonment or loss of such residence (Faypon v. Quirino, 96 Phil.
294, 300). Respondent Commission offered no cogent reason to
depart from this rule except to surmise petitioner's intent of
abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was
supplanted by a new domicile due to her marriage, a domicile by
operation of law. The proposition is that upon the death of her
husband in 1989 she retains her husband's domicile, i.e., Batac,
Ilocos Norte, until she makes an actual change thereof. I find this
proposition quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was
involuntarily supplanted with another, i.e., Batac, Ilocos Norte,

upon her marriage in 1954 with then Congressman Marcos. By legal

fiction she followed the domicile of her husband. In my view, the
reason for the law is for the spouses to fully and effectively perform
their marital duties and obligations to one another. 1 The question
of domicile, however, is not affected by the fact that it was the
legal or moral duty of the individual to reside in a given place (28
C.J.S. 11). Thus, while the wife retains her marital domicile so long
as the marriage subsists, she automatically loses it upon the
latter's termination, for the reason behind the law then ceases.
Otherwise, petitioner, after her marriage was ended by the death of
her husband, would be placed in a quite absurd and unfair situation
of having been freed from all wifely obligations yet made to hold on
to one which no longer serves any meaningful purpose.
It is my view therefore that petitioner reverted to her original
domicile of Tacloban, Leyte upon her husband's death without even
signifying her intention to that effect. It is for the private
respondent to prove, not for petitioner to disprove, that petitioner
has effectively abandoned Tacloban, Leyte for Batac, Ilocos Norte or
for some other place/s. The clear rule is that it is the party (herein
private respondent) claiming that a person has abandoned or lost
his residence of origin who must show and prove preponderantly
such abandonment or loss (Faypon v. Quirino, supra at 298; 28
C.J.S. 16), because the presumption is strongly in favor of an
original or former domicile, as against an acquired one (28 C.J.S.
16). Private respondent unfortunately failed to discharge this
burden as the record is devoid of convincing proof that petitioner
has acquired whether voluntarily or involuntarily, a new domicile to
replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has
complied with the constitutional one-year residence requirement.
After her exile abroad, she returned to the Philippines in 1991 to
reside in Olot, Tolosa, Leyte, but the Presidential Commission on
Good Government which sequestered her residential house and
other properties forbade her necessitating her transient stay in
various places in Manila (Affidavit p.6, attached as Annex I of the
Petition). In 1992, she ran for the position of president writing in her
certificate of candidacy her residence as San Juan, Metro Manila.
After her loss therein, she went back to Tacloban City, acquired her

232
residence certificate 2and resided with her brother in San Jose. She
resided in San Jose, Tacloban City until August of 1994 when she
was allowed by the PCGG to move and reside in her sequestered
residential house in Olot, Tolosa, Leyte (Annex I, p. 6). 3 It was in the
same month of August when she applied for the cancellation of her
previous registration in San Juan, Metro Manila in order to register
anew as voter of Olot, Tolosa, Leyte, which she did on January 28,
1995. From this sequence of events, I find it quite improper to use
as the reckoning period of the one-year residence requirement the
date when she applied for the cancellation of her previous
registration in San Juan, Metro Manila. The fact which private
respondent never bothered to disprove is that petitioner transferred
her residence after the 1992 presidential election from San Juan,
Metro Manila to San Jose, Tacloban City, and resided therein until
August of 1994. She later transferred to Olot, Tolosa, Leyte (Annex
I, p. 7). It appearing that both Tacloban City and Tolosa, Leyte are
within the First Congressional District of Leyte, it indubitably stands
that she had more than a year of residence in the constituency she
sought to be elected. Petitioner, therefore, has satisfactorily
complied with the one-year qualification required by the 1987
Constitution.
I vote to grant the petition.
ROMERO, J., separate opinion:
Petitioner has appealed to this Court for relief after the COMELEC
ruled that she was disqualified from running for Representative of
her District and that, in the event that she should, nevertheless,
muster a majority vote, her proclamation should be suspended. Not
by a straightforward ruling did the COMELEC pronounce its decision
as has been its unvarying practice in the past, but by a startling
succession of "reverse somersaults." Indicative of its shifting
stance vis-a-vis petitioner's certificate of candidacy were first, the
action of its Second Division disqualifying her and canceling her
original Certificate of Candidacy by a vote of 2-1 on April 24, 1995;
then the denial by the COMELEC en banc of her Motion for
Reconsideration on May 7, 1995, a day before the election; then
because
she
persisted
in
running,
its
decision
on
May 11, 1995 or three days after the election, allowing her

proclamation in the event that the results of the canvass should

show that she obtained the highest number of votes (obviously
noting that petitioner had won overwhelmingly over her opponent),
but almost simultaneously reversing itself by directing that even if
she wins, her proclamation should nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by
the case at bench is the interpretation to be given to the one-year
residency requirement imposed by the Constitution on aspirants for
a Congressional seat. 1
Bearing in mind that the term "resident" has been held to be
synonymous with "domicile" for election purposes, it is important to
determine whether petitioner's domicile was in the First District of
Leyte and if so, whether she had resided there for at least a period
of one year. Undisputed is her domicile of origin, Tacloban, where
her parents lived at the time of her birth. Depending on what
theory one adopts, the same may have been changed when she
married Ferdinand E. Marcos, then domiciled in Batac, by operation
of law. Assuming it did, his death certainly released her from the
obligation to live with him at the residence fixed by him during his
lifetime. What may confuse the layman at this point is the fact that
the term "domicile" may refer to "domicile of origin," "domicile of
choice," or "domicile by operation of law," which subject we shall
not belabor since it has been amply discussed by the ponente and
in the other separate opinions.
In any case, what assumes relevance is the divergence of legal
opinion as to the effect of the husband's death on the domicile of
the widow. Some scholars opine that the widow's domicile remains
unchanged; that the deceased husband's wishes perforce still bind
the wife he has left behind. Given this interpretation, the widow
cannot possibly go far enough to sever the domiciliary tie imposed
by her husband.
It is bad enough to interpret the law as empowering the husband
unilaterally to fix the residence or domicile of the family, as laid
down in the Civil Code, 2 but to continue giving obeisance to his
wishes even after the rationale underlying the mutual duty of the
spouses to live together has ceased, is to close one's eyes to the
stark realities of the present.

233
At the other extreme is the position that the widow automatically
reverts to her domicile of origin upon the demise of her husband.
Does the law so abhor a vacuum that the widow has to be endowed
somehow with a domicile? To answer this question which is far from
rhetorical, one will have to keep in mind the basic principles of
domicile. Everyone must have a domicile. Then one must have only
a single domicile for the same purpose at any given time. Once
established, a domicile remains until a new one is acquired, for no
person lives who has no domicile, as defined by the law be is
subject to.
At this juncture, we are confronted with an unexplored legal terrain
in this jurisdiction, rendered more murky by the conflicting opinions
of foreign legal authorities. This being the state of things, it is
imperative as it is opportune to illumine the darkness with the
beacon light of truth, as dictated by experience and the necessity
of according petitioner her right to choose her domicile in keeping
with the enlightened global trend to recognize and protect the
human rights of women, no less than men.
Admittedly, the notion of placing women at par with men, insofar as
civil, political and social rights are concerned, is a relatively recent
phenomenon that took seed only in the middle of this century. It is
a historical fact that for over three centuries, the Philippines had
been colonized by Spain, a conservative, Catholic country which
transplanted to our shores the Old World cultures, mores and
attitudes and values. Through the imposition on our government of
the Spanish Civil Code in 1889, the people, both men and women,
had no choice but to accept such concepts as the husband's being
the head of the family and the wife's subordination to his authority.
In such role, his was the right to make vital decisions for the family.
Many instances come to mind, foremost being what is related to
the issue before us, namely, that "the husband shall fix the
residence of the family." 3 Because he is made responsible for the
support of the wife and the rest of the family, 4 he is also
empowered to be the administrator of the conjugal property, with a
few exceptions 5 and may, therefore, dispose of the conjugal
partnership property for the purposes specified under the
law; 6 whereas, as a general rule, the wife cannot bind the conjugal
partnership without the husband's consent. 7 As regards the

property pertaining to the children under parental authority, the

father is the legal administrator and only in his absence may the
mother assume his powers. 8 Demeaning to the wife's dignity are
certain strictures on her personal freedoms, practically relegating
her to the position of minors and disabled persons. To illustrate a
few: The wife cannot, without the husband's consent, acquire any
gratuitous title, except from her ascendants, descendants, parentsin-law, and collateral relatives within the fourth degree. 9 With
respect to her employment, the husband wields a veto power in the
case the wife exercises her profession or occupation or engages in
business, provided his income is sufficient for the family, according
to its social standing and his opposition is founded on serious and
valid grounds. 10 Most offensive, if not repulsive, to the liberalminded is the effective prohibition upon a widow to get married till
after three hundred days following the death of her husband, unless
in the meantime, she has given birth to a child. 11 The mother who
contracts a subsequent marriage loses the parental authority over
her children, unless the deceased husband, father of the latter, has
expressly provided in his will that his widow might marry again, and
has ordered that in such case she should keep and exercise
parental authority over their children. 12 Again, an instance of a
husband's overarching influence from beyond the grave.
All these indignities and disabilities suffered by Filipino wives for
hundreds of years evoked no protest from them until the concept of
human rights and equality between and among nations and
individuals found hospitable lodgment in the United Nations Charter
of which the Philippines was one of the original signatories. By
then, the Spanish "conquistadores" had been overthrown by the
American forces at the turn of the century. The bedrock of the U.N.
Charter was firmly anchored on this credo: "to reaffirm faith in the
fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women." (Emphasis
supplied)
It took over thirty years before these egalitarian doctrines bore
fruit, owing largely to the burgeoning of the feminist movement.
What may be regarded as the international bill of rights for women
was implanted in the Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW) adopted by the U.N.

234
General Assembly which entered into force as an international
treaty on September 3, 1981. In ratifying the instrument, the
Philippines bound itself to implement its liberating spirit and letter,
for its Constitution, no less, declared that "The Philippines. . .
adopts the generally accepted principles of international law as
part of the law of the land and adheres to the policy of peace,
equality, justice, freedom, cooperation, and amity with all
nations." 13 One such principle embodied in the CEDAW is granting
to men and women "the same rights with regard to the law relating
to the movement of persons and the freedom to choose their
residence and domicile."14 (Emphasis supplied).
CEDAW's pro-women orientation which was not lost on Filipino
women was reflected in the 1987 Constitution of the Philippines
and later, in the Family Code, 15 both of which were speedily
approved by the first lady President of the country, Corazon C.
Aquino. Notable for its emphasis on the human rights of all
individuals and its bias for equality between the sexes are the
following provisions: "The State values the dignity of every human
person and guarantees full respect for human rights" 16 and "The
State recognizes the role of women in nation-building, and shall
ensure the fundamental equality before the law of women and
men." 17
A major accomplishment of women in their quest for equality with
men and the elimination of discriminatory provisions of law was the
deletion in the Family Code of almost all of the unreasonable
strictures on wives and the grant to them of personal rights equal
to that of their husbands. Specifically, the husband and wife are
now giventhe right jointly to fix the family domicile; 18 concomitant
to the spouses' being jointly responsible for the support of the
family is the right and duty of both spouses to manage the
household; 19 the administration and the enjoyment of the
community property shall belong to both spouses jointly; 20 the
father and mother shall now jointly exercise legal guardianship over
the property of their unemancipated common child 21 and several
others.
Aware of the hiatus and continuing gaps in the law, insofar as
women's rights are concerned, Congress passed a law popularly
known as "Women in Development and Nation Building

Act" 22 Among the rights given to married women evidencing their

capacity to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans and
execute security and credit arrangements under the same
conditions as men;
(2) Women shall have equal access to all government and private
sector programs granting agricultural credit, loans and non material
resources and shall enjoy equal treatment in agrarian reform and
land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter
into insurance contracts; and
(4) Married women shall have rights equal to those of married men
in applying for passports, secure visas and other travel documents,
without need to secure the consent of their spouses.
As the world draws the curtain on the Fourth World Conference of
Women in Beijing, let this Court now be the first to respond to its
clarion call that "Women's Rights are Human Rights" and that "All
obstacles to women's full participation in decision-making at all
levels, including the family" should be removed. Having been
herself a Member of the Philippine Delegation to the International
Women's Year Conference in Mexico in 1975, this writer is only too
keenly aware of the unremitting struggle being waged by women
the world over, Filipino women not excluded, to be accepted as
equals of men and to tear down the walls of discrimination that
hold them back from their proper places under the sun.
In light of the inexorable sweep of events, local and global,
legislative, executive and judicial, according more rights to women
hitherto denied them and eliminating whatever pockets of
discrimination still exist in their civil, political and social life, can it
still be insisted that widows are not at liberty to choose their
domicile upon the death of their husbands but must retain the
same, regardless?
I submit that a widow, like the petitioner and others similarly
situated, can no longer be bound by the domicile of the departed
husband, if at all she was before. Neither does she automatically
revert to her domicile of origin, but exercising free will, she may opt
to reestablish her domicile of origin. In returning to Tacloban and
subsequently, to Barangay Olot, Tolosa, both of which are located in

235
the First District of Leyte, petitioner amply demonstrated by overt
acts, her election of a domicile of choice, in this case, a reversion to
her domicile of origin. Added together, the time when she set up
her domicile in the two places sufficed to meet the one-year
requirement to run as Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the petition.
VITUG, J., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our
legal system that sets up ideals and directions and render steady
our strides hence. It only looks back so as to ensure that mistakes
in the past are not repeated. A compliant transience of a
constitution belittles its basic function and weakens its goals. A
constitution may well become outdated by the realities of time.
When it does, it must be changed but while it remains, we owe it
respect and allegiance. Anarchy, open or subtle, has never been,
nor must it ever be, the answer to perceived transitory needs, let
alone societal attitudes, or the Constitution might lose its very
essence.
Constitutional provisions must be taken to be mandatory in
character unless, either by express statement or by necessary
implication, a different intention is manifest (see Marcelino vs. Cruz,
121 SCRA 51).
The two provisions initially brought to focus are Section 6 and
Section 17 of Article VI of the fundamental law. These provisions
read:
Sec. 6. No person shall be a Member of the House of
Representatives unless he is a natural-born citizen of the
Philippines and, on the day of the election, is at least twenty-five
years of age, able to read and write, and, except the party-list
representatives, a registered voter in the district in which he shall
be elected, and a resident thereof for a period of not less than one
year immediately preceding the day of the election.
Sec. 17. The Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of their
respective Members. Each Electoral Tribunal shall be composed of

nine Members, three of whom shall be Justices of the Supreme

Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives, as
the case may be, who shall be chosen on the basis of proportional
representation from the political parties and the parties or
organizations registered under the party-list system represented
therein. The senior Justice in the Electoral Tribunal shall be its
Chairman.
The Commission on Election (the "COMELEC") is constitutionally
bound to enforce and administer "all laws and regulations relative
to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that,
there being nothing said to the contrary, should include its
authority to pass upon the qualification and disqualification
prescribed by law ofcandidates to an elective office. Indeed, preproclamation controversies are expressly placed under the
COMELEC's jurisdiction to hear and resolve (Art. IX, C, Sec. 3,
Constitution).
The matter before us specifically calls for the observance of the
constitutional one-year residency requirement. The issue (whether
or not there is here such compliance), to my mind, is basically a
question of fact or at least inextricably linked to such
determination. The findings and judgment of the COMELEC, in
accordance with the long established rule and subject only to a
number of exceptions under the basic heading of "grave abuse of
discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to
me to be a plain matter. Generally, the term "residence" has a
broader
connotation
that
may
mean permanent (domicile), official (place where one's official
duties may require him to stay) or temporary (the place where he
sojourns during a considerable length of time). For civil law
purposes, i.e., as regards the exercise of civil rights and the
fulfillment of civil obligations, the domicile of a natural person is the
place of his habitual residence (see Article 50, Civil Code). In
election cases, the controlling rule is that heretofore announced by
this Court in Romualdez vs. Regional Trial Court, Branch 7, Tacloban
City (226 SCRA 408, 409); thus:

236
In election cases, the Court treats domicile and residence as
synonymous terms, thus: "(t)he term "residence" as used in the
election law is synonymous with "domicile," which imports not only
an intention to reside in a fixed place but also personal presence in
that place, coupled with conduct indicative of such intention."
"Domicile" denotes a fixed permanent residence to which when
absent for business or pleasure, or for like reasons, one intends to
return. . . . . Residence thus acquired, however, may be lost by
adopting another choice of domicile. In order, in turn, to acquire a
new domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and
(3) an intention to abandon the old domicile. In other words, there
must basically be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice
must be for an indefinite period of time; the change of residence
must be voluntary; and the residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that we can
charge the COMELEC with having committed grave abuse of
discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections,
ends when the jurisdiction of the Electoral Tribunal concerned
begins. It signifies that the protestee must have theretofore been
duly proclaimed and has since become a "member" of the Senate
or the House of Representatives. The question can be asked on
whether or not the proclamation of a candidate is just a ministerial
function of the Commission on Elections dictated solely on the
number of votes cast in an election exercise. I believe, it is not. A
ministerial duty is an obligation the performance of which, being
adequately defined, does not allow the use of further judgment or
discretion. The COMELEC, in its particular case, is tasked with the
full responsibility of ascertaining all the facts and conditions such
as may be required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any
undue encroachment on the ultimate exercise of authority by the
Electoral Tribunals on matters which, by no less than a
constitutional fiat, are explicitly within their exclusive domain. The
nagging question, if it were otherwise, would be the effect of the

Court's peremptory pronouncement on the ability of the Electoral

Tribunal to later come up with its own judgment in a contest
"relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base
on the applicability to this case of Section 6 of Republic Act No.
6646, in relation to Section 72 of Batas Pambansa Blg. 881, each
providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 6. Effect of Disqualification Case. Any candidate who has
been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any
reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission
shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt
is strong.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. The
Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a
final decision shall be rendered not later than seven days before
the election in which the disqualification is sought.
Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall
not be counted. Nevertheless, if for any reason, a candidate is not
declared by final, judgment before an election to be disqualified,
and he is voted for and receives the winning number of votes in
such election, his violation of the provisions of the preceding
sections shall not prevent his proclamation and assumption to
office.
I realize that in considering the significance of the law, it may be
preferable to look for not so much the specific instances they
ostensibly would cover as the principle they clearly convey. Thus, I

237
will not scoff at the argument that it should be sound to say that
votes cast in favor of the disqualified candidate, whenever
ultimately declared as such, should not be counted in his or her
favor and must accordingly be considered to be stray votes. The
argument, nevertheless, is far outweighed by the rationale of the
now prevailing doctrine first enunciated in the case of Topacio
vs. Paredes (23 Phil. 238 [1912]) which, although later abandoned
in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos
vs. COMELEC (137 SCRA 740 [1985]), was restored, along with the
interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by
the Labo (176
SCRA
1
(1989]), Abella (201
SCRA
253
[1991]), Labo (211
SCRA
297
[1992])
and,
most
recently, Benito (235
SCRA
436
[1994])
rulings. Benito
vs.Comelec was a unanimous decision penned by Justice Kapunan
and concurred in by Chief Justice Narvasa, Justices Feliciano,
Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno,
Vitug and Mendoza (Justices Cruz and Bellosillo were on official
leave).
For
easy
reference,
let
me
quote
from
the
first Labo decision:
Finally, there is the question of whether or not the private
respondent, who filed the quo warrantopetition, can replace the
petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election,
he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission
on Elections, (137 SCRA 740) decided in 1985. In that case, the
candidate who placed second was proclaimed elected after the
votes for his winning rival, who was disqualified as a turncoat and
considered a non-candidate, were all disregard as stray. In effect,
the second placer won by default. That decision was supported by
eight members of the Court then, (Cuevas, J., ponente, with
Makasiar, Concepcion, Jr., Escolin, Relova, De la Fuente, Alampay
and Aquino, JJ., concurring.) with three dissenting (Teehankee,
Acting C.J., Abad Santos and Melencio-Herrera, JJ.) and another two
reserving their vote. (Plana and Gutierrez, Jr., JJ.) One was on official
leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it
should be reversed in favor of the earlier case of Geronimo

v. Ramos, (136 SCRA 435) which represents the more logical and
democratic rule. That case, which reiterated the doctrine first
announced in 1912 in Topacio v.Paredes, (23 Phil. 238) was
supported by ten members of the Court, (Gutierrez, Jr., ponente,
with Teehankee, Abad Santos, Melencio-Herrera, Plana, Escolin,
Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without
any dissent, although one reserved his vote, (Makasiar, J.) another
took no part, (Aquino, J.) and two others were on leave.
(Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who has
not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the
majority of which have positively declared through their ballots that
they do not choose him.
Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the election
for that office, and it is a fundamental idea in all republican forms
of government that no one can be declared elected and no
measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris
2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of
votes is later declared to be disqualified or not eligible for the office
to which he was elected does not necessarily entitle the candidate
who obtained the second highest number of votes to be declared
the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the
winner into office or maintain him there. However, in the absence
of a statute which clearly asserts a contrary political and legislative
policy on the matter, if the votes were cast in the sincere belief that
the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote for the
dismissal of the petition.
MENDOZA, J., separate opinion:

238
In my view the issue in this case is whether the Commission on
Elections has the power to disqualify candidates on the ground that
they lack eligibility for the office to which they seek to be elected. I
think that it has none and that the qualifications of candidates may
be questioned only in the event they are elected, by filing a petition
forquo warranto or an election protest in the appropriate forum, not
necessarily in the COMELEC but, as in this case, in the House of
Representatives Electoral Tribunal. That the parties in this case took
part in the proceedings in the COMELEC is of no moment. Such
proceedings were unauthorized and were not rendered valid by
their agreement to submit their dispute to that body.
The various election laws will be searched in vain for authorized
proceedings for determining a candidate's qualifications for an
office before his election. There are none in the Omnibus Election
Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987 (R.A. No.
6646), or in the law providing for synchronized elections (R.A. No.
7166). There are, in other words, no provisions for pre-proclamation
contests but only election protests or quo warranto proceedings
against winning candidates.
To be sure, there are provisions denominated for "disqualification,"
but they are not concerned with a declaration of the ineligibility of a
candidate. These provisions are concerned with the incapacity (due
to insanity, incompetence or conviction of an offense) of a person
either to be a candidate or to continue as a candidate for public
office. There is also a provision for the denial or cancellation of
certificates of candidacy, but it applies only to cases involving false
representations as to certain matters required by law to be stated
in the certificates.
These provisions are found in the following parts of the Omnibus
Election Code:
12. Disqualifications. Any person who has been declared by
competent authority insane or incompetent, or has been sentenced
by final judgment for subversion, insurrection, rebellion or for any
offense for which he has been sentenced to a penalty of more than
eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.

The disqualifications to be a candidate herein provided shall be

deemed removed upon the declaration by competent authority that
said insanity or incompetence had been removed or after the
expiration of a period of five years from his service of sentence,
unless within the same period he again becomes disqualified.
(Emphasis added)
68. Disqualifications. Any candidate who, in an action or
protest in which he is a party is declared by final decision of a
competent court guilty of, or found by the Commission of having (a)
given money or other material consideration to influence, induce or
corrupt the voters or public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent
in his election campaign an amount in excess of that allowed by
this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated
any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and
cc, sub-paragraph 6, shall be disqualifiedfrom continuing as a
candidate, or if he has been elected, from holding the office. Any
person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under
this Code, unless said person has waived his status as permanent
resident or immigrant of a foreign country in accordance with the
residence requirement provided for in the election laws. (Emphasis
added)
78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The
petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall
be decided, after due notice and hearing, not later than fifteen days
before the election. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
6. Effect of Disqualification Case. Any candidate who has been
declared by final judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to

239
be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry or protest
and; upon motion for the complainant or any intervenor, may
during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt
is strong. (Emphasis added).
7. Petition to Deny Due Course to or Cancel a Certificate of
Candidacy. The procedure hereinabove provided shall apply to
petitions to deny due course to or cancel a certificate of candidacy
as provided in Section 78 of Batas Pambansa Blg. 881.
and the Local Government Code of 1991 (R.A. No. 7160):
40. Disqualifications. The following persons are disqualified
from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving
moral turpitude or for an offense punishable by one (1) year or
more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of
allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or
abroad;
(f) Permanent residents in a foreign country or those who have
acquired the right to reside abroad and continue to avail of the
same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the
COMELEC, while entitled "For Cancellation and Disqualification,"
contained no allegation that private respondent Imelda RomualdezMarcos made material representations in her certificate of
candidacy which were false, it sought her disqualification on the
ground that "on the basis of her Voter Registration Record and
Certificate of Candidacy, [she] is disqualified from running for the
position of Representative, considering that on election day, May 8,
1995, [she] would have resided less than ten (10) months in the
district where she is seeking to be elected." For its part, the
COMELEC's Second Division, in its resolution of April 24, 1995,

cancelled her certificate of candidacy and corrected certificate of

candidacy on the basis of its finding that petitioner is "not qualified
to run for the position of Member of the House of Representatives
for the First Legislative District of Leyte" and not because of any
finding that she had made false representations as to material
matters in her certificate of candidacy.
Montejo's petition before the COMELEC was therefore not a petition
for cancellation of certificate of candidacy under 78 of the
Omnibus Election Code, but essentially a petition to declare private
respondent ineligible. It is important to note this, because, as will
presently be explained, proceedings under 78 have for their
purpose to disqualify a person from being a candidate,
whereas quo warranto proceedings have for their purpose to
disqualify a person from holding public office. Jurisdiction over quo
warranto proceedings involving members of the House of
Representatives is vested in the Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for
the cancellation of certificates of candidacy, the allegations were
that the respondent candidates had made false representations in
their
certificates
of
candidacy
with
regard
to
their citizenship, 1 age, 2 or residence. 3 But in the generality of
cases in which this Court passed upon the qualifications of
respondents for office, this Court did so in the context of election
protests 4 or quo
warranto proceedings 5 filed after
the
proclamation of the respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized
proceeding for determining before electionthe qualifications of a
candidate.
First is the fact that unless a candidate wins and is proclaimed
elected, there is no necessity for determining his eligibility for the
office. In contrast, whether an individual should be disqualified as a
candidate for acts constituting election offenses (e.g., vote buying,
over spending, commission of prohibited acts) is a prejudicial
question which should be determined lest he wins because of the
very acts for which his disqualification is being sought. That is why
it is provided that if the grounds for disqualification are established,
a candidate will not be voted for; if he has been voted for, the votes
in his favor will not be counted; and if for some reason he has been

240
voted for and he has won, either he will not be proclaimed or his
proclamation will be set aside. 6
Second is the fact that the determination of a candidate's eligibility,
e.g., his citizenship or, as in this case, his domicile, may take a long
time to make, extending beyond the beginning of the term of the
office. This is amply demonstrated in the companion case (G.R. No.
120265, Agapito A. Aquino v. COMELEC) where the determination of
Aquino's residence was still pending in the COMELEC even after the
elections of May 8, 1995. This is contrary to the summary character
of proceedings relating to certificates of candidacy. That is why the
law makes the receipt of certificates of candidacy a ministerial duty
of the COMELEC and its officers. 7 The law is satisfied if candidates
state in their certificates of candidacy that they are eligible for the
position which they seek to fill, leaving the determination of their
qualifications to be made after the election and only in the event
they are elected. Only in cases involving charges of false
representations made in certificates of candidacy is the COMELEC
given jurisdiction.
Third is the policy underlying the prohibition against preproclamation cases in elections for President, Vice President,
Senators and members of the House of Representatives. (R.A. No.
7166, 15) The purpose is to preserve the prerogatives of the
House of Representatives Electoral Tribunal and the other Tribunals
as
"sole
judges"
under
the
Constitution
of
the election, returns and qualifications of members of Congress or
of the President and Vice President, as the case may be.
By providing in 253 for the remedy of quo warranto for
determining an elected official's qualifications after the results of
elections are proclaimed, while being conspicuously silent about a
pre-proclamation remedy based on the same ground, the Omnibus
Election Code, or OEC, by its silence underscores the policy of not
authorizing any inquiry into the qualifications of candidates unless
they have been elected.
Apparently realizing the lack of an authorized proceeding for
declaring the ineligibility of candidates, the COMELEC amended its
rules on February 15, 1993 so as to provide in Rule 25, 1 the
following:

Grounds for disqualification. Any candidate who does not

possess all the qualifications of a candidate as provided for by the
Constitution or by existing law or who commits any act declared by
law to be grounds for disqualification may be disqualified from
continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates,
however, cannot be supplied by a mere rule. Such an act is
equivalent to the creation of a cause of action which is a
substantive matter which the COMELEC, in the exercise of its
rulemaking power under Art. IX, A, 6 of the Constitution, cannot
do. It is noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the right to
vote, which essentially involves an inquiry into qualifications based
on age, residence and citizenship of voters. (Art. IX, C, 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds for
ineligibility into grounds for disqualification is contrary to the
evident intention of the law. For not only in their grounds but also in
their consequences are proceedings for "disqualification" different
from those for a declaration of "ineligibility." "Disqualification"
proceedings, as already stated, are based on grounds specified in
12 and 68 of the Omnibus Election Code and in 40 of the Local
Government Code and are for the purpose of barring an individual
from becoming a candidate or from continuing as a candidate for
public office. In a word, their purpose is to eliminate a candidate
from the race either from the start or during its progress.
"Ineligibility," on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for
holding public office and the purpose of the proceedings for
declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a
public office does not imply that he is not disqualified from
becoming a candidate or continuing as a candidate for a public
office and vice versa. We have this sort of dichotomy in our
Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in 2 of the law does not imply that he
does not suffer from any of disqualifications provided in 4.
Indeed, provisions for disqualifications on the ground that the
candidate is guilty of prohibited election practices or offenses, like

241
other pre-proclamation remedies, are aimed at the detestable
practice of "grabbing the proclamation and prolonging the election
protest," 8 through the use of "manufactured" election returns or
resort to other trickery for the purpose of altering the results of the
election. This rationale does not apply to cases for determining a
candidate's qualifications for office before the election. To the
contrary, it is the candidate against whom a proceeding for
disqualification is brought who could be prejudiced because he
could be prevented from assuming office even though in end he
prevails.
To summarize, the declaration of ineligibility of a candidate may
only be sought in an election protest or action forquo warranto filed
pursuant to 253 of the Omnibus Election Code within 10 days
after his proclamation. With respect to elective local officials (e.g.,
Governor, Vice Governor, members of the Sangguniang
Panlalawigan, etc.) such petition must be filed either with the
COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as
provided in Art. IX, C, 2(2) of the Constitution. In the case of the
President and Vice President, the petition must be filed with the
Presidential Electoral Tribunal (Art. VII, 4, last paragraph), and in
the case of the Senators, with the Senate Electoral Tribunal, and in
the case of Congressmen, with the House of Representatives
Electoral Tribunal. (Art. VI, 17) There is greater reason for not
allowing before the election the filing of disqualification
proceedings based on alleged ineligibility in the case of candidates
for President, Vice President, Senators and members of the House
of Representatives, because of the same policy prohibiting the filing
of pre-proclamation cases against such candidates.
For these reasons, I am of the opinion that the COMELEC had no
jurisdiction over SPA No. 95-009; that its proceedings in that case,
including its questioned orders, are void; and that the eligibility of
petitioner
Imelda
Romualdez-Marcos
for
the
office
of
Representative of the First District of Leyte may only be inquired
into by the HRET.
Accordingly, I vote to grant the petition and to annul the
proceedings of the Commission on Elections in SPA No. 95-009,
including its questioned orders doted April 24, 1995, May 7, 1995,
May 11, 1995 and May 25, 1995, declaring petitioner Imelda

Romualdez-Marcos ineligible and ordering her proclamation as

Representative of the First District of Leyte suspended. To the
extent that Rule 25 of the COMELEC Rules of Procedure authorizes
proceedings for the disqualification of candidates on the ground of
ineligibility for the office, it should considered void.
The provincial board of canvassers should now proceed with the
proclamation of petitioner.
Narvasa, C.J., concurs.
PADILLA, J., dissenting:
I regret that I cannot join the majority opinion as expressed in the
well-written ponencia of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the
inquiry must begin and end with the provision itself. The
controversy should not be blurred by what, to me, are academic
disquisitions. In this particular controversy, the Constitutional
provision on point states that "no person shall be a member of
the House of Representatives unless he is a natural-born citizen of
the Philippines, and on the day of the election, is at least twentyfive (25) years of age, able to read and write, and except the party
list representatives, a registered voter in the district in which he
shall be elected, and a resident thereof for a period of not less than
one year immediately preceding the day of the election." (Article
VI, section 6)
It has been argued that for purposes of our election laws, the
term residence has been understood as synonymous with domicile.
This argument has been validated by no less than the Court in
numerous
cases 1where
significantly
the factual
circumstances clearly and convincingly proved that a person does
not effectively lose his domicile of origin if the intention to reside
therein is manifest with his personal presence in the place, coupled
with conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to conceive
of different modalities within which the phrase "a resident thereof
(meaning, the legislative district) for a period of not less than one
year" would fit.
The first instance is where a person's residence and domicile
coincide in which case a person only has to prove that he has been

242
domiciled in a permanent location for not less than a year before
the election.
A second situation is where a person maintains a residence apart
from his domicile in which case he would have the luxury of district
shopping, provided of course, he satisfies the one-year residence
period in the district as the minimum period for eligibility to the
position of congressional representative for the district.
In either case, one would not be constitutionally disqualified for
abandoning his residence in order to return to his domicile of origin,
or better still, domicile of choice; neither would one be disqualified
for abandoning altogether his domicile in favor of his residence in
the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a
person maintains several residences in different districts. Since his
domicile of origin continues as an option as long as there is no
effective abandonment (animus non revertendi), he can practically
choose the district most advantageous for him.
All these theoretical scenarios, however, are tempered by the
unambiguous limitation that "for a period of not less than one year
immediately preceding the day of the election", he must be a
resident in the district where he desires to be elected.
To my mind, the one year residence period is crucial regardless of
whether or not the term "residence" is to be synonymous with
"domicile." In other words, the candidate's intent and actual
presence in one district must in allsituations satisfy the length of
time prescribed by the fundamental law. And this, because of a
definite Constitutional purpose. He must be familiar with the
environment and problems of a district he intends to represent in
Congress and the one-year residence in said district would be the
minimum period to acquire such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts are
distinctly set out in the now assailed decision of the Comelec 2nd
Division dated 24 April 1995 (as affirmed by the Comelec en banc)

In or about 1938 when respondent was a little over 8 years old, she
established her domicile in Tacloban, Leyte (Tacloban City). She
studied in the Holy Infant Academy in Tacloban from 1938 to 1948
when she graduated from high school. She pursued her college

studies in St. Paul's College, now Divine Word University of

Tacloban, where she earned her degree in Education. Thereafter,
she taught in the Leyte Chinese High School, still in Tacloban City.
In 1952 she went to Manila to work with her cousin, the late
Speaker Daniel Z. Romualdez in his office in the House of
Representatives. In 1954, she married ex-president Ferdinand
Marcos when he was still a congressman of Ilocos Norte. She lived
with him in Batac, Ilocos Norte and registered there as a voter.
When her husband was elected Senator of the Republic in 1959,
she and her husband lived together in San Juan, Rizal where she
registered as a voter. In 1965 when her husband was elected
President of the Republic of the Philippines, she lived with him in
Malacanang Palace and registered as a voter in San Miguel, Manila.
During the Marcos presidency, respondent served as a Member of
the Batasang Pambansa, Minister of Human Settlements and
Governor of Metro Manila. She claimed that in February 1986, she
and her family were abducted and kidnapped to Honolulu, Hawaii.
In November 1991, she came home to Manila. In 1992 respondent
ran for election as President of the Philippines and filed her
Certificate of Candidacy wherein she indicated that she is a
resident and registered voter of San Juan, Metro Manila. On August
24, 1994, respondent filed a letter with the election officer of San
Juan, Metro Manila, requesting for cancellation of her registration in
the Permanent List of Voters in Precinct No. 157 of San Juan, Metro
Manila, in order that she may be re-registered or transferred to
Brgy. Olot, Tolosa, Leyte. (Annex 2-B, Answer). On August 31, 1994,
respondent filed her Sworn Application for Cancellation of Voter's
Previous Registration (Annex 2-C, Answer) stating that she is a duly
registered voter in 157-A, Brgy. Maytunas, San Juan, Metro that she
intends to register at Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent registered as a voter at Precinct
No. 18-A of Olot, Tolosa, Leyte. She filed with the Board of Election
Inspectors CE Form No. 1, Voter Registration Record No. 943349772, wherein she alleged that she has resided in the
municipality of Tolosa for a period of 6 months (Annex A, Petition).
On March 8, 1995, respondent filed with the Office of the Provincial
Election Supervisor, Leyte, a Certificate of Candidacy for the
position of Representative of the First District of Leyte wherein she

243
also alleged that she has been a resident in the constituency where
she seeks to be elected for a period of 7 months. The pertinent
entries therein are as follows:
7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social
Worker
8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte
Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte
9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE
ELECTED
IMMEDIATELY
PRECEDING
ELECTION:
________
Years SevenMonths
10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A
FOREIGN COUNTRY.
THAT I AM ELIGIBLE for said office; That I will support and defend
the Constitution of the Republic of the Philippines and will maintain
true faith and allegiance thereto; That I will obey the laws, legal
orders and decrees promulgated by the duly-constituted
authorities; That the obligation imposed by my oath is assumed
voluntarily, without mental reservation or purpose of evasion; and
That the facts stated herein are true to the best of my knowledge.
(Sgd.)
Imelda
Romualdez-Marcos
(Signature of Candidate) 2
Petitioner's aforestated certificate of candidacy filed on 8 March
1995 contains the decisive component or seed of her
disqualification. It is contained in her answer under oath of "seven
months" to the query of "residence in the constituency wherein I
seek to be elected immediately preceding the election."
It follows from all the above that the Comelec committed no grave
abuse of discretion in holding that petitioner is disqualified from the
position of representative for the 1st congressional district of Leyte
in the elections of 8 May 1995, for failure to meet the "not less than
one-year residence in the constituency (1st district, Leyte)
immediately preceding the day of election (8 May 1995)."
Having arrived at petitioner's disqualification to be a representative
of the first district of Leyte, the next important issue to resolve is
whether or not the Comelec can order the Board of Canvassers to
determine and proclaim the winner out of the remaining
qualified candidates for representative in said district.

I am not unaware of the pronouncement made by this Court in the

case of Labo vs. Comelec, G.R. 86564, August 1, 1989, 176 SCRA 1
which gave the rationale as laid down in the early 1912 case
of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public elective offices are filled by
those who have received the highest number of votes cast in the
election for that office, and it is a fundamental idea in all republican
forms of government that no one can be declared elected and no
measure can be declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election. (20 Corpus Juris
2nd, S 243, p. 676)
The fact that the candidate who obtained the highest number of
votes is later declared to be disqualified or not eligible for the office
to which he was elected does not necessarily entitle the candidate
who obtained the second highest number of votes to be declared
the winner of the elective office. The votes cast for a dead,
disqualified, or non-eligible person may not be valid to vote the
winner into office or maintain him there. However, in the absence
of a statute which clearly asserts a contrary political and legislative
policy on the matter, if the votes were cast in the sincere belief that
the candidate was alive, qualified, or eligible, they should not be
treated as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the
Electoral System and for other purposes) (84 O.G. 905, 22 February
1988) it is provided that:
. . . Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared
by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and
hearing of the action, inquiry or protest and, upon motion of the
complainant or any intervenor, may, during the pendency thereof
order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong.
There is no need to indulge in legal hermeneutics to sense the plain
and unambiguous meaning of the provision quoted above. As the
law now stands, the legislative policy does not limit its concern with

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the effect of a final judgement of disqualification only before the
election, but even during or after the election. The law is clear that
in all situations, the votes cast for a disqualified candidate SHALL
NOT BE COUNTED. The law has also validated the jurisdiction of the
Court or Commission on Election to continue hearing the petition
for disqualification in case a candidate is voted for and receives the
highest number of votes, if for any reason, he is not declared by
final judgment before an election to be disqualified.
Since the present case is an after election scenario, the power to
suspend proclamation (when evidence of his guilt is strong) is also
explicit under the law. What happens then when after the elections
are over, one is declared disqualified? Then, votes cast for him
"shall not be counted" and in legal contemplation, he no longer
received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the
second placer the winner simply because a "winning candidate is
disqualified," but that the law considers him as the candidate who
had obtained the highest number of votes as a result of the votes
cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then
there is no reason why this Court should not re-examine and
consequently abandon the doctrine in the Jun Labo case. It has
been stated that "the qualifications prescribed for elective office
cannot be erased by the electorate alone. The will of the people as
expressed through the ballot cannot cure the vice of ineligibility"
most especially when it is mandated by no less than the
Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the
Provincial Board of Canvassers of Leyte to proclaim the candidate
receiving the highest number of votes, from among the qualified
candidates, as the duly elected representative of the 1st district of
Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J., dissenting:
While I agree with same of the factual bases of the majority
opinion, I cannot arrive conjointly at the same conclusion drawn

therefrom Hence, this dissent which assuredly is not formulated "on

the basis of the personality of a petitioner in a case."
I go along with the majority in their narration of antecedent facts,
insofar as the same are pertinent to this case, and which I have
simplified as follows:
1. Petitioner, although born in Manila, resided during her childhood
in the present Tacloban City, she being a legitimate daughter of
parents who appear to have taken up permanent residence therein.
She also went to school there and, for a time, taught in one of the
schools in that city.
2. When she married then Rep. Ferdinand E. Marcos who was then
domiciled in Batac, Ilocos Norte, by operation of law she acquired a
new domicile in that place in 1954.
3. In the successive years and during the events that happened
thereafter, her husband having been elected as a Senator and then
as President, she lived with him and their family in San Juan, Rizal
and then in Malacanang Palace in San Miguel, Manila.
4. Over those years, she registered as a voter and actually voted in
Batac, Ilocos Norte, then in San Juan, Rizal, and also in San Miguel,
Manila, all these merely in the exercise of the right of suffrage.
5. It does not appear that her husband, even after he had assumed
those lofty positions successively, ever abandoned his domicile of
origin in Batac, Ilocos Norte where he maintained his residence and
invariably voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and
the sojourn of the Marcos family in Honolulu, Hawaii, U.S.A., she
eventually returned to the Philippines in 1991 and resided in
different places which she claimed to have been merely temporary
residences.
7. In 1992, petitioner ran for election as President of the Philippines
and in her certificate of candidacy she indicated that she was then
a registered voter and resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for the cancellation of her
registration in the Permanent List of Voters in Precinct No. 157 of
San Juan, Metro Manila in order that she may "be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she
followed this up with her Sworn Application for Cancellation of
Voter's Previous Registration wherein she stated that she was a

245
registered voter in Precinct No. 157-A, Brgy. Maytunas, San Juan,
Metro Manila and that she intended to register in Brgy. Olot, Tolosa,
Leyte.
9. On January 28, 1995, petitioner registered as a voter at Precinct
No. 18-A of Olot, Tolosa, Leyte, for which purpose she filed with the
therein Board of Election Inspectors a voter's registration record
form alleging that she had resided in that municipality for six
months.
10. On March 8, 1995, petitioner filed her certificate of candidacy
for the position of Representative of the First District of Leyte
wherein she alleged that she had been a resident for
"Seven Months" of the constituency where she sought to be
elected.
11. On March 29, 1995, she filed an "Amended/Corrected
Certificate of Candidacy" wherein her answer in the original
certificate of candidacy to item "8. RESIDENCE IN THE
CONSTITUENCY WHERE I SEEK, TO BE ELECTED IMMEDIATELY
PRECEDING THE ELECTION:" was changed or replaced with a new
entry reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of her
candidacy, petitioner had complied with the residency requirement
of one year as mandated by no less than Section 6, Article VI of the
1987 Constitution.
I do not intend to impose upon the time of my colleagues with a
dissertation on the difference between residence and domicile. We
have had enough of that and I understand that for purposes of
political law and, for that matter of international law, residence is
understood to be synonymous with domicile. That is so understood
in our jurisprudence and in American Law, in contradistinction to
the concept of residence for purposes of civil, commercial and
procedural laws whenever an issue thereon is relevant or
controlling.
Consequently, since in the present case the question of petitioner's
residence is integrated in and inseparable from her domicile, I am
addressing the issue from the standpoint of the concept of the
latter term, specifically its permutations into the domicile of origin,
domicile of choice and domicile by operation of law, as understood

in American law from which for this case we have taken our
jurisprudential bearings.
My readings inform me that the domicile of the parents at the time
of birth, or what is termed the "domicile of origin," constitutes the
domicile of an infant until abandoned, or until the acquisition of a
new domicile in a different place. 1 In the instant case, we may
grant that petitioner's domicile of origin, 2 at least as of 1938, was
what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be of three
kinds, that is, domicile by birth, domicile by choice, and domicile by
operation of law. The first is the common case of the place of birth
or domicilium originis, the second is that which is voluntarily
acquired by a party or domicilium propio motu; the last which is
consequential, as that of a wife arising from marriage, 3 is
sometimes called domicilium necesarium. There is no debate that
the domicile of origin can be lost or replaced by a domicile of
choice or a domicile by operation of law subsequently acquired by
the party.
When petitioner contracted marriage in 1954 with then Rep.
Marcos, by operation of law, not only international or American but
of our own enactment, 4 she acquired her husband's domicile of
origin in Batac, Ilocos Norte and correspondingly lost her own
domicile of origin in Tacloban City.
Her subsequent changes of residence to San Juan, Rizal, then to
San Miguel, Manila, thereafter to Honolulu, Hawaii, and back to now
San Juan, Metro Manila do not appear to have resulted in her
thereby acquiring new domiciles of choice. In fact, it appears that
her having resided in those places was by reason of the fortunes or
misfortunes of her husband and his peregrinations in the
assumption of new official positions or the loss of them. Her
residence in Honolulu and, of course, those after her return to the
Philippines were, as she claimed, against her will or only for
transient purposes which could not have invested them with the
status of domiciles of choice. 5
After petitioner's return to the Philippines in 1991 and up to the
present imbroglio over her requisite residency in Tacloban City or
Olot, Tolosa, Leyte, there is no showing that she ever attempted to
acquire any other domicile of choice which could have resulted in

246
the abandonment of her legal domicile in Batac, Ilocos Norte. On
that score, we note the majority's own submission 6 that, to
successfully effect a change of domicile, one must demonstrate (a)
an actual removal or an actual change of domicile, (b) a bona
fide intention of abandoning the former place of residence and
establishing a new one, and (c) acts which correspond with the
purpose.
We consequently have to also note that these requirements for the
acquisition of a domicile of choice apply whether what is sought to
be changed or substituted is a domicile of origin (domicilium
originis) or a domicile by operation of law (domicilium necesarium).
Since petitioner had lost her domicilium originis which had been
replaced by her domicilium necesarium, it is therefore her
continuing domicile in Batac, Ilocos Norte which, if at all, can be the
object of legal change under the contingencies of the case at bar.
To get out of this quandary, the majority decision echoes the
dissenting opinion of Commissioner Regalado E. Maambong in SPA
95-009 of the Commission on Elections, 7 and advances this novel
proposition.
It may be said that petitioner lost her domicile of origin by
operation of law as a result of her marriage to the late President
Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law
(domicilium necesarium), her legal domicile at the time of her
marriage became Batac, Ilocos Norte although there were no
indications of an intention on her part to abandon her domicile of
origin. Because of her husband's subsequent death and through the
operation of the provisions of the New Family Code already in force
at the time, however, her legal domicile automatically reverted to
her domicile of origin. . . . (Emphasis supplied).
Firstly, I am puzzled why although it is conceded that petitioner had
acquired a domicilium necesarium in Batac, Ilocos Norte, the
majority insists on making a qualification that she did not intend to
abandon her domicile of origin. I find this bewildering since, in this
situation, it is the law that declares where petitioner's domicile is at
any given time, and not her self-serving or putative intent to hold
on to her former domicile. Otherwise, contrary to their own
admission that one cannot have more than one domicile at a
time, 8 the majority would be suggesting that petitioner retained

Tacloban City as (for lack of a term in law since it does not exist
therein) the equivalent of what is fancied as a reserved, dormant,
potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be
recovered likewise in accordance with law. However, we are here
being titillated with the possibility of an automatic reversion to or
reacquisition of a domicile of origin after the termination of the
cause for its loss by operation of law. The majority agrees that since
petitioner lost her domicile of origin by her marriage, the
termination of the marriage also terminates that effect thereof. I am
impressed by the ingeniousness of this theory which proves that,
indeed, necessity is the mother of inventions. Regretfully, I find
some difficulty in accepting either the logic or the validity of this
argument.
If a party loses his domicile of origin by obtaining a new domicile of
choice, he thereby voluntarily abandons the former in favor of the
latter. If, thereafter, he abandons that chosen domicile, he does
not per se recover his original domicile unless, by subsequent acts
legally indicative thereof, he evinces his intent and desire to
establish the same as his new domicile, which is precisely what
petitioner belatedly and, evidently just for purposes of her
candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of choice cannot
automatically restore his domicile of origin, not only because there
is no legal authority therefor but because it would be absurd
Pursued to its logical consequence, that theory of ipso
jure reversion would rule out the fact that said party could already
very well have obtained another domicile, either of choice or by
operation of law, other than his domicile of origin. Significantly and
obviously for this reason, the Family Code, which the majority
inexplicably invokes, advisedly does not regulate this contingency
since it would impinge on one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily
abandoned her domicile of choice (unless we assume that she
entered into the marital state against her will) but, on top of that,
such abandonment was further affirmed through her acquisition of
a new domicile by operation of law. In fact, this is even a case of
both voluntary andlegal abandonment of a domicile of origin. With

247
much more reason, therefore, should we reject the proposition that
with the termination of her marriage in 1989, petitioner had
supposedly per se and ipso facto reacquired her domicile of origin
which she lost in 1954. Otherwise, this would be tantamount to
saying that during the period of marital coverture, she was
simultaneously in possession and enjoyment of a domicile of origin
which was only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the
husband's death the wife has the right to elect her own
domicile, 9 she nevertheless retains the last domicile of her
deceased husband until she makes an actual change. 10 In the
absence of affirmative evidence, to the contrary, the presumption
is that a wife's domicile or legal residence follows that of her
husband and will continue after his death. 11
I cannot appreciate the premises advanced in support of the
majority's theory based on Articles 68 and 69 of the Family Code.
All that is of any relevance therein is that under this new code, the
right and power to fix the family domicile is now shared by the
spouses. I cannot perceive how that joint right, which in the first
place was never exercised by the spouses, could affect the domicile
fixed by the law for petitioner in 1954 and, for her husband, long
prior thereto. It is true that a wife now has the coordinate power to
determine the conjugal or family domicile, but that has no bearing
on this case. With the death of her husband, and each of her
children having gotten married and established their own
respective domiciles, the exercise of that joint power was and is no
longer called for or material in the present factual setting of this
controversy. Instead, what is of concern in petitioner's case was the
matter of her having acquired or not her own domicile of choice.
I agree with the majority's discourse on the virtues of the growing
and expanded participation of women in the affairs of the nation,
with equal rights and recognition by Constitution and statutory
conferment. However, I have searched in vain for a specific law or
judicial pronouncement which either expressly or by necessary
implication supports the majority's desired theory of automatic
reacquisition of or reversion to the domicilium originis of petitioner.
Definitely, as between the settled and desirable legal norms that
should govern this issue, there is a world of difference; and,

unquestionably, this should be resolved by legislative articulation

but not by the eloquence of the well-turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin
since 1954 and not having automatically reacquired any domicile
therein, she cannot legally claim that her residency in the political
constituency of which it is a part continued since her birth up to the
present. Respondent commission was, therefore, correct in
rejecting her pretension to that effect in her amended/corrected
certificate of candidacy, and in holding her to her admission in the
original certificate that she had actually resided in that
constituency for only seven months prior to the election. These
considerations render it unnecessary to further pass upon the
procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for
lack of merit.
DAVIDE, JR., J., dissenting:
I respectfully dissent from the opinion of the majority written by Mr.
Justice Santiago M. Kapunan, more particularly on the issue of the
petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the Constitution,
decisions, orders, or rulings of the COMELEC may be brought to this
Court only by the special civil action for certiorari under Rule 65 of
the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251 [1979]; Dario
vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the
COMELEC has acted without or in excess of jurisdiction or with
grave abuse of discretion (Section 1, Rule 65, Rules of Court). Since
the COMELEC has, undoubtedly, jurisdiction over the private
respondent's petition, the only issue left is whether it acted with
grave abuse of discretion in disqualifying the petitioner.
My careful and meticulous perusal of the challenged resolution of
24 April 1995 of the COMELEC Second Division and the En
Banc resolution of 7 May 1995 discloses total absence of abuse of
discretion, much less grave abuse thereof. The resolution of the
Second Division dispassionately and objectively discussed in
minute details the facts which established beyond cavil that herein
petitioner was disqualified as a candidate on the ground of lack of
residence in the First Congressional District of Leyte. It has not

248
misapplied, miscomprehended, or misunderstood facts or
circumstances of substance pertinent to the issue of her residence.
The majority opinion, however, overturned the COMELEC's findings
of fact for lack of proof that the petitioner has abandoned Tolosa as
her domicile of origin, which is allegedly within the First
Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the
COMELEC, either by admission or by documentary evidence,
overwhelming proof of the loss or abandonment of her domicile of
origin, which is Tacloban City and not Tolosa, Leyte. Assuming that
she decided to live again in her domicile of origin, that became her
second domicile of choice, where her stay, unfortunately, was for
only seven months before the day of the election. She was then
disqualified to be a candidate for the position of Representative of
the First Congressional District of Leyte. A holding to the contrary
would be arbitrary.
It may indeed be conceded that the petitioner's domicile of choice
was either Tacloban City or Tolosa, Leyte. Nevertheless, she lost it
by operation of law sometime in May 1954 upon her marriage to
the then Congressman (later, President) Ferdinand E. Marcos. A
domicile by operation of law is that domicile which the law
attributes to a person, independently of his own intention or actual
residence, as results from legal domestic relations as that of the
wife arising from marriage (28 C.J.S. Domicile 7, 11). Under the
governing law then, Article 110 of the Civil Code, her new domicile
or her domicile of choice was the domicile of her husband, which
was Batac, Ilocos Norte. Said Article reads as follows:
Art. 110. The husband shall fix the residence of the family. But the
court may exempt the wife from living with the husband if he
should live abroad unless in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino states:
Although the duty of the spouses to live together is mutual, the
husband has a predominant right because he is empowered by law
to fix the family residence. This right even predominates over some
rights recognized by law in the wife. For instance, under article 117
the wife may engage in business or practice a profession or
occupation. But because of the power of the husband to fix
the family domicile he may fix it at such a place as would make it

impossible for the wife to continue in business or in her profession.

For justifiable reasons, however, the wife may be exempted from
living in the residence chosen by the husband. The husband cannot
validly allege desertion by the wife who refuses to follow him to a
new place of residence, when it appears that they have lived for
years in a suitable home belonging to the wife, and that his choice
of a different home is not made in good faith. (Commentaries and
Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985 ed.,
339).
Under common law, a woman upon her marriage loses her own
domicile and, by operation of law, acquires that of her husband, no
matter where the wife actually lives or what she believes or
intends. Her domicile is fixed in the sense that it is declared to be
the same as his, and subject to certain limitations, he can change
her domicile by changing his own (25 Am Jur 2d Domicile 48, 37).
It must, however, be pointed out that under Article 69 of the Family
Code, the fixing of the family domicile is no longer the sole
prerogative of the husband, but is now a joint decision of the
spouses, and in case of disagreement the court shall decide. The
said article uses the term "family domicile," and not family
residence, as "the spouses may have multiple residences, and the
wife may elect to remain in one of such residences, which may
destroy the duty of the spouses to live together and its
corresponding benefits" (ALICIA V. SEMPIO-DIY, Handbook on the
Family Code of the Philippines, [1988], 102).
The theory of automatic restoration of a woman's domicile of origin
upon the death of her husband, which the majority opinion adopts
to overcome the legal effect of the petitioner's marriage on her
domicile, is unsupported by law and by jurisprudence. The settled
doctrine is that after the husband's death the wife has a right to
elect her own domicile, but she retains the last domicile of her
husband until she makes an actual change (28 C.J.S. Domicile 12,
27). Or, on the death of the husband, the power of the wife to
acquire her own domicile is revived, but until she exercises the
power her domicile remains that of the husband at the time of his
death (25 Am Jur 2d Domicile 62, 45). Note that what is revived is
not her domicile of origin but her power to acquire her own
domicile.

249
Clearly, even after the death of her husband, the petitioner's
domicile was that of her husband at the time of his death which
was Batac, Ilocos Norte, since their residences in San Juan, Metro
Manila, and San Miguel, Manila, were their residences for
convenience to enable her husband to effectively perform his
official duties. Their residence in San Juan was a conjugal home,
and it was there to which she returned in 1991 when she was
already a widow. In her sworn certificate of candidacy for the Office
of the President in the synchronized elections of May 1992, she
indicated therein that she was a resident of San Juan, Metro Manila.
She also voted in the said elections in that place.
On the basis of her evidence, it was only on 24 August 1994 when
she exercised her right as a widow to acquire her own domicile in
Tolosa, Leyte, through her sworn statement requesting the Election
Officer of San Juan, Metro Manila, to cancel her registration in the
permanent list of voters in Precinct 157 thereat and praying that
she be "re-registered or transferred to Brgy. Olot, Tolosa, Leyte, the
place of [her] birth and permanent residence" (photocopy of Exhibit
"B," attached as Annex "2" of private respondent Montejo's
Comment). Notably, she contradicted this sworn statement
regarding her place of birth when, in her Voter's Affidavit sworn to
on 15 March 1992 (photocopy of Exhibit "C," attached as Annex
"3," Id.), her Voter Registration Record sworn to on 28 January 1995
(photocopy of Exhibit "E," attached as Annex "5," Id.), and her
Certificate of Candidacy sworn to on 8 March 1995 (photocopy of
Exhibit "A," attached as Annex "1," Id.), she solemnly declared that
she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it
Tacloban City or Tolosa, Leyte? In the affidavit attached to her
Answer to the petition for disqualification (Annex "I" of Petition),
she declared under oath that her "domicile or residence is Tacloban
City." If she did intend to return to such domicile or residence of
origin why did she inform the Election Officer of San Juan that she
would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's
Registration Record and in her certificate of candidacy that her
residence is Olot, Tolosa, Leyte? While this uncertainty is not
important insofar as residence in the congressional district is
concerned, it nevertheless proves that forty-one years had already

lapsed since she had lost or abandoned her domicile of origin by

virtue of marriage and that such length of time diminished her
power of recollection or blurred her memory.
I find to be misplaced the reliance by the majority opinion
on Faypon vs. Quirino (96 Phil. 294 [1954]), and the subsequent
cases which established the principle that absence from original
residence or domicile of origin to pursue studies, practice one's
profession, or engage in business in other states does not
constitute loss of such residence or domicile. So is the reliance on
Section 117 of the Omnibus Election Code which provides that
transfer of residence to any other place by reason of one's
"occupation; profession; employment in private and public service;
educational activities; work in military or naval reservations;
service in the army, navy or air force, the constabulary or national
police force; or confinement or detention in government institutions
in accordance with law" is not deemed as loss of original residence.
Those cases and legal provision do not include marriage of a
woman. The reason for the exclusion is, of course, Article 110 of the
Civil Code. If it were the intention of this Court or of the legislature
to consider the marriage of a woman as a circumstance which
would not operate as an abandonment of domicile (of origin or of
choice), then such cases and legal provision should have expressly
mentioned the same.
This Court should not accept as gospel truth the self-serving claim
of the petitioner in her affidavit (Annex "A" of her Answer in
COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile
or residence of origin is Tacloban City," and that she "never
intended to abandon this domicile or residence of origin to which
[she] always intended to return whenever absent." Such a claim of
intention cannot prevail over the effect of Article 110 of the Civil
Code. Besides, the facts and circumstances or the vicissitudes of
the petitioner's life after her marriage in 1954 conclusively
establish that she had indeed abandoned her domicile of origin and
had acquired a new oneanimo et facto (KOSSUTH KENT KENNAN, A
Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the petitioner's
claim that she "merely committed an honest mistake" in writing
down the word "seven" in the space provided for the residency

250
qualification requirement in the certificate of candidacy. Such a
claim is self-serving and, in the light of the foregoing disquisitions,
would be all sound and fury signifying nothing. To me, she did not
commit any mistake, honest or otherwise; what she stated was the
truth.
The majority opinion also disregards a basic rule in evidence that
he who asserts a fact or the affirmative of an issue has the burden
of proving it (Imperial Victory Shipping Agency vs. NLRC, 200 SCRA
178 [1991]; P.T. Cerna Corp. vs. Court of Appeals, 221 SCRA 19
[1993]). Having admitted marriage to the then Congressman
Marcos, the petitioner could not deny the legal consequence
thereof on the change of her domicile to that of her husband. The
majority opinion rules or at least concludes that "[b]y operation of
law (domicilium necesarium), her legal domicile at the time of her
marriage automatically became Batac, Ilocos Norte." That
conclusion is consistent with Article 110 of the Civil Code. Since she
is presumed to retain her deceased husband's domicile until she
exercises her revived power to acquire her own domicile, the
burden is upon her to prove that she has exercised her right to
acquire her own domicile. She miserably failed to discharge that
burden.
I vote to deny the petition.

251
[G.R. No. 137329. August 9, 2000]
ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and
JACQUELINE M. SERIO, petitioners, vs. COMMISSION
ON ELECTIONS and VICENTE Y. EMANO, respondents.
DECISION
PANGANIBAN, J.:
The Constitution and the law requires residence as a
qualification for seeking and holding elective public office, in order
to give candidates the opportunity to be familiar with the needs,
difficulties, aspirations, potentials for growth and all matters vital to
the welfare of their constituencies; likewise, it enables the
electorate to evaluate the office seekers' qualifications and fitness
for the job they aspire for. Inasmuch as Vicente Y. Emano has
proven that he, together with his family, (1) had actually resided in
a house he bought in 1973 in Cagayan de Oro City; (2) had actually
held office there during his three terms as provincial governor of
Misamis Oriental, the provincial capitol being located therein; and
(3) has registered as voter in the city during the period required by
law, he could not be deemed "a stranger or newcomer" when he
ran for and was overwhelmingly voted as city mayor. Election laws
must be liberally construed to give effect to the popular mandate.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules
of Court seeking to set aside the January 18, 1999 Resolution [1] of
the Commission on Elections (Comelec) en banc in SPA No. 98-298,
which upheld the July 14, 1998 Resolution [2] of the Comelec First
Division. The assailed Resolutions ruled that Private Respondent
Vicente Y. Emano possessed the minimum period of residence to be
eligible to vote in Cagayan de Oro City, as well as be voted mayor
thereof.

The Facts
The pertinent facts of the case, as culled from the records, are
as follows.
During the 1995 elections, Vicente Y. Emano ran for, was
elected, and proclaimed provincial governor of Misamis Oriental. It
was his third consecutive term as governor of the province. In his
Certificate of Candidacy dated March 12, 1995, his residence was
declared to be in Tagoloan, Misamis Oriental.
On June 14, 1997, while still the governor of Misamis Oriental,
Emano executed a Voter Registration Record in Cagayan de Oro
City (geographically located in the Province of Misamis Oriental), a
highly urbanized city, in which he claimed 20 years of
residence. On March 25, 1998, he filed his Certificate of Candidacy
for mayor of the city, stating therein that his residence for the
preceding two years and five months was at 1409 San Jose Street,
Capistrano Subdivision, Gusa, Cagayan de Oro City.
Among those who ran for the mayorship of the city in 1998,
along with Emano, was Erasmo B. Damasing, counsel of herein
petitioners. On May 15, 1998, Petitioners Rogelio M. Torayno Sr.,
Generoso Q. Eligan and Jacqueline M. Serio, all residents of
Cagayan de Oro City, filed a Petition before the Comelec, docketed
as SPA No. 98-298, in which they sought the disqualification of
Emano as mayoral candidate, on the ground that he had allegedly
failed to meet the one-year residence requirement. Prior to the
resolution of their Petition, the Comelec proclaimed private
respondent as the duly elected city mayor. Thus, on May 29, 1998,
petitioners filed another Petition before the Comelec, this time
for quo warranto,[3] in which they sought (1) the annulment of the
election of private respondent; and (2) the proclamation of Erasmo
B. Damasing, who had garnered the next highest number of votes,
as the duly elected mayor of the city.

252
In its Resolution dated July 14, 1998, the Comelec First Division
denied the Petition for Disqualification. Upon petitioners' Motion for
Reconsideration and Motion for Consolidation, the two cases were
consolidated.[4]

lack of jurisdiction in issuing the questioned Resolutions." Allegedly,

the resolution of this issue would depend on the following: [7]

Ruling of the Comelec

(a) remaining as governor of Misamis Oriental until he filed his

certificate of candidacy for mayor of Cagayan de Oro City on March
25, 1998 in the May 11, 1998 election;

As earlier stated, the Comelec en banc upheld the findings and

conclusions of the First Division, holding that "[t]he records clearly
show that the respondent is an actual resident of Cagayan de Oro
City for such a period of time necessary to qualify him to run for
mayor therein. This fact is clearly established by the respondent
having a house in the city which has been existing therein since
1973 and where his family has been living since then."
Additionally, it ruled:
"There is nothing in the law which bars an elected provincial official
from residing and/or registering as a voter in a highly urbanized city
whose residents are not given the right to vote for and be elected
to a position in the province embracing such highly urbanized city
as long as he has complied with the requirements prescribed by law
in the case of a qualified voter.
"Neither can the list of voters submitted as evidence for the
petitioners showing that the respondent was a registered voter as
of March 13, 1995 in Precinct No. 12, Barangay Poblacion, Tagoloan,
Misamis Oriental bolster the petitioner's argument that the
respondent is not a resident [or a] registered voter in Cagayan de
Oro City since registration in said Precinct No. 12 does not preclude
the respondent from registering anew in another place."
Hence, this recourse[5] before this Court.
Issues
In their Memorandum,[6] petitioners submit that the main issue
is whether the "Comelec gravely abused its discretion amounting to

"1. Whether or not private respondent Emano's

(b) asserting under oath [that he was] qualified to act as governor

of said province until said date; and
(c) admitting, in sworn statements, [that he was] a resident of
Misamis Oriental,
precluded him from acquiring a bona fide domicile of choice for at
least one (1) year in Cagayan de Oro City prior to the May 11, 1998
elections, as to disqualify him for being a candidate for city mayor
of said City.
2. Differently stated, whether or not Emano's securing a residence
certificate in Cagayan de Oro City, holding offices as governor of
Misamis Oriental in the Capitol Building located in Cagayan de Oro
City and having a house therein where [he had] stay[ed] during his
tenure as governor, and registering as a voter in said City in June
1997, would be legally sufficient, as against the undisputed facts
above enumerated, to constitute a change of his domicile of birth in
Tagoloan, Misamis Oriental in favor of a new domicile of choice in
Cagayan de Oro City for at least one (1) year for purposes of
qualifying him to run for city mayor in the May 11, 1998 elections.
3. Whether or not Erasmo Damasing, the candidate for mayor of
Cagayan de Oro City in the May 11, 1998 elections, who received
the second highest number of votes, can be declared winner,
considering that respondent Emano was disqualified to run for and
hold said office and considering that his disqualification or
ineligibility had been extensively brought to the attention and

253
consciousness of the voters prior to the May 11, 1998 election as to
attain notoriety, notwithstanding which they still voted for him."
Petitioners are seeking the resolution of essentially two
questions: (1) whether private respondent had duly established his
residence in Cagayan de Oro City at least one year prior to the May
11, 1998 elections to qualify him to run for the mayorship thereof;
and (2) if not, whether Erasmo Damasing, the candidate who had
received the second highest number of votes, should be proclaimed
mayor of the city.
The Courts Ruling
The Petition has no merit.
Preliminary Matter: Locus Standi of Petitioners
Although not raised by the parties, the legal standing of the
petitioners was deliberated upon by the Court. We note that
petitioners pray, among others, for judgment "declaring Atty.
Erasmo B. Damasing as entitled to be proclaimed winner as mayor
in the May 11, 1998 elections in Cagayan de Oro City." [8] And yet,
Damasing
is
not
a
party
to
the
instant
"Petition
for Certiorari pursuant to Rule[s] 64 and 65" brought before us.
Under the Rules of Court, a quo warranto may be brought only
by (1) the solicitor general or (2) a public prosecutor or (3) a person
claiming to be entitled to the public office or position usurped or
unlawfully held or exercised by another. [9] A reading of the Rules
shows that petitioners, none of whom qualify under any of the
above three categories, are without legal standing to bring this suit.
However, the present Petition finds its root in two separate
cases filed before the Comelec: (1) SPC 98-298 for disqualification
and (2) EPC 98-62 for quo warranto. Under our election laws and
the Comelec Rules of Procedure, any voter may file a petition to
disqualify a candidate on grounds provided by law, [10] or to contest
the election of a city officer on the ground of ineligibility or

disloyalty to the Republic.[11] The petitioners herein, being "dulyregistered voters" of Cagayan de Oro City, therefore satisfy the
requirement of said laws and rules.[12]
Main Issue: Residence Qualification for Candidacy
Petitioners argue that private respondent maintains his
domicile in Tagoloan, Misamis Oriental, not in Cagayan de Oro City,
as allegedly shown by the following facts: (1) he had run and won
as governor of the province of Misamis Oriental for three
consecutive terms immediately preceding the 1998 elections; (2) in
the pleadings he filed in connection with an election protest against
him relating to the 1995 election, he had stated that he was a
resident of Tagoloan, Misamis Oriental; (3) he had fully exercised
the powers and prerogatives of governor until he filed his
Certificate of Candidacy for mayor on March 25, 1998.
Petitioners claim that in discharging his duties as provincial
governor, private respondent remained a resident of the
province. They aver that residence is a continuing qualification that
an elective official must possess throughout his term. Thus, private
respondent could not have changed his residence to Cagayan de
Oro City while he was still governor of Misamis Oriental.
Petitioners further contend that the following were not
sufficient to constitute a change of domicile: having a house in
Cagayan de Oro City, residing therein while exercising one's office
as governor (the city being the seat of government of the
province), securing a residence certificate and registering as voter
therein.
Private respondent, on the other hand, alleges that he actually
and physically resided in Cagayan de Oro City while serving as
provincial governor for three consecutive terms, since the seat of
the provincial government was located at the heart of that city.
[13]
He also avers that one's choice of domicile is a matter of
intention, and it is the person concerned who would be in the best
position to make a choice. In this case, Emano decided to adopt

254
Cagayan de Oro City as his place of residence after the May 1995
elections. In fact, in January 1997, he secured his Community Tax
Certificate at the City Treasurer's Office, stating therein that he was
a resident of 1409 San Jose Street, Capistrano Subdivision, Gusa,
Cagayan de Oro City.During the general registration of voters in
June 1997, he registered in one of the precincts of Gusa, Cagayan
de Oro City. This meant that, at the time, Emano had been a voter
of the city for the minimum period required by law. No one has ever
challenged this fact before any tribunal.
Private respondent contends further that his transfer of legal
residence did not ipso facto divest him of his position as provincial
governor. First, there is no law that prevents an elected official from
transferring residence while in office. Second, an elective official's
transfer of residence does not prevent the performance of that
official's duties, especially in private respondent's case in which the
seat of government became his adopted place of residence. Third,
as ruled in Frivaldo v. Comelec,[14] the loss of any of the required
qualifications for election merely renders the official's title or right
to office open to challenge. In Emano's case, no one challenged his
right to the Office of Provincial Governor when he transferred his
residence to Cagayan de Oro City. Naturally, he continued to
discharge his functions as such, until he filed his candidacy for
mayor in March 1998.
Lastly, Emano urges that the sanctity of the people's will, as
expressed in the election result, must be respected. He is not, after
all, a stranger to the city, much less to its voters. During his three
terms as governor of Misamis Oriental, his life and actuations have
been closely interwoven with the pulse and beat of Cagayan de Oro
City.
Public Respondent Comelec relies essentially on RomualdezMarcos v. Comelec[15] in its Memorandum[16]which supports the
assailed Resolutions, and which has been filed in view of the
solicitor general's Manifestation and Motion in Lieu of Comment.
[17]
Thus, the poll body argues that "x x x the fact of residence x x x
ought to be decisive in determining whether or not an individual

has
satisfied
requirement."

the

Constitution's

residency

qualification

Law on Qualifications of Local Elective Officials

The pertinent provision sought to be enforced is Section 39 of
the Local Government Code (LGC) of 1991,[18] which provides for
the qualifications of local elective officials, as follows:
"SEC. 39. Qualifications. - (a) An elective local official must be a
citizen of the Philippines; a registered voter in the barangay,
municipality, city, or province x x x where he intends to be elected;
a resident therein for at least one (1) year immediately preceding
the day of the election; and able to read and write Filipino or any
other local language or dialect."
Generally, in requiring candidates to have a minimum period of
residence in the area in which they seek to be elected, the
Constitution or the law intends to prevent the possibility of a
"stranger or newcomer unacquainted with the conditions and needs
of a community and not identified with the latter from [seeking] an
elective office to serve that community." [19] Such provision is aimed
at excluding outsiders "from taking advantage of favorable
circumstances existing in that community for electoral
gain."[20] Establishing residence in a community merely to meet an
election law requirement defeats the purpose of representation: to
elect through the assent of voters those most cognizant and
sensitive to the needs of the community. This purpose is "best met
by individuals who have either had actual residence in the area for
a given period or who have been domiciled in the same area either
by origin or by choice."[21]
Facts Showing Change of Residence
In the recent en banc case Mamba-Perez v. Comelec,[22] this
Court ruled that private respondent therein, now Representative
Rodolfo E. Aguinaldo of the Third District of Cagayan, had duly
proven his change of residence from Gattaran, Cagayan (part of the

255
First District) to Tuguegarao, Cagayan (part of the Third District in
which he sought election as congressman). He proved it with the
following facts: (1) in July 1990, he leased and lived in a residential
apartment in Magallanes Street, Tuguegarao, Cagayan; (2) in July
1995, he leased another residential apartment in Kamias Street,
Tanza, Tuguegarao, Cagayan; (3) the January 18, 1998 Certificate of
Marriage between Aguinaldo and his second wife, Lerma Dumaguit;
(4) the Certificate of Live Birth of his second daughter; and (5)
various letters addressed to him and his family showed that he had
been a resident of Tuguegarao for at least one year immediately
preceding the May 1998 elections. The Court also stated that it was
not "of much importance that in his [Aguinaldo's] certificates of
candidacy for provincial governor in the elections of 1988, 1992,
and 1995, private respondent stated that he was a resident of
Gattaran."[23]

when the city is located at the very heart of the province itself, as
in this case.

In the case at bar, the Comelec found that private respondent

and his family had actually been residing in Capistrano Subdivision,
Gusa, Cagayan de Oro City, in a house he had bought in
1973. Furthermore, during the three terms (1988-1998) that he was
governor of Misamis Oriental, he physically lived in that city, where
the seat of the provincial government was located. In June 1997, he
also registered as voter of the same city. Based on our ruling
in Mamba-Perez, these facts indubitably prove that Vicente Y.
Emano was a resident of Cagayan de Oro City for a period of time
sufficient to qualify him to run for public office therein. Moreover,
the Comelec did not find any bad faith on the part of Emano in his
choice of residence.

Significantly, the Court also declared in Mamba-Perez that

"although private respondent declared in his certificates of
candidacy prior to the May 11, 1998 elections that he was a
resident of Gattaran, Cagayan, the fact is that he was actually a
resident of the Third District not just for one (1) year prior to the
May 11, 1998 elections but for more than seven (7) years since July
1990. His claim that he ha[s] been a resident of Tuguegarao since
July 1990 is credible considering that he was governor from 1988 to
1998 and, therefore, it would be convenient for him to maintain his
residence in Tuguegarao, which is the capital of the province of
Cagayan."

Petitioners put much emphasis on the fact that Cagayan de Oro

City is a highly urbanized city whose voters cannot participate in
the provincial elections. Such political subdivisions and voting
restrictions, however, are simply for the purpose of parity in
representation. The classification of an area as a highly urbanized
or independent component city, for that matter, does not
completely isolate its residents, politics, commerce and other
businesses from the entire province -- and vice versa -- especially

Undeniably, Cagayan de Oro City was once an integral part of

Misamis Oriental and remains a geographical part of the
province. Not only is it at the center of the province; more
important, it is itself the seat of the provincial government. As a
consequence, the provincial officials who carry out their functions
in the city cannot avoid residing therein; much less, getting
acquainted with its concerns and interests. Vicente Y. Emano,
having been the governor of Misamis Oriental for three terms and
consequently residing in Cagayan de Oro City within that period,
could not be said to be a stranger or newcomer to the city in the
last year of his third term, when he decided to adopt it as his
permanent place of residence.

Similarly in the instant case, private respondent was actually

and physically residing in Cagayan de Oro City while discharging his
duties as governor of Misamis Oriental. He owned a house in the
city and resided there together with his family. He even paid his
1998 community tax and registered as a voter therein. To all intents
and purposes of the Constitution and the law, he is a resident of
Cagayan de Oro City and eligible to run for mayor thereof.
To petitioners' argument that Emano could not have continued
to qualify as provincial governor if he was indeed a resident of

256
Cagayan de Oro City, we respond that the issue before this Court is
whether Emano's residence in the city qualifies him to run for and
be elected as mayor, not whether he could have continued sitting
as governor of the province. There was no challenge to his
eligibility to continue running the province; hence, this Court
cannot make any pronouncement on such issue. Considerations of
due process prevent us from adjudging matters not properly
brought to us. On the basis, however, of the facts proven before the
Comelec, we hold that he has satisfied the residence qualification
required by law for the mayorship of the city.
We stress that the residence requirement is rooted in the desire
that officials of districts or localities be acquainted not only with the
metes and bounds of their constituencies but, more important, with
the constituents themselves -- their needs, difficulties, aspirations,
potentials for growth and development, and all matters vital to
their common welfare. The requisite period would give candidates
the opportunity to be familiar with their desired constituencies, and
likewise for the electorate to evaluate the former's qualifications
and fitness for the offices they seek.
In other words, the actual, physical and personal presence of
herein private respondent in Cagayan de Oro City is substantial
enough to show his intention to fulfill the duties of mayor and for
the
voters
to
evaluate
his
qualifications
for
the
mayorship. Petitioners' very legalistic, academic and technical
approach to the residence requirement does not satisfy this simple,
practical and common-sense rationale for the residence
requirement.
Interpretation to Favor Popular Mandate
There is no question that private respondent was the
overwhelming choice of the people of Cagayan de Oro City. He won
by a margin of about 30,000 votes.[24] Thus, we find it apt to
reiterate the principle that the manifest will of the people as
expressed through the ballot must be given fullest effect. In case of
doubt, political laws must be interpreted to give life and spirit to

the popular mandate.[25] Verily, in Frivaldo v. Comelec,[26] the Court

held:
"x x x [T]his Court has repeatedly stressed the importance of giving
effect to the sovereign will in order to ensure the survival of our
democracy. In any action involving the possibility of a reversal of
the popular electoral choice, this Court must exert utmost effort to
resolve the issues in a manner that would give effect to the will of
the majority, for it is merely sound public policy to cause elective
offices to be filled by those who are the choice of the majority. To
successfully challenge a winning candidate's qualifications, the
petitioner must clearly demonstrate that the ineligibility is so
patently antagonistic to constitutional and legal principles that
overriding such ineligibility and thereby giving effect to the
apparent will of the people would ultimately create greater
prejudice to the very democratic institutions and juristic traditions
that our Constitution and laws so zealously protect and promote."
In the same vein, we stated in Alberto v. Comelec[27] that
"election cases involve public interest; thus, laws governing
election contests must be liberally construed to the end that the
will of the people in the choice of public officials may not be
defeated by mere technical objections."
Indeed, "it would be far better to err in favor of popular
sovereignty than to be right in complex but little understood
legalisms."[28]
In sum, we hold that Respondent Comelec cannot be faulted
with abuse, much less grave abuse, of discretion in upholding
private respondent's election.
Corollary Issue: Effect of Disqualification of Winner on
Second Placer
With the resolution of the first issue in the positive, it is obvious
that the second one posited by petitioners has become academic
and need not be ruled upon.

257
WHEREFORE, the Petition is DISMISSED and the assailed
Comelec Resolutions AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, YnaresSantiago, and De Leon Jr., JJ., concur.
Bellosillo, J., abroad on official business.

258
[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.:
The Case
This is a petition for prohibition to set aside Resolution No. NBC
01-005 dated 5 June 2001 (Resolution No. 01-005) and Resolution
No. NBC 01-006 dated 20 July 2001 (Resolution No. 01-006) of
respondent Commission on Elections (COMELEC). Resolution No.
01-005 proclaimed the 13 candidates elected as Senators in the 14
May 2001 elections while Resolution No. 01-006 declared official
and final the ranking of the 13 Senators proclaimed in Resolution
No. 01-005.
The Facts
Shortly after her succession to the Presidency in January 2001,
President Gloria Macapagal-Arroyo nominated then Senator Teofisto
T. Guingona, Jr. (Senator Guingona) as Vice-President. Congress
confirmed the nomination of Senator Guingona who took his oath
as Vice-President on 9 February 2001.
Following Senator Guingonas confirmation, the Senate on 8
February 2001 passed Resolution No. 84 (Resolution No. 84)
certifying to the existence of a vacancy in the Senate. Resolution
No. 84 called on COMELEC to fill the vacancy through a special
election to be held simultaneously with the regular elections on 14
May 2001. Twelve Senators, with a 6-year term each, were due to
be elected in that election. [1] Resolution No. 84 further provided

that the Senatorial candidate garnering the 13 th highest number of

votes shall serve only for the unexpired term of former Senator
Teofisto T. Guingona, Jr., which ends on 30 June 2004. [2]
On 5 June 2001, after COMELEC had canvassed the election
results from all the provinces but one (Lanao del Norte), COMELEC
issued Resolution No. 01-005 provisionally proclaiming 13
candidates as the elected Senators. Resolution No. 01-005 also
provided that the first twelve (12) Senators shall serve for a term of
six (6) years and the thirteenth (13 th) Senator shall serve the
unexpired term of three (3) years of Senator TeofistoT. Guingona, Jr.
who was appointed Vice-President.[3] Respondents Ralph Recto
(Recto) and Gregorio Honasan (Honasan) ranked 12 th 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. 01005 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

259
candidates in the 14 May 2001 elections without distinction such
that there were no two separate Senate elections held
simultaneously but just a single election for thirteen seats,
irrespective of term.[7]
Stated otherwise, petitioners claim that if held simultaneously,
a special and a regular election must be distinguished in the
documentation as well as in the canvassing of their results. To
support their claim, petitioners cite the special elections
simultaneously held with the regular elections of 13 November
1951 and 8 November 1955 to fill the seats vacated by Senators
Fernando Lopez and Carlos P. Garcia, respectively, who became
Vice-Presidents during their tenures in the Senate. [8] Petitioners
point out that in those elections, COMELEC separately canvassed
the votes cast for the senatorial candidates running under the
regular elections from the votes cast for the candidates running
under the special elections. COMELEC also separately proclaimed
the winners in each of those elections.[9]
Petitioners sought the issuance of a temporary restraining
order during the pendency of their petition.

In their Comments, COMELEC, Honasan, and Recto all claim

that a special election to fill the seat vacated by Senator Guingona
was validly held on 14 May 2001. COMELEC and Honasan further
raise preliminary issues on the mootness of the petition and on
petitioners standing to litigate. Honasan also claims that the
petition, which seeks the nullity of his proclamation as Senator, is
actually a quo warranto petition and the Court should dismiss the
same for lack of jurisdiction. For his part, Recto, as the 12 th ranking
Senator, contends he is not a proper party to this case because the
petition only involves the validity of the proclamation of the
13th placer in the 14 May 2001 senatorial elections.
The Issues
The following are the issues presented for resolution:
(1) Procedurally
(a) whether the petition is in fact a petition for quo warranto over
which the Senate Electoral Tribunal is the sole judge;
(b) whether the petition is moot; and

Without issuing any restraining order, we required COMELEC to

Comment on the petition.
On 20 July 2001, after COMELEC had canvassed the results
from all the provinces, it issued Resolution No. 01-006 declaring
official and final the ranking of the 13 Senators proclaimed in
Resolution No. 01-005. The 13 Senators took their oaths of office on
23 July 2001.
In view of the issuance of Resolution No. 01-006, the Court
required petitioners to file an amended petition impleading Recto
and Honasan as additional respondents. Petitioners accordingly
filed an amended petition in which they reiterated the contentions
raised in their original petition and, in addition, sought the
nullification of Resolution No. 01-006.

(c) whether petitioners have standing to litigate.

(2) On the merits, whether a special election to fill a vacant
three-year term Senate seat was validly held on 14 May 2001.
The Ruling of the Court
The petition has no merit.
On the Preliminary Matters
The Nature of the Petition and the Courts Jurisdiction
A quo warranto proceeding is, among others, one to determine
the right of a public officer in the exercise of his office and to oust

260
him from its enjoyment if his claim is not well-founded. [10] Under
Section 17, Article VI of the Constitution, the Senate Electoral
Tribunal is the sole judge of all contests relating to the
qualifications of the members of the Senate.
A perusal of the allegations contained in the instant petition
shows, however, that what petitioners are questioning is the
validity of the special election on 14 May 2001 in which Honasan
was elected. Petitioners various prayers are, namely: (1) a
declaration that no special election was held simultaneously with
the general elections on 14 May 2001; (2) to enjoin COMELEC from
declaring anyone as having won in the special election; and (3) to
annul Resolution Nos. 01-005 and 01-006 in so far as these
Resolutions proclaim Honasan as the winner in the special
election. Petitioners anchor their prayers on COMELECs alleged
failure to comply with certain requirements pertaining to the
conduct of that special election. Clearly then, the petition does not
seek to determine Honasans right in the exercise of his office as
Senator. Petitioners prayer for the annulment of Honasans
proclamation and, ultimately, election is merely incidental to
petitioners cause of action. Consequently, the Court can properly
exercise jurisdiction over the instant petition.
On the Mootness of the Petition
COMELEC contends that its proclamation on 5 June 2001 of the
13 Senators and its subsequent confirmation on 20 July 2001 of the
ranking of the 13 Senators render the instant petition to set aside
Resolutions Nos. 01-005 and 01-006 moot and academic.
Admittedly, the office of the writ of prohibition is to command a
tribunal or board to desist from committing an act threatened to be
done without jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction. [11] Consequently, the
writ will not lie to enjoin acts already done. [12] However, as an
exception to the rule on mootness, courts will decide a question
otherwise moot if it is capable of repetition yet evading review.
[13]
Thus, in Alunan III v. Mirasol,[14] we took cognizance of a petition

to set aside an order canceling the general elections for the

Sangguniang Kabataan (SK) on 4 December 1992 despite that at
the time the petition was filed, the SK election had already taken
place. We noted in Alunan that since the question of the validity of
the order sought to be annulled is likely to arise in every SK
elections and yet the question may not be decided before the date
of such elections, the mootness of the petition is no bar to its
resolution. This observation squarely applies to the instant case.
The question of the validity of a special election to fill a vacancy in
the Senate in relation to COMELECs failure to comply with
requirements on the conduct of such special election is likely to
arise in every such election. Such question, however, may not be
decided before the date of the election.
On Petitioners Standing
Honasan questions petitioners standing to bring the instant
petition as taxpayers and voters because petitioners do not claim
that COMELEC illegally disbursed public funds. Neither do
petitioners claim that they sustained personal injury because of the
issuance of Resolution Nos. 01-005 and 01-006.
Legal standing or locus standi refers to a personal and
substantial interest in a case such that the party has sustained or
will sustain direct injury because of the challenged governmental
act.[15] The requirement of standing, which necessarily sharpens the
presentation of issues,[16] relates to the constitutional mandate that
this Court settle only actual cases or controversies.[17] Thus,
generally, a party will be allowed to litigate only when (1) he can
show that he has personally suffered some actual or threatened
injury because of the allegedly illegal conduct of the government;
(2) the injury is fairly traceable to the challenged action; and (3)
the injury is likely to be redressed by a favorable action. [18]
Applied strictly, the doctrine of standing to litigate will indeed
bar the instant petition. In questioning, in their capacity as voters,
the validity of the special election on 14 May 2001, petitioners
assert a harm classified as a generalized grievance. This

261
generalized grievance is shared in substantially equal measure by a
large class of voters, if not all the voters, who voted in that
election.[19] Neither have petitioners alleged, in their capacity as
taxpayers, that the Court should give due course to the petition
because in the special election held on 14 May 2001 tax money
[was] x x x extracted and spent in violation of specific
constitutional protections against abuses of legislative power or
that there [was] misapplication of such funds by COMELEC or that
public money [was] deflected to any improper purpose.[20]

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)

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:

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.

[T]he IBP primarily anchors its standing on its alleged responsibility

to uphold the rule of law and the Constitution. Apart from this
declaration, however, the IBP asserts no other basis in support of
its locus standi. The mere invocation by the IBP of its duty to
preserve the rule of law and nothing more, while undoubtedly true,
is not sufficient to clothe it with standing in this case. This is too
general an interest which is shared by other groups and the whole
citizenry x x x.
Having stated the foregoing, this Court has the discretion to take
cognizance of a suit which does not satisfy the requirement of legal
standing when paramount interest is involved. In not a few cases,
the court has adopted a liberal attitude on the locus standi of a
petitioner where the petitioner is able to craft an issue of
transcendental significance to the people. Thus, when the issues
raised are of paramount importance to the public, the Court may
brush aside technicalities of procedure. In this case, a reading of
the petition shows that the IBP has advanced constitutional issues

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,

262
shall hold a special election to fill such vacancy. If Congress is in
recess, an official communication on the existence of the vacancy
and call for a special election by the President of the Senate or by
the Speaker of the House of Representatives, as the case may be,
shall be sufficient for such purpose. The Senator or Member of the
House of Representatives thus elected shall serve only for the
unexpired term.
SECTION 2. The Commission on Elections shall fix the date of the
special election, which shall not be earlier than forty-five (45) days
nor later than ninety (90) days from the date of such resolution or
communication, stating among other things the office or offices to
be voted for: Provided, however, That if within the said period a
general election is scheduled to be held, the special election shall
be held simultaneously with such general election. (Emphasis
supplied)
Section 4 of Republic Act No. 7166 subsequently amended
Section 2 of R.A. No. 6645, as follows:
Postponement, Failure of Election and Special Elections. x x x In
case a permanent vacancy shall occur in the Senate or House of
Representatives at least one (1) year before the expiration of the
term, the Commission shall call and hold a special election to fill
the vacancy not earlier than sixty (60) days nor longer than ninety
(90) days after the occurrence of the vacancy. However, in case of
such vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election.
(Emphasis supplied)

Thus, in case a vacancy arises in Congress at least one year

before the expiration of the term, Section 2 of R.A. No. 6645, as
amended, requires COMELEC: (1) to call a special election by fixing
the date of the special election, which shall not be earlier than sixty
(60) days nor later than ninety (90) after the occurrence of the
vacancy but in case of a vacancy in the Senate, the special election
shall be held simultaneously with the next succeeding regular
election; and (2) to give notice to the voters of, among other
things, the office or offices to be voted for.
Did COMELEC, in conducting the special senatorial election
simultaneously with the 14 May 2001 regular elections, comply
with the requirements in Section 2 of R.A. No. 6645?
A survey of COMELECs resolutions relating to the conduct of
the 14 May 2001 elections reveals that they contain nothing which
would amount to a compliance, either strict or substantial, with the
requirements in Section 2 of R.A. No. 6645, as amended. Thus,
nowhere in its resolutions[24] or even in its press releases[25] did
COMELEC state that it would hold a special election for a single
three-year term Senate seat simultaneously with the regular
elections on 14 May 2001. Nor did COMELEC give formal notice that
it would proclaim as winner the senatorial candidate receiving the
13thhighest number of votes in the special election.
The controversy thus turns on whether COMELECs failure,
assuming it did fail, to comply with the requirements in Section 2 of
R.A. No. 6645, as amended, invalidated the conduct of the special
senatorial election on 14 May 2001 and accordingly rendered
Honasans proclamation as the winner in that special election void.
More precisely, the question is whether the special election is
invalid for lack of a call for such election and for lack of notice as to
the office to be filled and the manner by which the winner in the
special election is to be determined. For reasons stated below, the
Court answers in the negative.
COMELECs Failure to Give Notice

263
of the Time of the Special Election Did Not

failure to give the additional notice did not negate the calling of
such special election, much less invalidate it.

Negate the Calling of such Election

The calling of an election, that is, the giving notice of the time
and place of its occurrence, whether made by the legislature
directly or by the body with the duty to give such call, is
indispensable to the elections validity.[26] In a general election,
where the law fixes the date of the election, the election is valid
without any call by the body charged to administer the election. [27]
In a special election to fill a vacancy, the rule is that a statute
that expressly provides that an election to fill a vacancy shall be
held at the next general elections fixes the date at which the
special election is to be held and operates as the call for that
election. Consequently, an election held at the time thus prescribed
is not invalidated by the fact that the body charged by law with the
duty of calling the election failed to do so. [28] This is because the
right and duty to hold the election emanate from the statute and
not from any call for the election by some authority [29] and the law
thus charges voters with knowledge of the time and place of the
election.[30]

Our conclusion might be different had the present case

involved a special election to fill a vacancy in the House of
Representatives. In such a case, the holding of the special election
is subject to a condition precedent, that is, the vacancy should take
place at least one year before the expiration of the term. The time
of the election is left to the discretion of COMELEC subject only to
the limitation that it holds the special election within the range of
time provided in Section 2 of R.A. No. 6645, as amended. This
makes mandatory the requirement in Section 2 of R.A. No. 6645, as
amended, for COMELEC to call x x x a special election x x x not
earlier than 60 days nor longer than 90 days after the occurrence of
the vacancy and give notice of the office to be filled. The
COMELECs failure to so call and give notice will nullify any attempt
to hold a special election to fill the vacancy. Indeed, it will be wellnigh impossible for the voters in the congressional district involved
to know the time and place of the special election and the office to
be filled unless the COMELEC so notifies them.
No Proof that COMELECs

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]

Failure to Give Notice of the Office

In the instant case, Section 2 of R.A. No. 6645 itself provides

that in case of vacancy in the Senate, the special election to fill
such vacancy shall be held simultaneously with the next
succeeding regular election. Accordingly, the special election to fill
the vacancy in the Senate arising from Senator Guingonas
appointment as Vice-President in February 2001 could not be held
at any other time but must be held simultaneously with the next
succeeding regular elections on 14 May 2001. The law charges the
voters with knowledge of this statutory notice and COMELECs

Election Misled Voters

to be Filled and the Manner of

Determining the Winner in the Special

The test in determining the validity of a special election in

relation to the failure to give notice of the special election is
whether the want of notice has resulted in misleading a sufficient
number of voters as would change the result of the special election.
If the lack of official notice misled a substantial number of voters
who wrongly believed that there was no special election to fill a
vacancy, a choice by a small percentage of voters would be void. [32]

264
The required notice to the voters in the 14 May 2001 special
senatorial election covers two matters. First, that COMELEC will
hold a special election to fill a vacant single three-year term Senate
seat simultaneously with the regular elections scheduled on the
same date. Second, that COMELEC will proclaim as winner the
senatorial candidate receiving the 13 th highest number of votes in
the special election. Petitioners have neither claimed nor proved
that COMELECs failure to give this required notice misled a
sufficient number of voters as would change the result of the
special senatorial election or led them to believe that there was no
such special election.
Instead, what petitioners did is conclude that since COMELEC
failed to give such notice, no special election took place. This bare
assertion carries no value. Section 2 of R.A. No. 6645, as amended,
charged those who voted in the elections of 14 May 2001 with the
knowledge that the vacancy in the Senate arising from Senator
Guingonas appointment as Vice-President in February 2001 was to
be filled in the next succeeding regular election of 14 May 2001.
Similarly, the absence of formal notice from COMELEC does not
preclude the possibility that the voters had actual notice of the
special election, the office to be voted in that election, and the
manner by which COMELEC would determine the winner. Such
actual notice could come from many sources, such as media
reports of the enactment of R.A. No. 6645 and election propaganda
during the campaign.[33]
More than 10 million voters cast their votes in favor of
Honasan, the party who stands most prejudiced by the instant
petition. We simply cannot disenfranchise those who voted for
Honasan, in the absence of proof that COMELECs omission
prejudiced voters in the exercise of their right of suffrage so as to
negate the holding of the special election. Indeed, this Court is
loathe to annul elections and will only do so when it is impossible to
distinguish what votes are lawful and what are unlawful, or to arrive
at any certain result whatever, or that the great body of the voters
have been prevented by violence, intimidation, and threats from
exercising their franchise.[34]

Otherwise, the consistent rule has been to respect the

electorates will and let the results of the election stand, despite
irregularities that may have attended the conduct of the elections.
[35]
This is but to acknowledge the purpose and role of elections in a
democratic society such as ours, which is:
to give the voters a direct participation in the affairs of their
government, either in determining who shall be their public officials
or in deciding some question of public interest; and for that
purpose all of the legal voters should be permitted, unhampered
and unmolested, to cast their ballot. When that is done and no
frauds have been committed, the ballots should be counted and
the election should not be declared null. Innocent voters should not
be deprived of their participation in the affairs of their government
for mere irregularities on the part of the election officers, for which
they are in no way responsible. A different rule would make
themanner and method of performing a public duty of greater
importance than the duty itself.[36] (Emphasis in the original)
Separate Documentation and Canvassing
not Required under Section 2 of R.A. No. 6645,
Neither is there basis in petitioners claim that the manner by
which COMELEC conducted the special senatorial election on 14
May 2001 is a nullity because COMELEC failed to document
separately the candidates and to canvass separately the votes cast
for the special election. No such requirements exist in our election
laws. What is mandatory under Section 2 of R.A. No. 6645 is that
COMELEC fix the date of the election, if necessary, and state,
among others, the office or offices to be voted for. Similarly,
petitioners reliance on Section 73 of B.P. Blg. 881 on the filing of
certificates of candidacy, and on Section 4(4) of R.A. No. 6646 on
the printing of election returns and tally sheets, to support their
claim is misplaced. These provisions govern elections in general
and in no way require separate documentation of candidates or
separate canvass of votes in a jointly held regular and special
elections.

265
Significantly, the method adopted by COMELEC in conducting
the special election on 14 May 2001 merely implemented the
procedure specified by the Senate in Resolution No. 84. Initially, the
original draft of Resolution No. 84 as introduced by Senator
Francisco Tatad (Senator Tatad) made no mention of the manner by
which the seat vacated by former Senator Guingona would be
filled. However, upon the suggestion of Senator Raul Roco (Senator
Roco), the Senate agreed to amend Resolution No. 84 by providing,
as it now appears, that the senatorial candidate garnering the
thirteenth (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.

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 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,

T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled

(Sgd.) FRANCISCO S. TATAD Senator

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

S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this

resolution.

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). 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] O[SMEA] (J). Mr. President.

T[HE] P[RESIDENT]. Sen. John H. Osmea is recognized.

266
S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]

S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate

President.

S[ENATOR] O[SMEA] (J). What a way of flattery. [Laughter]

Mr. President, I think I recall that sometime in 1951 or 1953, there
was a special election for a vacant seat in the Senate. As a matter
of fact, the one who was elected in that special election was then
Congressman, later Senator Feli[s]berto Verano.

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.

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.

It can be managed in the Commission on Elections so that a slot for

the particular candidate to fill up would be that reserved for Mr.
Guingonas unexpired term. In other words, it can be arranged in
such a manner.

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.

xxxx
S[ENATOR] R[OCO]. Mr. President.
T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.

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] O[SMEA] (J). Is there a law that would allow the Comelec
to conduct such an election? Is it not the case that the vacancy is
for a specific office? I am really at a loss. I am rising here because I
think it is something that we should consider. I do not know if we
can No, this is not a Concurrent Resolution.

S[ENATOR] 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]. 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.

267
T[HE] P[RESIDENT]. to implement.

xxxx

S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.

ADOPTION OF S. RES. NO. 934

T[HE] P[RESIDENT]. That is right.

If there are no other proposed amendments, I move that we adopt

this resolution.

S[ENATOR] R[OCO]. We will already consider the 13 th placer of the

forthcoming elections that will be held simultaneously as a special
election under this law as we understand it.
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator
Roco.
S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later,
maybe it will be better, Mr. President.
T[HE] P[RESIDENT]. What does the sponsor say?
S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory
proposal because I do not believe that there will be anyone running
specifically
T[HE] P[RESIDENT]. Correct.
S[ENATOR] T[ATAD]. to fill up this position for three years and
campaigning nationwide.
T[HE] P[RESIDENT]. Actually, I think what is going to happen is the
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.

T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is

there any objection? [Silence] There being none, the motion is
approved.[37]
Evidently, COMELEC, in the exercise of its discretion to use
means and methods to conduct the special election within the
confines of R.A. No. 6645, merely chose to adopt the Senates
proposal, as embodied in Resolution No. 84. This Court has
consistently acknowledged and affirmed COMELECs wide latitude of
discretion in adopting means to carry out its mandate of ensuring
free, orderly, and honest elections subject only to the limitation
that the means so adopted are not illegal or do not constitute grave
abuse of discretion.[38] COMELECs decision to abandon the means it
employed in the 13 November 1951 and 8 November 1955 special
elections and adopt the method embodied in Resolution No. 84 is
but a legitimate exercise of its discretion. Conversely, this Court will
not interfere should COMELEC, in subsequent special senatorial
elections, choose to revert to the means it followed in the 13
November 1951 and 8 November 1955 elections. That COMELEC
adopts means that are novel or even disagreeable is no reason to
adjudge it liable for grave abuse of discretion. As we have earlier
noted:
The Commission on Elections is a constitutional body. It is intended
to play a distinct and important part in our scheme of
government. In the discharge of its functions, it should not be
hampered with restrictions that would be fully warranted in the
case of a less responsible organization. The Commission may err,
so may this Court also. It should be allowed considerable latitude in
devising means and methods that will insure the accomplishment
of the great objective for which it was created free, orderly and

268
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 thatCOMELECs failure to so call and give
notice did not invalidate the special senatorial election held on 14
May 2001, COMELEC should not take chances in future
elections. We remind COMELEC to comply strictly with all the
requirements under applicable laws relative to the conduct of
regular elections in general and special elections in particular.
WHEREFORE, we DISMISS the petition for lack of merit.
SO ORDERED.
Panganiban, Quisumbing, Sandoval-Gutierrez, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Davide, Jr., C.J., joins Mr. Justice Puno in his dissent.
Puno, J., please see dissenting opinion.
Vitug, J., joins the dissent. Ynares-Santiago, J., joins J. Punos dissent.
Tinga, J., joins Justice Punos dissent.

269

[G.R. No. 134577. November 18, 1998]

SEN. MIRIAM DEFENSOR SANTIAGO and SEN. FRANCISCO S.
TATAD, petitioners, vs. SEN. TEOFISTO T. GUINGONA,
JR.and SEN. MARCELO B. FERNAN, respondents.
DECISION
PANGANIBAN, J.:
The principle of separation of powers ordains that each of the
three great branches of government has exclusive cognizance of
and is supreme in matters falling within its own constitutionally
allocated sphere.
Constitutional respect and a becoming regard for the sovereign
acts of a coequal branch prevents this Court from prying into the
internal workings of the Senate.Where no provision of the
Constitution or the laws or even the Rules of the Senate is clearly
shown to have been violated, disregarded or overlooked, grave
abuse of discretion cannot be imputed to Senate officials for acts
done within their competence and authority. This Court will be
neither a tyrant nor a wimp; rather, it will remain steadfast and
judicious in upholding the rule and majesty of the law.
The Case
On July 31, 1998, Senators Miriam Defensor Santiago and
Francisco S. Tatad instituted an original petition for quo
warranto under Rule 66, Section 5, Rules of Court, seeking the
ouster of Senator Teofisto T. Guingona Jr. as minority leader of the
Senate and the declaration of Senator Tatad as the rightful minority
leader.
On August 4, 1998, the Court, upon receipt of the Petition,
required the respondents and the solicitor general to file COMMENT
thereon within a non-extendible period of fifteen (15) days from
notice. On August 25, 1998, both respondents and the solicitor
general submitted their respective Comments. In compliance with a
Resolution of the Court dated September 1, 1998, petitioners filed
their Consolidated Reply on September 23, 1998. Noting said
pleading, this Court gave due course to the petition and deemed

the controversy submitted for decision, without need of

memoranda, on September 29, 1998.
In the regular course, the regional trial courts and this Court
have concurrent jurisdiction[1] to hear and decide petitions for quo
warranto (as well as certiorari, prohibition and mandamus), and a
basic deference to the hierarchy of courts impels a filing of such
petitions in the lower tribunals.[2] However, for special and
important reasons or for exceptional and compelling circumstances,
as in the present case, this Court has allowed exceptions to this
doctrine.[3] In
fact,
original
petitions
for certiorari,
prohibition, mandamus and quo
warranto assailing
acts
of
legislative officers like the Senate President [4] and the Speaker of
the House[5]have been recognized as exceptions to this rule.
The Facts
The Senate of the Philippines, with Sen. John Henry R. Osmea as
presiding officer, convened on July 27, 1998 for the first regular
session of the eleventh Congress.At the time, in terms of party
affiliation, the composition of the Senate was as follows:[6]
10 members -Laban ng Masang Pilipino (LAMP)
7 members - Lakas-National Union of Christian Democrats-United
Muslim Democrats of the Philippines (Lakas-NUCD-UMDP)
1 member - Liberal Party (LP)
1 member - Aksyon Demokrasya
1 member - Peoples Reform Party (PRP)
1 member - Gabay Bayan
2 members - Independent
---------23 - total number of senators[7] (The last six members are all
classified by petitioners as independent.)
On the agenda for the day was the election of
officers. Nominated by Sen. Blas F. Ople to the position of Senate
President was Sen. Marcelo B. Fernan. Sen. Francisco S. Tatad was
also nominated to the same position by Sen. Miriam Defensor
Santiago. By a vote of 20 to 2,[8] Senator Fernan was declared the
duly elected President of the Senate.
The following were likewise elected: Senator Ople as president
pro tempore, and Sen. Franklin M. Drilon as majority leader.

270
Senator Tatad thereafter manifested that, with the agreement
of Senator Santiago, allegedly the only other member of the
minority, he was assuming the position of minority leader. He
explained
that
those
who
had voted for Senator Fernan comprised the majority, while only
those who had voted for him, the losing nominee, belonged to the
minority.
During the discussion on who should constitute the Senate
minority, Sen. Juan M. Flavier manifested that the senators
belonging to the Lakas-NUCD-UMDP Party -- numbering seven (7)
and, thus, also a minority -- had chosen Senator Guingona as the
minority leader. No consensus on the matter was arrived at. The
following session day, the debate on the question continued, with
Senators Santiago and Tatad delivering privilege speeches. On the
third session day, the Senate met in caucus, but still failed to
resolve the issue.
On July 30, 1998, the majority leader informed the body that he
was in receipt of a letter signed by the seven Lakas-NUCD-UMDP
senators,[9] stating that they had elected Senator Guingona as the
minority leader. By virtue thereof, the Senate President formally
recognized Senator Guingona as the minority leader of the Senate.
The following day, Senators Santiago and Tatad filed before this
Court the subject petition for quo warranto, alleging in the main
that Senator Guingona had been usurping, unlawfully holding and
exercising the position of Senate minority leader, a position that,
according to them, rightfully belonged to Senator Tatad.
Issues
From the parties pleadings, the Court formulated the following
issues for resolution:
1. Does the Court have jurisdiction over the petition?
2. Was there an actual violation of the Constitution?
3. Was Respondent Guingona usurping, unlawfully holding and
exercising the position of Senate minority leader?
4. Did Respondent Fernan act with grave abuse of discretion in
recognizing Respondent Guingona as the minority leader?
The Courts Ruling
After a close perusal of the pleadings[10] and a careful
deliberation on the arguments, pro and con, the Court finds that no

constitutional or legal infirmity or grave abuse of discretion

attended the recognition of and the assumption into office by
Respondent Guingona as the Senate minority leader.
First Issue: The Courts Jurisdiction

Petitioners principally invoke Avelino v. Cuenco[11] in arguing

that this Court has jurisdiction to settle the issue of who is the
lawful Senate minority leader. They submit that the definitions of
majority and minority involve an interpretation of the Constitution,
specifically Section 16 (1), Article VI thereof, stating that [t]he
Senate shall elect its President and the House of Representatives its
Speaker, by a majority vote of all its respective Members.
Respondents and the solicitor general, in their separate
Comments, contend in common that the issue of who is the lawful
Senate minority leader is an internal matter pertaining exclusively
to the domain of the legislature, over which the Court cannot
exercise jurisdiction without transgressing the principle of
separation of powers. Allegedly, no constitutional issue is involved,
as the fundamental law does not provide for the office of a minority
leader in the Senate. The legislature alone has the full discretion to
provide for such office and, in that event, to determine the
procedure of selecting its occupant.
Respondents also maintain that Avelino cannot apply, because
there exists no question involving an interpretation or application of
the Constitution, the laws or even the Rules of the Senate; neither
are there peculiar circumstances impelling the Court to assume
jurisdiction over the petition. The solicitor general adds that there is
not even any legislative practice to support the petitioners theory
that a senator who votes for the winning Senate President is
precluded from becoming the minority leader.
To resolve the issue of jurisdiction, this Court carefully reviewed
and deliberated on the various important cases involving this very
important and basic question, which it has ruled upon in the past.
The early case Avelino v. Cuenco cautiously tackled the scope
of the Courts power of judicial review; that is, questions involving
an interpretation or application of a provision of the Constitution or
the law, including the rules of either house of Congress. Within this
scope falls the jurisdiction of the Court over questions on the
validity of legislative or executive acts that are political in nature,

271
whenever the tribunal finds constitutionally imposed limits on
powers or functions conferred upon political bodies.[12]
In the aforementioned case, the Court initially declined to
resolve the question of who was the rightful Senate President, since
it was deemed a political controversy falling exclusively within the
domain of the Senate. Upon a motion for reconsideration, however,
the Court ultimately assumed jurisdiction (1) in the light of
subsequent events which justify its intervention; and (2) because
the resolution of the issue hinged on the interpretation of the
constitutional provision on the presence of a quorum to hold a
session[13] and therein elect a Senate President.
Justice Feria elucidated in his Concurring Opinion: [I] concur
with the majority that this Court has jurisdiction over cases like the
present x x x so as to establish in this country the judicial
supremacy, with the Supreme Court as the final arbiter, to see that
no one branch or agency of the government transcends the
Constitution, not only in justiceable but political questions as well.
[14]

Justice Perfecto, also concurring, said in part:

Indeed there is no denying that the situation, as obtaining in the
upper chamber of Congress, is highly explosive. It had echoed in
the House of Representatives. It has already involved the President
of the Philippines. The situation has created a veritable national
crisis, and it is apparent that solution cannot be expected from any
quarter other than this Supreme Court, upon which the hopes of
the people for an effective settlement are pinned. [15]
x x x This case raises vital constitutional questions which no one
can settle or decide if this Court should refuse to decide them. [16]
x x x The constitutional question of quorum should not be left
unanswered.[17]
In Taada v. Cuenco,[18] this Court endeavored to define political
question. And we said that it refers to those questions which, under
the Constitution, are to bedecided 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 [the] legality, of a particular measure.[19]

The Court ruled that the validity of the selection of members of

the Senate Electoral Tribunal by the senators was not a political
question. The choice of these members did not depend on the
Senates full discretionary authority, but was subject to mandatory
constitutional limitations.[20] Thus, the Court held that not only was
it clearly within its jurisdiction to pass upon the validity of the
selection proceedings, but it was also its duty to consider and
determine the issue.
In another landmark case, Lansang v. Garcia,[21] Chief Justice
Roberto Concepcion wrote that the Court had authority to and
should inquire into the existence of the factual bases required by
the Constitution for the suspension of the privilege of the writ
[of habeas corpus]. This ruling was made in spite of the previous
pronouncements in Barcelon
v.
Baker[22] and Montenegro
v.
[23]
Castaeda
that the authority to decide whether the exigency has
arisen requiring suspension (of the privilege x x x) belongs to the
President and his decision is final and conclusive upon the courts
and upon all other persons. But the Chief Justice cautioned: the
function of the Court is merely to check -- not to supplant --- the
Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power
vested in him or to determine the wisdom of his act.
The eminent Chief Justice aptly explained later in Javellana v.
Executive Secretary:[24]
The reason why the issue under consideration and other issues of
similar character are justiciable, not political, is plain and
simple. One of the principal bases of the non-justiciability of socalled political questions is the principle of separation of powers -characteristic of the presidential system of government -- the
functions of which are classified or divided, by reason of their
nature, into three (3) categories, namely, 1) those involving the
making of laws, which are allocated to the legislative department;
2) those concerning mainly with the enforcement of such laws and
of judicial decisions applying and/or interpreting the same, which
belong to the executive department; and 3) those dealing with the
settlement of disputes, controversies or conflicts involving rights,
duties or prerogatives that are legally demandable and
enforceable, which are apportioned to courts of justice. Within its

272
own sphere -- but only within such sphere each department is
supreme and independent of the others, and each is devoid of
authority not only to encroach upon the powers or field of action
assigned to any of the other departments, but also to inquire into
or pass upon the advisability or wisdom of the acts performed,
measures taken or decisions made by the other departments -provided that such acts, measures or decision are within the area
allocated thereto by the Constitution."
Accordingly, when the grant of power is qualified, conditional or
subject to limitations, the issue of whether or not the prescribed
qualifications or conditions have been met, or the limitations
respected is justiciable or non-political, the crux of the problem
being one of legality or validity of the contested act, not its
wisdom.Otherwise, said qualifications, conditions or limitations -particularly those prescribed by the Constitution -- would be set at
naught. What is more, the judicial inquiry into such issue and the
settlement thereof are the main functions of the courts of justice
under the presidential form of government adopted in our 1935
Constitution, and the system of checks and balances, one of its
basic predicates. As a consequence, we have neither the authority
nor the discretion to decline passing upon said issue, but are under
the ineluctable obligation -- made particularly more exacting and
peremptory by our oath, as members of the highest Court of the
land, to support and defend the Constitution -- to settle it. This
explains why, in Miller v. Johnson [92 Ky. 589, 18 SW 522, 523], it
was held that courts have a duty, rather than a power, to
determine whether another branch of the government has
kept within constitutional limits.
Unlike our previous constitutions, the 1987 Constitution is
explicit in defining the scope of judicial power. The present
Constitution now fortifies the authority of the courts to determine in
an appropriate action the validity of the acts of the political
departments. It speaks of judicial prerogative in terms of duty, viz.:
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]
This express definition has resulted in clearer and more
resolute pronouncements of the Court. Daza v. Singson,
[26]
Coseteng v. Mitra Jr.[27] and Guingona Jr. v. Gonzales[28] similarly
resolved issues assailing the acts of the leaders of both houses of
Congress in apportioning among political parties the seats to which
each
chamber
was
entitled
in
the
Commission
on
Appointments. The Court held that the issue was justiciable, even if
the question were political in nature, since it involved the legality,
not the wisdom, of the manner of filling the Commission on
Appointments as prescribed by [Section 18, Article VI of] the
Constitution.
The same question of jurisdiction was raised in Taada v.
Angara,[29] wherein the petitioners sought to nullify the Senates
concurrence in the ratification of the World Trade Organization
(WTO) Agreement. The Court ruled: Where an action of the
legislative branch is seriously alleged to have infringed the
Constitution, it becomes not only the right but in fact the duty of
the judiciary to settle the dispute. The Court en banc unanimously
stressed that in taking jurisdiction over petitions questioning an act
of the political departments of government, it will not review the
wisdom, merits or propriety of such action, and will strike it down
only on either of two grounds: (1) unconstitutionality or illegality
and (2) grave abuse of discretion.
Earlier in Co v. Electoral Tribunal of the House of
Representatives[30] (HRET), the Court refused to reverse a decision
of the HRET, in the absence of a showing that said tribunal had
committed grave abuse of discretion amounting to lack of
jurisdiction. The Court ruled that full authority had been conferred
upon the electoral tribunals of the House of Representatives and of
the
Senate
as sole
judges of
all
contests
relating
to
the election, the returns, and the qualifications of their respectivem
embers. Such jurisdiction is original and exclusive. [31] The Court
may inquire into a decision or resolution of said tribunals only if
such decision or resolution was rendered without or in excess of
jurisdiction, or with grave abuse of discretion.[32]

273
Recently, the Court, in Arroyo v. De Venecia,[33] was asked to
reexamine the enrolled bill doctrine and to look beyond the
certification of the Speaker of the House of Representatives that
the bill, which was later enacted as Republic Act 8240, was properly
approved by the legislative body. Petitioners claimed that certain
procedural rules of the House had been breached in the passage of
the bill. They averred further that a violation of the constitutionally
mandated House rules was a violation of the Constitution itself.
The Court, however, dismissed the petition, because the
matter complained of concerned the internal procedures of the
House, with which the Court had no concern. It enucleated:[34]
It would be an unwarranted invasion of the prerogative of a coequal
department for this Court either to set aside a legislative action as
void because the Court thinks the House has disregarded its own
rules of procedure, or to allow those defeated in the political arena
to seek a rematch in the judicial forum when petitioners can find
their remedy in that department itself. The Court has not been
invested with a roving commission to inquire into complaints, real
or imagined, of legislative skullduggery. It would be acting in excess
of its power and would itself be guilty of grave abuse of discretion
were it to do so. x x x In the absence of anything to the contrary,
the Court must assume that Congress or any House thereof acted
in the good faith belief that its conduct was permitted by its rules,
and deference rather than disrespect is due the judgment of that
body.
In the instant controversy, the petitioners -- one of whom is
Senator Santiago, a well-known constitutionalist -- try to hew
closely to these jurisprudential parameters. They claim that Section
16 (1), Article VI of the Constitution, has not been observed in the
selection of the Senate minority leader. They also invoke the Courts
expanded judicial power to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of respondents.
Dissenting in part, Mr. Justice Vicente V. Mendoza submits that
the Court has no jurisdiction over the petition. Well-settled is the
doctrine, however, that jurisdiction over the subject matter of a
case is determined by the allegations of the complaint or petition,
regardless of whether the plaintiff or petitioner is entitled to the

relief asserted.[35] In light of the aforesaid allegations of petitioners,

it is clear that this Court has jurisdiction over the petition. It is well
within the power and jurisdiction of the Court to inquire whether
indeed the Senate or its officials committed a violation of the
Constitution or gravely abused their discretion in the exercise of
their functions and prerogatives.
Second Issue: Violation of the Constitution
Having assumed jurisdiction over the petition, we now go to
the next crucial question: In recognizing Respondent Guingona as
the Senate minority leader, did the Senate or its officials,
particularly Senate President Fernan, violate the Constitution or the
laws?
Petitioners answer the above question in the affirmative. They
contend that the constitutional provision requiring the election of
the Senate President by majority vote of all its members carries
with it a judicial duty to determine the concepts of majority and
minority, as well as who may elect a minority leader. They argue
that majority in the aforequoted constitutional provision refers to
that group of senators who (1) voted for the winning Senate
President and (2) accepted committee chairmanships. Accordingly,
those who voted for the losing nominee and accepted no such
chairmanships comprise the minority, to whom the right to
determine the minority leader belongs. As a result, petitioners
assert, Respondent Guingona cannot be the legitimate minority
leader, since he voted for Respondent Fernan as Senate
President. Furthermore,
the members of the Lakas-NUCD-UMDP
cannot choose the minority leader, because they did not belong to
the minority, having voted for Fernan and accepted committee
chairmanships.
We believe, however, that the interpretation proposed by
petitioners finds no clear support from the Constitution, the laws,
the Rules of the Senate or even from practices of the Upper House.
The term majority has been judicially defined a number of
times. When referring to a certain number out of a total or
aggregate, it simply means the number greater than half or more
than half of any total.[36] The plain and unambiguous words of the
subject constitutional clause simply mean that the Senate President
must obtain the votes of more than one half of all the senators. Not

274
by any construal does it thereby delineate who comprise the
majority, much less the minority, in the said body. And there is no
showing that the framers of our Constitution had in mind other than
the usual meanings of these terms.
In effect, while the Constitution mandates that the President of
the Senate must be elected by a number constituting more than
one half of all the members thereof, it does not provide that the
members who will not vote for him shall ipso facto constitute the
minority, who could thereby elect the minority leader. Verily, no law
or regulation states that the defeated candidate shall automatically
become the minority leader.
The Comment[37] of Respondent Guingona furnishes some
relevant precedents, which were not contested in petitioners
Reply. During the eighth Congress, which was the first to convene
after the ratification of the 1987 Constitution, the nomination of
Sen. Jovito R. Salonga as Senate President was seconded by a
member of the minority, then Sen. Joseph E. Estrada. [38] During the
ninth regular session, when Sen. Edgardo J. Angara assumed the
Senate presidency in 1993, a consensus was reached to assign
committee chairmanships to all senators, including those belonging
to the minority.[39] This practice continued during the tenth
Congress, where even the minority leader was allowed to chair a
committee.[40] History would also show that the majority in either
house of Congress has referred to the political party to which the
most number of lawmakers belonged, while the minority normally
referred to a party with a lesser number of members.
Let us go back to the definitions of the terms majority and
minority. Majority may also refer to the group, party, or faction with
the larger number of votes,[41]not necessarily more than one
half. This is sometimes referred to as plurality. In contrast, minority
is a group, party, or faction with a smaller number of votes or
adherents than the majority.[42] Between two unequal parts or
numbers comprising a whole or totality, the greater number would
obviously be the majority, while the lesser would be the
minority. But where there are more than two unequal groupings, it
is not as easy to say which is the minority entitled to select the
leader representing all the minorities. In a government with
a multi-party system such as in the Philippines (as pointed out by

petitioners themselves), there could be several minority parties,

one of which has to be identified by the Comelec as the dominant
minority party for purposes of the general elections. In the
prevailing composition of the present Senate, members either
belong to different political parties or are independent. No
constitutional or statutory provision prescribe which of the many
minority groups or the independents or a combination thereof has
the right to select the minority leader.
While the Constitution is explicit on the manner of electing a
Senate President and a House Speaker, it is, however, dead silent
on the manner of selecting the other officers in both chambers of
Congress. All that the Charter says is that [e]ach House shall
choose such other officers as it may deem necessary. [43] To our
mind, the method of choosing who will be such other officers
is merely a derivative of the exercise of the prerogative
conferred
by
the
aforequoted
constitutional
provision. Therefore, such method must be prescribed by
the Senate itself, not by this Court.
In this regard, the Constitution vests in each house of Congress
the power to determine the rules of its proceedings. [44] Pursuant
thereto, the Senate formulated and adopted a set of rules to govern
its internal affairs.[45] Pertinent to the instant case are Rules I and II
thereof, which provide:
Rule I
ELECTIVE OFFICERS
SECTION 1. The Senate shall elect, in the manner hereinafter
provided, a President, a President Pro Tempore, a Secretary, and a
Sergeant-at-Arms.
These officers shall take their oath of office before entering into the
discharge of their duties.
Rule II
ELECTION OF OFFICERS
SEC. 2. The officers of the Senate shall be elected by the majority
vote of all its Members. Should there be more than one candidate
for the same office, a nominal vote shall be taken; otherwise, the
elections shall be by viva voce or by resolution.
Notably, the Rules of the Senate do not provide for the
positions of majority and minority leaders. Neither is there an open

275
clause providing specifically for such offices and prescribing the
manner of creating them or of choosing the holders thereof. At any
rate, such offices, by tradition and long practice, are actually
extant.But, in the absence of constitutional or statutory guidelines
or specific rules, this Court is devoid of any basis upon which to
determine the legality of the acts of the Senate relative thereto. On
grounds of respect for the basic concept of separation of powers,
courts may not intervene in the internal affairs of the legislature; it
is not within the province of courts to direct Congress how to do its
work.[46] Paraphrasing the words of Justice Florentino P. Feliciano,
this Court is of the opinion that where no specific, operable norms
and standards are shown to exist, then the legislature must be
given a real and effective opportunity to fashion and promulgate as
well as to implement them, before the courts may intervene.[47]
Needless to state, legislative rules, unlike statutory laws, do
not have the imprints of permanence and obligatoriness during
their effectivity. In fact, they are subject to revocation, modification
or waiver at the pleasure of the body adopting them.
[48]
Being merely matters of procedure, their observance are of no
concern to the courts, for said rules may be waived or disregarded
by the legislative body[49] at will, upon the concurrence of a
majority.
In view of the foregoing, Congress verily has the power and
prerogative to provide for such officers as it may deem. And it is
certainly within its own jurisdiction and discretion to prescribe the
parameters for the exercise of this prerogative. This Court has no
authority to interfere and unilaterally intrude into that
exclusive realm, without running afoul of constitutional
principles that it is bound to protect and uphold -- the very
duty that justifies the Courts being.Constitutional respect
and a becoming regard for the sovereign acts of a coequal
branch prevents this Court from prying into the internal
workings of the Senate. To repeat, this Court will be neither
a tyrant nor a wimp; rather, it will remain steadfast and
judicious in upholding the rule and majesty of the law.
To accede, then, to the interpretation of petitioners
would practically amount to judicial legislation, a clear

breach of the constitutional doctrine of separation of

powers. If for this argument alone, the petition would easily fail.
While no provision of the Constitution or the laws or the rules
and even the practice of the Senate was violated, and while the
judiciary is without power to decide matters over which full
discretionary authority has been lodged in the legislative
department, this Court may still inquire whether an act of Congress
or its officials has been made with grave abuse of discretion.[50] This
is the plain implication of Section 1, Article VIII of the Constitution,
which expressly confers upon the judiciary the power and the duty
not only to settle actual controversies involving rights which are
legally demandable and enforceable, but likewise 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.
Explaining the above-quoted clause, former Chief Justice
Concepcion, who was a member of the 1986 Constitutional
Commission, said in part:[51]
xxx the powers of government are generally considered divided
into three branches: the Legislative, the Executive and the
Judiciary. Each one is supreme within its own sphere and
independent of the others. Because of that supremacy[, the] power
to determine whether a given law is valid or not is vested in courts
of justice.
Briefly stated, courts of justice determine the limits of power of the
agencies and offices of the government as well as those of its
officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction, or
so capriciously as to constitute an abuse of discretion amounting to
excess of jurisdiction or lack of jurisdiction. This is not only a
judicial power but a duty to pass judgment on matters of this
nature.
This is the background of paragraph 2 of Section 1, which means
that the courts cannot hereafter evade the duty to settle matters of
this nature, by claiming that such matters constitute a political
question.

276
With this paradigm, we now examine the two other issues
challenging the actions, first, of Respondent Guingona and, second,
of Respondent Fernan.
Third Issue: Usurpation of Office
Usurpation generally
refers
to
unauthorized
arbitrary
assumption and exercise of power [52] by one without color of title or
who is not entitled by law thereto. [53]A quo warranto proceeding is
the proper legal remedy to determine the right or title to the
contested public office and to oust the holder from its enjoyment.
[54]
The action may be brought by the solicitor general or a public
prosecutor[55] or any person claiming to be entitled to the public
office or position usurped or unlawfully held or exercised by
another.[56] The action shall be brought against the person who
allegedly usurped, intruded into or is unlawfully holding or
exercising such office.[57]
In order for a quo warranto proceeding to be successful, the
person suing must show that he or she has a clear right to the
contested office or to use or exercise the functions of the office
allegedly usurped or unlawfully held by the respondent. [58] In this
case, petitioners present no sufficient proof of a clear and
indubitable franchise to the office of the Senate minority leader.
As discussed earlier, the specific norms or standards that may
be used in determining who may lawfully occupy the disputed
position has not been laid down by the Constitution, the statutes, or
the Senate itself in which the power has been vested. Absent any
clear-cut guideline, in no way can it be said that illegality or
irregularity tainted Respondent Guingonas assumption and exercise
of the powers of the office of Senate minority leader. Furthermore,
no grave abuse of discretion has been shown to characterize any of
his specific acts as minority leader.
Fourth Issue: Fernans Recognition of Guingona
The all-embracing and plenary power and duty of the Court 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 is restricted only
by the definition and confines of the term grave abuse of discretion.
By grave abuse of discretion is meant such capricious or
whimsical exercise of judgment as is equivalent to lack of

jurisdiction. The abuse of discretion must be 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 and hostility.[59]
By the above standard, we hold that Respondent Fernan did
not gravely abuse his discretion as Senate President in recognizing
Respondent Guingona as the minority leader. Let us recall that the
latter belongs to one of the minority parties in the Senate, the
Lakas-NUCD-UMDP. By unanimous resolution of the members of this
party that he be the minority leader, he was recognized as such by
the Senate President. Such formal recognition by Respondent
Fernan came only after at least two Senate sessions and a caucus,
wherein both sides were liberally allowed to articulate their
standpoints.
Under these circumstances, we believe that the Senate
President cannot be accused of capricious or whimsical exercise of
judgment or of an arbitrary and despotic manner by reason of
passion or hostility. Where no provision of the Constitution,
the laws or even the rules of the Senate has been clearly
shown to have been violated, disregarded or overlooked,
grave abuse of discretion cannot be imputed to Senate
officials for acts done within their competence and
authority.
WHEREFORE, for the above reasons, the petition is
hereby DISMISSED.
SO ORDERED.
Narvasa
CJ.,
Davide,
Jr.,
Melo,
Puno,
Martinez,
Quisumbing, and Pardo JJ., concur.
Romero, J., Please see Separate Opinion.
Bellosillo, J., No part. Did not take part in deliberation.
Vitug, J., Please see Separate Opinion.
Kapunan. J., concur with Justice Mendoza, see concurring and
dissenting opinion.
Mendoza, J., Please see concurring and dissenting opinion.
Purisima, J., concur and dissent with the opinion of Justice
Mendoza.

277
G.R. No. L-2821
March 4, 1949
JOSE
AVELINO, petitioner,
vs.
MARIANO J. CUENCO, respondent.
Vicente
J.
Francisco
for
petitioner.
Office of the Solicitor General Felix Angelo Bautista, Ramon Diokno
and
Lorenzo
M.
Taada
for
respondent.
Teehankee, Fernando, Sunico & Rodrigo; Vera, Montesines &
Navarro; Felixberto M. Serrano and Vicente del Rosario as amici
curiae.
RESOLUTION
In G.R. No. L-2821, Avelino vs. Cuenco, the Court by a vote of six
justices against four resolved to deny the petition.
Without prejudice to the promulgation of a more extended opinion,
this is now written briefly to explain the principal grounds for the
denial.
The Court believes the following essential facts have been
established:
In the session of the Senate of February 18, 1949, Senator Lorenzo
M. Taadare quested that his right to speak on the next session
day, February 21, 1949, to formulate charges against the then
Senate President Jose Avelino be reserved. His request was
approved.
On February 21, 1949, hours before the opening of the session
Senator Taada and Senator Taada and Senator Prospero Sanidad
filed with the Secretary of the Senate a resolution enumerating
charges against the then Senate President and ordering the
investigation thereof.
Although a sufficient number of senators to constitute
a quorum were at the Senate session hall at the appointed time
(10:00 A.M.), and the petitioner was already in his office, said
petitioner delayed his appearance at the session hall until about
11:35 A.M. When he finally ascended the rostrum, he did not
immediately open the session, but instead requested from the
Secretary a copy of the resolution submitted by Senators Taada
and Sanidad and in the presence of the public he read slowly and
carefully said resolution, after which he called and conferred with
his colleagues Senator Francisco and Tirona.

Shortly before 12:00 noon, due to the session be opened, the

petitioner finally called the meeting to order. Except Senator Sotto
who was confined in a hospital and Senator Confesor who is in the
United States, all the Senator were present.
Senator Sanidad, following a long established practice, moved that
the roll call be dispensed with, but Senator Tirona opposed said
motion, obviously in pursuance of a premeditated plan of petitioner
and his partisans to make use of dilatory tactics to prevent Senator
Taada from delivering his privilege speech. The roll was called.
Senator Sanidad next moved, as is the usual practice, to dispense
with the reading of the minutes, but this motion was likewise
opposed by Senator Tirona and David, evidently, again, in
pursuance of the above-mentioned conspiracy.
Before and after the roll call and before and after the reading of the
minutes, Senator Taada repeatedly stood up to claim his right to
deliver his one-hour privilege speech but the petitioner, then
presiding, continuosly ignored him; and when after the reading of
the minutes, Senator Taada instead on being recognized by the
Chair, the petitioner announced that he would order the arrest of
any senator who would speak without being previously recognized
by him, but all the while, tolerating the actions of his follower,
Senator Tirona, who was continuously shouting at Senator Sanidad
"Out of order!" everytime the latter would ask for recognition of
Senator Taada.
At this juncture, some disorderly conduct broke out in the Senate
gallery, as if by pre-arrangement. At about this same time Senator
Pablo Angeles David, one of the petitioner's followers, was
recognized by petitioner, and he moved for adjournment of session,
evidently, again, in pursuance of the above-mentioned conspiracy
to muzzle Senator Taada.
Senator Sanidad registered his opposition to the adjournment of the
session and this opposition was seconded by herein respondent
who moved that the motion of adjournment be submitted to a vote.
Another commotion ensued.
Senator David reiterated his motion for adjournment and herein
respondent also reiterated his opposition to the adjournment and
again moved that the motion of Senator David be submitted to a
vote.

278
Suddenly, the petitioner banged the gavel and abandoning the
Chair hurriedly walked out of the session hall followed by Senator
David, Tirona, Francisco, Torres, Magalona and Clarin, while the rest
of the senators remained. Whereupon Senator Melencio Arranz,
Senate President Pro-tempore, urged by those senators present
took the Chair and proceeded with the session.
Senator Cabili stood up, and asked that it be made of record it
was so made that the deliberate abandonment of the Chair by
the petitioner, made it incumbent upon Senate President Protempore Arranz and the remaining members of the Senate to
continue the session in order not to paralyze the functions of the
Senate.
Senate President Pro-tempore Arranz then suggested that
respondent be designated to preside over the session which
suggestion was carried unanimously. the respondent thereupon
took the Chair.
Upon motion of Senator Arranz, which was approved Gregorio Abad
was appointedActing Secretary, because the Assistance Secretary,
who was then acting as Secretary, had followed the petitioner when
the latter abandoned the session.
Senator Taada, after being recognized by the Chair, was then
finally able to deliver his privilege speech. Thereafter Senator
Sanidad read aloud the complete text of said Resolution (No. 68),
and submitted his motion for approval thereof and the same was
unanimously approved.
With Senate President Pro-tempore Arranz again occupying the
Chair, after the respondent had yielded it to him, Senator Sanidad
introduced Resolution No. 67, entitled "Resolution declaring vacant
the position of the President of the Senate and designated the
Honorable Mariano Jesus Cuenco Acting President of the Senate."
Put to a vote, the said resolution was unanimously approved.
Senator Cuenco took the oath.
The next day the President of the Philippines recognized the
respondent as acting president of the Philippines Senate.
By his petition in this quo warranto proceeding petitioners asked
the Court to declare him the rightful President of the Philippines
senate and oust respondent.

The Court has examined all principal angles of the controversy and
believes that these are the crucial points:
a. Does the Court have jurisdiction over the subject-matter?
b. If it is has, were resolution Nos. 68 and 67 validly approved?
c. Should the petition be granted?
To the first question, the answer is in the negative, in view of the
separation of powers, the political nature of the controversy
(Alejandrino vs. Quezon, 46 Phil., 83; Vera vs. Avelino, 77 Phil., 192;
Mabanag vs. Lopez Vito, 78 Phil., 1) and the constitutional grant to
the Senate of the power to elect its own president, which power
should not be interfered with, nor taken over, by the judiciary. We
refused to take cognizance of the Vera case even if the rights of the
electors of the suspended senators were alleged affected without
any immediate remedy. A fortiori we should abstain in this case
because the selection of the presiding officer affect only the
Senators themselves who are at liberty at any time to choose their
officers, change or reinstate them. Anyway, if, as the petition must
imply to be acceptable, the majority of the Senators want petitioner
to preside, his remedy lies in the Senate Session Hall not in the
Supreme Court.
The Court will not sally into the legitimate domain of the Senate on
the plea that our refusal to intercede might lead into a crisis, even
a resolution. No state of things has been proved that might change
the temper of the Filipino people as a peaceful and law-abiding
citizens. And we should not allow ourselves to be stampeded into a
rash action inconsistent with the calm that should characterized
judicial deliberations.
The precedent of Werts vs. Roger does not apply, because among
other reasons, the situation is not where two sets of senators have
constituted themselves into two senates actually functioning as
such, (as in said Werts case), there being no question that there is
presently one Philippines Senate only. To their credit be it recorded
that petitioner and his partisans have not erected themselves
into another Senate. The petitioner's claim is merely that
respondent has not been duly elected in his place in the
same one Philippines Senate.
It is furthermore believed that the recognition accorded by the
Chief Executive to the respondent makes it advisable, more than

279
ever, to adopt the hands-off policy wisely enunciated by this Court
in matters of similar nature.
The second question depends upon these sub-questions. (1) Was
the session of the so-called rump Senate a continuation of the
session validly assembled with twenty two Senators in the morning
of February 21, 1949?; (2) Was there a quorum in that session? Mr.
Justice Montemayor and Mr. Justice Reyes deem it useless, for the
present to pass on these questions once it is held, as they do, that
the Court has no jurisdiction over the case. What follows is the
opinion of the other four on those four on those sub-questions.
Supposing that the Court has jurisdiction, there is unanimity in the
view that the session under Senator Arranz was a continuation of
the morning session and that a minority of ten senators may not,
by leaving the Hall, prevent the other twelve senators from passing
a resolution that met with their unanimous endorsement. The
answer might be different had the resolution been approved only
by ten or less.
If the rump session was not a continuation of the morning session,
was it validly constituted? In other words, was there the majority
required by the Constitution for the transaction of the business of
the Senate? Justice Paras, Feria, Pablo and Bengzon say there was,
firstly because the minute say so, secondly, because at the
beginning of such session there were at least fourteen senators
including Senators Pendatun and Lopez, and thirdly because in view
of the absence from the country of Senator Tomas Confesor twelve
senators constitute a majority of the Senate of twelve three
senators. When the Constitution declares that a majority of "each
House" shall constitute aquorum, "the House: does not mean "all"
the members. Even a majority of all the members constitute "the
House". (Missouri Pac. vs. Kansas, 63 Law ed. [U. S.], p. 239). There
is a difference between a majority of "the House", the latter
requiring less number than the first. Therefore an absolute majority
(12) of all the members of the Senate less one (23), constitutes
constitutional majority of the Senate for the purpose of a quorum.
Mr. Justice Pablo believes furthermore than even if the twelve did
not constitute a quorum, they could have ordered the arrest of one,
at least, of the absent members; if one had been so arrested, there
would be no doubt Quorum then, and Senator Cuenco would have

been elected just the same inasmuch as there would be eleven for
Cuenco, one against and one abstained.
In fine, all the four justice agree that the Court being confronted
with the practical situation that of the twenty three senators who
may participate in the Senate deliberations in the days immediately
after this decision, twelve senators will support Senator Cuenco
and, at most, eleven will side with Senator Avelino, it would be
most injudicious to declare the latter as the rightful President of the
Senate, that office being essentially one that depends exclusively
upon the will of the majority of the senators, the rule of the Senate
about tenure of the President of that body being amenable at any
time by that majority. And at any session hereafter held with
thirteen or more senators, in order to avoid all controversy arising
from the divergence of opinion here aboutquorum and for the
benefit of all concerned,the said twelve senators who approved the
resolutions herein involved could ratify all their acts and thereby
place them beyond the shadow of a doubt.
As already stated, the six justices hereinabove mentioned voted to
dismiss the petition. Without costs.
SEPARATE OPINIONS:
MORAN, C.J., concurring:
I believe that this Court has jurisdiction over the case. 1 The present
crisis in the Senate is one that imperatively calls for the
intervention of the Court.
Respondent Cuenco cannot invoke the doctrine of non-interference
by the courts with the Senate because the legal capacity of his
group of twelve senators to acts as a senate is being challenged by
petitioner on the groundof lack of quorum (Attorney General ex rel.
Werts vs. Rogers et al., Atl. 726; 23 L. R. A., 352). If this group is
found sufficient to constitute a quorum under the Constitution, then
its proceedings should be free from interference. But if it is not
possessed of a valid quorum, then its proceedings should be
voided.
The issue as to the legal capacity of the Cuenco group to act as a
senate cannot be considered a political question the determination
of which devolves exclusively upon the Senate. That issue involves

280
a constitutional question which cannot be validly decided either by
the Cuenco group or by the Avelino group separately, for, if the
Cuenco group has no quorum, the Avelino has decidedly less. And
for obvious reasons, the two groups cannot act together inasmuch
as the members of the Avelino group, possibly to avoid trouble, do
not attend the sessions presided by the respondent believing as
they do that the latter was illegally elected. Upon the other hand,
the
Cuenco
group
believing
itself
as
possessing
the
constitutional quorum and not desiring to make any semblance of
admission to the contrary, does not find it convenient to compel the
attendance of any senator of the Avelino group. Then the question
arises--who will decide the conflict between the two groups? This
anomalous situation will continue while the conflict remains
unsettled, and the conflict will remain unsettled while this Court
refuses to intervene. In the meantime the validity of all the laws,
resolutions and other measures which may be passed by the
Cuenco group will be open to doubt because of an alleged lack
of quorum in the body which authored them. This doubt may
extend, in diverse forms, to the House of Representative and to the
other agencies of the government such as the Auditor General's
Office. Thus, a general situation of uncertainty, pregnant with grave
dangers, is developing into confusion and chaos with severe harm
to the nation. This situation may, to a large extent, be stopped and
constitutional processes may be restored in the Senate if only this
Court, as the guardian of the Constitutional, were to pronounce the
final word on the constitutional mandate governing the existing
conflict between the two groups. And, in my opinion, under the
present circumstances, this Court has no other alternative but to
meet challenge of the situation which demands the utmost of
judicial temper and judicial statesmanship. As hereinbefore stated,
the present crisis in the Senate is one that imperatively calls for the
intervention of this Court.
As to the legality of respondent's election as acting President of the
Senate,2I firmly believe that although petitioner's adjournment of
the session of February 21, 1949, was illegality cannot be
countered with another illegality. The session wherein respondent
was elected as acting President of the Senate was illegal because
when Senator Mabanag raised the question of a quorum and the

roll was called, only twelve senators were present. In the

Philippines there are twenty-four senators, and therefore,
the quorum must be thirteen. The authorities on the matter are
clear.
The constitution of our state ordains that a majority of each house
shall constitute a quorum. the house of representative consist of
125 members; 63 is a majority and quorum. When a majority
or quorum are present, the house can do business; not otherwise.
A quorum possessed all the powers of the whole body, a majority of
which quorum must, of course, govern. (In re Gunn, 50 Kan., 155;
32 P., 470, 476; 19 L.R.A., 519.)
Quorum as used in U. S. C. A. Const. Art. 4 sec. 8, providing that a
majority of each house shall constitute aquorum to do business, is,
for the purpose of the Assembly, not less than the majority of the
whole number of which the house may be composed. Vacancies
from death, resignation or failure to elect cannot be deducted in
ascertaining the quorum. (Opinion of Justice, 12 Fla. 653.)
The general rule is that a quorum is a majority of all the members
and a majority of this majority may legislate and do the work of the
whole. (State vs. Ellington 117 N. C., 158; 23 S. E. 250-252, 30
L.R.A., 532; 53 Am. SR., 580.)
. . . a majority of each House is necessary to transact business, and
a minority cannot transact business, this view being in keeping with
the provision of the Constitution permitting a smaller number than
a quorumto adjourn from day to day merely. (Earp vs. Riley, 40
OKL., 340; p. 164; Ralls vs. Wyand, 40 OKL., 323; 138 P. 158.)
The Constitution provides that "a majority of each (house) shall
constitute a quorum to do business." In other words, when a
majority are present the House is in a position to do business. Its
capacity to transact business is then established, created by the
mere presence of a majority, and depend upon the disposition or
assent or action of any single member or faction of the majority
present. All that the Constitution required is the presence of a
majority, and when that majority are present, the power of the
House arises. (U. S. vs.Ballin, Joseph & Co., 36 Law ed. 321, 325.)
If all the members of the select body or committee, or if all the
agents are assembled, or if all have been duly notified, and the
minority refuse, or neglect to meet with the other, a majority of

281
those present may act,provided those present constitute a majority
of the whole number. In other words, in such case, a major part of
the whole is necessary to constitute a quorum, and a majority of
the quorum may act. If the major part withdraw so as to leave
no quorum, the power of the minority to act is, in general,
considered to cease. (1 Dillon, Mun. Corp. 4th ed., sec. 283.) 3
Therefore, without prejudice to writing a more extensive opinion, if
necessary, I believe that respondent Mariano J. Cuenco has not
been legally elected as acting President of the Senate. It is true that
respondent Cuenco, in fact, must be the Senate President because
he represent the majority of the members now present in Manila,
and, at any new session with a quorum, upon the present senatorial
alignment, he will be elected to said office. But precisely he is now
the master of the situation, he must win his victory in accordance
with the Constitution. It is absolutely essential in the adolescent life
of our Republic to insist, strictly and uncompromisingly, on
thedemocratic principles consecrated in our Constitution. By such
efforts alone can we insure the future of our political life as a
republican form of government under the sovereignty of a
Constitution from being a mockery.
The situation now in this Court is this there are four members
who believe that there was no quorum in respondent's election as
against four other member who believe that there was
such quorum. Two members declined to render their opinion on the
matter because of their refusal to assume jurisdiction. And, one
member is absent from the Philippines. Thus, the question of
whether or not respondent has been legally elected is, to say the
least, doubtful in this Court under the present conditions. This
doubt, which taint the validity of all the laws, resolutions and other
measures that the Cuenco group has passed and may pass in the
future, can easily be dispelled by them by convening a session
wherein thirteen senators are present and by reiterating therein all
that has been previously done by them. This is a suggestion
coming from a humble citizen who is watching with a happy heart
the movement of this gallant group of prominent leaders
campaigning for a clean and honest government in this dear
country of ours.

PERFECTO, J., dissenting:

In these quo warranto proceedings the question as to who among
the parties is entitled to hold the position of President of the Senate
is in issue.
There is no question that up to Monday, February 21, 1949, at the
time the controversial incidents took place, petitioner Jose Avelino
was rightful occupant of the position. the litigation has arisen
because of the opposing contentions as to petitioner's outer and as
to respondent's election as acting President of the Senate, on
February 21, 1949.
Petitioner contends that the proceedings in which a resolution was
passed declaring the position of President of the Senate vacant and
electing respondent Mariano J. Cuenco as acting President of the
Senate were illegal because, at the time, the session for said day
has been properly adjourned, and the twelve Senators who
remained in the session hall had no right to convene in a rump
session, and said rump session lacked quorum, while respondent
contents that the session which was opened by petitioner had not
been legally adjournment, the Senators who remained in the
session hall had only continued the same session, and there
was quorum when the position of the President of the Senate was
declared vacant and when respondent was elected as acting
President of Senate, to fill the vacate position.
Petitioner's version of the facts, as alleged in his petition, is to the
effect that on Monday, February 21, 1949, at the time petitioner
opened the session in the Senate session hall, there were twenty
two Senators present who answered the roll call; Vicente J.
Francisco. Fernando Lopez, Emiliano TriaTirona, Pablo Angeles
David, Salipada Pendatun, Ramon Torres, Enrique Magalona, Carlos
Tan, Olegario Clarin, Melencio Arranz, Mariano Cuenco, Prospero
Sanidad, Lorenzo Taada, Vicente Madrigal, Geronima Pecson,
Camilo Osias, Carlos Garcia, Ramon Diokno, Jose Vera, Tomas Cabili,
Alejo Mabanag, and the petitioner Jose Avelino. While the minutes
of the preceding session was being read the crowd of more than
1,000 people who entered the Senate hall to witness the session,
became unruly, the repeated efforts of petitioner as well as the
sergeant-at-arms and other peace officers to maintain peace and
order notwithstanding. Fights and commotions ensued and several

282
shots were fired among the audience. The Senator who spoke could
not be heard because the spectators would either shout to drown
their voices or would demeans that some other Senator should take
the floor and be recognized by petitioner. Pandemonium reigned
and it was impossible for the Senate to proceed with its
deliberations free from undue pressure and without grave danger to
its integrity as a body and to the personal safety of the members
thereof. Senator Pablo Angeles David moved for adjournment until
Thursday, February 24, 1949. There being no objection, petitioner
adjourned the session until February 24, 1949. Thereupon
petitioner and nine other Senator namely, Vicente J. Francisco,
Fernando Lopez, Emiliano Tria Tirona, Pablo Angeles David, Sulipada
Pendatun, Ramon Torres, Enriquez Magalona, Carlos Tan, and
Olegario Clarin left the session hall. Senator Melencio Arranz,
President Pro-Tempore of Senate, went up the rostrum and,
assuming the presidency of the chamber, convinced the remaining
twelve Senators into a rump session, in which a resolution was
passed declaring vacant the position of the President of the Senate
and electing respondent as President of the Senate. Thereupon
respondent pretended to assume the office of president of the
Senate and continues to pretend to assume said office.
Petitioner alleged five grounds to claim that respondent is usurping
or illegally exercising the office of the President of the Senate: 1.
Petitioner had adjourned the session of the senate, the
adjournment having been properly moved and, without objection,
favorably acted upon; 2. Petitioner had full power to adjourn the
session even without motion under chapter II, Section 8, paragraph
(e) of the Rules of the Senate; 3 The ordinary daily session having
been adjourned, no other session could be called in the Senate on
the same day; 4 The President Pr-tempore had no authority to
assume the presidency except in the cases specified in Chapter I,
section 4 of the Rule of the Senate, and none of the conditions
therein mentioned obtained at the time in question; and 5. The
twelve Senators that convened in the rump session did not
constitute a quorum to do business under the Constitution and the
rule of the Senate, being less than one-half plus one of the twenty
four members of the Senate.
Respondent's version of the events as follows:

(a) Since Friday, February 18, 1949, when Senator Lorenzo M.

Taada announced and reserved in open session of the Senate that
on Monday, February 21, 1949, he would make use of his one-hour
privilege, it was known that formal charges would be filed against
the then Senate President, petitioner in this case, on said date.
Hours before the opening of the session on Monday, February 21,
1949, Senators Lorenzo M. Taada and Prospero Sanidad registered
in the Office of the secretary of the Senates a resolution in which
serious charges were preferred against the herein petitioner. A
certified copy of said resolution, marked as Exhibit "1" is hereto
attacked and made an integral part hereof:
(b) Although a sufficient number of senators to constitute
a quorum were at the Senate session hall at and before 10:00 A.M.,
schedule time for the session to begin, and in spite of the fact that
the petitioner was already in his office, said petitioner deliberately
delayed his appearance at the session hall until about 11:35 A.M.;
(c) When finally the petitioner ascended the rostrum, he did not
immediately open the session, but instead requested from the
Secretary a copy of the resolution submitted by Senator Taada
and Sanidad and in the presence of the public the petitioner read
slowly and carefully said resolution, after which he called and
conferred with his followers, Senators Francisco and Tirona;
(d) Shortly before 12:00 noon, due to the insistent requested of
Senators Sanidad and Cuenco that the session be opened, the
petitioner finally called the meeting to order;
(e) Senator Sanidad, following a practice long established in the
Senate, moved that the roll call be dispensed with as it was evident
that with the presence of all the 22 senator who could discharges
their functions, there could be no question of a quorum, but
Senator Tirona opposed said motion, evidently in pursuance of a
premeditated plan and conspiracy of petitioner and his followers to
make use of all sorts of dilatory tactics to prevent Senator Taada
from delivering his privilege speech on the charges filed against
petitioner. The roll call affirmatively showed the presence of the
following 22 Senators; Vicente J. Francisco, Fernando Lopez,
Emiliano Tria Tirona, Pablo Angeles David, Salipada Pendatun,
Ramon Torres, Enrique Magalona, Carlos tan, Olegario Clarin,
Melencio Arranz, M. Jesus Cuenco, Prospero Sanidad, Lorenzo M.

283
Taada, Vicente Madrigal, Geronima Pecson, Camilo Osias, Carlos
Garcia, Ramon Diokno, Jose Vera, Tomas Cabili, Alejo Mabanag and
Jose Avelino;
(f) Senator Sanidad next moved, as in the usual practice, to
dispense with the reading of the minute, but this motion was
likewise opposed by senator Tirona and David, evidently, again, in
pursuance of the above-mentioned conspiracy;
(g) Before and after the roll call before and after the reading of the
minutes, Senator Taada repeatedly took the floor to claim his right
to deliver his one-hour privilege speech in support of the charges
against petitioner, but the latter, then presiding, continually
ignored him; and when after the reading of the minutes, Senator
Taada instead on being recognized by the Chair, the petitioner
announced that he would being previously recognized by him, but
all the while, tolerating the antics of his follower, Senator Tirona,
who was continuously and vociferously shouting at Senator Sanidad
"Out of order! Out of order! Out of order! . . .," everything the latter
would ask the petitioner to recognized the right of Senator Taada
to speak.
(h) At this juncture, some disorderly conduct broke out in the
Senate gallery, as if by prearrangement, but the police officers
present were able to maintain order. No shots were fired among the
audience, as alleged in the petition. It was at about this same time
that Senator Pablo Angeles David, one of petitioner's followers, was
recognized by petitioner, and he moved for adjournment of the
session, evidently again, in pursuance of the above-mentioned
conspiracy to prevent Senator Taada from speaking;
(i) Senator Sanidad registered his opposition to the adjournment of
the session and this opposition was seconded by herein respondent
who moved that the motion of adjournment be submitted to a vote;
(j) Senator David reiterated his motion for adjournment and herein
respondent also reiterated his opposition to the adjournment and
again moved that the motion of Senator David be submitted to a
vote;
(k) Suddenly, the petitioner abandoned the Chair and hurriedly
walked out of the session hall.
(l) Without the session being adjournment, Senators David, Tirona,
Francisco,Torres, Magalona, and Clarin followed the petitioner out of

the session hall, while the rest of the senators, as afore-named in

sub-paragraph (e) hereof, remained to continue the session
abandoned by petitioner, whereupon Senator Melencio Arranz, as
Senate Pro-tempore, took the Chair and proceeded with the
session.
(m) Senator Cabili took the floor and delivered a speech, whereby
he asked that it be made of record as it was in so made that
the deliberate abandonment of the Chair by the petitioner, made it
incumbent upon SenatePresident Pro-tempore Arranz and the
remaining members of the Senate to continue the session in order
not to impede and paralyze the functions of the Senate;
(n) Senate President Pro-tempore Arranz then suggested that
respondent be designated to preside over the session, which
suggestion was carried unanimously. The respondent thereupon
took the Chair.
(o) Upon motion of Senator Arranz, which was carried unanimously,
Gregorio Abad was appointed Acting Secretary, as the Assistance
Secretary, who was then acting as Secretary, had followed the
petitioner when the latter abandoned the session;
(p) Senator Taada, after being recognized by the Chair, was then
finally able to deliver his privilege speech, Which took more than
hours, on the charges against the petitioner contained in the
Resolution, attacked hereto as Exhibit "1", and moved for the
immediate consideration and approval ofsaid Resolution. Senator
Sanidad reiterated this motion, after having firstread aloud the
complete text of said Resolution, and thereafter the same was
unanimously approved;
(q) With Senate President Pro-tempore Arranz again occupying the
Chair, after the respondent had yield edit to him, Senator Sanidad
introduced Resolution No. 67, entitled "Resolution declaring vacant
the position of the President of the Senate and designated the
Honorable Mariano Jesus Cuenco Acting President of the Senate," a
copy of which is herewith attacked and made an integral part
hereof as Exhibit "2". Put a vote, the said Resolutionwas
unanimously approved, respondent having abstained from voting;
(r) The respondent having been duly elected as Acting President of
the Senate, immediately took his oath of Office in open session,
before Senate President Pro-Tempore Melencio Arranz, and since

284
then, has been discharging the duties and exercising the rights and
prerogatives appertaining to said office;
(s) From the allegation of the petition, it clearly appears that the
petitioner had only nine senators in his favor and twelve, decidedly
against him, which fact negates the petitioner's assertion that there
was no opposition to the motion for adjournment submitted by
Senator David;
(t) From the beginning of the session of February 21, 1949, to the
allegedadjournment, it was evidently and manifestly the purpose of
the petitioner to deprive Senator Taada of his right to take the
floor and to speak on the charges filed against said petitioner; that
said petitioner resorted to all means to deprive the Senate of its
right and prerogative to deliberate on Senate Resolution No. 68,
Exhibit "1", and that when the petitioner realized that a majority of
the Senator who were present in the said session was ready to
approved said resolution, the petitioner abandoned the session;
(u) The minute of the session held on February 21, Exhibit 1949, a
copy of which is hereto attacked and made an integral part hereof
as Exhibit "3", show that the petitioner illegally abandoned the
Chair while the Senate was in session and that the respondent has
been duly elected Acting Senate President in accordance with the
provisions of the Constitution.
Respondent alleges further that Senator David's motion for
adjournment was objected to and not submitted to a vote and,
therefore, could not have been carried; that it is not true that
petitioner had the power to adjourn the session even without
motion; that the session presided over, first by petitioner and then
by respondent, was orderly, no Senator having been threatened or
intimidated by anybody, and after petitioner abandoned the session
continued peacefully until its adjournment at 4:40 P.M.; that there
was only one session held on said date; that petitioner's
abandonment of the Chair in the face of an impending ouster
therefrom constituted a temporaryincapacity entitling the Senate
President Pro-tempore to assume the Chair; that there
was quorum as, with the absence of Senator Tomas Confessor,
whowas in the U. S. and of Senator Vicente Sotto, who was
seriously ill and confined in the Lourdes Hospital, the presence of at
least twelve senators constitutes a quorum; that, despite

petitioner's claim that he adjourned the session to February 24,

1949, convinced that he did not count with the majority of the
Senators and not wanting to be investigated by the
specialinvestigation committee regarding the grave charges
preferred against him, the petitioner deliberately did not appear at
the session hall on said date.
Three special defenses are advanced by respondent: (a) Lack of
jurisdiction of the Supreme Court; (b) No cause of action as there
are only nine Senators who had recognized petitioner's claim
against twelve Senators or who have madepatent their loss of
confidence in him by voting in favor of his out ouster; and (c) The
object of the action is to make the supreme Court a mere tool of a
minority group of ten Senators to impose petitioner's will over and
above that of the twelve other members of the Senate, to entrench
petitionerin power.
In impugning the jurisdiction of the Supreme Court, respondent
contends that the present case is not justiciable, because it
involves a purely political question, the determination of which by
the
Senate
is
binding
and
conclusiveupon
the
court
(Alejandrino vs. Quezon, 43 Phil., 83; Vera vs. Avelino, 77 Phil., 192)
respondent has been recognized as acting President of the Senate
by the President of the Philippines and said recognition is binding
and conclusive on the courts (Barcelon vs. Baker, 5 Phil., 87;
Severino vs. Governor-General, 16 Phil., 366); the Senate is the
only body that can determine from time to time who shall be its
President and petitioner's only recourse lies in said body; and this
Court's action in entertaining the petition would constitute an
invasion and an encroachment upon the powers, rights and
prerogatives solely and exclusively appertaining to Congress, of
which the Senate is a branch.
Upon the conflicting claims of the parties as to the real events, this
Court authorized the reception of evidence. Before passing to
consider and to weigh said evidence so as to determine the true
events, it is only logical that we should first pass upon the question
of jurisdiction raised by respondent.
In attacking the jurisdiction of the Supreme Court respondent
alleges, as first ground, that the present controversy is not
justiciable in nature, involving, as it does, a purely political

285
question, the determination of which by the political agency
concerned, the Senate, is binding and conclusive on the courts.
The contention is untenable. In the first place, it begs question. It
assumes as premises that the question has been determined by the
Senate, when the two opposing parties claim that each one of them
represents the will of the Senate, and if the controversy should be
allowed to remainunsettled, it would be impossible to determine
who is right and who is wrong, and who really represent the Senate.
The question raised in the petition, although political in nature, are
justiciable because they involve the enforcement of legal precepts,
such as the provisions of the Constitution and of the rules of the
Senate. Thepower and authority to decided such questions of law
form part of the jurisdiction, not only expressly conferred on the
Supreme Court, but of which, by express prohibition of the
Constitution, it cannot be divested.
SEC. 2. The Congress shall have the power to define, prescribe, and
apportion the jurisdiction of the various court, but may not deprive
the Supreme Court of its original jurisdiction over cases affecting
ambassadors, other public ministers, and consuls, nor of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal,
certiorari, or writ of error, as the law or the rules of the court may
provide, final judgment and decrees of inferior courts in
(1) All cases in which the constitutionality or validity of any treaty,
law, ordinance or regulations is in question.
(2) All case involving the legality of any tax, impost, assessment, or
toll, or any penalty imposed in relation thereto.
(3) All cases in which the jurisdiction of any trial court is in issue.
(4) All criminal cases in which the penalty imposed is death or life
imprisonment.
(5) All cases in which an error or question of law is involved.
Because the legal questions raised in this case cannot be decided
without decided also what is the truth on the controversial facts, by
the very natureof things, the jurisdiction of the Supreme Court
reached the settlement of the conflict claims as to the real events.
Respondent alleges that he has been recognized by the President
of the Philippines as acting President of the Senate and that
executive recognition is binding and conclusive on the courts. The
contention is erroneous. The actions of the President of the

Philippines cannot deprive the Supreme Court of the jurisdiction

vested in it by the Constitution. If the Congress of the Philippines, in
which the Legislature power is vested, cannot deprive the Supreme
Court of its jurisdiction to decide questions of law, much less
canthe president of the Philippines, on whom is vested the
Executive power, which in the philosophical and political hierarchy
is of subordinate category to the of the Legislative power, do so.
The power to enact laws is higher than the power to execute them.
The third argument of argument of respondent, although based on
truth, has nothing to do with the legal questions raised in this case.
It is true that the Senate is the only body that can determine from
time who is and shall be its President, but when the legal questions
are raised in a litigation likein the present case, the proper court
has the function, the province and the responsibility to decide
them. To shirk that responsibility is to commit a dereliction of
official duty.
Finally, it is alleged that for this Court to entertain the petition, is
invade and encroach upon the powers, rights and prerogatives
solely and exclusively appertaining to the Legislative Department,
of which the Senate is a branch. The contention is erroneous. The
controversy as to thelegality of the adjournment declared by
petitioner, of petitioner's ousters, as a result of the resolution
declaring vacant the position of President of the Senate, or
respondent's election as acting President of the Senate, and as to
whether or not the twelve Senators who remained in the session
hall could continue holding session and if they constitute quorum,
are all legal question upon which courts of justice have jurisdiction
and the SupremeCourt is the final arbiter.
From the evidence, it appears that in the session of Friday, February
18, 1949, at the time the resolution of confidence in favor of
petitioner, introduced by the Senator Lopez, was being put to vote,
Senator Taada voted,Senator Taada voted in the negative,
alleging as ground damaging facts, supported by several checks,
highly detrimental to the personal and officialhonesty of petitioner.
At the same time, Senator Taada announced his intention of filing
in the next session, to be held on Monday, February 21, 1949,
formal charges against petitioner and of delivering during the socalled privilege hour a speech in support of said charges.

286
On said Monday morning, hour before the opening of the ordinary
daily session, Senator Taada and Sanidad registered with the
Secretary of the Senate a resolution for the appointment of a
Committee of three, composed of Senator Cuenco, Angeles David,
and Mabanag, with instructed to proceed immediately to
investigate the serious charges against petitioner embodiedin the
document.
Said resolution, marked as Exhibit 1 of the respondent's answer, is
as follow:
RESOLUTION ORDERING THE INVESTIGATION OF CHARGES
FILED AGAINST THE SENATE PRESIDENT, JOSE AVELINO.
WHEREAS, Senate President Jose Avelino, in a caucus of high
government officials of the Philippines Government and leaders of
the Liberal Partyheld at Malacaang palace on January 15, 1949,
delivered a speech,wherein he advocated the protection, or, at
least, tolerance, of graft and corruption in the government, and
placed the interest of grafters and corrupt officials as supreme and
above the welfare of the people, doctrine under which it is
impossible for an honest and clean governmentto exist;
WHEREAS, this speech of Senate President Jose Avelino was given
wide publicity by the press, especially the Chronicle Publication in
their issues of January 16 and 18, 1949, as follows:
The senate President defenses the abuses perpetrated by Liberal
Party men. He called the investigations of the surplus property
commission irregularities and the immigration quota scadal as acts
of injustice he describe the probe as "criminal" and "odious." He
flayed the National Bureau of Investigation agents for persecuting
Liberal party leaders.
"We are not angels", he said. "When we die we all go to hell. It is
better to be in hell because in that place are no investigations, no
secretary of justice, no secretary of interior to go after us."
Avelino, who is the present President of the Liberal party, ensured
the President for his actuations which, he claimed, were mainly
responsible for the division of the party into two hostile camps.
Avelino asked the President to "tolerate" if he could not "permit",
the abuse of the party in power, because why should we be saints
when in reality we are not?

He stressed that the present investigation being conducted by

President Quirino on the surplus property scandal and the
immigration quota rackety has lowered the prestige of the Liberal
Party in the eyes of the people, and is a desecration to the memory
of the late President Manuel Roxas. "It is a crime against the Liberal
Party", Avelino said.
Defining his attitude regarding rights and privileges of those who
are in power in the government, Avelino maintained that the Liberal
Party men are entitled to more considerations and should be given
allowance to use the power and privilege. If they abuse their power
as all humans are prone to do, they will be given a certain measure
of tolerance, Avelino said, adding, "What are we in power for?"
Avelino cited the surplus property investigations as an attempt to
besmear the memory of Presidential Roxas. As a result of these
investigations, the members of Congress are subjected to unjust
and embarrassing questioning by NBI, Avelino said. And what is
worse is the fact that these senators and representatives are being
pilloried in public without formal charges filed against them. (Manila
Chronicle issue of Jan. 16, 1949).
At last Saturday night's caucus Senate President Avelino for two
hours lectured to President Quirino on Liberal Party discipline. At
the same time he demanded "tolerance" on the part of the Chief
Executive by the party in power.
The investigations were conducted on vague charges, Avelino
claimed. Nothing specific has teen filed against atop Liberal Party
man. And yet National Bureau of Investigation agents have
persecuted top leader of the LiberalParty. That is not justice. That is
injustice. . . . It isodious. . . . It is criminal.
Why did you have to order an investigation Honorable Mr.
President? If you cannot permit abuses, you must at leasttolerate
them. What are we in power for? We are not hypocrites. Why
should we pretend to be saints when in realitywe are not? We are
not angels. And besides when we die we all go to hell. Anyway, it is
preferable to go to hell wherethere are no investigations, no
Secretary of Justice, no Secretary of Interior to go after us.
When Jesus died on the Cross. He made a distinction between a
good crook and the bad crooks. We can prepare to be good crooks.

287
Avelino related the story of St. Francis of Assisi. Athief sought
sanctuary in St. Francis' convent. When thesoldiers came to the
convent and ordered St. Francis to produce the wanted thief, St.
Francis told the soldiers that thehunted man had gone the other
way.
Avelino then pointed out that even a saint had condoned the sins of
a thief.
xxx
xxx
xxx
The investigation ordered by President Quirino, Avelino said, was a
desecration of the memory of the late President Roxas. The probe
has lowered, instead of enhanced, the prestige of the Liberal Party
and its leader in the eyes of the public.
If the present administration fails, it is Roxas and not Quirino that
suffers by it, because Quirino's administration is only a continuation
of Roxas, Avelino said.
Avelino compared all political parties to business corporations, of
which all members are stockholders. Every year the Liberal Party
makes an accounting of its loss profit. The Liberal Party, he said,
has practically no dividends at all. It has lost even its original
capital. Then he mentionedthe appointments to the government of
Nacionalistas like: Lino Castillejo,as governor of the Reconstruction
Finance Corporation, Nicanor Carag, consulto Madrid; and Vicente
Formoso,
General
Manager
of
the
National
Tabacco
Corporation."(Manila Chronicle issue of January 18, 1949.).
WHEREAS, after the first publication of the said speech in the
Manila Chronicle issue of January 16, 1949, the Senate President, in
a letter to the said news report was a "maliciously distorted
presentation of my remarks at that caucus, under a tendentious
headlines", and threatened that "unless the proper redness is given
to me, therefore, I shall feel compelled to take the necessary steps
to protect my reputation and good name";
WHEREAS, the Chronicle Publication not only refuse to retract or
make the rectification demanded by the Senate President, but on
the contrary, in their issue of January 18, 1949, challenged him to
take his threatened action, stating that "in order to est abolished
the truth, we are inviting the Senate President to file a libel suit
against the Chronicle" and further repeated the publication of their

reports on the Senate President speech in the same issue of

January 18, 1949 as quoted above;
WHEREAS, notwithstanding in the considerable length of time that
has elapsed, the Senate President has not carried out his threat of
filing action against the Chronicle Publication, thereby confirming,
in effect, his doctrine of tolerance of graft and corruption;
WHEREAS, in open and public session of the Senate on February
18, 1949, there were exhibited photostatic copies of four checks
totalling P566,405.60, which appears to have come into the
possession and control of the Senate President, after he had
assumed his office;
WHEREAS, the first of the aforesaid check, which is Manager's
Check No. M5375 of the National City Bank of the National City
Bank of New York, drawn on September 24, 1946, in favor of the
Senate President in the amount of P312,500.00, was indorsed by
him to his wife, Mrs. Enriqueta C. Avelino, who deposited it in her
current account with the Philippine National Bank on October 26,
1946;
WHEREAS, the second of the aforesaid checks, which is Manager's
Check No. 49706 of the Nederlands Indische Handelsbank, drawn
on October 21, 1946, in favor of the Senate President in the amount
of P196,905.60, was indorsedby him to his son, Mr. Jose Avelino, Jr.,
who cashed it October 22, 1946;
WHEREAS, the third of the aforesaid checks, which is Check No.
37262 of the Nederlandsch Indische Handelsbank, drawn on
October 23,1946 by Chung Liu Ching Long & Co., Ltd., a Chinese
concern, in favor of "cash", in the amount of P10,000.00, was
indorsed by the Senate President to his wife, Mrs. Enriqueta C.
Avelino, who deposited it in her Saving Account No. 63436 with the
Philippines National Bank on October 26, 1946;
WHEREAS, the fourth of the aforesaid checks, which is Check No.
37268 of the Nederlandsch Indische Handelsbank, drawn by the
aforementioned Chinese concern, Chiung Liu Ching Long and Co.,
Ltd., in the amount of P47,500.00 in favor of the Senate President,
was indorsed by him to his wife, Mrs. Enriqueta C. Avelino, who
deposited it in her current account with the Philippines National
Bank on October 26, 1946;

288
WHEREAS, of the four checks aforementioned, the one for
P196,905.60 was cashed by the Senate President's son, Jose
Avelino, Jr., on October 22, 1946; while of the three other checks
totalling P370,000.00 which was deposited by the Senate
President's wife, Mrs. Enriqueta C. Avelino, in her saving and
current accounts with the Philippines National Bank on October 26,
1946, P325,000.00 were withdraw by her on same day;
WHEREAS, in the course of the speech delivered by the Senate
President on the floor of the Senate on February 18, 1946, in an
attempt to explain the foregoing checks, he refused to be
interpolated on the same, and his explanation lacked such details
and definiteness that it left many doubts unsettled;
WHEREAS, in the case of the check for P312,500.00 the Senate
President explanation that the same represented proceeds from the
sale of surplus beer to cover party obligation is directly
contradicted by the source of the same, Ching Ban Yek, who
declared under oath before the Horilleno Investigating Committee
that the said sum of P312,500.00 had been loaned byhim to the
Senate President, who repaid the same within ten days;
WHEREAS, it appears that during the period from December 29,
1945 to April 30, 1948, deposits totalling P803,865.45 were made
in the current account of the Senate President's wife Mrs. Enriqueta
C. Avelino, in the Philippine National Bank, of which amount
P6,204.86 were deposited before his election to office and the sum
of P797,660.59 was deposited after his election;
WHEREAS, the tax returns of the Senate President do not bear
explanation madein his speech of February 18, 1949 to the effect
that he and his wife had made substantial amounts in commercial
transaction in shoes and liquor;
WHEREAS, in his said speech of February 18, 1949, the Senate
President said that "en politica todo vale", and that inasmuch as
the Nacionalistas were prone to commit frauds, it was right for the
Liberals to commit frauds in the electionsto even up with frauds
committed by the opposition;
WHEREAS, the said speech of February 18, 1949 delivered by the
SEnate President justified the commission of electoral frauds, which
justification is a direct attack on the sovereignty of the people and
may be a cause of unrest or resolution;

WHEREAS, the senate President, as ex-officio Chairman of the

Commission on Appointments which passes upon all Presidential
appointment, including thoseto the judiciary, has abused the
prerogatives of his office by seeking in several instances to
interfere with and influence some judge in decidingcase pending
before, thereby imperilling the independence of the judiciaryand
jeopardizing the impartial administration of justice;
WHEREAS, the honor, dignity and prestige of the people and of the
membersof the Senate demand a through, impartial and immediate
investigation of allforegoing; Now, therefore,
1 Be it resolved, To appoint, as they are hereby appointed
2 Committee of three (3) members of this Senate, to be com
3 posed of Senator Cuenco, Angeles David and Mabanag, who
4 shall immediately proceed to investigate the charges mentioned
5 above, with full powers to compel the attendance of witnesses
6 and the production of books of account, documents, and other
7 evidence, and to utilized the facilities and the services of such
8 personnel of this Senate as it may deem necessary, with in
9 structions to render its report and recommendations to the
10 Senate on or before Friday, February 25, 1949.
Adopted, February 21, 1949.
Although
a
sufficient
number
of
Senators
to
constitute quorum were already present in said morning at and
before 10:00 o'clock, the schedule time for the daily session to
begin, the session was not then opened, because petitioner failed
to appear in the hall until about 11:35, the time petitioner
ascended the rostrum where, instead of calling the meeting to
order, he asked for a copy of the resolution introduced by the
Senators Taada and Sanidad and, after reading it slowly, he called
to his side Senators Angeles David and Tirona and conferred with
them.
Only after the insistent requests of Senators Sanidad and Cuenco
that thesession be opened, that petitioner called the meeting to
order shortly before 12:00 o'clock noon.
Senator Sanidad moved that the roll call be dispensed with. Senator
Tirona opposed the motion and the roll call showed the presence of
the following twenty two Senators: Vicente J. Francisco, Fernando
Lopez, Emiliano TriaTirona, Pablo Angeles David, Salipada Pendatun,

289
Ramon Torres, Enrique Magalona, Carlos Tan, Olegario Clarin,
Melencio Arranz, Mariano Jesus Cuenco, Prospero Sanidad, Lorenzo
Taada, Vicente Madrigal, Geronima Pecson,Camilo Osias, Carlos
Garcia, Ramon Diokno, Jose Vera, Tomas Cabili, Alejo Manag and
Jose Avelino.
Senator Sanidad again moved that the reading of the minutes be
dispersed with, but the motion was again opposed by Senator
Tirona whose opposition was joined by Senator Angeles David, and
the reading of the minutes proceeded.
Senator Taada repeated took the floor to floor to claim his right to
deliver his one-hour privilege speech in support of the charges
against petitioner,pursuant to the announcement he made in the
session of February 18, 1949; he did it before and after the roll call
and the reading of the minutes. he wasignored by the Chair and
petitioner announced that he would order the arrestof any Senator
who speak without having been previously recognized by
him.Senator Sanidad requested the Chair to recognized the right of
Senator Taada to speak, and every time he would make the
request, Senator Tirona would oppose him upon the ground that the
requests were out of order.
Meanwhile, commotion and disorder took place in the Senate
gallery. Shout were heard from individuals of the audience, where
two fist fight took place. The detonation of a gun shot was heard
from outside. Senator Angeles David, after being recognized by the
Chair, moved for adjournment of the session. The motion was
objected by Senator Cuenco who, at the same time, moved thatthe
motion be submitted to vote. Petitioner, instead of submitting to
vote the motion to adjourn, banged the gavel and declared the
session adjourned until next Thursday, February 24, 1949, and,
thereupon, left the session hall followed by the nine Senators
(Vicente J. Francisco, Fernando Lopez, Emiliano Tria Tirona, Pablo
Angeles David, Salipada Pendatun, Ramon Torres, Enrique
Magalona, Carlos Tan, and Olegario Clarin), supporting him. Twelve
SEnator, respondent and his eleven supporters, remained in the
session hall. Senator Arranz, President Pro-tempore of the SEnate,
ascended the rostrum,and called those Senators present to order.
Senator Mabanag raised the question of quorum and the question
of quorum and the President Pro-tempore ordered a roll call, to

which all the twelve Senators remaining in the sessionhall

answered.
The President Pro-tempore declared the presence of quorum and
those presentproceeded to continue transacting business. Senator
Cabili took an made it of record that the deliberate abandonment of
the Chair by petitioner made it incumbent upon the Senate
President Pro-tempore and those remainingmembers of the Senate
to continue the session in order not to impede and paralyze the
functions of the Senate. Senator Arranz suggested that respondent
be designated to preside over the session and the suggestion was
carried unanimously and respondent took the Chair.
Senator Taada delivered his privilege speech, which took two
hours on the charge against petitioner contained in Resolution No.
68, Exhibit "1", and moved for the immediate consideration and
approval of said resolution, thecomplete text of which was read.
The motion was seconded by Senator Sanidad, and the resolution
was unanimously approved. Respondent yielded the Chair to the
President Pro-tempore and Senator Sanidad introduced Resolution
No.67, Exhibit "2", which read as follows:
RESOLUTION DECLARING VACANT THE POSITION OF THE
PRESIDENT OF THE SENATE AND DESIGNATING THE HONORABLE
MARIANO JESUS CUENCO ACTING PRESIDENT OFTHE SENATE.
Resolved
by
the
Senate
in
session
assembled,
That
a quorum exists; that the Honorable Jose Avelino, President of the
Senate having abandoned the chair, his position is hereby declared
vacant; and that, the Honorable Mariano JesusCuenco of Cebu,
designated Acting President of the SEnate, until further orders from
this Body.
Adopted, February 21, 1949.
The resolutions unanimously approved, with respondent abstaining
from voting. Pursuant to said resolution, respondent took his oath
of office inopen session before President Pro-Tempore Arranz and
has started, since then,to discharge the duties, rights and
privileges of acting President of theSenate.
The above recital of facts is based on our findings on the evidence
on record. From the said facts we believe the following conclusions
are unavoidable.
1. The adjournment declared by petitioner was arbitrary and illegal.

290
2. After petitioner and the 9 Senators supporting him had walked
out from the session hall, the Senate could not continue holding
session and transact business for lack of quorum.
In the following discussion we will express the reasons in support of
the above conclusions.
ILLEGAL ADJOURNMENT
A motion to adjourn has the highest precedence when a question is
under debate and, with certain restriction, it has the highest
privilege under all other conditions. Under parliamentary practice,
even questions of privilege and the motion to reconsider yield to it.
The motion to adjourn may be made after the "yeas'' and "nays"
are ordered and before the roll call has begun, before reading of the
journal. The motion is not debatable and, after the motion is made,
neither another motion nor an appeal may intervene before the
taking of the vote.
The power to adjourn is one of the exclusive prerogatives of a
legislative chamber. It cannot be exercised by any single individual,
without usurpation of the collective prerogatives. It is too
tremendous a power to be wieldedby a single individual. The
functions of the Senate and its opportunity to transact official
business cannot be left to the discretion of a single individual
without jeopardizing the high purposes for which a legislative
deliberative body is established in a democratic social order. Singlehandedindividual discretion on the matter may not mean anything
other than placing the legislative chamber under a unipersonal
tyranny.
There is no provision in the present rules of the Senate which
expressly or impliedly authorizes an adjournment without the
consent of the body or one which authorizes the presiding officer to
decree motu
proprio said
adjournment,
and
the
sound
parliamentary practice and experience in thiscountry and in the
United States of America, upon which ours is patterned, would not
authorize the existence of such a provision.
Petitioner alleges that he ordered the adjournment because the
motion of Senator Angeles David to said effect was properly made
and met with no objection. If this version of the facts is true, then it
was right for petitioner to declare the adjournment, because the
absence of anyobjection, provided the motion was properly made

and the other Senators after having been properly apprised of the
motion, did not object to it, was an evidence of an implied consent
of all the members. The evidence, however, fails to support
petitioner's claim.
We are inclined to consider respondent's version to be more in
consonance with truth. We are of opinion that the motion to adjourn
was actually objected to. Senator Taada was bent on delivering a
speech he had ready onthe charges embodied in a resolution
fathered by himself and by Senator Sanidad, which both filed early
in the morning, long before the session was opened. The
formulation of said charges had been announced days before,since
the session of Friday, February 18, 1949, when he showed
photostatic copies of some checks as basis of a part of the charges
to be filed. In said Friday session respondent's group suffered
defeat on the approval of the resolution of confidence fathered by
Senator Lopez. And it is understandable that respondent's group of
Senators, believing themselves to constitute the majority, did not
want to waste any time to give a showing of said majority and must
have decided to depose petitioner as soon as possible to wrestfrom
him the Senate leadership that upon democratic principles rightly
belongs to them.
As a showing of eagerness to hurry up the unfolding events that
would give them the control of the Senate, Senator Sanidad moved
to dispense with the roll call and the reading of the minutes, and
had been requesting that Senator Taada be recognized to take the
floor. Senator Taada himself made attempts to deliver his speech.
Evidently, petitioner and his supported decided to adopt a blocking
strategyto obstruct the process that would give due course to the
investigationof the serious charges made in resolution No. 68,
Exhibit 1, and wouldeffect petitioner's ouster as President of the
Senate.
This strategy is evidence by the belated appearance of petitioner
and his supporters at the session hall and petitioner's
procrastination in opening the session, by taking all his time in
reading first the Taada and Sanidad resolution, formulating
charges against him, and conferring with Senators Angeles David
and Tirona and in not calling to order the members of the Senate

291
before Senator's Cuenco and Sanidad began urging that the session
beopened.
Petitioner's allegation that, even without motion from any member,
he could adjourn the session under the rules of the Senate, is not
well taken. There is nothing in the rules of the Senate giving
petitioner such authority. Theprovisions quoted in the petition
authorizes the Senate President to take measures to stop disorder,
but that power does not include the one to adjourn.
The circumstances lead us to the conclusion that illegal
adjournment and the walk out of the petitioner and his supporters
from the session hall had the purpose of defeating or, at least,
delaying, action on the proposed investigation of the charges
against petitioner and of his impedingouster, by the decisive votes
of respondent's group of Senators.
The adjournment decreed by petitioner was arbitrary and illegal.
QUORUM
There is no controversy that at the session in question there were
present in the session hall only twelve Senators, those composing
respondent's group, and this fact had been ascertained by the roll
call ordered by President Pro-tempore Arranz, after Senator
Mabanag had raised the question of quorum.
The Constitution provides:
A majority of each House shall constitute a quorum to do
business, but a smaller number may adjourn from day to
day and may compel the attendance of absent Members in
such manner and under such penalties as such House may
provide. (Sec. 10, Sub-sec. 2 Article VI.)
The majority mentioned in the above provision cannot be other
than the majority of the actual members of the Senate. The words
"each House" in the above provision refer to the full membership of
each chamber of Congress.
The Senate was and actually is composed of 24 Senators, and a
majority of them cannot be less than thirteen. Twelve is only half of
twenty-four. Nowhere and at no time has one-half even been the
majority. Majority necessarily has to be more than one-half.
We have heard with interest the arguments advanced by
respondent's counsel, premised on the fact that the above
constitutional provision does not use the words "of the members"

and the theory of the amicus curiae that themajority mentioned in

the Constitution refers only to the majority of the members who
can be reached by coercive processes. There is, however, nothing
in said arguments that can validly change the natural interpretation
of theunmistakable wordings of the Constitution. "Majority of each
House" can mean only majority of the members of each House, and
the number of said members cannot be reduced upon any artificial
or imaginary basis not authorized by the context of the Constitution
itself or by the sound processes of reason.
For all the foregoing, we conclude that:
1. The legal and constitutional issues raised by the petitioner in this
case, notwithstanding their political nature and implications, are
justiciable and within the jurisdiction expressly conferred to the
Supreme Court, which cannot be divested from it by express
prohibition of the Constitution. Should there be analogous
controversy between two claimants to the position of the President
of the Philippines, according to the Solicitor General, one of the
attorneys for respondent, the Supreme Court would have
jurisdiction to decide the controversy, because it would raise a
constitutional question. Whether there was a quorum or not in the
meeting of twelve Senators in whichrespondent was elected acting
President of the Senate, is a question that call for the
interpretation, application and enforcement of an express and
specific provision of the Constitution. Should the two absent
Senators comeand attend the session and side with the petitioner's
group, it is agreed that the Senate will be kept at a stand still,
because of the deadlock resulting from twelve Senators, each
group supporting petitioner's and respondent's opposing claims to
the position of President of the Senate. Admitting that pressure of
public opinion may not break the impasse, it hasbeen suggested
from respondent's side that it may invite revolution. Between the
two alternatives, jurisdiction of the Supreme Court and revolution,
there is only one choice possible, and that is the one in consonance
with the Constitution, which is complete enough to offer orderly
remedies for any wrong committed within the framework of
democracy it established in this country. Should this Supreme Court
refuse to exercise jurisdiction in this case,such refusal can only be
branded as judicial abdication, and such shirking of official

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responsibility cannot expect acquittal in the judgment of history.
The gravity of the issues involved in this case, affecting not only
the upper branch of Congress, but also the presidential succession
as provided by Republic Act No. 181, is a challenge to our sense of
duty which we should not fail to meet.
2. The adjournment decreed by petitioner of the Monday session,
without the authority of the Senate, was illegal and, therefore, null
and void.
3. The rump session held by twelve Senators, the respondent and
his supporters, after petitioner and his nine supporters had walked
out from the session hall, had no constitutional quorum to transact
business.
4. The resolution declaring vacant the position of the President of
the Senate and choosing respondent as acting President of the
Senate, has been adopted in contravention of the Constitution for
lack of quorum. The fact that respondent has been designated only
as acting President of the Senate, a position not contemplated by
the Constitution or by Republic Act No. 181 on presidential
succession, so much so that his position in acting capacity,
according to his own counsel, would not entitle respondent to
Succeedto the position of the President of the Philippines,
emphasizes the invalidity of respondent's election.
Notwithstanding the importance of this case, the legal issues
involved are very simple, and it would not be hard to reach a
prompt conclusion if we could view the controversies with the
attitude of a mathematician tacklingan algebraic equation. Many
considerations which, from the point of view of laymen, of the
press, of public opinion in general and the people at large, may
appear of great importance, such as who will wield the power to
control the Senate and whether or not petitioner is guilty of the
serious charges filed against him, are completely alien to the
questions that this Court must answer. The motives and
motivations of petitioner and respondent of their respective
supporters in the Senate in taking the moves upon which this case
has arisen are their exclusive business and should not be minded
for the purposes of our decision.
The members of the Senate were and are free to depose petitioner
and to elect another Senator as president of the Senate, and their

freedom to make such change is subject only to the dictates of

their own conscience and to anyverdict that the people, through
the electorate, may render at the polls, and to the judgment of
historians and posterity. But in making such changes of leadership,
the Senate and the Senators are bound to follow the
orderlyprocesses set and outlined by the Constitution and by the
rules adopted by the Senate as authorized by the fundamental law.
Any step beyond said legal bounds may create a legal issue which,
once submitted to the proper courts of justice, the latter cannot
simply wash their hands and ignore the issue upon the pretext of
lack of jurisdiction, adopting the indifferent attitude of a passerby
who does not care whether the lashing of the wind may causea live
wire to ignite a neighboring house.
When a Senator or a number of Senators come to the Supreme
Court, complaining that the President of the Senate has adjourned
or is adjourning the daily session of the Senate over and above
objections voiced from thefloor and without obtaining first the
approval or consent of the majority, we cannot close our eyes to
the complaint or bury our heads in the sand in ostrich fashion:
Otherwise, we would be disregarding ours sworn duty and,with our
abstention or inaction, we would be printing the stamp of our
approval to the existence and continuation of a unipersonal tyranny
imposed upon the upper chamber of Congress, a tyranny that may
obstruct and defeat the functioning and actuations of the Senate
and, consequently, of the whole Congress, thus depriving the
country of the benefits of legislation.
When a member of the Senate comes to us complaining that he is
being deprived of the powers and prerogative of the position of
President of the Senate, to which he has been duly elected because
twelve Senators, without constituting a quorum, have illegally
convened and voted to depose him and to elect another Senator in
his place, he raises a constitutional question of momentous
importance which we should not fail to answer without betraying
the official trust reposed on us. Such complaint constitutes, in
effect, an accusation of usurpation of authority by the twelve
Senators, in utter violation of the fundamental law. The situation
would demand ready and noother agency of government can offer

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that remedy than the Supreme Court itself with whom the
complaint has been filed.
The existence of a quorum in a collective body is an indispensable
condition for effective collective action. Because a society or
collective body is composed of separate and independent individual
units, it cannot exist without the moral annectent of proper of
organization and can onlyact in organized form. Every time it has to
act, it has to an organic whole, and quorum here is the organizing
element without which the personality of the body cannot exist or
be recognized. The importance of such organizing element has
been recognize by the members of our Constitutional Convention,
and that is the reason why they inserted in the Constitution the
provision requiring the existence of quorum for the former National
Assembly to transact official business and that requirement was
also imposed by the National Assembly when, amending the
Constitution, it voted itself out ofexistence, to be replaced by a
bicameral Congress. The requirement, both in the original text of
the Constitution and in the amendment, had been ratified by the
sovereign will of the people.
When we required a majority of a legislative chamber to constitute
a quorum we did it for mighty reasons, such as that democracy is
based on the rule of the majority and, to allow a quorum of less
than the majority of the members, one-half of them for example, as
in the present controversy, is to allow the anomalous and anarchic
existence of two independent bodies where the Constitution
provides for only one. If the twelve Senators of respondent's group
constitute quorum to transact official business, what willpreclude
the twelve remaining Senators from constituting themselves into
a quorum to transact official business? This is not impossible,
should Senator Sotto decide to attend the session, even if carried in
a stretcher, and Senator Confesor returns from abroad and sides
with petitioner's group. Then there will be, in effect, two Senate
and, according to respondent's theory the Supreme Court will have
no jurisdiction to decide the conflict, and noone decide it except
public opinion or, in its failure, revolution. Such absurd situation
and catastrophic result should be avoided:
Lack of jurisdiction is sometimes a refuge behind which weak courts
may take shelter when afraid to displease the powerful.

Instead of disputing the jurisdiction of the Supreme Court in this

case, everybody must congratulate himself because petitioner,
instead of resorting to any high-handed mean to enforce his right to
continue holding the positionof the President of the Senate, has
come to us for proper redress by the orderly by the orderly
processes of judicial settlement. Notwithstanding the fact that
three year ago, he impugned the jurisdiction of the Supreme Court
and won his case on that ground the injustice then
committedagainst the suspended Senators Vera, Diokno and
Romero now being more generally recognized petitioner came to
this Court to submit his case to our jurisdiction.
The action taken by petitioner in filing his complaint with this
Supreme Court is premised on this sharing the conviction that said
Tribunal is the last bulwark of the rights and liberties of the people,
the final arbiter on all constitutional conflicts, and the ultimate
redoubt of the majesty of the law. That conviction and faith should
not be betrayed, but rather strengthened, and more imperatively
nowadays when the majesty of the law, the basic tenets of the
Constitution, the principles of humanity springing fromthe golden
rule, which is the law of laws, are being the subject of bold
onslaughts from many elements of society, bent on taking justice in
their own hands or on imposing their will through fraud or violence.
The malady is widespread enough to imperatively and urgently
demand a more complete respect and faith in the effectiveness of
our system of administration of justice.
For the Supreme Court to renounce its jurisdiction in this case is to
disappoint the believers in a philosophy and social order based on
constitutional processes and on legal juridical settlement of all
conflicts that may beset a democracy. It has been said in the
hearing of this case that for this Court to refuse cognizance of it
may not have other alternative,if the pressure of public opinion
may fail and by experience we know that it had suffered many
failures than revolution. This immeasurable responsibilityof this
Supreme Court if it should falter in the performance of its plain duty
and should dispose of this case with the indifference with which a
beach vacationist would dismiss a gust of wind.
The principle of separation of powers, so often invoked, to bind the
hands of justice into futility, should not be understood as absolute.

294
It is an apt rule of the tri-partite division of government as
enunciated by Aristotle and further developed by Montequieu, as
the best scheme to put in practice the system of check and balance
considered necessary for a workable democracy. To make absolute
that principle is to open the doors irretrievable absurdity and to
create three separate governments within a government and three
independent states within a state. Indeed, it is to avoid such a
teratologiccreature that the Constitutional Convention had not
inserted among the principles embodied in the fundamental law.
Judicial determination of all constitutional or legal controversies is
the inherent function of courts. The Constitution of the United
States of America, unlike our own Constitution, is silent a to the
power of courts of justice to nullify an unconstitutional act of
Congress. Notwithstanding the silence, when the proper case arose,
the United States Supreme Court, under the wise leadership of
Chief Justice Marshall, had not hesitated in declaring null and void a
law enacted in contravention of constitutional provisions. The
Supreme Court of the Republic of the Philippines should not fail to
match such and outstanding evidence of evidence of judicial
statesmanship.
To bolster the stand against our assumption of jurisdiction in this
case the theory has been advanced that, the President of the
Philippines having recognized respondent as a duly elected acting
President of the Senate, that recognition is final and should bind
this Court. The theory sprouts from the same ideology under which
a former king of England tried to order Lord Coke how the latter
should dispose of a pending litigation. Our answer is to paraphrase
the great English judge by saying that nothing should guide us
except what in conscience we believe is becoming of our official
functions, disregarding completely what the President of the
Philippines may say or feel about it.
As a matter of fact, two pretenders may dispute the office. As in the
present case, Congress may split into two groups after a
presidential election and each group may proclaim a different
candidate as the duly elected Presidentof the Philippines. Because
of a mistaken ideas to the scope of the principle of separation of
powers, if the case is brought to us for decision, shall we, as

Pontious Pilate, wash our hands and let the people bleed and be
crucifiedin the Calvary of revolution?
There is absolutely no merit in invoking the unfortunate decision in
the case of Vera vs. Avelino, (77 Phil., 1.92). No one now would
regret more that such a decision had been rendered than petitioner
himself, the very one whowon it upon the pusillanimous judicial
theory of lack of jurisdiction. The more said decision is forgotten,
the better, it being one of the blemishes without which the
escutcheon of the post-liberation Supreme Court would be spotless.
We vote to render judgment granting the petition and ordering
respondent to relinquish the powers, prerogative and privileges of
the position of the President of the Senate in favor of petitioner
who, on the other side, should be restrained from putting any
obstacle or obstruction by illegal adjournments or otherwise, in the
holding of the, regular daily session of the Senate. Said body should
be allowed to continue transacting official business unhampered by
any procedure intended to impede the free expressionof the will of
the majority.
BRIONES, M., dissente:
Sin perjuicio de redactar una opinion mas extensa sobre mi voto en
ese asunto, me permito adelantar las siguientes observaciones:
(1) Esta Corte Suprema tiene jurisdiccion sobre el asunto.
Reafirmo la posicion tomada por mi en los asuntos de
Vera contra Avelino (77 Phil., 192) y Mabanag contra Lopez Vito (78
Phil., 1). La cuestion constitutional y legal aqui debatida no es de
caracter puramente politico en el sentido de que esta Corte deba
inhibirse de enjuiciarla, sino que es perfectamente justiciable. Se
plantea la cuestion de si el grupo de senadores que eligio al
recurrido como presidente interino del Senado tenia facultad para
hacerlo. Se alega y se sostiene que no existia dicha facultad,
puesto que cuando dicho grupo se reunio no habia
un quorum presente de conformidad con los terminos de la
Constitucion y de los reglamentos del Senado. Esta cuestion es
justiciable y puede y debe ser enjuiciada, determinada y resuelta
por esta Corte, ya que la parte agraviada ha venido a nosotros en
demanda de remedio. Esta Corte no puede lavarse las manos en un
ademan de inhibicion pilatista; no puede continuar con la politica

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de esconde-cabeza-en la arena-del-desierto estilo aveztruz. El issue
constitucional y legal discutido es importante, muy importante.
Tiene repercusiones directas y vitalisimas en la vida, libertad y
hacienda de los ciudadanos. Es el negocio supremo de legislar lo
que esta en debate. Es, por tanto, una de las esencias de la misma
republica el tema de la controversia. La escaramuza politica es lo
de menos; el meollo juridico-constitucional es lo esencial e
importante.
Es tanto mas urgente que esta Corte asuma jurisdiccion sobre el
caso cuanto que el conflicto surgido en el Senado entre los dos
grupos politicos en guerra ha cobrado las proporciones de una
tremenda crisis nacional, preada de graves peligros para la
estabilidad de nuestras instituciones politicas, para el orden publico
y para la integridad de la existencia de la nacion.
Tenemos un precedente tipico en la jurisprudencia del Estado de
New Jersey, Estados Unidos de America. Es el caso de
Werts vs. Rogers, del ao 1894, Atlantic Reporter, Vol. 28, p. 728,
N. J. La analogia es completa. Tambien se disputaban la presidencia
del Senado dos Senadores, cada cual pretendiendo ser al legitimo.
Tambien hubo dos facciones, cada cual reclamando ostentar la
genuina representacion popular. Un grupo se llamo "Adrian Senate"
y el otro grupo "Rogers Senate", por los nombres de los presidentes
en disputa. Se arguyo igualmente que la Corte Suprema de New
Jersey no podia asumir jurisdiccion sobre el caso por tratarse de
una cuestion eminentemente politica, por tanto no justiciable. La
Corte, sin embargo, conocio del caso y, por boca de su Presidente
el eminente jurisconsulto Mr. Beasley, hizo el siguiente categorico
pronunciamiento:
. . . . That this court has the legal right to entertain jurisdiction in
this case, displayed by this record, we have no doubt; and we are
further of opinion that it is scarcely possible to conceive of any
crisis in public affairs that would more imperatively than the
present one call for the intervention of such judicial authority.
(supra, p. 758.)
Ademas de la justiciabilidad de la materia en controversia, una de
las principales razones invocadas por la Corte Suprema de New
Jersey para asumir jurisdiccion sobre el caso fue la extrema
necesidad de resolver un dead lock que paralizaba la maquinaria

legislativa, afectaba a la estabilidad del gobierno y ponia en grave

peligro los intereses publicos. Pregunto: no existe la misma razon
de extrema necesidad en el presunto caso? que duda cabe de que
el conflicto entre las dos facciones en nuestro Senado esta
afectando seriamente a los intereses publicos? que duda cabe de
que la normalidad constitucional esta rota, con grave preocupacion
de todo el mundo y con grave dao de la tranquilidad publica?
(2) El levantamiento de la sesion ordenado por el presidente
Avelino fue ilegal y arbitrario. Estimo que el presidente Avelino
obro ilegal y arbitrariamente al ordenar el levantamiento de la
sesion frente a la oposicion firme, energica y tenaz de algunos
senadores adversos a el. En vista de esta oposicion, el deber de la
Mesa era someter a votacion la mocion de levantamiento de la
sesion presentada por el Senador Angeles David. Avelino no tenia
el derecho, por si y ante si, de declarar levantada la sesion.
Solamente cuando no se formula ninguna objection es cuando
rutinariamente el presiding officer puede dar por aprobada una
mocion de levantamiento de la sesion. Si la facultad de levantar la
sesion no estuviera sujeta a la expresa voluntad de la mayoria,
seria un arma sumamente peligrosa en manos de un presidente
despotico y arbitrario.
La pretension de que el Senador Avelino ordeno el levantamiento
de la sesion en uso de sus facultades inherentes, en vista de que el
mismo creia que habia un peligro inminente de desorden y tumulto
en la sala de sesiones, es completamente insostenible. Las
circunstancias del caso no justifican semejante pretension, a tenor
de las pruebas obrantes en autos. Lo que debia haber hecho el
Senador Avelino era tratar de apaciguar al publico y prevenir todo
conato de desorden. Tenia medios para hacerlo. No lo hizo. En
cambio, dejo la silla presidencial juntamente con los senadores de
su grupo. Esto equivalia a una desercion y los senadores del otro
grupo tenian perfecto derecho a proceder como procedieron,
quedandose en el salo para continuar celebrando la sesion. Esta
sesion venia a ser una tacita reconduccion una simple
prolongacion de la sesion que habia sido declarada abierta por el
presidente Avelino con un quorum presente de 22 miembros.
(3) Sin embargo, la sesion prolongada se convirtio en ilegal por
falta de quorum. Es cosa establecida y admitida por ambas

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partes que al reanudarse la sesion estaban presentes los 12
miembros del grupo llamado "Senado de Cuenco" mas tres
senadores del grupo llamado "Senado de Avelino". En esta
coyuntura el Senador Mabanag, del grupo de Cuenco, suscito la
cuestion del quorum, de cuyas resultas se ordeno por el Senador
Arranz, que entonces presidia la sesion, la lectura de la lista.
Tambien es cosa establecida en autos y admitida por ambas partes
que al comenzar el roll call o lectura de la lista, lot tres senadores
del grupo de Avelino salieron del salon y solamente respondieron
al roll call los 12 senadores del grupo de Cuenco.
Resulta evidente de estos hechos que no habia quorum, por cuanto
que componiendose el Senado de 24 miembros debidamente
elegidos y cualificados, el quorum para celebrar sesion valida debe
ser de 13 miembros. Tanto la jurisprudencia federal como la de los
estados de la Union americana esta repleta de decisiones en las
que se ha sentado firmemente la doctrina de que la base para
determinar el quorum legislativo es el numero totalde miembros
elegidos y debidamente cualificados de cada camara. 1 En el
presente caso, como se ha dicho, ese numero total es 24. Por tanto,
el grupo Cuenco no podia seguir celebrando validamente sesion, en
vista de la falta de quorum. De acuerdo con la Constitucion y los
reglamentos, el grupo Cuenco tenia ante si dos caminos para
actuar: (a) suspender la sesion de dia en dia hasta obtener el
necesario quorum; (b) o compeler la asistencia de suficientes
senadores del otro grupo para constituir dicho quorum, pudiendo a
dicho efecto ordenar inclusive el arresto de los huelguistas.
(Constitucion de Filipinas, art. VI, sec. 10, ap. 2; 2 Reglamento del
Senado, Cap. VI, arts. 23 y 24.3) Asi que todos los procedimientos
efectuados por el grupo Cuenco en dicha sesion eran nulos e
ilegales.
Se ha insinuado que el cambio de fraseologia en el precepto
constitucional sobre quorum es significativo. Efectivamente en el
texto original de 1935 se decia lo siguiente: "A majority of all the
Members shall constitute aquorum to do business" . . . , mientras
que en el texto enmendado de 1940 se dice: "A majority of each
House shall constitute a qurrum to do business" . . . . De esto se
quiere deducir la consecuencia de que esta reforma habra sido por
algo, y este algo acaso sea la posibilidad de una base menor de la

totalidad de miembros para determinar la existencia de un quorum.

El argumento, a mi juicio, es insostenible, por no llamarlo futil. Los
autores de la enmienda no han hecho mas que copiar literalmente
la fraseologia de la Constitucion federal americana; y ya hemos
visto que esta se ha interpretado en el sentido de que seala, como
base
para
determinar
el quorum,
la
totalidad
de
los miembros electos y cualificados de cada camara. Por tanto, el
cambio fraseologico, en vez de denotar cambio en el significado,
refuerza el sentido tradicional de que la base para la determinacion
del quorum la totalidad de los miembros electos y cualificados de
cada camara. Aparte de que es elemental en hermeneutica legal
que una misma cosa puede expresarse en terminos diferentes.
Tambien se ha insinuado, con bastante ingenio, que en el caso que
nos ocupa, la base mas racional para elquorum es 23, excluyendo
al Senador Confesor que se halla en America, pero incluyendo al
Senador Sotto, que si bien no pudo estar presente en la sesion de
autos por estar gravemente enfermo, hallabase, sin embargo, en
Manila susceptible en cualquier momento de ser llamado por el
Senado. El fundamento de esta opinion es que para la
determinacion del quorum no debe ser contado un miembro que
esta fuera de la accion coercitiva de la camara. La proposicion es
igualmente inaceptable. No solo no tiene ningun precedente en la
jurisprudencia, sino que es convencional, arbitraria, sometiendo
el quorum, que debe ser algo permanente, a ciertas eventualidades
y contingencias. Hay que tener en cuenta que el precepto
constitucional y la regla pertinente no establecen ninguna
salvedad. Donde la ley no distingue, no debemos distinguir.
(4) Cual es el remedio. No cabe duda de que una mayoria de
Senadores tiene derecho a reorganizar el Senado en la forma que
les plazca, siempre que ello se sujete a las normas prescritas por la
Constitucion, las leyes y los reglamentos. En el presente caso el
grupo Cuenco que al parecer forma la mayoria, por lo menos hasta
la fecha, tiene en sus manos los instrumentos constitucionales y
legales para efectuar una reorganizacion. Puede convocar una
sesion y compeler la asistencia de un numero suficiente de
Senadores para formar quorum, ordenando el arresto si fuese
necesario de dichos senadores. Esto en el supuesto de que el
Senador Avelino y su grupo sigan boicoteando las sesiones del

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Senado para impedir la existencia de un quorum. Pero si el grupo
Avelino acude voluntariamente al Senado, entonces los dos grupos
pueden buenamente restaurar la normalidad constitucional,
procediendo a efectuar la reorganizacion que desee y dicte la
mayoria.
Hasta que esto se haga, el Senador Avelino es tecnicamente
presidente del Senado. Es verdad que Avelino cometio una grave
arbitrariedad ordenando el levantamiento de la sesion sin derecho
y facultad para ello; pero una arbitrariedad no justifica otra
arbitrariedad; la de destituirle por medios anticonstitucionales,
ilegales y antireglamentarios. Los motivos de la accion de Avelino y
de la de sus adversarios no nos interesan para nada ni caen dentro
de nuestra provincia; lo unico que nos concierne son sus
repercusiones juridicas.
Es de suma importancia, sobre todo en estos momentos incipientes
de la republica, el que mantengamos rigida e implacablemente la
integridad de la Constitucion y de los procedimientos que prescribe.
Solo de esta manera podremos evitar el ciego desbordamiento de
las pasiones politicas y personales, con todas sus funestas
consecuencias. A toda costa hay que impedir la formacion de un
clima politico, social o moral que facilite las cuarteladas, los
pronunciamientos, los golpes de mano y de estado (coup d'main,
coup d'etat) eso que caracteriza la historia azarosa de las
llamadas "banana republicas". Un 19 Brumario solamente se puede
prevenir imponiendo con todo rigor, sin blandas transigencias, la
observancia de la Constitucion y de las leyes y reglamentos que la
implementan.
Voto, por tanto, en favor de la concesion del recurso interpuesto.
TUASON, J., dissenting:
I agree with Mr. Justice Briones' dissenting opinion, that the twelve
senators who elected Senator Cuenco Acting President of the
Senate did not constitute a quorum and, consequently, that his
election was illegal.
It appears tome that the basis for computing a quorum of the
Senate is thenumber of senators who have been elected and duly
qualified and who have not ceased to be senators by death or legal
disqualification. If this were not so, what is the standard of

computation? No satisfactory, reasonable alternative has been or

can be offered.
Absence abroad cannot be a disqualification unless by such
absence, under the Constitution, a member of the Senate loses his
office, emoluments, and other prerogatives, temporarily or
permanently. There is no claim that this happens when a senators'
presence at the session be the criterion, then serious illness or
being in a remote island with which Manila has no regular means of
communication should operate to eliminate the sick or absent
members from the counting for the purpose of determining the
presence of a majority.
The distinction made between absentees form legislative sessions
who are in the Philippines and absentees who are in a foreign
country is, to my arbitrary and unreasonable. From both the
theoretical and the practical by members of Congress are
sometimes found necessary to fulfill their missions. If we test the
interpretation by its consequences, its unsoundness and dangers
become more apparent. The interpretation would allow any number
of legislators, no matter how small, to transact business so long as
it is a majority of the legislators present in the country. Nothing in
my opinion could have been farther from the minds of the authors
of the Constitution than to permit, under circumstances, less than a
majority of the chosen and qualified representatives of the people
to approve measures that might vitally affect their lives, their
liberty, happiness and property. The necessity of arresting absent
members to complete a quorum is too insignificant, compared with
the necessity of the attendance of an absolute majority, to make
unamenability to arrest a factor for ruling out absentees who are
beyond the legislature's process. The Congress is eminently a lawmaking body and is little concerned with jurisdiction over its
members. The power to order arrest is an emergency measure and
is rarely resorted to. Viewed in this light, it is doubtful if the
authority to arrest could always afford a satisfactory remedy even
in the cases of members who were inside the Philippines territory.
This is especially true in the United States of America, after whose
form of government ours is patterned and whose territorial
possession extend to the other side of the globe.

298
This case is easily distinguishable from Vera vs. Avelino, (77 Phil.,
192), and Mabanag vs. Lopez Vito, (78 Phil., 1).
In those cases the petitions were directed against an action of a
recognized Senate exercising authority within it own domain. Here
the process sought is to be issued against an appointee of a senate
that, it is alleged was not validly constituted to do business
because, among other reasons alleged, there was not quorum. The
Court is not asked to interfere with an action of a coordinate branch
of the government so much as to test the legality of the
appointment of the respondent.
Section 1, Rule 68, of the Rules of Court provides:
An action for usurpation of office of franchise may be brought in the
name of the Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or
exercise a public office, or a franchise, or an office in a corporation
created by authority of law;
xxx
xxx
xxx
This provision by its terms extends to every office. Its scope does
not exclude officers appointed by the legislative branch of the
government. Although this Court has no control over either branch
of the Congress, it does have the power to ascertain whether or not
one who pretends to be its officer is holding his office according to
law or the Constitution. Political questions as a bar to jurisdiction
can only be raised by the supreme power, by the legislature, and
not by one of its creatures. (Luther vs. Border, 48 U.S. 7 How. 1, 12
Law ed., 581.) If there were two lesser officers of the Senate
appointed by different faction thereof and contesting each other's
right to the office, it would not be the Senate by the Court which
would be called upon to decide the controversy. There is more
reason for the Court to intervene when the office of the President of
the Senate is at stake. The interest of the public are being greatly
imperiled by the conflicting claims, and a speedy determination of
the same is imperatively demanded, in the interest of good
government and public order.
Fundamentally this case is analogous to Attorney General, ex
rel. Werts vs. Rogers, 23 Lawyers' Reports, annotated, 354, to
which I am indebted for much of the reasoning adduced in this
dissent on the question of this Court's jurisdiction.

March 14, 1949

RESOLUTION
Considering the motion for reconsideration filed by petitioner in
case G.R. L-2821, Jose Avelino vs. Mariano J. Cuenco, the court,
without prejudice towriting later an extended opinion, has resolved,
by a majority of seven,to assume jurisdiction over the case in the
light of subsequent events whichjustify its intervention; and, partly
for the reasons stated in the first resolution of this Court and partly
upon the grounds stated by Mr. JusticeFeria, Mr. Justice Perfecto,
and Mr. Justice Briones in their separate opinions, to declare that
there was a quorum at the session where respondent Mariano J.
Cuenco was elected acting Senate President.
The Chief agrees with the result of the majority's pronouncement of
the quorum upon
the
ground
that,
under
the
peculiar
circumstances of the case,the constitutional requirement in that
regard has become a mere formalism,it appearing from the
evidence that any new session with a quorum wouldresult in the
respondent's election as Senate President, and that the Cuenco
group, taking cue from the dissenting opinions, has been trying to
satisfy such formalism by issuing compulsory processes against
senators of the Avelino group, but to no avail, because of the
latter's persistent effortsto block all avenues to constitutional
processes. For this reason, he believethat the group has done
enough to satisfy the requirements of the Constitutionand that the
majority's ruling is in conformity with substantial justice and with
the requirements of public interest.
The judgment of the Court is, therefore, that respondent Mariano J.
Cuencohas been legally elected as Senate President and the
petition is petition is dismissed, with costs against petitioner.
Mr. Justice Paras concurs in the result, Mr. Justice Bengzon dissents
on the question of jurisdiction but concurs on the question
of quorum.
Mr. Justice Tuason concurs on the question of jurisdiction but
dissents on that on that of quorum.
Mr. Justice Montemayor dissent s of the question of jurisdiction and
reserves his vote on the question of quorum.
Mr. Justice Reyes reserves the right to express the reasons for his
vote.

299

FERIA, J., concurring:

In the case of Vera et al. vs. Avelino et al., (77 Phil., 192), the
principal question raised was whether this Supreme Court had
jurisdiction to set aside the Pendatun resolution ordering that
petitioners Vera, Diokno and Romero shall not be sworn to nor
seated as members of the Senate, and compel the respondents had
no power to pass said resolution, because it was contraryto the
provisions of Sec. 11, Article VI, of the Constitution, which
createdthe Electoral Tribunal for the Senate as well as for the House
of Representative, and provided that said Tribunal shall be judge of
all contestsrelating to the election returns and qualifications of their
respective members. Respondent Avelino et al., who were
represented by Senator Vicente Francisco and the Solicitor General,
impugned the jurisdiction of this Court to take this Court to take
cognizance of said case on the ground that the question therein
involved was a political question, and petitioners Veraet al., who
were represented by Attorney Jose W. Diokno, who is now oneof the
attorneys for respondents, who now contends that this Supreme
Court has no jurisdiction over the present case, then maintained
that this Court had jurisdiction.
And in the case of Mabanag et al. vs. Jose Lopez Vito et al., 78 Phil.,
1, the question involved was whether it was within the jurisdiction
of this Court to take cognizance of the case and prohibit the
respondents from enforcing the "Congressional Resolution of both
Houses proposing an amendment to the Philippines to be appended
as an ordinance there", grantingcertain rights to the citizens of the
United states of American in the Philippines, on the ground that it
was null and void because it was not passedby the vote of threefourths of the members of the Senate and House of
Representatives, voting separately, as required by Sec. 1, Art. XV,
of the Constitution, since if the Members of Congress who were not
allowed to take part had been counted, the affirmative votes in
favor of the proposed amendment would have been short of the
necessary three-fourths vote in either branch of Congress.
Petitioners Mabanag et al. contended that the Court had jurisdiction
and the respondents maintained the contrary on the ground that

the question involved was apolitical one and within the exclusive
province of the Legislature.
The theory of Separation of Powers as evolved by the Courts of last
resortfrom the State Constitution of the United States of American,
after which our owns is patterned, has given rise to the distinction
between justiceable question which fall within the province of the
judiciary, and politicalquestions which are not within the jurisdiction
of the judiciary and are to be decided, under the Constitution, 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, except to the extent that the
power to deal with such question has been conferred upon the
court byexpress or statutory provision. Although it is difficult to
define a politicalquestion as contradistinguished from a justiceable
one, it has been generally held that the first involves political rights
which consist in the power to participate, directly or indirectly, in
the establishment or managementof the government of the
government, while justiceable questions are those which affect
civil, personal or property rights accorded to every member of the
community or nation.
Under such theory of Separation of Power, the judicial Supremacy is
the power of judicial review in actual and appropriate case and
controversies that present justiceable issues, which fall within the
jurisdiction or power allocated to the judiciary; but when the issue
is a political one which comeswithin the exclusive sphere of the
legislative or executive department of the Government to decide,
the judicial department or Supreme Court has no powerto
determine whether or not the act of the Legislative or Chief
Executiveis against the Constitution. What determines the
jurisdiction of thecourts is the issue involved, and not the law or
constitutional provisionwhich may be applied. Divorced from the
remedy sought, the declaration of this Court on the matter of
constitutionality or unconstitutionality of alegislative or executive
act, would be a mere advisory opinion, without a coercive force.
Relying on the ruling laid down in Severino vs. Governor General,
16 Phil.,336; Abueno vs. Wood, 45 Phil., 612; and Alejandrino vs.
Quezon, 46 Phil., 83, the Supreme Court upheld the contention of
said respondent in both casesthat the question involved was a

300
political question and therefore this Court had no jurisdiction. I was
one of the three Justice who held that this Courthad jurisdiction,
and dissented from the decision of the majority.
When the present case was first submitted to us, I concurred with
the majority, in view of the ruling of the Court in said two cases,
which constitutes a precedent which is applicable a fortiori to the
present case and must, therefore, be followed by the virtue of the
doctrine or maxim of stare decisis, and in order to escape the
criticism voiced by Lord Bryce inAmerican Commonwealth when he
said that "The Supreme Court has changed its colori.e., its temper
and tendencies, from time to time according to the political
proclivities of the men who composed it. . . . Their action flowed
naturally from the habits of though they had formed before their
accession to the bench and from the sympathy they could not but
feel for the doctrineon whose behalf they had contended." (The
ANNALS of the American Academyof Political and Social Science,
May, 1936, p. 50).
Now that the petitioner, who obtained a ruling favorable to his
contention in the Vera-Avelino case, supra, insist in his motion for
reconsideration that this Court assume jurisdiction and decide
whether or not there was quorum in session of the Senate of
February 21, 1949, and is willing to abide by the decision of this
Court (notwithstanding the aforementioned precedent),and several
of the Justices, who have held before that this Supreme Courthad
no jurisdiction, now uphold the jurisdiction of this Court, I gladly
change my vote and concur with the majority in that this Court has
jurisdiction over cases like the present in accordance with my stand
inthe above mentioned cases, so as to establish in this country the
judicial supremacy, with the Supreme Court as the final arbiter, to
see that no one branch or agency of the government transcends
the Constitution, not only in justiceable but political questions as
well.
But I maintain my opinion and vote in the resolution sought to be
reconsidered,that there was a quorum in the session of the Senate
of Senate of February 21,1949, for the following reasons:
Art. 3 (4) Title VI of the Constitution of 1935 provided that "the
majority of all the members of the National Assembly constitute
a quorum to do business" and the fact that said provision was

amended in the Constitution of 1939,so as to read "a majority of

each House shall constitute a quorum to do business," shows the
intention of the framers of the Constitution to basethe majority, not
on the number fixed or provided for the Constitution,but on actual
members or incumbents, and this must be limited to actual
members who are not incapacitated to discharge their duties by
reason of death, incapacity, or absence from the jurisdiction of the
house or forother causes which make attendance of the member
concerned impossible, eventhrough coercive process which each
house is empowered to issue to compel itsmembers to attend the
session in order to constitute a quorum. That the amendment was
intentional or made for some purpose, and not a mere oversight,or
for considering the use of the words "of all the members" as
unnecessary, is evidenced by the fact that Sec. 5 (5) Title VI of the
original Constitution which required "concurrence of two-thirds of
the members of the National Assembly to expel a member" was
amended by Sec. 10 (3) Article VI of the present Constitutional, so
as to require "the concurrence of two-thirds of all the members of
each House". Therefore, as Senator Confesor was in the United
States and absent from the jurisdiction of the Senate, the actual
members of the SEnate at its session of February 21, 1949, were
twenty-three (23) and therefore 12 constituted a majority.
This conclusion is in consonance with the legislative and judicial
precedent. In the Resolution of both Houses proposing an
amendment of the Constitution of the Philippines to be appended
to the Constitution, granting parity rightto American citizen in the
Philippines out of which the case of Mabanag vs. Lopez,
supra arose, both Houses of Congress in computing the threefourths of all the members of the Senate and the House of
Representative votingseparately, required by Sec. 1, Article XV of
the Constitution, the three-fourths of all the members was based,
not on the number fixed or provided for in the Constitution, but on
the actual members who have qualifiedor were not disqualified.
And in the case of People vs. Fuentes, 46 Phil., 22the provision of
Sec. 1, subsection 2, of Act No. 3104, which requiredunanimity of
vote of the Supreme Court in imposing death excepted from the
court those members of the Court who were legally disqualified
from the case, this Court held that the absence of the Chief Justice

301
Avancea, authorized by resolution of the Court, was a legal
disqualification, and his vote was not necessary in the
determination of the unanimity of the decision imposing death
penalty.

PABLO, J., concurrente:

Aungue los Sres. Magistrados Paras, Feria, Bengzon y yo,
sosteniamos que este Tribunal no tenia jurisdiccion sobre el asunto
porque era de naturaleza eminentemente politico, emitimos, sin
embargo, nuestra opinion de que los doce senadores
constituian quorum legal para tomar resoluciones. Desde luego, la
opinion no surtio el efecto deseado. La huelga en el Senado
continua. Los recientes acontecimientos pueden trascender a
peores, con sus inevitables repercusiones dentro y fuera del pais.
Cuando las pasiones politicas no van por el cauce de la prudencia
pueden desbordase y causar fatales consecuencias. Es un sano
estadismo judicial evirtarlo y, si es necesario, impedirlo.
El recurrente pide que se reconsideresa nuestra dividida opinion.
alegando que las divisiones civiles en varias naciones han
producido sangrientes luchas fratricidas. Si no tuviera en cuenta
mas que la solitud original y los hechos probados, la mocion de
reconsideracion debe ser denegada en cuanto a mi voto sobre la
falta de jurisdiccion. La jurisdiccion no se confiere por la simple
solicitud de una parte, ni por la anuencia de amas, sino por la ley o
por la Constitucion.
La apelacion del recurrente de que este Tribunal asuma jurisdiccion
para evitar derramamiento de sangre llega al corazon. Como
magistrado, no deben importante las consecuencias; pero como
ciudadano, me duele ver una lucha enconada entre dos grupos en
el Senado sin fin practico. Al pueblo interesa que la Legislatura
reanude su funcionamiento normal. Fuerza es transigir, pues, para
que haya seis votos que sostengan que este Tribunal tiene
jurisdiccion. Si insisto en mi opinion anterior, fracasara todo
esfuerzo de reajustre de nuestras opiniones para dar fin a la crisis
en el Senado.
El Sr. Presidente del Tribunal y los Sres. Magistrados Perfecto y
briones opinian hoy que hubo quorum en la continuacion de la

sesion despues de la marcha del Senador Avelino y compaeros.

Con ellos, ya hay siete votos que sostienen que las resoluciones
votadas por los doce senadores son legales y validas. pero para dar
fuerza legal a esta conclusion, es indispensable que el tribunal la
declare con jurisdiccion. Contribuyo mi grando de arena a la feliz
conclusion de un conflicto que esta minando el interes publico: voto
hoy por que el Tribunal asuma jurisdiccion para dar fuerza a mi
opinion anterior de que los doce senadores formaban quorum.
De be denegarse la mocion de reconsideracion.

PERFECTO, J., concurring:

The problem of democracy must be faced not in the abstract but as
practical question, as part of the infinitely motley aspects of human
life. They cannot be considered as scientific propositions or
hypothesis independently from the actual workings of the
unpredictable flights of the spirit which seen to elude the known
laws of the external world. Experience appears to be the only
reliable guide in judging human conduct. Birth and death rates and
incidence of illness are complied in statistics for the study and
determination of human behavior, and statistics are one of the
means by which the teaching may render their quota of
contribution in finding the courses leading to the individual wellbeing and collective happiness.
The way this case has been disposed of by the Supreme Court,
upon the evidence coming from many quarters and sectors, is
provenly far from being conducive to democratic eudaemonia. We
intended to settle the controversy between petitioner and
respondent, but actually we left hanging in the air the important
and, indeed, vital questions. They posed before us in quest of
enlightenment and reasonable and just in a quandary.
We can take judicial notice that legislative work has been at a
standstill; the normal and ordinary functioning of the Senate has
been hampered by the non-attendance to sessions of about onehalf of the members; warrants of arrest have been issued, openly
defied, and remained unexecuted like mere scraps of paper,
notwithstanding the fact that the persons to be arrested are
prominent persons with well-known addresses and residences and

302
have been in daily contact with news reporters and photographers.
Farce and mockery have been interspersed with actions and
movements provoking conflicts which invite bloodshed.
It is highly complimentary to our Republic and to our people that,
notwithstanding the overflow of political passions and the
irreconcilable attitude of warring factions, enough self-restraint has
been shown to avoid any clash of forces. Indeed there is no denying
that the situation, as abstaining in the upper chamber of congress,
is highly explosive. It had echoed in the House of the
Representatives. It has already involved in the House of the
Representatives. It has already involved the President of the
Philippines. The situation has created a veritable national crisis,
and it is apparent that solution cannot be expected from any
quarter other then this Supreme Court, upon which the quarter
other than this Supreme Court, upon which the hopes of the people
for an effective settlement are pinned.
The Avelino group, composed of eleven senators almost one-half of
the entire body, are unanimous in belief that this Court should take
jurisdiction of the matter and decide the merits of the case one way
or another, and they are committed to abide by the decision
regardless of whether they believe it to be right or mistaken.
Among the members of the so-called Cuenco group, there are
several Senators who in not remote past (see Vera vs.Avelino, 77
Phil., 192 and Mabanag vs. Lopez Vito, 78 Phil., 1) have shown their
conviction that in cases analogous to the present the Supreme
Court has and should exercise jurisdiction. If we include the former
attitude of the senator who is at present abroad, we will find out
that they are in all eighteen (18) senators who at one time or
another recognized the jurisdiction of the Supreme Court for the
settlement of such momentous controversies as the one now
challenging our judicial statesmanship, our patriotism, our faith in
democracy, the role of this Court as the last bulwark of the
Constitution.
In the House of Representatives unmistakable statements have
been made supporting the stand of the eighteen (18) senators, or
of three-fourths (3/4) of the entire Upper Chamber, in support of
the jurisdiction of the Supreme Court and of the contention that we
should decide this case on the merits.

Judicial "hands-off" policy is, in effect, a showing of official

inferiority complex. Consequently like its parallel in the
psychological field, it is premised on notions of reality
fundamentally wrong. It is an upshot of distorted past experience,
warping the mind so as to become unable to have a healthy
appraisal of reality in its true form.
It is futile to invoke precedents in support of such an abnormal
judicial abdication. The decision in the Alejandrinovs. Quezon, 46
Phil., 83, is absolutely devoid of any authority. It was rendered by a
colonial Supreme Court to suit the imperialistic policies of the
masters. That explains its glaring inconsistencies.
Also frivolous is to invoke the decision in Vera vs. Avelino, (77 Phil.,
192), and Mabanag vs. Lopez Vito, (78 Phil., 1), both patterned
after the colonial philosophy pervading the decision in
Alejandrino vs. Quezon, (46 Phil., 83.) Judicial emancipation must
not lag behind the political emancipation of our Republic. The
judiciary ought to ripen into maturityif it has to be true to its role as
spokesman of the collective conscience, of the conscience of
humanity.
For the Supreme Court to refuse to assume jurisdiction in the case
is toviolate the Constitution. Refusal to exercise the judicial power
vested in it is to transgress the fundamental law. This case raises
vital constitutionalquestions which no one can settle or decide if
this Court should refuse to decide them. It would be the saddest
commentary to the wisdom, foresight and statesmanship of our
Constitutional Convention to have drafted a document leaving such
a glaring hiatus in the organization of Philippine democracy ifit
failed to entrusted to the Supreme Court the authority to decide
such constitutional questions.
Our refusal to exercise jurisdiction in this case is as unjustifiable as
the refusal of senators on strike to attend the sessions of the
Senate and toperform their duties. A senatorial walkout defeats the
legislative powervested by the Constitution in Congress. Judicial
walkouts are even more harmful than a laborers' strike or a
legislative impasse. Society may go on normally while laborers
temporarily stop to work. Society may not be disrupted by delay in
the legislative machinery. But society is menaced with dissolution in

303
the absence of an effective administration of justice. Anarchy and
chaos are its alternatives.
There is nothing so subversive as official abdication or walkout by
the highest organs and officers of government. If they should fail to
perform their functions and duties, what is the use for minor
officials and employeesto perform theirs? The constitutional
question of quorum should not be leftunanswered.
Respondent's theory that twelve (12) senators constitute the
majority requiredfor the Senate quorum is absolutely unacceptable.
The verbal changes made in the constitutional amendment, upon
the creation of Congress to replace the National Assembly, have
not affected the substance of the constitutional concept
of quorum in both the original and amended contexts. The words
"all the members" used in the original, for the determination of
thequorum of the National Assembly, have been eliminated in the
amendment, as regards the house of Congress, because they were
a mere surplusage. The writer of this opinion, as Member of the
Second National Assembly and in his capacity as Chairman of the
Committee on Third Reading, was the one who proposed the
elimination of said surplusage, because "majority of each House"
can mean only the majority of the members thereof, without
excluding anyone, that is, of all the members.
The word majority is a mathematical word. It has, as such, a precise
and exactmathematical meaning. A majority means more than onehalf (). It can neverbe identified with one-half () or less than
one-half (). It involved acomparative idea in which the antithesis
between more and less is etched in the background of reality as a
metaphysical absolute as much as the antithesis of all opposites,
and in the same way that the affirmative cannot be confused with
the negative, the creation with nothingness, existence withnonexistence, truth with falsehood.
The Senate is composed of twelve four (24) senators. The majority
of said senators cannot be less than thirteen (13). Twelve (12) do
not constitute the majority in a group composed of twelve four (24)
units. This is so evident that is not necessary to have the
mathematical genius of Pythagoras, Euclid, Newton and Pascal to
see it. Any elementary school student may immediately perceive it.

No amount of mental gymnastic or juristic logodaedaly will

convince anyone that one of the two equal number constitute a
majority part of the two numbers combined. The five (5) fingers of
one hand cannot be the majorityof the combined ten (10) fingers of
the two hands. Majority is incompatiblewith equality. It implies the
idea of superiority.
Majority is a derivative of major which, in its turn, is a derivative of
the Latin "magnus," meaning great. Majority means the greater of
two numbers that are regarded as part of a total: the number
greater than half. It implies a whole of which constitute the greater
part or portion. It presupposes the existence of a total and, in the
present case, the total number of twelve four (24) senators
composing the Senate.
The above pronouncements notwithstanding, we are now inclined
to conclude that for the purpose of choosing respondent merely as
Acting of the Senate, asan emergency measure to fill the vacuum
created by petitioner's desertion of the office of presiding officer by
his walked in the session of February 21, 1949, the presence of the
twelve (12) senators was enough quorum.
The Constitution provides:
(2) A majority of each House shall constitute a quorum to do
business, but a smaller number may adjourn from day to day and
may compel the attendance of absent members in such manner
and under such penalties as such House may provide. (Sec. 10,
Article VI.)
The "smaller number" referred to in the above provision has to act
collectively and cannot act as collective body to perform the
function specially vested in it by the Constitution unless presided
by one among theirnumber. The collective body constituted by said
"smaller number" has to take measure to "compel the attendance
of absent member in such manner and underpenalties as such
House may provide," so as to avoid disruption in the functions of
the respective legislative chamber. Said "smaller number" maybe
twelve or even less than twelve senators to constitute a quorum for
the election of a temporary or acting president, who will have to act
until normalcy is restored.
As events have developed after the decision in this case has been
rendered on March 4, 1949, the picture of the petitioner's attitude

304
has acquired clearerand more definite form, and that picture brings
us to the conclusion that thiscase turned into a moot one.
At the hearing of this case for the reception of evidence before Mr.
Justice Bengzon, Senator Mariano J. Cuenco, the respondent, on
cross-examination bySenator Vicente J. Francisco, counsel for
petitioner, manifested that he waslooking for an opportunity to
renounce the position of Acting President of the Senate, and that if
Senator Jose Avelino, the petitioner, should attend the sessions. He
would only make of record his protest, and never resort to force or
violence to stop petitioner from presiding over said sessions.
The last statement as to allowing petitioner to preside over the
sessions was made by respondent under oath twice, and petitioner,
although he refused to attend the hearing of this case, so much so
that, instead of testifying, he just signed an affidavit which, under
the rules of procedure, is inadmissible as incompetent and is as
valueless as an empty gesture, could not fail to learn about
respondent's testimony, because it was given publicity, it is
recorded in the transcript, and petitioner's counsel, Senator
Francisco, would certainly not have failed to inform him about it.
Notwithstanding respondent's testimony, petitioner failed to take
advantage of it and continues to refuse to attend the sessions of
the Senate since he and his group of senators have walked out
from the historic Monday session of February 21, 1949.
If petitioner is sincere in his desire of presiding over the sessions of
the Senate, for which reason he has sought the help of the
Supreme Court, why has he failed to take advantage of the
commitment made under oath by respondent since February 26,
1949? Why has he, since then, been not only failing but refusing to
attend the sessions and preside over them? Why is it that petitioner
and his group of Senators have given occasion, in fact, compelled
the senators of the Cuenco group to issue warrants of arrest to
remedy the lack of quorum that has been hampering the sessions
of the Senate? Why is it that the Senate sergeant-at-arms, his
subordinates and the peace officers helping him, have to be
hunting for the senators of the Avelino group in a, so far, fruitless if
not farcical endeavor to compel them to attend the sessions?
The events that have been unfolding before our eyes, played up
everyday in screaming headlines in all newspapers and of which, by

their very nature, we cannot fail to take judicial notice, considered,

weighed and analyzed in relation with the happenings in the Friday
and Monday sessions, February 18 and 21, 1949, have driven into
our mind the conviction that, powers and prestige which command
the position of President of the Senate, he actually has no earnest
desire to preside over the sessions of the Senate, the most
characteristic and important function of President of the Senate.
His refusal to attend the sessions, notwithstanding respondent's
commitment to allow him to preside over them, can and should
logically be interpreted as an abandonment which entails forfeiture
of office. (Santiago vs.Agustin, 46 Phil., 14; Ortiz vs. De Guzman, 49
Phil., 371; 46 Corpus Juris p. 980-981; Wilkinson vs. City of
Birmingham, 68 So. 999; 43 American Jurisprudence p. 27).
What are petitioner's reasons for refusing to attend the Senate
sessions? What are his group's reason? They say that they want a
square decision on the merits of this case, for which reason the
motion for reconsideration has been filed. Although we believe that
the Supreme majority vote, to exercise jurisdiction in this case, and
the inconsistency in the position taken by some Members of the
majority has only increased public bewilderment, stronger reasons
for petitioner and his group to sabotage the sessions of the Senate.
If this Court had decided this case as the four dissenters would
have it, there cannot be any doubt that the Senate impasse would
have been settled many days ago and, with it, the present national
crisis hampering and armstringing the legislative machinery. .
The gravity of the situation cannot be gainsaid. The showings of
open defiance to warrants of arrest are highly demoralizing. People
are asking and wondering if senators are placed above the law that
they can simply ignore warrants of arrest and despite the authority
of the officers entrusted with the execution. Threats of violence
pervade the air. Congress is neglecting the public interests that
demand remedial legislation. The present state of confusion, of
alarm, of bewilderment, of strife would have ended if, for the
reasons we have stated in our dissenting opinion, the Supreme
Court would have ordered petitioner's reposition.
Once petitioner had been recognized to continue to be the
President of the Senate, he would certainly have attended the
Senate sessions to preside over them. Then the sessions with

305
senators of the Avelino group attending, would have been held with
the constitutional quorum. The twelve senators of the Cuenco
group would have the opportunity of voting solidly to ratify or to
reenact all the disputed actuations of the rump session of February
21, 1949, and there is no doubt that they would have succeeded in
ousting petitioner and electing respondent to the position of
President of the Senate.
Everything then would have followed the normal course. With the
presence of a clear and unquestionablequorum, petitioner and his
followers would have no ground for any complaint, and respondent
could have assumed the Senate's presidency without any hitch.
Of course, petitioner and the senators of his group might have
resorted again to the same strategy, by quorumthe rump session of
February 21, 1949, but it is not probable that they would have
taken the same course of action after this Court, almost
unanimously declared that petitioner's action in adjourning the
session of February 21, 1949, was arbitrary and illegal. At any rate,
the Senators of the Cuenco group would have been by then well
prepared to have orders of arrest ready for immediate execution
before the striking senators could leave the building housing the
session hall.
The abnormal situation in the Senate must be stopped at once.
Legislation must go on. The serious charges filed or may be filed
against petitioner, respondent and other senators demand
imperatively investigation and action to acquit the innocent and to
punish the guilty ones. Public interest cannot demand less.
Under such circumstances, petitioner has lost all title to claim the
position in controversy. This result will not legally or practically
close any door for him to again seek the position by attending the
sessions of the Senate and by securing a majority that would
support him in his bid.
The motion for reconsideration should be denied.
(for more info regarding some of dissenting or concurring opinions
please
refer
to:
http://www.lawphil.net/judjuris/juri1949/mar1949/gr_l2821_1949.html)

306

The question raised in this mandamus and prohibition proceeding,

whether the filing of a motion for reconsideration with the
Commission on Appointments, without its being thereafter acted
on, suffices to set at naught a confirmation duly made of an ad
interim appointment, is not a new one. That was put to us
in Altarejos v. Molo. 1 As set forth in the opinion of the Chief Justice,
the answer must be in the negative. The confirmation stands; it
must be given force and effect. As we decided then, so we do now.
As a consequence, petitioner, as will be more fully explained, has
made out a case for mandamus and prohibition. He is entitled to
the remedies prayed for.

the recess of Congress, it was submitted to the Commission on

Appointments at its next session in 1965. On May 20 of that year,
he was unanimously confirmed. As a matter of fact, two days later,
he was sent a congratulatory telegram by the then Senate
President Ferdinand E. Marcos, who was likewise the Chairman of
the Commission on Appointments. 2 More than nine months after
such confirmation, to be exact on February 7, 1966, the then
Secretary of Justice, whom he likewise included in his petition,
through the Judicial Superintendent, advised petitioner to vacate
his position as municipal judge, the ground being that his
appointment had been by-passed. Petitioner was taken by surprise
and sought clarification from the principal respondent, the then
Secretary of the Commission on Appointments. 3 He was informed
that on May 21, 1965, a day after his confirmation, one of the
members of the Commission on Appointments, the then Senator
Rodolfo Guanzon, wrote to its Chairman stating that he was filing a
motion for the reconsideration of the confirmation of the
appointment of petitioner as municipal judge of Pigcawayan,
Cotabato, in view of derogatory information which he had
received. 4 Respondent
Secretary
of
the
Commission
on
Appointments thus was led to notify the then Secretary of Justice
accordingly, following what he considered to be the prevailing
practice of such body that the mere presentation of such letter
"automatically vacated the confirmation of the appointment in
question ... ." 5 Respondent Secretary of Justice through the Judicial
Superintendent then advised petitioner that he should vacate his
position as municipal judge, as he had not been duly confirmed.
The Disbursing Officer of the Department of Justice was likewise
named respondent as he had, as a consequence, withheld
petitioner's salaries. 6

The facts are undisputed. In his suit for mandamus and prohibition
filed with this Court on April 4, 1966, petitioner Felizardo S. Pacete
alleged that he was appointed by the then President of the
Philippines on August 31, 1964 as Municipal Judge of Pigcawayan,
Cotabato. He assumed office on September 11, 1964 and
discharged his duties as such. As his appointment was made during

Petitioner would buttress his plea for prohibition against the

enforcement of the directive of respondent Secretary of Justice for
him to vacate his position and mandamus to compel respondent
Secretary of the Commission on Appointments to issue to him the
certificate of confirmation on the ground that the letter of the then
Senator Guanzon, even on the assumption that it was a motion to

G.R. No. L-25895 July 23, 1971

FELIZARDO
S.
PACETE, petitioner,
vs.
THE SECRETARY OF THE COMMISSION ON APPOINTMENTS
CONGRESS OF THE PHILIPPINES, THE SECRETARY OF JUSTICE
and THE DISBURSING OFFICER OF THE DEPARTMENT OF
JUSTICE,respondents.
Petitioner in his own behalf.
Office of the Solicitor General for respondents.

FERNANDO, J.:

307
reconsider an appointment duly confirmed, was without force and
effect as it was not approved by the body as a whole. It is his
contention that the confirmation of his appointment had become
final and executory upon the adjournment of the fourth regular
session of the Fifth Congress at midnight of May 21, 1965. 7 He
further submitted "that the power to approve or disapprove
appointments is conferred by the Constitution on the Commission
on Appointments as a body and not on the members individually.
The Commission exercises this power thru the vote of the majority
of the members present at a quorum as provided by Section 10 of
its Rules. Once an appointment is approved by that majority, the
approval becomes an act of the Commission and it cannot be
changed, voided, vacated or set aside except by the same
Commission acting thru the required majority. A mere motion to
reconsider it, unless approved by said majority, has no force and
effect. To contend otherwise is to make the will of a single member
prevail over the will of the Commission and to make that member
more powerful than the very Commission of which he is only a
part." 8
In a resolution dated April 13, 1966, this Court required
respondents to answer such petition. In the answer of respondent
Secretary of the Commission filed on May 18, 1966, the dismissal of
the suit was prayed for on the ground that there was a recall of the
confirmation of petitioners appointment upon the filing of the
motion for reconsideration by Senator Ganzon. It was likewise
alleged as a special defense that there was no infringement of the
Constitution, the question involved being merely one of
interpretation or construction of the rules of the Commission
involving its internal business which cannot be made a subject of
judicial inquiry. 9 The respondent Secretary of Justice as well as
respondent Disbursing Officer of the Department of Justice, in the
answer filed on their behalf on May 21, 1966 by the then Solicitor
General, now Associate Justice, Antonio P. Barredo, admitted the
facts, but sought the dismissal of the petition on the ground that
with the notification of respondent Secretary of the Commission on
Appointments that petitioner's appointment was not duly
confirmed, respondent Secretary of Justice had no alternative but to

give it full faith and credence coming as it did from the agency
entrusted by the Constitution with the power to confirm. 10
At the hearing scheduled on July 20, 1966, the parties after arguing
were given an additional period of ten days within which to submit
memoranda of authorities. In petitioner's memorandum submitted
on August 1, 1966, it was contended that his confirmation became
final and irrevocable upon the adjournment of the fourth regular
session of the Fifth Congress on May 21, 1965, as no rule of the
Commission as to a motion for reconsideration could have the force
and effect of defeating the constitutional provision that an ad
interim appointment is effective "until disapproved by the
Commission on Appointments or until the adjournment of the next
session
of
the
Congress." 11The memorandum submitted for the respondents
squarely disputed such contention on the view that there could be
no confirmation in the constitutional sense until a motion for
reconsideration had been turned down, invoking at the same time
the principle of the respect to be accorded the actuation of an
independent constitutional agency like the Commission on
Appointments.
As was noted, the controlling principle is supplied by Altarejos v.
Molo, 12 which interpreted Rule 21 of the Revised Rules of the
Commission on Appointments, which reads: "Resolution of the
Commission on any appointment may be reconsidered on motion
by a member presented not more than one (1) day after their
approval. If a majority of the members present concur to grant a
reconsideration, the appointment shall be reopened and submitted
anew to the Commission. Any motion to reconsider the vote on any
appointment may be laid on the table, this shall be a final
disposition of such a motion." Our holding was that the mere filing
of a motion for reconsideration did not have the effect of setting
aside a confirmation. There was a need for its being duly approved.
Hence, as set forth at the outset, petitioner must prevail.
1. Altarejos v. Molo was an original action for mandamus to compel
respondent therein as Secretary of the Commission on

308
Appointments to issue a certificate of confirmation of petitioner's
appointment as Provincial Assessor of Masbate. He was extended
an ad interim appointment on July 24, 1964. He took his oath of
office and qualified as such on August 1, 1964. His appointment
was then submitted to the Commission on Appointments during the
regular session of Congress in 1965. It was confirmed by the
Commission on Appointments on May 19, 1965. On same day, a
member thereof, Congressman Jose Aldeguer, filed with its
Secretary, respondent Molo, a motion for reconsideration. The next
day, there was a motion by the then Senator Francisco Rodrigo that
all pending motions be laid on the table. It was approved. Then
came the adjournment on May 20, 1965. Subsequently, about a
week later, Congressman Aldeguer withdrew his motion for
reconsideration.13
This Court gave full attention to the argument that motion for
reconsideration of Congressman Aldeguer on May 19, 1965 had the
effect of recalling the confirmation of petitioner's appointment and
that, accordingly, it should be considered non-existent. It rejected
it. The Chief Justice, who spoke for the Court, explained why: "This
pretense is devoid of merit. Respondent's theory would give to the
mere filing of a motion for reconsideration the effect which it would
have if the motion were approved, and hence, would dispense with
the necessity of such approval, for which the concurrence of a
majority of the members present is necessary. It is inconsistent with
Rule 21 of the Revised Rules of the Commission, reading: "...
Resolution of the Commission on any appointment may be
reconsidered on motion by a member presented not more than
none * (1) day after their approval. If a majority of the members
present concur to grant a reconsideration, the appointment shall be
reopened and submitted anew to the Commission. Any motion to
reconsider the vote on any appointment may be laid on the
table, this shall be a final disposition of such a motion." 14 His
opinion continued: "Pursuant to this provision, the vote of a
majority of the members present in favor of the motion for
reconsideration is necessary to "reopen" the appointment and,
hence, to "recall" its confirmation - and to require a resubmission of
the appointment for confirmation." 15 Moreover, in holding that this

Court "cannot escape the conclusion that petitioner's appointment

as Provincial Assessor of Masbate" had been duly confirmed, the
Chief Justice likewise noted the categorical answer of the Chairman
of the Commission on Appointments to a question by Senator
Almendras as to the effect of motions for reconsideration unacted
upon after adjournment. Thus: "In case of an adjournment sine die,
the motions for reconsideration are considered as not approved and
therefore the motion for reconsideration are not valid for of any
effect whatsoever." 16When the question was repeated by Senator
Almendras, who did not want to leave any doubt on the matter, this
was the reply of the Chairman: "The ruling of the Chair is reiterated.
In case of an adjournment sine die, the period for filing the motion
for reconsideration having expired, under Sec. 22, then the motion
for reconsideration not having been acted upon is not approved
and, therefore, has no effect whatsoever. The confirmation,
therefore, will stand." 17
Nothing can be clearer, therefore, than that this Court is committed
to the principle that a mere motion for reconsideration to a
confirmation duly made which is not approved cannot have the
effect of setting aside such confirmation, a principle that is based
not merely on the express language of Rule 21, but a reflection of
the settled interpretation of the Commission on Appointments
speaking through its Chairman. While on certain aspects not
material, the facts of this case may be distinguished, from Altajeros
v. Molo, there being no motion to lay on the table and no
withdrawal of such motion for reconsideration, the principle that
calls for application cannot be any different. What is decisive is that
a confirmation duly made is not nullified simply by a motion for
reconsideration being filed, without its being voted upon and
approved.
2. The Altarejos ruling possesses the merit of interpreting Rule 21
of the Commission on Appointments conformably to the letter and
spirit of the constitutional provisions on the appointing power of the
President. The first one reads: "The President shall nominate and
with the consent of the Commission on Appointments, shall appoint
the heads of the executive departments and bureaus, officers of

309
the Army from the rank of colonel, of the Navy and air forces from
the rank of captain or commander, and all other officers of the
Government whose appointments are not herein otherwise
provided for, and those whom he may be authorized by law to
appoint; but the Congress may by law vest the appointment of
inferior officers, in the President alone, in the courts, or in the
heads of departments." 18 The other provision is worded, thus: "The
President shall have the power to make appointments during the
recess of the Congress, but such appointments shall be effective
only until disapproval by the Commission on Appointments or until
the next adjournment of the Congress." 19
A distinction is thus made between the exercise of such presidential
prerogative requiring confirmation by the Commission on
Appointments when Congress is in session and when it is in recess.
In the former the President nominates, and only upon the consent
of the Commission Appointments may the person thus named
assume office. It is not so with reference to ad interim
appointments. It takes effect at once. The individual chosen may
thus qualify and perform his function without loss of time. His title
to such office is complete. In the language of the Constitution, the
appointment is effective "until disapproval by the Commission on
Appointments or until the next adjournment of the Congress." 20
The constitutional requirement is clear. There must either be a
rejection by the Commission on Appointments or nonaction on its
part. No such thing happened in this case. Petitioner, as pointed
out, had instead in his favor a unanimous vote of confirmation. He
could thus invoke constitutional protection. For respondents to
argue that the mere filing of a motion for reconsideration did suffice
to set it aside, even in the absence of any further action, is, as
stressed by petitioner, to lose sight of what is provided in the
Constitution. That would be moreover tantamount to imparting to a
move of a single member of a collective body a decisive weight. It
is bad enough if the minority were to prevail. A one-man rule, which
is the effect of what respondent Secretary of the Commission on
Appointments contends, is infinitely worse. It is indefensible in
principle and pernicious in operation. It can find no shelter in the

constitutional prescription. Rather it makes a mockery of what is

therein ordained. Petitioner's stand is thus unassailable.
3. Nor does the insistence of respondent Secretary of the
Commission on Appointments, in his answer, that the question
involved is beyond the jurisdiction of this Court, elicit approval. It
would extend the boundaries of the political question doctrine
beyond its legitimate limits. The courts are called upon to see to it
that private rights are not invaded. Thus even legislative acts and
executive orders are not beyond the pale of judicial scrutiny.
Certainly there is nothing sacrosanct about a rule of the
Commission on Appointments, especially so, when as in this case, a
construction sought to be fastened on it would defeat the right of
an individual to a public office. It certainly can be inquired into in an
appropriate case, although the utmost deference should be paid to
the interpretation accorded it by the Commission on Appointments
itself. In the terse language of Justice Brandeis, speaking of the
rules of the United States Senate, which, under its Constitution, has
the task of confirmation: "As the construction to be given to the
rule affects persons other than members of the Senate, the
question presented is of necessity a judicial one." 21 The task
becomes unavoidable when claims arising from the express
language of the Constitution are pressed upon the judiciary. So it is
in this case. It is a truism that under the circumstances, what
cannot be ignored is the primacy of what the fundamental law
ordains.
Such an approach, it is heartening to note, is implicit in the
memorandum on behalf of respondent Secretary of Justice,
submitted by the then Solicitor General Barredo. Thus: "Although
the Commission On Appointments is not a power in our tripartite
system of government, it is to all intents and purposes, like the
Electoral Tribunals, when acting within the limits of its authority, an
independent organ. (Cf. Angara vs. Electoral Commission, 63 Phil.
139) Its actuation in the exercise of its power to approve
appointments submitted to it by the President of the Philippines is
exempt from judicial supervision and interference, except on a
clear showing of such arbitrary and improvident use of the powers

310
as will constitute a denial of due process. (Cf. Morero vs. Bocar, 37
O.G. 445)." 22As due process is impressed with both substantive
and procedural significance, the scope of judicial inquiry is thus not
unduly limited.
WHEREFORE, petitioner is entitled to the writ of mandamus and the
Secretary of the Commission on Appointments is commanded to
issue the certificate of confirmation prayed for by petitioner. The
incumbent Secretary of Justice is prohibited from giving any further
force and effect to the Department of Justice directive of February
7, 1966 advising petitioner to vacate his position as municipal
judge in view of the communication received from then Secretary of
the Commission on Appointments, inasmuch as the right of
petitioner to perform his functions as municipal judge of
Pigcawayan, Cotabato is in accordance with law, his confirmation
having been duly confirmed. No pronouncement as to costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Villamor and
Makasiar, JJ., concur.
Barredo and Teehankee, JJ., took no part.
Dizon and Castro JJ., are on official leave.

311
EN BANC
[G.R. No. 127255. August 14, 1997]
JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN HENRY R.
OSMEA, WIGBERTO E. TAADA, and RONALDO B.
ZAMORA,petitioners, vs. JOSE DE VENECIA, RAUL
DAZA,
RODOLFO
ALBANO,
THE
EXECUTIVE
SECRETARY, THE SECRETARY OF FINANCE, AND THE
COMMISSIONER OF INTERNAL REVENUE, respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari and/or prohibition challenging
the validity of Republic Act No. 8240, which amends certain
provisions of the National Internal Revenue Code by imposing socalled sin taxes (actually specific taxes) on the manufacture and
sale of beer and cigarettes.
Petitioners are members of the House of Representatives. They
brought this suit against respondents Jose de Venecia, Speaker of
the House of Representatives, Deputy Speaker Raul Daza, Majority
Leader Rodolfo Albano, the Executive Secretary, the Secretary of
Finance, and the Commissioner of Internal Revenue, charging
violation of the rules of the House which petitioners claim are
constitutionally mandated so that their violation is tantamount to a
violation of the Constitution.
The law originated in the House of Representatives as H. No.
7198. This bill was approved on third reading on September 12,
1996 and transmitted on September 16, 1996 to the Senate which
approved it with certain amendments on third reading on
November 17, 1996. A bicameral conference committee was
formed to reconcile the disagreeing provisions of the House and
Senate versions of the bill.

The bicameral conference committee submitted its report to

the House at 8 a.m. on November 21, 1996. At 11:48 a.m., after a
recess, Rep. Exequiel Javier, chairman of the Committee on Ways
and Means, proceeded to deliver his sponsorship speech, after
which he was interpellated. Rep. Rogelio Sarmiento was first to
interpellate. He was interrupted when Rep. Arroyo moved to
adjourn for lack of quorum. Rep. Antonio Cuenco objected to the
motion and asked for a head count. After a roll call, the Chair
(Deputy Speaker Raul Daza) declared the presence of a quorum.
[1]
Rep. Arroyo appealed the ruling of the Chair, but his motion was
defeated when put to a vote. The interpellation of the sponsor
thereafter proceeded.
Petitioner Rep. Joker Arroyo registered to interpellate. He was
fourth in the order, following Rep. Rogelio Sarmiento, Rep. Edcel C.
Lagman and Rep. Enrique Garcia. In the course of his interpellation,
Rep. Arroyo announced that he was going to raise a question on
the quorum, although until the end of his interpellation he never
did. What happened thereafter is shown in the following transcript
of the session on November 21, 1996 of the House of
Representatives, as published by Congress in the newspaper issues
of December 5 and 6, 1996:
MR. ALBANO. Mr. Speaker, I move that we now approve and
ratify the conference committee report.
THE DEPUTY SPEAKER (Mr. Daza). Any objection to the motion?
MR. ARROYO. What is that, Mr. Speaker?
THE DEPUTY SPEAKER (Mr. Daza). There being none, approved.
(Gavel)
MR. ARROYO. No, no, no, wait a minute, Mr. Speaker, I stood
up. I want to know what is the question that the Chair asked
the distinguished sponsor.

312
THE DEPUTY SPEAKER (Mr. Daza). There was a motion by the
Majority Leader for approval of the report, and the Chair called
for the motion.
MR. ARROYO. Objection, I stood up, so I wanted to object.
THE DEPUTY SPEAKER (Mr. Daza). The session is suspended for
one minute.
(It was 3:01 p.m.) (3:40 p.m., the session was resumed)
THE DEPUTY SPEAKER (Mr. Daza). The session is resumed.
MR. ALBANO. Mr. Speaker, I move to adjourn until four oclock,
Wednesday, next week.
THE DEPUTY SPEAKER (Mr. Daza). The session is adjourned
until four oclock, Wednesday, next week.
(It was 3:40 p.m.)
On the same day, the bill was signed by the Speaker of the
House of Representatives and the President of the Senate and
certified by the respective secretaries of both Houses of Congress
as having been finally passed by the House of Representatives and
by the Senate on November 21, 1996. The enrolled bill was signed
into law by President Fidel V. Ramos on November 22, 1996.
Petitioners claim that there are actually four different versions
of the transcript of this portion of Rep. Arroyos interpellation: (1)
the transcript of audio-sound recording of the proceedings in the
session hall immediately after the session adjourned at 3:40 p.m.
on November 21, 1996, which petitioner Rep. Edcel C. Lagman
obtained from the operators of the sound system; (2) the transcript
of the proceedings from 3:00 p.m. to 3:40 p.m. of November 21,
1996, as certified by the Chief of the Transcription Division on
November 21, 1996, also obtained by Rep. Lagman; (3) the
transcript of the proceedings from 3:00 p.m. to 3:40 p.m. of

November 21, 1996 as certified by the Chief of the Transcription

Division on November 28, 1996, also obtained by Rep. Lagman; and
(4) the published version abovequoted. According to petitioners,
the four versions differ on three points, to wit: (1) in the audiosound recording the word approved, which appears on line 13 in
the three other versions, cannot be heard; (2) in the transcript
certified on November 21, 1996 the word no on line 17 appears
only once, while in the other versions it is repeated three times;
and (3) the published version does not contain the sentence (Y)ou
better prepare for a quorum because I will raise the question of
the quorum, which appears in the other versions.
Petitioners
allegations
are
vehemently
denied
by
respondents. However, there is no need to discuss this point as
petitioners have announced that, in order to expedite the resolution
of this petition, they admit, without conceding, the correctness of
the transcripts relied upon by the respondents. Petitioners agree
that for purposes of this proceeding the word approved appears in
the transcripts.
Only the proceedings of the House of Representatives on the
conference committee report on H. No. 7198 are in
question. Petitioners principal argument is that R.A. No. 8240 is null
and void because it was passed in violation of the rules of the
House; that these rules embody the constitutional mandate in Art.
VI, 16(3) that each House may determine the rules of its
proceedings and that, consequently, violation of the House rules is
a violation of the Constitution itself. They contend that the
certification of Speaker De Venecia that the law was properly
passed is false and spurious.
More specifically, petitioners charge that (1) in violation of Rule
VIII, 35 and Rule XVII, 103 of the rules of the House, [2] the Chair, in
submitting the conference committee report to the House, did not
call for the yeas or nays, but simply asked for its approval by
motion in order to prevent petitioner Arroyo from questioning the
presence of a quorum; (2) in violation of Rule XIX, 112, [3] the Chair
deliberately ignored Rep. Arroyos question, What is that . . . Mr.

313
Speaker? and did not repeat Rep. Albanos motion to approve or
ratify; (3) in violation of Rule XVI, 97, [4] the Chair refused to
recognize Rep. Arroyo and instead proceeded to act on Rep.
Albanos motion and afterward declared the report approved; and
(4) in violation of Rule XX, 121-122, Rule XXI, 123, and Rule XVIII,
109,[5] the Chair suspended the session without first ruling on Rep.
Arroyos question which, it is alleged, is a point of order or a
privileged motion. It is argued that Rep. Arroyos query should have
been resolved upon the resumption of the session on November 28,
1996, because the parliamentary situation at the time of the
adjournment remained upon the resumption of the session.
Petitioners also charge that the session was hastily adjourned
at 3:40 p.m. on November 21, 1996 and the bill certified by
Speaker Jose De Venecia to prevent petitioner Rep. Arroyo from
formally challenging the existence of a quorum and asking for a
reconsideration.
Petitioners urge the Court not to feel bound by the certification
of the Speaker of the House that the law had been properly passed,
considering the Courts power under Art. VIII, 1 to pass on claims of
grave abuse of discretion by the other departments of the
government, and they ask for a reexamination of Tolentino v.
Secretary of Finance,[6] which affirmed the conclusiveness of an
enrolled bill, in view of the changed membership of the Court.
The Solicitor General filed a comment in behalf of all
respondents. In addition, respondent De Venecia filed a
supplemental comment. Respondents defense is anchored on the
principle of separation of powers and the enrolled bill doctrine.
They argue that the Court is not the proper forum for the
enforcement of the rules of the House and that there is no
justification for reconsidering the enrolled bill doctrine. Although
the Constitution provides in Art. VI, 16(3) for the adoption by each
House of its rules of proceedings, enforcement of the rules cannot
be sought in the courts except insofar as they implement
constitutional requirements such as that relating to three readings
on separate days before a bill may be passed. At all events,

respondents contend that, in passing the bill which became R.A. No.
8240, the rules of the House, as well as parliamentary precedents
for approval of conference committee reports on mere motion, were
faithfully observed.
In his supplemental comment, respondent De Venecia denies
that his certification of H. No. 7198 is false and spurious and
contends that under the journal entry rule, the judicial inquiry
sought by the petitioners is barred. Indeed, Journal No. 39 of the
House of Representatives, covering the sessions of November 20
and 21, 1996, shows that On Motion of Mr. Albano, there being no
objection, the Body approved the Conference Committee Report on
House Bill No. 7198.[7] This Journal was approved on December 2,
1996 over the lone objection of petitioner Rep. Lagman. [8]
After considering the arguments of the parties, the Court finds
no ground for holding that Congress committed a grave abuse of
discretion in enacting R.A. No. 8240. This case is therefore
dismissed.
First. It is clear from the foregoing facts that what is alleged to
have been violated in the enactment of R.A. No. 8240 are merely
internal rules of procedure of the House rather than constitutional
requirements for the enactment of a law, i.e., Art. VI, 2627. Petitioners do not claim that there was no quorum but only that,
by some maneuver allegedly in violation of the rules of the House,
Rep. Arroyo was effectively prevented from questioning the
presence of a quorum.
Petitioners contend that the House rules were adopted
pursuant to the constitutional provision that each House may
determine the rules of its proceedings[9] and that for this reason
they are judicially enforceable. To begin with, this contention stands
the principle on its head. In the decided cases,[10] the constitutional
provision that each House may determine the rules of its
proceedings was invoked by parties, although not successfully,
precisely to support claims of autonomy of the legislative branch to
conduct its business free from interference by courts. Here

314
petitioners cite the provision for the opposite purpose of invoking
judicial review.
But the cases, both here and abroad, in varying forms of
expression, all deny to the courts the power to inquire into
allegations that, in enacting a law, a House of Congress failed to
comply with its own rules, in the absence of showing that there was
a violation of a constitutional provision or the rights of private
individuals. In Osmea v. Pendatun,[11] it was held: At any rate,
courts have declared that the rules adopted by deliberative bodies
are subject to revocation, modification or waiver at the pleasure of
the body adopting them. And it has been said that Parliamentary
rules are merely procedural, and with their observance, the courts
have no concern. They may be waived or disregarded by the
legislative body. Consequently, mere failure to conform to
parliamentary usage will not invalidate the action (taken by a
deliberative body) when the requisite number of members have
agreed to a particular measure.
[12]

In United States v. Ballin, Joseph & Co.,

the rule was stated
thus: The Constitution empowers each house to determine its rules
of proceedings.It may not by its rules ignore constitutional
restraints or violate fundamental rights, and there should be a
reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be
attained. But within these limitations all matters of method are
open to the determination of the House, and it is no impeachment
of the rule to say that some other way would be better, more
accurate, or even more just.It is no objection to the validity of a rule
that a different one has been prescribed and in force for a length of
time. The power to make rules is not one which once exercised is
exhausted. It is a continuous power, always subject to be exercised
by the House, and within the limitations suggested, absolute and
beyond the challenge of any other body or tribunal.
In Crawford v. Gilchrist,[13] it was held: The provision that each
House shall determine the rules of its proceedings does not restrict
the power given to a mere formulation of standing rules, or to the

proceedings of the body in ordinary legislative matters; but in the

absence of constitutional restraints, and when exercised by a
majority of a constitutional quorum, such authority extends to a
determination of the propriety and effect of any action as it is taken
by the body as it proceeds in the exercise of any power, in the
transaction of any business, or in the performance of any duty
conferred upon it by the Constitution.
In State ex rel. City Loan & Savings Co. v. Moore,[14] the
Supreme Court of Ohio stated: The provision for reconsideration is
no part of the Constitution and is therefore entirely within the
control of the General Assembly. Having made the rule, it should be
regarded, but a failure to regard it is not the subject-matter of
judicial inquiry. It has been decided by the courts of last resort of
many states, and also by the United States Supreme Court, that a
legislative act will not be declared invalid for noncompliance with
rules.
In State v. Savings Bank,[15] the Supreme Court of Errors of
Connecticut declared itself as follows: The Constitution declares
that each house shall determine the rules of its own proceedings
and shall have all powers necessary for a branch of the Legislature
of a free and independent state. Rules of proceedings are the
servants of the House and subject to its authority. This authority
may be abused, but when the House has acted in a matter clearly
within its power, it would be an unwarranted invasion of the
independence of the legislative department for the court to set
aside such action as void because it may think that the House has
misconstrued or departed from its own rules of procedure.
In McDonald v. State,[16] the Wisconsin Supreme Court held:
When it appears that an act was so passed, no inquiry will be
permitted to ascertain whether the two houses have or have not
complied strictly with their own rules in their procedure upon the
bill, intermediate its introduction and final passage. The
presumption is conclusive that they have done so. We think no
court has ever declared an act of the legislature void for noncompliance with the rules of procedure made by itself, or the

315
respective branches thereof, and which it or they may change or
suspend at will. If there are any such adjudications, we decline to
follow them.
Schweizer v. Territory[17] is illustrative of the rule in these
cases. The 1893 Statutes of Oklahoma provided for three readings
on separate days before a bill may be passed by each house of the
legislature, with the proviso that in case of an emergency the house
concerned may, by two-thirds vote, suspend the operation of the
rule. Plaintiff was convicted in the district court of violation of a law
punishing gambling. He appealed contending that the gambling
statute was not properly passed by the legislature because the
suspension of the rule on three readings had not been approved by
the requisite two-thirds vote. Dismissing this contention, the State
Supreme Court of Oklahoma held:
We have no constitutional provision requiring that the legislature
should read a bill in any particular manner. It may, then, read or
deliberate upon a bill as it sees fit, either in accordance with its
own rules, or in violation thereof, or without making any rules. The
provision of section 17 referred to is merely a statutory provision
for the direction of the legislature in its action upon proposed
measures. It receives its entire force from legislative sanction, and
it exists only at legislative pleasure. The failure of the legislature to
properly weigh and consider an act, its passage through the
legislature in a hasty manner, might be reasons for the governor
withholding his signature thereto; but this alone, even though it is
shown to be a violation of a rule which the legislature had made to
govern its own proceedings, could be no reason for the courts
refusing its enforcement after it was actually passed by a majority
of each branch of the legislature, and duly signed by the
governor. The courts cannot declare an act of the legislature void
on account of noncompliance with rules of procedure made by itself
to govern its deliberations. McDonald v. State, 80 Wis. 407, 50 N.W.
185; In re Ryan, 80 Wis. 414, 50 N. W. 187; State v. Brown, 33 S.C.
151, 11 S. E. 641; Railway Co. v. Gill, 54 Ark. 101, 15 S. W. 18.

We conclude this survey with the useful summary of the rulings

by former Chief Justice Fernando, commenting on the power of
each House of Congress to determine its rules of proceedings. He
wrote:
Rules are hardly permanent in character. The prevailing view is that
they are subject to revocation, modification or waiver at the
pleasure of the body adopting them as they are primarily
procedural. Courts ordinarily have no concern with their
observance. They may be waived or disregarded by the legislative
body. Consequently, mere failure to conform to them does not have
the effect of nullifying the act taken if the requisite number of
members have agreed to a particular measure. The above principle
is subject, however, to this qualification. Where the construction to
be given to a rule affects persons other than members of the
legislative body the question presented is necessarily judicial in
character. Even its validity is open to question in a case where
private rights are involved.[18]
In this case no rights of private individuals are involved but
only those of a member who, instead of seeking redress in the
House, chose to transfer the dispute to this Court. We have no
more power to look into the internal proceedings of a House than
members of that House have to look over our shoulders, as long as
no violation of constitutional provisions is shown.
Petitioners must realize that each of the three departments of
our government has its separate sphere which the others may not
invade without upsetting the delicate balance on which our
constitutional order rests. Due regard for the working of our system
of government, more than mere comity, compels reluctance on our
part to enter upon an inquiry into an alleged violation of the rules
of the House. We must accordingly decline the invitation to exercise
our power.
Second. Petitioners, quoting former Chief Justice Roberto
Concepcions sponsorship in the Constitutional Commission,
contend that under Art. VIII, 1, nothing involving abuse of discretion

316
[by the other branches of the government] amounting to lack or
excess of jurisdiction is beyond judicial review. [19] Implicit in this
statement of the former Chief Justice, however, is an
acknowledgment that the jurisdiction of this Court is subject to the
case and controversy requirement of Art. VIII, 5 and, therefore, to
the requirement of a justiciable controversy before courts can
adjudicate constitutional questions such as those which arise in the
field of foreign relations. For while Art. VIII, 1 has broadened the
scope of judicial inquiry into areas normally left to the political
departments to decide, such as those relating to national security,
[20]
it has not altogether done away with political questions such as
those which arise in the field of foreign relations. As we have
already held, under Art. VIII, 1, this Courts function
is merely [to] check whether or not the governmental branch or
agency has gone beyond the constitutional limits of its jurisdiction,
not that it erred or has a different view. In the absence of a showing
. . . [of] grave abuse of discretion amounting to lack of jurisdiction,
there is no occasion for the Court to exercise its corrective
power. . . . It has no power to look into what it thinks is apparent
error.[21]
If, then, the established rule is that courts cannot declare an act of
the legislature void on account merely of noncompliance with rules
of procedure made by itself, it follows that such a case does not
present a situation in which a branch of the government has gone
beyond the constitutional limits of its jurisdiction so as to call for
the exercise of our Art. VIII, 1 power.
Third. Petitioners claim that the passage of the law in the
House was railroaded. They claim that Rep. Arroyo was still making
a query to the Chair when the latter declared Rep. Albanos motion
approved.
What happened is that, after Rep. Arroyos interpellation of the
sponsor of the committee report, Majority Leader Rodolfo Albano
moved for the approval and ratification of the conference
committee report. The Chair called out for objections to the

motion. Then the Chair declared: There being none, approved. At

the same time the Chair was saying this, however, Rep. Arroyo was
asking, What is that . . . Mr. Speaker? The Chair and Rep. Arroyo
were talking simultaneously. Thus, although Rep. Arroyo
subsequently objected to the Majority Leaders motion, the approval
of the conference committee report had by then already been
declared by the Chair, symbolized by its banging of the gavel.
Petitioners argue that, in accordance with the rules of the
House, Rep. Albanos motion for the approval of the conference
committee report should have been stated by the Chair and later
the individual votes of the Members should have been taken. They
say that the method used in this case is a legislators nightmare
because it suggests unanimity when the fact was that one or some
legislators opposed the report.
No rule of the House of Representatives has been cited which
specifically requires that in cases such as this involving approval of
a conference committee report, the Chair must restate the motion
and conduct a viva voce or nominal voting. On the other hand, as
the Solicitor General has pointed out, the manner in which the
conference committee report on H. No. 7198 was approved was by
no means a unique one. It has basis in legislative practice. It was
the way the conference committee report on the bills which
became the Local Government Code of 1991 and the conference
committee report on the bills amending the Tariff and Customs
Code were approved.
In 1957, the practice was questioned as being contrary to the
rules of the House. The point was answered by Majority Leader
Arturo M. Tolentino and his answer became the ruling of the
Chair. Mr. Tolentino said:
Mr. Tolentino. The fact that nobody objects means a unanimous
action of the House. Insofar as the matter of procedure is
concerned, this has been a precedent since I came here seven
years ago, and it has been the procedure in this House that if

317
somebody objects, then a debate follows and after the debate, then
the voting comes in.

votes of the Members by yeas and nays had already been taken, it
would have been sheer tedium to repeat the process.

....

Petitioners claim that they were prevented from seeking

reconsideration allegedly as a result of the precipitate suspension
and subsequent adjournment of the session. [29] It would appear,
however, that the session was suspended to allow the parties to
settle the problem, because when it resumed at 3:40 p.m. on that
day Rep. Arroyo did not say anything anymore. While it is true that
the Majority Leader moved for adjournment until 4 p.m. of
Wednesday of the following week, Rep. Arroyo could at least have
objected if there was anything he wanted to say. The fact, however,
is that he did not. The Journal of November 21, 1996 of the House
shows:

Mr. Speaker, a point of order was raised by the gentleman from

Leyte, and I wonder what his attitude is now on his point of order. I
should just like to state that I believe that we have had a
substantial compliance with the Rules. The Rule invoked is not one
that refers to statutory or constitutional requirement, and a
substantial compliance, to my mind, is sufficient. When the Chair
announces the vote by saying Is there any objection? and nobody
objects, then the Chair announces The bill is approved on second
reading. If there was any doubt as to the vote, any motion to divide
would have been proper. So, if that motion is not presented, we
assume that the House approves the measure. So I believe there is
substantial compliance here, and if anybody wants a division of the
House he can always ask for it, and the Chair can announce how
many are in favor and how many are against. [22]
Indeed, it is no impeachment of the method to say that some
other way would be better, more accurate and even more just.
[23]
The advantages or disadvantages, the wisdom or folly of a
method do not present any matter for judicial consideration. [24] In
the words of the U.S. Circuit Court of Appeals, this Court cannot
provide a second opinion on what is the best procedure.
Notwithstanding the deference and esteem that is properly
tendered to individual congressional actors, our deference and
esteem for the institution as a whole and for the constitutional
command that the institution be allowed to manage its own affairs
precludes us from even attempting a diagnosis of the problem. [25]
Nor does the Constitution require that the yeas and the nays of
the Members be taken every time a House has to vote, except only
in the following instances: upon the last and third readings of a bill,
[26]
at the request of one-fifth of the Members present, [27] and in
repassing a bill over the veto of the President.[28] Indeed,
considering the fact that in the approval of the original bill the

ADJOURNMENT OF SESSION
On motion of Mr. Albano, there being no objection, the Chair
declared the session adjourned until four oclock in the afternoon of
Wednesday, November 27, 1996.
It was 3:40 p.m. Thursday, November 21, 1996. (emphasis added)
This Journal was approved on December 2, 1996. Again, no one
objected to its approval except Rep. Lagman.
It is thus apparent that petitioners predicament was largely of
their own making. Instead of submitting the proper motions for the
House to act upon, petitioners insisted on the pendency of Rep.
Arroyos question as an obstacle to the passage of the bill. But Rep.
Arroyos question was not, in form or substance, a point of order or
a question of privilege entitled to precedence. [30] And even if Rep.
Arroyos question were so, Rep. Albanos motion to adjourn would
have precedence and would have put an end to any further
consideration of the question.[31]
Given this fact, it is difficult to see how it can plausibly be
contended that in signing the bill which became R.A. No. 8240,

318
respondent Speaker of the House be acted with grave abuse of his
discretion. Indeed, the phrase grave abuse of discretion amounting
to lack or excess of jurisdiction has a settled meaning in the
jurisprudence of procedure. It means such capricious and whimsical
exercise of judgment by a tribunal exercising judicial or quasi
judicial power as to amount to lack of power. As Chief Justice
Concepcion himself said in explaining this provision, the power
granted to the courts by Art. VIII, 1 extends to cases where a
branch of the government or any of its officials has acted without
jurisdiction or in excess of jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting to excess of
jurisdiction.[32]

Fourth. Under the enrolled bill doctrine, the signing of H. No.

7198 by the Speaker of the House and the President of the Senate
and the certification by the secretaries of both Houses of Congress
that it was passed on November 21, 1996 are conclusive of its due
enactment. Much energy and learning is devoted in the separate
opinion of Justice Puno, joined by Justice Davide, to disputing this
doctrine. To be sure, there is no claim either here or in the decision
in the EVAT cases [Tolentino v. Secretary of Finance] that the
enrolled bill embodies a conclusive presumption. In one case[38] we
went behind an enrolled bill and consulted the Journal to determine
whether certain provisions of a statute had been approved by the
Senate.

Here, the matter complained of concerns a matter of internal

procedure of the House with which the Court should not be
concerned. To repeat,the claim is not that there was no quorum but
only that Rep. Arroyo was effectively prevented from questioning
the presence of a quorum. Rep. Arroyos earlier motion to adjourn
for lack of quorum had already been defeated, as the roll call
established the existence of a quorum. The question of quorum
cannot be raised repeatedly especially when the quorum is
obviously present for the purpose of delaying the business of the
House.[33] Rep. Arroyo waived his objection by his continued
interpellation of the sponsor for in so doing he in effect
acknowledged the presence of a quorum. [34]

But, where as here there is no evidence to the contrary, this

Court will respect the certification of the presiding officers of both
Houses that a bill has been duly passed. Under this rule, this Court
has refused to determine claims that the three-fourths vote needed
to pass a proposed amendment to the Constitution had not been
obtained, because a duly authenticated bill or resolution imports
absolute verity and is binding on the courts. [39] This Court quoted
from Wigmore on Evidence the following excerpt which embodies
good, if old-fashioned, democratic theory:

At any rate it is noteworthy that of the 111 members of the

House earlier found to be present on November 21, 1996, only the
five, i.e., petitioners in this case, are questioning the manner by
which the conference committee report on H. No. 7198 was
approved on that day. No one, except Rep. Arroyo, appears to have
objected to the manner by which the report was approved. Rep.
John Henry Osmea did not participate in the bicameral conference
committee proceedings.[35] Rep. Lagman and Rep. Zamora objected
to the report[36] but not to the manner it was approved; while it is
said that, if voting had been conducted, Rep. Taada would have
voted in favor of the conference committee report.[37]

The truth is that many have been carried away with the righteous
desire to check at any cost the misdoings of Legislatures. They
have set such store by the Judiciary for this purpose that they have
almost made them a second and higher Legislature. But they aim in
the wrong direction. Instead of trusting a faithful Judiciary to check
an inefficient Legislature, they should turn to improve the
Legislature. The sensible solution is not to patch and mend casual
errors by asking the Judiciary to violate legal principle and to do
impossibilities with the Constitution; but to represent ourselves with
competent, careful, and honest legislators, the work of whose
hands on the statute-roll may come to reflect credit upon the name
of popular government.[40]

319
This Court has refused to even look into allegations that the
enrolled bill sent to the President contained provisions which had
been surreptitiously inserted in the conference committee:
[W]here allegations that the constitutional procedures for the
passage of bills have not been observed have no more basis than
another allegation that the Conference Committee surreptitiously
inserted provisions into a bill which it had prepared, we should
decline the invitation to go behind the enrolled copy of the bill. To
disregard the enrolled bill rule in such cases would be to disregard
the respect due the other two departments of our government.[41]
It has refused to look into charges that an amendment was
made upon the last reading of a bill in violation of Art. VI, 26(2) of
the Constitution that upon the last reading of a bill, no amendment
shall be allowed. [42]
In other cases,[43] this Court has denied claims that the tenor of
a bill was otherwise than as certified by the presiding officers of
both Houses of Congress.
The enrolled bill doctrine, as a rule of evidence, is well
established. It is cited with approval by text writers here and
abroad.[44] The enrolled bill rule rests on the following
considerations:
. . . As the President has no authority to approve a bill not passed
by Congress, an enrolled Act in the custody of the Secretary of
State, and having the official attestations of the Speaker of the
House of Representatives, of the President of the Senate, and of the
President of the United States, carries, on its face, a solemn
assurance by the legislative and executive departments of the
government, charged, respectively, with the duty of enacting and
executing the laws, that it was passed by Congress. The respect
due to coequal and independent departments requires the judicial
department to act upon that assurance, and to accept, as having
passed Congress, all bills authenticated in the manner stated;
leaving the court to determine, when the question properly arises,

whether the Act, so authenticated, is in conformity with the

Constitution.[45]
To overrule the doctrine now, as the dissent urges, is to
repudiate the massive teaching of our cases and overthrow an
established rule of evidence.
Indeed, petitioners have advanced no argument to warrant a
departure from the rule, except to say that, with a change in the
membership of the Court, the three new members may be assumed
to have an open mind on the question of the enrolled bill
rule. Actually, not three but four (Cruz, Feliciano, Bidin, and
Quiason, JJ.) have departed from the Court since our decision in the
EVAT cases and their places have since been taken by four new
members
(Francisco,
Hermosisima,
Panganiban,
and
Torres, JJ.) Petitioners are thus simply banking on the change in the
membership of the Court.
Moreover, as already noted, the due enactment of the law in
question is confirmed by the Journal of the House of November 21,
1996 which shows that the conference committee report on H. No.
7198, which became R.A. No. 8240, was approved on that day. The
keeping of the Journal is required by the Constitution. Art. VI, 16(4)
provides:
Each House shall keep a Journal of its proceedings, and from time
to time publish the same, excepting such parts as may, in its
judgment, affect national security; and the yeas and nays on any
question shall, at the request of one-fifth of the Members present,
be entered in the Journal.
Each House shall also keep a Record of its proceedings.
The Journal is regarded as conclusive with respect to matters
that are required by the Constitution to be recorded therein. [46] With
respect to other matters, in the absence of evidence to the
contrary, the Journals have also been accorded conclusive
effect. Thus, in United States v. Pons,[47] this Court spoke of the

320
imperatives of public policy for regarding the Journals as public
memorials of the most permanent character, thus: They should be
public, because all are required to conform to them; they should be
permanent, that rights acquired today upon the faith of what has
been declared to be law shall not be destroyed tomorrow, or at
some remote period of time, by facts resting only in the memory of
individuals. As already noted, the bill which became R.A. No. 8240
is shown in the Journal. Hence its due enactment has been duly
proven.

Puno, J., has a separate concurring and dissenting opinion.

Davide, Jr., J., joined the concurring and dissenting opinion of
Justice Puno.
Vitug, J., has a separate concurring opinion.
Regalado, J., in the result.

___________________
It would be an unwarranted invasion of the prerogative of a
coequal department for this Court either to set aside a legislative
action as void because the Court thinks the House has disregarded
its own rules of procedure, or to allow those defeated in the
political arena to seek a rematch in the judicial forum when
petitioners can find their remedy in that department itself. The
Court has not been invested with a roving commission to inquire
into complaints, real or imagined, of legislative skullduggery. It
would be acting in excess of its power and would itself be guilty of
grave abuse of its discretion were it to do so. The suggestion made
in a case[48] may instead appropriately be made here: petitioners
can seek the enactment of a new law or the repeal or amendment
of R.A. No. 8240. In the absence of anything to the contrary, the
Court must assume that Congress or any House thereof acted in
the good faith belief that its conduct was permitted by its rules, and
deference rather than disrespect is due the judgment of that body.
[49]

WHEREFORE, the
DISMISSED.

Romero, J., has a separate opinion.

petition

for certiorari and

prohibition

is

SO ORDERED.
Narvasa,
C.J.,
Padilla,
Francisco, and Hermosisima, Jr., JJ., concur.

Melo,

Kapunan,

Bellosillo, J., took no part due to relationship with parties.

Panganiban, J., took no part. Former counsel of a party.
Torres, Jr., J., on leave during the deliberations.

321
G.R. No. 22041
September 11, 1924
JOSE
ALEJANDRINO, petitioner,
vs.
MANUEL L. QUEZON, ET AL., respondents.
Araneta
&
Zaragoza
for
petitioner.
Attorney-General Villa-Real for respondents.
MALCOLM, J.:
The petitioner in this original proceeding in mandamus and
injunction is Jose Alejandrino, a Senator appointed by the GovernorGeneral to represent the Twelfth Senatorial District. The
respondents are Manuel L. Quezon, President of the Philippine
Senate; Isabelo de los Reyes, Santiago Fonacier, Alejo Mabanag,
Bernabe de Guzman, Ramon Fernandez, Emiliano T. Tirona, Antero
Soriano, Juan B. Alegre, Vicente de Vera, Jose Ma. Arroyo, Francisco
Enage, Tomas Gomez, Sergio Osmea, Celestino Rodriguez,
Francisco Soriano, Jose A. Clarin, Hadji Butu, Espiridion Guanco,
Hermenegildo Villanueva, Jose Hontiveros, Teodoro Sandiko, and
Santiago Lucero, all members of the Philippine Senate; Faustino
Aguilar, Secretary of the Philippine Senate; Bernabe Bustamante,
Sergeant-at-arms of the Philippine Senate, and Francisco Dayaw,
Paymaster of the Philippine Senate.
The casus belli is a resolution adopted by the Philippine Senate
composed of the respondent Senators, on February 5, 1924,
depriving Senator Alejandrino of all the prerogatives, privileges,
and emoluments of his office for the period of one year from the
first of January, 1924. The resolution reads as follows:
Resolved: That the Honorable Jose Alejandrino, Senator for the
Twelfth District, be, as he is hereby declared guilty of disorderly
conduct and flagrant violation of the privileges of the Senate for
having treacherously assaulted the Honorable Vicente de Vera,
Senator for the Sixth District on the occasion of the debate
regarding the credentials of said Mr. Alejandrino;
Resolved, further: That the Honorable Jose Alejandrino be, as he is
hereby, deprived of all of his prerogatives, privileges and
emoluments as such Senator during one year from the first of
January, nineteen hundred and twenty-four;
And, resolved, lastly: That the said Honorable Jose Alejandrino,
being a Senator appointed by the Governor-General of these

Islands, a copy of this resolution be furnished said GovernorGeneral for his information.
The burden of petitioner's complaint is that the resolution above
quoted is unconstitutional and entirely of no effect, for five reasons.
He prays the court: (1) To issue a preliminary injunction against the
respondents enjoining them from executing the resolution; (2) to
declare the aforesaid resolution of the Senate null and void; and (3)
as a consequence of the foregoing, to issue a final writ
of mandamus and injunction against the respondents ordering
them to recognize the rights of the petitioner to exercise his office
as Senator and that he enjoy all of his prerogatives, privileges, and
emoluments, and prohibiting them from preventing the petitioner
from exercising the rights of his office, and from carrying the order
of suspension, into effect. By special appearance, the AttorneyGeneral, in representation of the respondents, has objected to the
jurisdiction of the court, and later, by demurrer, has pressed the
same point.
In order that an obvious angle to the case may not subsequently
embarrass us, we desire first of all to say that looking through the
form of the action to the substance, this is, in effect, a suit
instituted by one member of the Philippine Senate against the
Philippine Senate and certain of its official employees. May the
Supreme Court of the Philippines Islands by mandamus and
injunction annul the suspension of Senator Alejandrino and compel
the Philippine Senate to reinstate him in his official position?
Without, therefore, at this time discussing any of the other
interesting questions which have been raised and argued, we
proceed at once to resolve the issue here suggested.
There are certain basic principles which lie at the foundation of the
Government of the Philippine Islands, which are familiar to students
of public law. It is here only necessary to recall that under our
system of government, each of the three departments is distinct
and not directly subject to the control of another department. The
power to control is the power to abrogate and the power to
abrogate is the power to usurp. Each department may,
nevertheless, indirectly restrain the others.
It is peculiarly the duty of the judiciary to say what the law is, to
enforce the Constitution, and to decide whether the proper

322
constitutional sphere of a department has been transcended. The
courts must determine the validity of legislative enactments as well
as the legality of all private and official acts. To this extent, do the
courts restrain the other departments.
With these sound premises in mind, we are not at all surprised to
find the general rule of mandamus to be, that the writ will not lie
from one branch of the government to a coordinate branch, for the
very
obvious
reason
that
neither
is
inferior
to
the
other. Mandamus will not lie against the legislative body, its
members, or its officers, to compel the performance of duties
purely legislative in their character which therefore pertain to their
legislative, functions and over which they have exclusive control.
The courts cannot dictate action in this respect without a gross
usurpation of power. So it has been held that there where a
member has been expelled by the legislative body, the courts have
no power, irrespective of whether the expulsion was right or wrong,
to issue a mandate to compel his reinstatement. (Code of Civil
Procedure, secs. 222, 515; 18 R. C. L., 186, 187; Cooley,
Constitutional Limitations, 190; French vs. Senate [1905], 146 Cal.,
604; Hiss vs. Bartlett [1855], 69 Mass., 468; Ex parte Echols [1886],
39 Ala., 698; State vs. Bolte [1889], 151 Mo., 362; De
Diego vs. House of Delegates [1904], 5 Porto Rico, 235; Greenwood
Cemetery Land Co. vs. Routt [1892], 17 Colo., 156; State ex rel.
Cranmer vs. Thorson [1896], 33 L. R. A., 582; People ex rel.
Billings vs. Bissell
[1857],
19
Ill.,
229;
People ex
rel.
Bruce vs. Dunne [1913], 258 Ill., 441; People ex rel. La
Chicote vs. Best [1907], 187 N. Y., 1; Abueva vs. Wood [1924], 45
Phil., 612.)
The authorities which support the doctrines above announced are
numerous and instructive. They are found among the decisions of
our own court, of the United States Supreme Court, and of other
jurisdictions. If some of these cases relate to the chief executive
rather than to the legislature, it is only necessary to explain that
the same rules which govern the relations of the court to the chief
executive likewise govern the relations of the courts to the
legislature.
The controlling case in this jurisdiction on the subject is Severino
vs. Governor-General and Provincial Board of Occidental

Negros ([1910], 16 Phil., 366). This was an original application

made in this court praying for a writ ofmandamus to the GovernorGeneral to compel him to call a special election as provided by law.
The Attorney-General demurred to the petition on the ground of
lack of jurisdiction, and the court, after an elaborate discussion,
reached the conclusion that "we have no jurisdiction to interfere
with the Governor-General of these Islands, as the head of the
executive department, in the performance of any of his official
acts." The demurrer was accordingly sustained and the complaint
dismissed. It is noted that in this decision reliance was placed on
the cases of Mississippi vs. Johnson and Ord ([1867], 4 Wall., 475,
and Sutherland vs. Governor ([1874], 29 Mich., 320), which we will
now proceed to notice.
State of Mississippi vs. Andrew Johnson, President of the United
States, supra, concerned a bill praying the United States, Supreme
Court to enjoin and restrain Andrew Johnson, President of the
United States, and E. O. C. Ord, General Commanding in the District
of Mississippi and Arkansas from executing certain Acts of
Congress. Mr. Chief Justice Chase delivering the opinion of the court
said the single point which required consideration was this: Can the
President be restrained by injunction from carrying into effect an
Act of Congress alleged to be unconstitutional? He continued:
The Congress is the Legislative Department of the Government; the
President is the Executive Department.Neither can be restrained in
its action by the Judicial Department; though the acts of both, when
performed, are, in proper cases, subject to its cognizance.
The impropriety of such interference will be clearly seen upon
consideration of its possible consequences.
Suppose the bill filed and the injunction prayed for allowed. If the
President refuse obedience, it is needless to observe that the court
is without power to enforce its process. If, on the other hand, the
President complies with the order of the court and refuses to
execute the Acts of Congress, is it not clear that a collision may
occur between the Executive and Legislative Departments of the
Government? May not the House of Representatives impeach the
President for such refusal? And in that case could this court
interfere in behalf of the President, thus endangered by compliance
with its mandate, and restrain by injunction the Senate of the

323
United States from sitting as a court of impeachment? Would the
strange spectacle be offered to the public wonder of an attempt by
this court to arrest proceedings in that court?
These questions answer themselves.
xxx
xxx
xxx
We are fully satisfied that this court has no jurisdiction of a bill to
enjoin the President in the performance of his official duties; and
that no such bill ought to be received by us.
It has been suggested that the bill contains a prayer that, if the
relief sought cannot be had against Andrew Johnson, as President, it
may be granted against Andrew Johnson, as a citizen of Tennessee.
But it is plain that relief as against the execution of an Act of
Congress by Andrew Johnson, is relief against its execution by the
President. . . .
Sutherland vs. Governor of Michigan, supra, well known to the legal
fraternity on account of being written by Judge Cooley, related to
an application for mandamus to the Governor to compel him to
perform a duty imposed upon him by statute. Judge Cooley, in part,
said:
. . . Our government is on whose powers have been carefully
apportioned between three distinct departments, which emanate
alike from the people, have their powers alike limited and defined
by the constitution, are of equal dignity, and within their respective
spheres of action equally independent.
xxx
xxx
xxx
It is true that neither of the departments can operate in all respects
independently of the others, and that what are called the checks
and balances of government constitute each a restraint upon the
rest. . . . But in each of these cases the action of the department
which controls, modifies, or in any manner influences that of
another, is had strictly within its own sphere, and for that reason
gives no occasion for conflict, controversy or jealousy. The
Legislature in prescribing rules for the courts, is acting within its
proper province in making laws, while the courts, in declining to
enforce an unconstitutional law, are in like manner acting within
their proper province, because they are only applying that which is
law to the controversies in which they are called upon to give
judgment. It is mainly by means of these checks and balances that

the officers of the several departments are kept within their

jurisdiction, and if they are disregarded in any case, and power is
usurped or abused, the remedy is by impeachment, and not by
another department of the government attempting to correct the
wrong by asserting a superior authority over that which by the
constitution is its equal.
It has long been a maxim in this country that the Legislature cannot
dictate to the courts what their judgments shall be, or set aside or
alter such judgments after they have been rendered. If it could,
constitutional liberty would cease to exist; and if the Legislature
could in like manner override executive action also, the
government would become only a despotism under popular
forms. On the other hand it would be readily cancelled that no
court can compel the Legislature to make or to refrain from making
laws, or to meet or adjourn at its command, or to take any action
whatsoever, though the duty to take it be made ever so clear by
the constitution or the laws. In these cases the exemption of the
one department from the control of the other is not only implied in
the framework of government, but is indispensably necessary if any
useful apportionment of power is to exist.
xxx
xxx
xxx
It is not attempted to be disguised on the part of the relators that
any other course than that which leaves the head of the executive
department to act independently in the discharge of his duties
might possibly lead to unseemly conflicts, if not to something
worse, should the courts undertake to enforce their mandates and
the executive refuse to obey. . . . And while we should concede, if
jurisdiction was plainly vested in us, the inability to enforce our
judgment would be no sufficient reason for failing to pronounce it,
especially against an officer who would be presumed ready and
anxious in all cases to render obedience to the law, yet in a case
where jurisdiction is involved in doubt it is not consistent with the
dignity of the court to pronounce judgments which may be
disregarded with impunity, nor with that of the executive to place
him in position where, in a matter within his own province, he must
act contrary to his judgment, or strand convicted of a disregard of
the laws.

324
We only take space to notice on more case, which concerns
specifically the right of the judiciary to control bymandamus the
action of the legislature. French vs. Senate of the State of
California, supra, was an original proceeding in mandamus brought
by the petitioners who were duly elected senators of the state to
compel the Senate of California to admit them as members thereof.
It was alleged that the petitioners had been expelled without
hearing or opportunity for defense. The writ was denied, Mr. Justice
Shaw delivering the opinion of the court, saying:
Even if we should give these allegations their fullest force in favor
of the pleader, they do not make a case justifying the interposition
of this court. Under our form of government the judicial department
has no power to revise even the most arbitrary and unfair action of
the legislative department, or of their house thereof, taken in
pursuance of the power committed exclusively to that department
by the constitution. . . .
There can be noted as specific corroborative authority,
State vs. Bolte, supra, Abueva vs. Wood, supra, and Commonwealth
of Massachusetts vs. Mellon, Secretary of the Treasury ([1923], 262
U. S., 447), the latest expression of opinion by the United States
Supreme Court. The record discloses that it was the firm opinion of
the late Chief Justice that the court should not assume jurisdiction
of the proceedings.
So as to be perfectly fair to the petitioner, it is but proper to state
that the principles laid down in some of the preceding authorities
have been the subject of adverse criticism. It is said that the fallacy
of the argument lies in the statement that the three departments of
the government are independent of each other. "They are
independent in so far as they proceed within their legitimate
province and perform the duties that the law requires; yet it has
never been held that the executive was the sole judge of what
duties the law imposes upon him, or the manner in which duties
shall be exercised. The final arbiter in cases of dispute is the
judiciary, and to this extent at least the executive department may
be said to be dependent upon and subordinate to the judiciary. . . .
It is not the office of the person to whom the writ of mandamus is
directed, but the nature of the thing to be done, by which the
propriety of issuing a mandamus is to be determined." (2 Bailey

on Mandamus, pp. 926-927.) But these were arguments which

should have been presented years ago in this court, and which
when recently presented by counsel in his argument for the
petitioner in the case of Perfecto vs. Wood, R. G. No. 20867, 1 met
with no favorable response from the court. It is now too late to go
back and revise previous decisions and overturn them; in fact this
would be not only impracticable but impossible since at least two
decision of the United States Supreme Court seem to us to be
controlling.
No court has ever held and we apprehend no court will ever hold
that it possesses the power to direct the Chief Executive or the
Legislature or a branch thereof to take any particular action. If a
court should ever be so rash as to thus trench on the domain of
either of the other departments, it will be the end of popular
government as we know it in democracies.
It is intimated rather faintly that, conceding all that is said with
reference
to
the
right
of
the
Supreme
Court
to
issuemandamus directed to the Philippine Senate, yet we would be
justified in having our mandate run not against the Philippine
Senate or against the President of the Philippine Senate and his
fellow Senators but against the secretary, the sergeant-at-arms,
and the disbursing officer of the Senate. But this begs the question.
If we have no authority to control the Philippine Senate, we have no
authority to control the actions of subordinate employees acting
under the direction of the Senate. The secretary, sergeant-at-arms,
and disbursing officer of the Senate are mere agents of the Senate
who cannot act independently of the will of that body. Should the
Court do as requested, we might have the spectable presented of
the court ordering the secretary, the sergeant-at-arms, and the
disbursing officer of the Philippine Senate to do one thing, and the
Philippine Senate ordering them to do another thing. The writ
of mandamus should not be granted unless it clearly appears that
the person to whom it is directed has the absolute power to
execute it. (Turnbull vs. Giddings [1893], 95 Mich., 314;
Abueva vs. Wood,supra.)
The question of jurisdiction is invariably one of perplexing difficulty.
On the one hand, no consideration of policy or convenience should
induce this court to exercise a power that does not belong to it. On

325
the other hand, no consideration of policy or convenience should
induce this court to surrender a power which it is its duty to
exercise. But certainly mandamus should never issue from this
court where it will not prove to be effectual and beneficial. It should
not be awarded where it will create discord and confusion. It should
not be awarded where mischievous consequences are likely to
follow. Judgment should not be pronounced which might possibly
lead to unseemly conflicts or which might be disregarded with
impunity. This court should offer no means by a decision for any
possible collision between it as the highest court in the Philippines
and the Philippine Senate as a branch of a coordinate department,
or between the Court and the Chief Executive or the Chief
Executive and the Legislature.
On the merits of the controversy, we will only say this: The Organic
Act authorizes the Governor-General of the Philippine Islands to
appoint two senators and nine representatives to represent the
non-Christian regions in the Philippine Legislature. These senators
and representatives "hold office until removed by the GovernorGeneral." (Organic Act, secs. 16, 17.) They may not be removed by
the Philippine Legislature. However, to the Senate and the House of
Representatives, respectively, is granted the power to "punish its
members for disorderly behavior, and, with the concurrence of twothirds, expel an elective member." (Organic Act, sec. 18.) Either
House may thus punish an appointive member for disorderly
behavior. Neither House may expel an appointive member for any
reason. As to whether the power to "suspend" is then included in
the power to "punish," a power granted to the two Houses of the
Legislature by the Constitution, or in the power to "remove," a
power granted to the Governor-General by the Constitution, it
would appear that neither is the correct hypothesis. The
Constitution has purposely withheld from the two Houses of the
Legislature and the Governor-General alike the power to suspend
an appointive member of the Legislature.
It is noteworthy that the Congress of the United States has not in all
its long history suspended a member. And the reason is obvious.
Punishment by way of reprimand or fine vindicates the outraged
dignity of the House without depriving the constituency of
representation; expulsion, when permissible, likewise vindicates the

honor of the legislative body while giving to the constituency an

opportunity to elect anew; but suspension deprives the electoral
district of representation without that district being afforded any
means by which to fill the vacancy. By suspension, the seat remains
filed but the occupant is silenced. Suspension for one year is
equivalent to qualified expulsion or removal.
It is beyond the power of any branch of the Government of the
Philippine Islands to exercise its functions in any other way than
that prescribed by the Organic Law or by local laws which conform
to the Organic Law. This was, in effect, our holding in the
comparatively recent case of Concepcion vs. Paredes ([1921], 42
Phil., 599), when we had under particular consideration a legislative
attempt to deprive the Chief Executive of his constitutional power
of appointment. What was there announced is equally applicable to
the instant proceedings.
While what has just been said may be unnecessary for a correct
decision, it is inserted so that the vital question argued with so
much ability may not pass entirely unnoticed, and so that there
may be at least an indication of the attitude of the court as a
restraining force, with respect to the checks and balances of
government. The Supreme Court, out of respect for the Upper
House of a coordinate branch of the government, takes no
affirmative action. But the perfection of the entire system suggests
the thought that no action should be taken elsewhere which would
constitute, or even seem to constitute, disregard for the
Constitution.
Conceding therefore that the power of the Senate to punish its
members for disorderly behavior does not authorize it to suspend
on appointive member from the exercise of his office for one year,
conceding what has been so well stated by the learned counsel for
the petitioner, conceding all this and more, yet the writ prayed for
cannot issue, for the all-conclusive reason that the Supreme Court
does not possess the power of coercion to make the Philippine
Senate take any particular action. If it be said that this conclusion
leaves the petitioner without a remedy, the answer is that the
judiciary is not the repository of all wisdom and all power. It would
hardly be becoming for the judiciary to assume the role of either a
credulous inquisitor, a querulous censor, or a jaunty knight, who

326
passes down the halls of legislation and of administration giving
heed to those who have grievances against the Legislature and the
Chief Executive.
We rule that neither the Philippine Legislature nor a branch thereof
can be directly controlled in the exercise of their legislative powers
by any judicial process. The court accordingly lacks jurisdiction to
consider the petition and the demurrer must be sustained. As it is
unlikely that the petition could be amended to state a cause of
action, it must be dismissed without costs. Such is the judgment of
the court. So ordered.
Street, Villamor and Romualdez, JJ., concur.
Separate Opinions
AVANCEA, J., concurring:
I agree with the dispositive part and the grounds and
considerations set forth in the decision about the want of
jurisdiction of this court to review the proceeding of the Senate. But
this court having no jurisdiction, the insinuation contained in the
decision that proceeding of the Senate was illegal seems to me
unnecessary and improper.
JOHNSON, J., dissenting:
Among the important questions presented by the petition and
demurrer in the present case, three may be mentioned:
First. Is the resolution in question legal or illegal?
Second. Has the Supreme Court jurisdiction even to consider its
legality?
Third. Can the Supreme Court grant the remedy prayed for?
FIRST. Legality of the resolution
The Supreme Court is unanimous in its opinion that the resolution,
by which Jose Alejandrino was deprived of "all his prerogatives,
privileges, and emoluments for the period of one year" as an
appointed senator, is an expulsion or removal of him as such
senator and therefore illegal and ultra vires for the reason that the
power of expulsion or removal of an appointed senator is vested
exclusively in the Governor-General of the Philippine Islands.
(Section 17 of the Jones Law Act of Congress of August 29, 1916
Public Laws, vol. 12 p. 243.)

By reason of the unanimous opinion upon that question, it becomes

unnecessary further to discuss it except to give the particular
reasons which induced my opinion. Said section 17 provides that:
"Senators and representatives appointed by the Governor-General
shall hold office until removed by the Governor-General." Section
18 provides, among other things, that "each house may determine
the rules of its proceedings, punish its members for disorderly
behavior, and, with the concurrence of two-thirds, expel
an elective member." The petitioner is an appointive member of the
Senate.
It will be noted from the two quotations just given, that the power
to expel a member of either branch of the Legislature, by the
Legislature, is limited to "elective members," while the power "to
punish members for disorderly behavior" applies to all members
whether elective or appointive. In view of the fact that neither
branch of the Legislature can expel an appointive member, can
either branch deprive such a member of all his "prerogatives,
privileges, and emoluments for the period of one year" under the
power "to punish for disorderly behavior"? It will be noted that the
law contains no definition of the "punishment" which may be
imposed for disorderly behavior. Considering, however, that neither
branch has the right to expel an appointive member, certainly no
one will contend that the punishment imposed for disorderly
behavior may amount to an expulsion. If the punishment amounts
to an expulsion then certainly the Legislature has exceeded its
authority and has encroached upon the power of the executive, for
the reason that the power to expel belongs to the GovernorGeneral.
We have, then, the question squarely presented, whether or not a
resolution of the Senate of the Philippine Islands which deprives an
appointed senator of all his "prerogatives, privileges, and
emoluments for the period of one year" amounts to an expulsion. If
it does, then the resolution is illegal, null, and void, and beyond the
powers of the legislative department of the Government and an
unwarranted exercise of the powers which belong to the GovernorGeneral.
The said resolution not only deprives the petitioner of all his
"prerogatives, privileges, and emoluments for the period of one

327
year" but also deprives the people of his district, composed of
about one million persons, of any representation or participation in
the legislative, affairs of the government for a period of one year,
a right which is guaranteed to them under the constitution. Such
a result was certainly not contemplated by the provisions of the
Jones Law. Certainly the framers of the constitution of the Philippine
Islands never dreamed that when the Legislature of the Philippine
Islands was given the power to "punish" its members for
misbehavior, that such a power would ever be used as a guise for
"expelling" an appointive member.
The power to punish for misbehavior was intended purely as a
disciplinary measure. When a member of the Legislature is
removed either by the Governor-General or by the Legislature, a
vacancy exists, and the law gives the Governor-General the right to
appoint, and the people of the district the right to fill the vacancy
by election, so that the people may again, under either case, be
represented. A "suspension" of a member, however, does not
create a vacancy, and the people of the district are without a
representative and the Governor-General cannot appoint one and
the people cannot elect one during the period of suspension. They
are without representation during that period. They are, for the
period of suspension, taxed without representation. If a member,
under the power to punish, can be suspended for one year, for the
same reason he may be suspended for ten or more years, thus
depriving the Governor-General of his right under the law, and the
people of the district, of a representative, and without a remedy in
the premises.
If the power "to punish for disorderly behavior" includes the power
to suspend or to deprive a member of all his rights, and if the
suspension is in effect a removal, then an appointed member may
be removed, under the power to punish, by a mere majority, while
the law requires a two-thirds majority to remove an elective
member. In other words, if under the power to "punish," any
member of the Legislature, including an appointive member, may
be in effect removed, then an elective member may be removed by
a majority vote only thus encroaching upon the power of the
executive department of the government, as well as violating the

powers conferred upon the Legislature, because the Legislature

cannot remove an elective member except by two-thirds majority.
It is strenuously argued by the respondent that the resolution
depriving the petitioner "of all his prerogatives, privileges, and
emoluments for the period of one year" is not a removal from his
office but a mere suspension. The resolution does not use the word
"suspend" but does use the word "deprive." It provides that the
petitioner is "deprived" of all his prerogatives, etc., for a period of
one year. If that word means anything it means that all of the
prerogatives, privileges, and emoluments of the petitioner and the
citizens whom he represents have been taken from him and them.
His prerogatives, privileges, and emoluments constitute his right to
be a member of the Senate under his appointment, his right to
represent the people of his district, and his right to exercise all the
duties and to assume all the responsibilities pertaining to his office.
His emoluments constitute his right to receive his salary and the
benefits pertaining to his office as a senator. If a value can be
placed upon his prerogatives, privileges, and emoluments, and if he
has been deprived of them, then it must follow that they have been
removed from him, or that he has been removed from them. At any
rate, the resolution has separated the petitioner and the people
whom he represents and deprived them of all of their prerogatives,
privileges, and emoluments for the period of one year; and, for all
intents and purposes, he and the people whom he represents, have
been deprived of their prerogatives, privileges, and emoluments,
and in effect, have been removed from any participation in the
legislative affairs of the government.
A great many cases have been studied on the question of removal
and suspension, and we are confident in the assertion that the
power to punish does not include the power to remove or suspend.
A suspension from an office or a deprivation of the rights of an
officer of all his prerogatives, privileges, and emoluments, is in
effect a deprivation or a removal from office for the time mentioned
in the order of suspension. It has been held that a suspension from
office for an indefinite time and lasting for a period of six months,
lost its temporary character, ceased to be a suspension, and in
effect became a removal from such office. It was held, in the case
of State vs.Chamber of Commerce, that the suspension of a

328
member was a qualified expulsion, and that whether it was called a
suspension or expulsion or removal, it in effect disfranchised the
person suspended. In the case ofMetsker vs. Nelly, it was held that
a suspension or a deprivation for either a definite or indefinite
period is in effect a removal. In the case of Gregory vs. New York, it
was held that the power to remove an officer or punish him does
not include the power to suspend him temporarily from his office. A
mere suspension would not create a vacancy, and the anomalous
and unfortunate condition would exist of an office, an officer,
but no vacancy, and of no one whose right and duty it was to
execute the office. In the case of Commonwealth vs. Barry, it was
decided that to punish an officer for "disorderly behavior" such
misbehavior must be such as affects the performance of his duties
or the legal or ordinary procedure of the body of which he is a
member, and not disorderly behavior which affects his character as
a private individual.
In this connection it may be noted that the alleged "misbehavior"
on the part of the petitioner was committed outside of the
legislative halls and at a time when there was no session of the
Senate; that said alleged "misbehavior" did not take place in or
near the Senate chamber, nor cause any disorder, disturbance,
annoyance, or impediment whatever to the orderly and dignified
procedure of any session of the Senate; that said "misbehavior" did
not interfere in any manner whatever with the honor, dignity, and
efficiency, nor with the orderly proceedings of the Senate; that the
petitioner did not know, at the time of the alleged "misbehavior,"
that he had been admitted as a member of the Philippine Senate.
The question of his admission as a senator had been under
discussion for weeks theretofore.
Paragraph 2 of section 5 of the Constitution of the United States
provides that "each house may determined the rules of its
proceedings, punish its members for disorderly behavior, and, with
the concurrence of two-thirds, expel a member." That provision of
the Constitution of the United States is exactly the language used
in section 18 of the Jones Law, with the only difference that the
phrase "expel a member" in the Constitution is changed in the
Jones Law to "expel and elective member." That provision of the
Constitution of the United States has been enforced for a period of

about one hundred forty years. It will be noted that said provision
of the Constitution of the United States contains two provisions: (a)
to punish and (b) to expel.
An examination of the long history of the Congress of the United
States has been made for the purpose of ascertaining how that
august body has interpreted its powers under said provisions. First,
it may be said that the Congress of the United States is perhaps as
dignified a legislative body as that of any of the states or territories
of the United States. Its records have been searched upon the
question of its power to punish and remove its members, and no
case has been found and it is believed there are none where
Congress, under its power to punish, has attempted to deprive a
member of all his rights, prerogatives, privileges, and emoluments
for anytime whatever, although many cases of removal have been
found under that power to remove. The power topunish for
disorderly behavior has never been exercised further than to
impose a mere reprimand. We regard the fact that the Congress of
the United States has never exercised its power, to punish for
disorderly behavior, by depriving a member of all of his rights,
prerogatives, privileges, and emoluments, as strong proof that it
did not believe that its power to punish justified an order or
resolution depriving a member of all of his rights, prerogatives,
privileges, and emoluments. Many cases might be cited showing
misbehavior of much more serious character than that charged
against the petitioner and where a reprimand only was imposed.
SECOND. Jurisdiction to consider question.
Whether or not the courts will take jurisdiction of any action
whatever to interfere with, direct or control the action of either the
executive or legislative departments of the government, is a
question which has been presented to the courts many times since
the leading case of Marbury vs. Madison was decided ([1803], 1
Cranch, [U. S.]., 137). In hundreds of cases which have come before
the courts since that time, the decisions have been about equally
divided. One line of decisions indicates that the courts will never
take jurisdiction to control, order, or direct either the executive or
legislative departments of the government to perform or not to
perform any particular act expressly imposed upon or confined to
them either
by
the
organic
act
or
by
statute.

329
(Mississippi vs. Johnson and Ord, 4 Wall. [U. S.], 475;
Sutherland vs. Governor, 29 Mich., 320; Hawkins vs. Governor, 1
Ark., 570; People vs.Bissell, 19 Ill., 229; State vs. Governor, 22 La.
Ann.,
1;
Rice vs. Governor,
27 Minn.,
1;
Vicksburg &
Co. vs.Governor, 61 Miss., 102.)
The other line of decisions hold that the courts will take jurisdiction
to control, order and direct both the executive and legislative
departments of the government to do and to perform what are
generally termed purely ministerial duties imposed by either the
organic act or by statute. (Tennessee & Railway Co. vs. Governor,
36
Ala.,
371;
Middleton vs. Governor,
30
Cal.,
596;
State vs. Governor, 72 Ind., 567; State vs. Governor, 5 Ohio State,
528.)
It is here confidently asserted that a careful study of the first line of
decisions will show, that each case might have been decided upon
the ground that the duty, the performance of which was sought to
be coerced, was one which was either a discretionary or
official duty of the respondent, and that the doctrine relied upon, as
announced in said cases, was purely obiter dicta; that each of the
first line of cases might have been decided upon the ground that
the performance of the particular acts was entirely within the
discretion or official duty of the respondent and a question confided
solely to them.
From an examination of all of the cases upon the question before
us, the following rule of law is accepted as thegeneral rule:
"That the executive, legislative, and judicial departments of the
government are distinct and independent, and neither is
responsible to the other for the performance of its duties, and
neither can enforce the performance of the duties of the other."
Exceptions or modifications of this general rule will be noted later.
After a careful study of all the cases on the subject, we are of the
opinion that a fair summary of the power of the courts in the
premises may be stated under two heads as follows:
First. That the courts have jurisdiction to examine acts "actually"
taken by the executive or legislative departments of the
government when such acts affect the rights, privileges, property,
or lives of individuals.

Second. That the courts will not take jurisdiction to order, coerce, or
enjoin any act or acts of either the executive or legislative
departments of the government upon any question or questions,
the performance of which is confided by law to said departments.
The courts will not take jurisdiction until some positive "action" is
taken by the other coordinate departments of the government.
With reference to the first proposition, we desire to say that, while
the courts hesitate, and rightfully so, to inquire into the legality of
the acts of the executive or legislative departments of government,
yet they are without discretion in the premises in cases where it is
alleged that a person is illegally deprived of his life, liberty, or
property by said departments. The law makes no distinction with
reference to the person or persons, or departments or bureaus who
are responsible for the illegal and unlawful deprivation of the right
of individuals in the state. The mere fact that such alleged illegal
deprivation of life, liberty or property is caused by the chief
executive or the legislative department of the government, in the
face of mandatory provisions of the law, is no sufficient excuse or
justification for a refusal on the part of the courts to take
jurisdiction for the purpose ofinquiring into such alleged illegal
deprivation and to make pronouncement thereon. Under the
system of checks and balances, by virtue of the existence of the
different departments of the government, in the Government of the
United States and its territories, it becomes the legal and bounded
duty of the courts to inquire into the legality, when called upon so
to do, of the acts of either of the other departments of the
government
and
to
make
pronouncements
thereon.
(Barcelon vs. Baker and Thompson, 5 Phil., 87; Forbes vs. Chuoco
Tiaco and Crossfield, 16 Phil., 534 [228 U. S., 549]; In re McCulloch
Dick, 38 Phil., 41, 211 224; Borromeo vs. Mariano, 41 Phil., 322; U.
S. vs. Joson, 26 Phil., 1, 65; U. S. vs. Ten Yu, 24 Phil., 1, 10;
Case vs. Board of Health and Heiser, 24 Phil., 250, 276; U.
S. vs. Gomez Jesus, 31 Phil., 218.)
There is no more sacred duty of the courts, when a case is
presented to them in which the life, liberty, or property of the
citizens of the state are involved, than that of maintaining,
unimpaired, those securities for the personal rights of the
individuals of the state which have been guaranteed to them by the

330
organic law of the land and which have received for ages the
sanction of the jurists and the statesmen of the civilized nations of
the world. In such cases no narrow or illiberal construction should
be given to the language of the fundamental law of the state. (Ex
parte Lang, 85 U. S., 163.)
Since the Constitution of the Philippine Islands is intended for the
observance of the judiciary as well as the other departments of the
government, and the judges are sworn to support its provisions,
they are not liberty to overlook or disregard its command, and
therefore when it is clear that a statute or resolution of the
Legislature transgresses the authority vested by the Constitution in
the Legislature, it is the duty of the courts to declare the acts or
resolutions unconstitutional, and from that duty the courts cannot
shrink
without
violating
their
oath
of
office.
(United
States vs. Fisher,
2
Cranch
[U.
S.],
396;
Darmouth
College vs. Woodward, 4 Wheaton [U. S.], 518; Green vs. Biddle, 8
Wheaton [U. S.], 1.)
The duty of the courts to declare a law or resolution
unconstitutional, in a proper case, cannot be declined and must be
performed in accordance with the deliberate judgment of the court.
(Pollock vs. Farmer's Loan & Trust Co., 157 U. S., 429.) Since the
question as to the constitutionality of a statute or resolution of the
legislature is a judicial matter, the courts will not decline to exercise
jurisdiction upon the mere suggestion that some action might be
taken by the political agencies of the government in disregard of
the judgment of the court. (McPherson vs.Blacker, 146 U. S., 869.)
The doctrine of the all omnipotent power of the legislature as
recognized by the Government of England, does not prevail in the
United States, and every law or resolution adopted by the
legislative department of the government must conform to the
constitution. When a statute or a resolution of the legislative
department exceeds the jurisdiction and powers of the legislature,
it is null and void.
The principle which permits courts to pronounce an act or
resolution of the legislature null and void, because it conflicts with
the provisions of the constitution, is a doctrine so well established
under constitutional governments that it seems really unnecessary
to discuss it here. It has been declared in many cases that the

power of the court to make pronouncements upon the legality of

acts or resolutions of the legislative department, is the strongest
barrier ever devised against the tyrannies of political assemblies.
The right to construe the constitution and to apply it to particular
laws or resolution of the legislature must necessarily be lodged in
some department of the government to insure that practical
sanction to its mandates which are essential for the preservation of
their validity and force and the perpetuation of stable and orderly
government. The duty of the court to maintain the constitution as
the fundamental law of the state and to permit no one to
transgress its provisions, is imperative. Whenever a statute is in
violation of the fundamental law, it is the sworn duty of the courts
so to adjudge. Any other course would lead to the destruction of
the fundamental law of the state. It has been said by eminent
jurists and authorities that the judiciary should protect the rights of
the people with great care and jealousy, not only because it is its
sworn duty, but also because in times of great popular excitement
the courts are the last resort. (Gardner vs. Stephens, 2 Am. Rep.,
700; State vs. Peel Splint Co., 17 L. R. A., 385; Rathbone vs. Wirth,
34 L. R. A., 408; Wells vs. Mo. Railway Co., 15 L. R. A., 847;
State vs. Butler,
24
L.
R.
A.,
[N.
S.],
744;
Sanders vs.Commonwealth,
111
Am.
State
Rep.,
219;
State vs. Miller, 87 Ohio State, 12; Miller vs. Johnson, 15 L. R. A.,
524.)
The right and power of the courts to declare whether enactments of
the legislature exceed the constitutional limitations and are invalid,
has always been considered a grave responsibility as well as a
solemn duty, and its exercise is, at all times, a matter of much
delicacy, for, apart from the necessity of avoiding conflicts between
coordinate branches of the government, it is often difficult to
determine whether such enactments are within the powers granted
to or possessed by the legislature. It has also been said that the
power of the courts to nullify acts of the legislature, as being in
violation of the constitution, is one of the highest functions and
authorities of the courts. (Nichol vs. Ames, 173 U. S., 509;
People vs. Henning Co., 260 Ill., 554; Edwards vs. Lesueur, 31 L. R.
A., 815.)

331
The courts have no jurisdiction in matters of a purely political
nature which have been confided to the executive or legislative
department of the government, nor the power to interfere with the
duties of either of said departments, unless under special
circumstances and when it becomes necessary for the protection of
the rights, the life and the property of the individuals of the state.
(In re Sawyer, 124 U. S., 200; Luther vs. Borden, 7 Howard [U. S.],
1; Mississippi vs. Johnson and Ord, 4 Wall. [U. S.], 475.)
The jurisdiction of the courts over the acts of either of the other
departments is limited to cases where the acts of such
departments tend to deprive the citizens of their rights, liberties,
and property. To assume jurisdiction to control the exercise of
purely political rights, would be to invade the domain of the other
departments of the government. (Fletcher vs. Tutle, 151 Ill., 41.)
We do not desire to be understood, however, as holding that
even political rights are not a matter of judicial solicitude and
protection and that the appropriate judicial tribunal will not, in a
proper case, give a prompt and efficient protection to citizens.
(Muskrat vs. United States, 219 U. S., 346.)
In the case of Burnham vs. Morrissey (14 Gray [Mass.], 226), Mr.
Justice Hoar, later a United States Senator, said: "The house of
representatives is not the final judge of its own powers and
privileges in cases in which the rights and liberties of the subject
are concerned; but the legality of its action may be examined and
determined by this court. . . . Especially is it competent and proper
for this court to consider whether its (legislature's) proceedings are
in conformity with the constitution and laws, because, living under
a written constitution no branch or department of the department
is supreme; and it is the province and duty of the judicial
department to determine, in cases regularly brought before them,
whether the powers of any branch of the government and even
those of the legislature in the enactment of laws (or resolutions),
have been exercised in conformity with the constitution; and if they
have not been, to treat their acts as null and void.
The house of representatives has the power, under the constitution,
to imprison for contempt; but this power is limited to cases
expressly provided for by the constitution, or to cases where the

power is necessarily implied from those constitutional functions and

duties, to the proper performance of which it is essential. . . .
The doctrine of the omnipotence of either the executive or
legislative department of government has long since been denied,
and has no place under the American flag.
Of course, when a discretionary power is conferred, with the right
to act or not to act, and when the discretion is honestly exercised
and not abused, then the official or department is relieved from
personal responsibility; but when action is taken, and an individual
of the state is thereby deprived, illegally, of his life, liberty or
property, his remedy to be restored to his rights is properly
submitted to the courts. In every case where the courts are called
upon to exercise their original jurisdiction to question the illegality
of action already taken by the legislative or executive department
of the government, they will not do so upon a mere formal or
colorable showing either as to the parties or subject-matter. The
courts will look through the form to the real character or substance
of the alleged illegal act. (Wisconsin vs. Insurance Co., 127 U. S.,
265; Louisiana vs. Texas, 176 U. S., 1; Oklahoma vs.Railway Co.,
220 U. S., 277.)
A statute or a resolution of the legislative department of the
government which deprives a citizen of the rights guaranteed to
him by the Organic Law of the land is null and void.
(Harrison vs. Railway Co., 232 U. S., 318; Terral vs. Burke & Co., 257
U. S., 529.)
Decision of the highest courts, without number, may be cited in
support of the rule "that all governmental officers, departments or
agencies are subject to judicial restraint when they act in excess of
their authority either statutory or constitutional, by virtue of which
citizens are deprived of their rights." (Osborn vs. U. S. Bank, 9
Wheaton [U. S.], 739; Board of Liquidation vs. McComb, 92 U. S.,
531; United States vs. Lee, 106 U. S., 196; Virginia Cases, 114 U. S.,
311; Regan vs. Farmers & Co., 154 U. S., 362; Smith vs. Ames, 169
U. S., 466; Ex parte Young, 209 U. S., 123; Philadelphia
Co. vs. Stimson, 223 U. S., 605.)
CHECKS AND BALANCES
The three great departments of the government the executive,
legislative, and judicial were created for the purpose of "checks

332
and balances." Under the Organic Law of the Philippine Islands the
executive power of the states is conferred upon the GovernorGeneral. The legislative power is vested in the Senate and House of
Representatives. The judicial power is vested in the courts. The
three great branches of the government are separate and distinct,
but are coequal and coordinate. Their powers have been carefully
apportioned. The legislature makes the laws, the courts construe
them and adjudge as to the rights of persons to life, liberty, and
property thereunder, while the executive department executes the
laws and the judgments of the courts. Each department, in its own
sphere, is in a sense independent. Each operates as a check or
restraint upon the other. The Acts of the legislative department
have to be presented to the executive department for its approval.
The executive department may disapprove the Acts of the
legislature if in its judgment they are not in conformity with the
organic law of the state or if in their enforcement they might work a
hardship upon the people. The judicial department is authorized to
construe and interpret the Acts of the legislature. The judicial
department is authorized to determine the validity of the Acts of
the legislature under the constitution. The executive department
may also set aside the judgments of the judicial department and
modify the action of the courts by the interposition of its pardoning
power. The legislative department may also recall, modify, or annul
decisions of the courts if in its judgment the interpretation given to
a law by the courts is not in harmony with the general policy of the
state, by the enactment of a new law or by an amendment of the
old, giving its such a nondisputed meaning and interpretation as to
clearly wipe out the decisions of the judicial department.
Thus, we have the checks and balances known under the American
form of government. But in every case in which one department
controls, modifies, or influences the action of another, it acts
strictly within its own sphere, thus giving no occasion for conflict
and thus preserving the purpose of the original scheme of a
division of powers among the three great coordinate branches of
government, each operating as a restraint upon the other, but still
in harmony.
By the use of the power of veto and or pardoning, the executive
department may annul and set aside absolutely the action of both

the legislative and judicial departments. The legislative department

may, by adopting a new law or by amendment or by passing a law
over the veto of the executive department, annul, recall, and set
aside the action of both the executive and judicial departments. But
it must be observed that when the judicial department inquires into
an act of either the executive or legislative departments for the
purpose or determining the legality of such acts, it is not because it
desires to impose its own opinions upon such departments nor to
examine into the wisdom or advisability of a particular act or
statute, but simply because said departments have acted in a way
which is forbidden by the fundamental law of the land and because
the will of the people, as declared in such fundamental law, is
paramount and must be obeyed even by the legislative and
executive departments. In pronouncing a statute of the legislature
illegal or an act of the executive department beyond its powers, the
courts are simply interpreting the meaning, force and application o
the fundamental law of the state.
If the doctrine that the different departments executive,
legislative and judicial are absolutely independent and one can
never interfere to control or restrain, modify or annul, the action of
the other, then the very purpose of the organization of the three
departments for "checks and balances" would be defeated.
(Case vs. Board of Health and Heiser, 24 Phil., 250; U. S. vs. Joson,
26 Phil., 1, 64; U. S. vs. Gomez Jesus, 31 Phil., 218, 225, 228;
Tajanlangit vs. Pearanda, 37 Phil., 155; Central Capiz vs. Ramirez,
40 Phil., 883, 899; Severino vs. Governor-General and Provincial
Board of Occidental Negros, 16 Phil., 366; U. S. vs. Bull., 15 Phil., 7;
Borromeo vs.Mariano, 41 Phil., 322; Concepcion vs. Paredes, 42
Phil., 599; Marbury vs. Madison, 1 Cranch [U. S.], 137, 152, 170,
172.)
The following are among the leading cases in which the courts have
taken jurisdiction for the purpose of determining the legality or
illegality of acts, or orders or resolutions of the executive and
legislative departments:
First. Acts of the Executive Department of the Government
(a) Barcelon vs. Baker and Thompson (5 Phil., 87), where the action
of the Governor-General was pronounced legal;

333
(b) Forbes vs. Chuoco Tiaco and Crossfield (16 Phil., 534; 228 U. S.,
549) where the action of the Governor-General was pronounced
legal;
(c) In re McCulloch Dick (38 Phil., 41, 62, 63, 109, 211, 244), where
the action of the Governor-General was pronounced legal;
(d) Borromeo vs. Mariano (41 Phil., 322), where the action of the
Governor-General was pronounced illegal.
Second. Acts of the Legislative Department of the Government
(a) Concepcion vs. Paredes (42 Phil., 599), where the act of the
legislative department was pronounced illegal;
(b) Kilbourn vs. Thompson (103 U. S., 168, 181, 199), where the act
of the one branch of the Congress of the United States was held
illegal.
Referring to the second "Summary of the Powers of the Courts"
above, it may be said that in this jurisdiction the doctrine is now
well established, that, until the executive or legislative department
has taken some steps or has acted upon some question, the courts
will neither undertake to compel action nor to restrain action in said
departments. It is only when said departments have acted and their
acts detrimentally affect the interest of the citizen, that the courts
will inquire into the legality or constitutionality of such acts.
(Barcelon vs. Baker and Thompson, 5 Phil., 87; Forbes vs. Chuoco
Tiaco and Crossfield, 16 Phil., 534; Borromeo vs. Mariano, 41 Phil.,
322; Perfecto vs. Wood, R. G. No. 208671; Abueva vs. Wood, 45
Phil., 612.)
The judicial department of the government will not attempt to
intervene or control or direct or command any action whatever
upon any subject which has been specifically confided by law to the
other departments, until they have taken some action which tends
to and does establish some theory or policy contrary to the organic
law of the land, or has deprived some citizen of his life, liberty,
property, or privilege granted to him by the organic law. Under such
facts, the judicial department is, under the law, bound to take
jurisdiction and to make pronouncements thereon. In such cases it
becomes the legal and bounden duty of the courts to inquire into
the legality or illegality of the acts of the other departments of the
government and to declare what the law is and what the rights of
the parties are. When such a case is presented to the courts, its

responsibility to the people of the state, under the law, demands

that a thorough investigation of the facts be made and of the rights
of the parties under the law, and to make a pronouncement,
without reference to the fact whether or not the court have the
proper machinery for the purpose of enforcing their conclusions
and judgments.
The following are among the cases holding that the courts will not
intervene for the purpose of compelling or directing any action on
the part of the executive or legislative departments of the
government with reference to any duty or obligation specifically
confided to said departments:
First. Acts of the Executive Department of the Government
(a) Severino vs. Governor-General and Provincial Board of
Occidental Negros, 16 Phil., 366;
(b) Abueva vs. Wood, 45 Phil., 612;
(c) Sutherland vs. Governor, 29 Mich., 320;
(d) Hawkins vs. Governor, 1 Ark., 570;
(e) People vs. Bissell, 19 Ill., 229.
Second. Acts of the Legislative Department of the Government
Abueva vs. Wood, 45 Phil., 612.
In view of the foregoing arguments and citation of authorities and
inasmuch as the petitioner alleges that by anact or resolution of
the Senate of the Philippine Islands he has been deprived of his
prerogatives, privileges, and emoluments for a period of one year,
which have been granted to him by the organic law of the land,
through the officers and employees of the Senate, we are of the
opinion, and so decide, that under such allegations the court is not
only justified, but authorized and compelled under the duties and
powers conferred upon it, to take jurisdiction of the petition for the
purpose of examining into the question whether or not the
petitioner has been deprived of any rights granted to him under the
Constitution of the Philippine Islands.
Are the facts stated in the petition and admitted by the demurrer
sufficient to constitute a cause of action, and do they justify the
court in taking jurisdiction of the case?
The petitioner alleges that he is a Senator of the Philippine Islands
legally appointed by the Governor-General under the provisions of
section 16 of the Jones Law; that by virtue of said appointment he

334
is given all the rights of a senator, with all the prerogatives,
privileges, and emoluments thereunto belonging; that he has, as
such senator, the right to continue to serve the people of his
district; that he has the right to be and act as a member of the
Senate until removed by the Governor-General; that he has been
deprived of the right to act as a senator and has been removed as
such senator by the respondents and thereby deprived of a right
conferred upon him by law and of all of the rights, prerogatives,
privileges, and emoluments belonging to him as a citizen of the
Philippine Islands and as a member of the Senate; that the citizens
of his district have been deprived of their right to be represented
and to participate in the affairs of their government; that unless the
said resolution of the Senate be pronounced illegal, null, and void,
he will be unable to exercise the rights of a citizen and a senator
and to enjoy the prerogatives, privileges, and emoluments to him
rightfully belonging; that by becoming a member of the Senate he
has not lost his rights as a citizen; that he is still entitled to be
protected in all of his rights and privileges as a citizen under the
law; that the punishment imposed by said resolution is one created
after the alleged grounds for suspension had occurred; that the
punishment imposed is quasi-criminal; that no punishment for his
acts had been prescribed as is expressly provided under the
substantive law of the Philippine Islands; that the punishment
provided for in said resolution of the 5th day of February, 1924,
was ex post facto and is illegal and void under section 3 of the
Organic Law, in that his acts were pronounced to be illegal by said
resolution long after they had been committed; that the
respondents were without authority of law to remove him as a
member of the Senate; that the Governor-General only has the
authority to remove him; that the alleged acts for which he has
been suspended were not committed in or near the Senate
chamber; that they in no way tended to or did interfere with the
orderly procedure of the Senate and therefore cannot be regarded
as "disorderly behavior;" that the Senate has no right or authority
to suspend or remove one of its members for disorderly behavior
unless and until such disorderly behavior tends to and does
interfere with, hamper or impede the legal and orderly procedure of
the body; that while it requires a two-thirds vote of the Senate

to expel its elective members, he has beenremoved, contrary to

law, by the Senate, when the Governor-General is the only
authority who can remove him; that if the Senate can remove him
under the power to punish, then an appointive member can be
removed by a majority vote, while it requires a two-thirds majority
vote to remove an elective member; and, for all of the foregoing
reasons, the petitioner and the people of his district have been
deprived of their rights, privileges, prerogatives, and emoluments
by an actual act or resolution of the Senate, which is contrary to
law, and that he is entitled to have a pronouncement of his rights
made by the courts and to be restored to his rights, prerogatives,
privileges, and emoluments of which he has been so illegally
deprived.
The Constitution of the Philippine Islands, the Organic Act (Jones
Law) provides: "That no law shall be enacted which deprives any
person of life, liberty or property without due process of law, or
deny to person therein the equal protection of the laws." That
provision of law is equally binding upon each department of
government. "Due process of law" cannot be used as a cloak for
depriving a citizen of his rights when the procedure is based upon a
illegal or unconstitutional act or resolution.
Under the American form of government, the executive, legislative,
and judicial departments are coequal and co-important. But it does
not follow that the judiciary, the constitutional duty of which is to
declare and interpret the supreme law of the land, has not the
power to declare a law or a resolution, passed by the legislature or
either of its branches, unconstitutional. The will of the people, as
expressed in their constitution, is the paramount law and controls
every and each department of the government. The judiciary,
under its powers to interpret the constitution and the laws, has the
duty and the right to declare what the will of the people is, as
expressed in the fundamental law of the land. Hence, where the
acts of the executive or legislative departments violate the will of
the people as expressed in the organic law of the land, it is the
sworn duty of the judiciary to interpret and to declare that the will
of the people and the right of a citizen has been violated and
transgressed.

335
While the imposition of a disciplinary measure by the legislature or
either branch thereof upon one of its members for an offense
committed against its dignity may be regarded as a matter of
internal concern only of that body, over which the other
departments may not exercise jurisdiction by virtue of the
separation established by the fundamental law, it does not follow
that the legislature, in imposing disciplinary measure, has not or
may not overstep its own powers as limited or defined by the
Organic Law. The legislative department of the government cannot,
under the guise of a resolution imposing disciplinary measure,
transgress the constitution, and when it does, its acts cease to be a
mere internal concern. Even the members of the legislature have
their rights under the constitution. They have not lost the
fundamental rights to their life, liberty, and privileges as citizens by
becoming members of the legislative department of the
government.
The argument of the respondents leads to the conclusion that
under their power to punish they may impose any punishment
which their wish, whim, prejudice, or caprice may dictate. That
contention will hardly withstand the scrutiny of modern civilization.
The respondents defend upon the ground that they are absolutely
immune from judicial inquiry; that the courts have no power or
authority to inquire into the acts of the executive or legislative
branches of the government, however clear it may be made to
appear that such departments do not possess the power or
authority exercised. The fact is evidently overlooked by them that
the provision of the Jones Law above quoted is as binding upon
them as it is upon any department, bureau, or person in the
government. The provisions of the Jones Law, for the security of the
rights of the citizen, stand in the same connection and upon the
same ground as they do in regard to his liberty and his property. It
cannot be denied that both were intended to be enforced by the
judicial department of the government. As has been said, the writ
of habeas corpus has been often used to defend the liberty of the
citizen, and even his life, against the exercise of unlawful
authority on the part of the executive and legislative branches of
the government.

No man, individual, department, bureau, or officer in the Philippine

Islands, under the Jones Law, is so high that he is above the law. No
officer of the law may set that law at defiance with impunity. All
officers of the government, from the highest to the lowest, are
creatures of the law, and are bound to obey it. The Philippine
Government is a government by law and not a government by the
whim or caprice of any individual or department. It (the law) is the
only supreme power in our system of government; and every man
who, by accepting an office by appointment or election,
participates in its function, is only the more strongly bound to that
supremacy (the law) and to observe the limitations which it
imposes upon the exercise of the authority which it (the law) gives.
Courts of justice are established, not only to decide upon the
controverted rights of the citizens as against each other, but also
upon rights and controversies between them and the government,
and the dockets of the courts are not without cases containing
controversies of the latter class.
Shall it be said, in the face of the provisions of the Jones Law, and
of the acknowledged right of the judicial department of the
government to decide in proper cases, that statutes which have
been passed by both branches of the Legislature and approved by
the Governor-General are illegal and unconstitutional, and that said
department cannot give a remedy when the citizen has been
deprived of his life or property without lawful authority and without
due compensation, simply because the executive or legislative
department has ordered it? If that is the law in the Philippines it
sanctions a tyranny which has no existence in the monarchies of
Europe nor in any other government which has a just claim to a
well-regulated liberty and the protection of the personal rights,
privileges, life, and property of the individual.
Can it be said that the judicial department of the government can
intervene in a petition for the writ of habeas corpus to relieve a
citizen who has been imprisoned, illegally, and cannot take
jurisdiction in proper proceedings to consider the question whether
or not he has been deprived of his property even though such
deprivation has been brought about by an illegal act or resolution
of the Legislature, or by an order of the executive department of

336
the government? Here again we are of the opinion that the
question contains its own answer to the average citizen.
We cannot give our assent to the doctrine that the Senate or House
of Representatives is the final judge of its own powers and
privileges, without restraint, especially in cases in which the rights,
privileges, emoluments, property, and liberties of a citizen are
concerned. The legality of their action may always be examined
and determined by the courts. Especially are the courts competent,
and it is proper for them to consider whether the proceedings of the
legislative department of the government are in conformity with
the laws and the constitution of the land, because, living under a
written constitution, no branch or department of the government is
supreme; and it is not only the province, but the sworn duty, of the
judicial department, to determine in cases regularly brought before
it, whether the powers of any branch of the government, even
those of the legislature in the enactment of laws or resolutions,
have been exercised in conformity with the organic law of the land,
if they have not, to treat such acts or resolutions as null and void.
All of the foregoing arguments are intended to apply only to cases
in which some action has been taken, which illegally deprives a
citizen of his rights, privileges, prerogatives, and emoluments.
Nothing herein is intended to modify in the slightest degree the
decisions heretofore announced in the cases of Severino vs.
Governor-General
and
Provincial
Board
of
Occidental
Negros, Perfecto vs. Wood, and Abueva vs. Wood, above cited. In
those cases the courts were called upon to require one or both of
the other two coordinate departments to act in a particular way
upon questions which were specially confided to those
departments, while in the present case the courts are called upon
to decide whether or not the action which the legislative
department of the government has taken is legal and in conformity
with the powers conferred by the organic law of the land. A wide
distinction must be made between requiring a particular act to be
done and a pronouncement upon the legality of that act after it is
performed. The courts will not require the legislative department of
the government to adopt a particular law, but they are authorized
and empowered, and it is their sworn duty to pronounce a statute
null and void after adoption if the same is found to be contrary to

the provisions of the organic law of the land and beyond the powers
of the legislative department. This doctrine is amply exemplified in
the thousands of cases which have been brought before the courts
in petitions for habeas corpus where the petitioner alleged that he
has been imprisoned under an unconstitutional law and in many,
many cases where men have been deprived of their rights and
property by an illegal and unconstitutional act adopted by the
legislature. In the first class of cases mentioned, the courts will
never interfere in this jurisdiction to direct or coerce action, while in
the second class of cases the courts should always take jurisdiction
for the purpose of determining and making pronouncements upon
the legality and constitutionality of acts actually taken.
In view of the facts and the law, we are compelled to decide that
we are justified, authorized, and, under our oath of office,
compelled to take jurisdiction of the petition for the purpose of
ascertaining whether or not the petitioner has been deprived,
illegally, of a right guaranteed to him under the Constitution and
laws of the Philippine Islands. In exercising the high authority
conferred upon us to pronounce valid or invalid a particular
resolution or statute of the legislature, we are only the
administrators of the public will as expressed in the fundamental
law of the land. If an act of the legislature is to be held illegal by
the courts, it is not because the judges have any control over the
legislature, but because the particular statute or resolution is
forbidden by the fundamental law of the land, and because the will
of the people, as declared in such fundamental law, is paramount
and must be obeyed by every citizen, even the Legislature. In
pronouncing a statute or resolution illegal, we are simply
interpreting the meaning, force, and application of the fundamental
law of the state. If a particular resolution or statute of the
legislature is within its constitutional power, it will be sustained,
whether the courts agree or not in the wisdom of its enactment. If
the resolution or statute covers a subject not authorized by the
fundamental law of the land, then the courts are not only
authorized but are compelled and justified in pronouncing the same
illegal and void, no matter how wise or beneficient such resolution
or statute may seem to be. The courts will not measure their
opinion with the opinion of the legislative department, as expressed

337
in the resolution or statute, upon the question of the wisdom,
justice, and advisability of a particular law, but the wisdom, justice,
and advisability of a particular law must be tested by the provisions
of the fundamental law of the state. It is the sworn duty of the
judicial department of the government to determine the limits,
under the law and the constitution, of the authority of both the
executive and legislative departments.
THIRD. May the Supreme Court grant the remedy prayed for?
In the Government of the Philippine Islands no man is so high that
he is above the law. All the officers of the government, from the
highest to the lowest, are creatures of the law and are bound to
obey it. It cannot be said, in view of the acknowledge right of the
judicial department of the government to pass upon the
constitutionality of statutes or resolutions of the legislative
department, that the courts cannot give a remedy to a citizen of
the state when he has been illegally deprived of his life, his
property, or his liberty by force, or by virtue of an unconstitutional
act or resolution of the legislative department. A contrary
conclusion would sanction a tyranny under the American flag,
which has no existence even in the monarchies nor in any other
government which has a just claim to a stable government, a wellregulated liberty, and the protection of the personal rights of
individuals. Every department, every officer of the government,
and every individual, are equally bound by the mandatory
provisions of the fundamental law. When a citizen under the
American flag has been deprived of his life, his liberty, or his
property by an illegal statute or resolution, the official or
department so depriving him cannot say to the courts: "Stop here,
for the reason that I (we) have acted as a representative of a
different department of the government."
A pronouncement, by the highest tribunal of justice in the
Philippine Islands, that the resolution is ultra vires, illegal, and void,
we confidently believe, will be sufficient to cause an immediate
revocation of the same, and the adoption of a further order to the
effect that all persons affected by it will be restored to their rights.
We are confident in that belief, because we cannot believe that the
resolution was adopted out of a spirit of malice, hatred, or revenge,
but in the full belief that the law permitted it as a disciplinary

measure. We cannot believe that the honorable senators who took

part in its adoption intended to deprive any of the citizens of their
county of the constitutional right. We are confident that the
honorable senators recognize, as fully as the courts do, that the
constitution is the supreme law of the land and is equally binding
upon them as it is upon every citizen, high or low, and upon every
branch, bureau, or department of the government. We are sure that
the respondents will be among the very first to openly criticize and
vigorously denounce any person, entity, or department within the
Philippine Islands, who should be guilty of the slightest disregard or
disobedience to the mandates of the constitution the law of the
people.
The majority opinion decides that the petitioner and the people
whom he represents have been illegally deprived of their rights, but
that he and they are without a remedy damnum absque injuria.
To that doctrine we cannot give our assent.
The nightmare which runs through the majority opinion concerning
the impossibility of the execution of a judgment, is hardly justified
in a stable and well-organized government, among a people who
love peace and good order, who despise disobedience to law and
disloyalty to the constituted authorities. The history of the Filipino
people shows that they love peace, good order, and will, with a
spirit of alacrity, obey the law when they once understand what the
law is. We rest in the confident faith that spirit still controls in the
Philippine Islands. The remedy prayed for should be granted in a
modified form.
RESUME
1. The Organic Law (Jones Law) prohibits the removal of an
appointive senator by the Legislature.
2. The said resolution has the effect of a removal of an appointive
senator.
3. The resolution, therefore, is invalid, illegal, and void, according to
the unanimous opinion of the court.
4. The legislative power and procedure of the Senate must be
exercised in conformity with the Organic Law.
5. The courts have jurisdiction to inquire into the legality or
constitutionality of a law or resolution of the legislative department,

338
whenever a citizen alleges that he has been deprived of his rights
under such law or resolution.
6. The courts of the Philippine Islands have jurisdiction to
determine the constitutionality of acts or resolutions or procedure
of the Senate.
7. The petition and demurrer present the question of the
constitutionality of said resolution, as well as the constitutional
power of the Senate to adopt it.
8. The Supreme Court of the Philippine Islands, having jurisdiction,
its decree or order should afford relief from the effect of said illegal
resolution.
Therefore, the enforcement of the said illegal and void resolution
should be enjoined.
OSTRAND, J., dissenting:
With much of what is said in the majority opinion I am in entire
accord. I agree that the Senate in suspending the petitioner,
declaring his pay forfeited and depriving his senatorial district of
the representation granted by the Organic Act, exceeds its powers
and jurisdiction. I also concede that the courts will not,
by mandamus or other writs, attempt to control the exercise by the
other departments of the government of discretional or executive
powers or duties conferred upon them by the constitution or by
constitutional statutes. I further concede that the courts will not
interfere with acts of another department when such acts are of a
purely political and non-justiciable character.
But when the court holds, as it in effects does in this case, that
because the respondents are members of officers of another
department the courts have no power to restrain or prohibit them
from carrying into effect an unconstitutional and therefore void act
of that department, an act wholly outside of its province, and which
deprives a citizen of rights and privileges to which he, by law, is
entitled, I find myself unable to follow its reasoning or to yield my
assent to its conclusions.
Before entering upon a more extended discussion of the issues in
the case, it may be well to emphasize that there is here no question
as to the power of the Philippine Senate to punish its members for
disorderly behavior. That is conceded. But I contend that the court

may intervene to prevent the execution of the penalty imposed if

such penalty transcends the domain of the Legislature and
encroaches upon that of the Chief Executive in direct violation of
the Organic Act. I shall also maintain that the assertion in the
majority opinion to the effect that this, in substance, is an action
against the Senate as a body, is erroneous.
The fundamental error into which the court has fallen is that it has
failed to note the distinction between acts within the province of a
department and those outside thereof; it confuses entire absence
of power with the alleged improper exercise of legitimate powers.
This distinction is obvious and very important. Where a power or
duty has been entrusted to the Chief Executive by the Organic Act,
this court will not, under the rule laid down in the case of Severino
vs. Governor-General and Provincial Board of Occidental Negros (16
Phil., 366), attempt to control or direct the exercise by him of that
power or duty; he is presumed to be the best judge of the time and
the manner of its exercise. For the same reason, the court will not
undertake to direct the exercise of the discretional powers of the
legislative department within its legitimate sphere. But it must
necessarily be otherwise where either department steps outside of
its province and arrogates to itself any of the constitutional powers
of the other. The doctrine of non-interference by the judiciary with
the other departments of the government rests primarily on the
ground that each department is presumed to possess special
qualifications and opportunities for the exercise of the powers
entrusted to it by the constitution. It follows that the doctrine does
not apply to cases where a department goes beyond its legitimate
sphere. This is, indeed, the first time any court has ever held that in
such cases there may be no judicial interference. (Bailey
on Mandamus, p. 926.)
That the court has overlooked this distinction is very apparent from
the fact that in all of the cases cited in support of its conclusion, the
acts complained of were within the province of the respondents and
that in none of them is there any question of the encroachment by
one department upon the domain of another. It is very true that in
some of the cases dicta are to be found which, taken by themselves
alone and without reference to the context, may, at first sight, lead
to the inference that the separation of the various departments of

339
the government is so complete that the courts, under no
circumstances, will review any act of the Legislature or the
Executive, irrespective of its character, but when the cases where
such dicta occur are closely examined, this impression disappears
and it becomes obvious that the dicta have no reference to acts of
clear usurpation of powers.
Five of the cases cited relate to judicial review of the exercise of the
legislative powers. In the first of these cases,Hiss vs.
Bartlett ([1853], 69 Mass., 468), a habeas corpus proceeding, it was
held that the House of Representatives of Massachusetts had the
implied power to expel a member and that the reasons for the
expulsion, and the question whether a member was duly heard
before being expelled, could not be inquired into by the courts.
French vs. Senate ([1905], 146 Cal., 604), was a proceeding
in mandamus. The Constitution of the State of California expressly
gives either house of the Legislature authority to expel members by
a two-thirds majority vote. The petitioners had been so expelled
from the Senate but alleged that it had been done without due
process of law and therefore asked that the Senate be compelled to
again admit them as members. The court denied the writ holding
that the judicial department had no power "to revise even the most
arbitrary and unfair action of the legislative department, or of
either house thereof, taken in pursuance of the power committed
exclusively to that department by the Constitution."
State vs. Bolte ([1899], 151 Mo., 362), was a suit for a writ
of mandamus to compel the presiding officer and the secretary of
the State Senate, and the Speaker of the House of Representatives
and its chief clerk, to take the necessary steps to complete the
enactment of a certain bill, it being alleged that it had already
passed both houses by a majority vote. The petition was resisted
on the ground that the presiding officer of the Senate had ruled
that the bill did not pass the Senate and that the court had no
jurisdiction to review the ruling. The court held that the duty the
performance of which it was sought to enforce was one strictly
within the line of the duties of the presiding officer of the Senate
and was not merely ministerial. The writ was therefore denied.
The case of Ex-parte Echols ({[1886], 89 Ala., 698), was a petition
by one of the members of the State Legislature for a writ

of mandamus to the Speaker of the House of Representatives to

compel him to send a certain bill to the Senate. The Speaker ruled
that the bill had not passed the house with the requisite majority of
votes and therefore refused to certify it to the Senate. The petition
was denied, the court stating that it would not "interfere with either
of the coordinate departments of the government in the legitimate
exercise of their jurisdiction and powers."
There is, as far as I can see, absolutely nothing in these cases
which can have any direct bearing on the present case. In two of
them the question before the court was the alleged abuse of
constitutional powers resting in the Legislature; the other three
were actions to compel the performance of duties entrusted by law
to the Legislature or its officers and which were not merely
ministerial. In all of them the Legislature operated within its own
domain.
The other cases cited to the same point in the majority opinion are
actions directed against chief executives. The two most favorable
to the majority of the court are Mississippi vs. Johnson and Ord (4
Wall., 475) and Sutherlandvs. Governor (29 Mich., 320). The facts of
the first case are stated in the majority opinion and need not be
restated here. But the portions quoted from the decision in that
case should be read in connection with the following quotation from
the same decision, which I think forms its real basis:
The single point which requires consideration is this: Can the
President be restrained by injunction from carrying into effect an
Act of Congress alleged to be unconstitutional?
It is assumed by the counsel of the State of Mississippi, that the
President, in the execution of the Reconstruction Acts, is required to
perform a mere ministerial duty. In this assumption there is, we
think, a confounding of the terms `ministerial' and `executive,'
which are by no means equivalent in import.
A ministerial duty, the performance of which may, in proper cases,
be required of the head of the department, by judicial process, is
one in respect to which nothing is left to discretion. It is a simple,
definite duty, arising under conditions admitted or proved to exist,
and imposed by law.
xxx
xxx
xxx

340
Very different is the duty of the President in the exercise of the
power to see that the laws are faithfully executed, and among
these laws the Acts named in the bill. By the first of these Acts he is
required to assign generals to command in the several military
districts, and to detail sufficient military force to enable such
officers to discharge their duties under the law. By the
supplementary Act, other duties are imposed on the several
commanding generals, and these duties must necessarily be
performed under the supervision of the President as Commanderin-Chief. The duty thus imposed on the President is in no just sense
ministerial. It is purely executive and political.
Considering the language here quoted, it is difficult to regard the
first paragraph of the quotation from the same decision in the
majority opinion as anything but dictum. In any event, if it is to be
taken as authority for the proposition that the United States
Supreme Court may prevent officers or members of Congress from
carrying into effect an unconstitutional resolution, it is definitely
overruled by the decision in the case of Kilbourn vs. Thompson (103
U. S., 168), in which the court held that an action would lie against
the Speaker and other officers of the House of Representatives of
Congress for attempting to carry into effect an unconstitutional
resolution of the house committing Kilbourn to prison for contempt.
The court further held that "the House of Representatives (of
Congress) is not the final judge of its own power and privileges in
cases in which the rights and liberties of the subject are concerned,
but the legality of its action may be examined and determined by
this court."
The case of Sutherland vs. Governor, supra, is the leading case in
favor of the view that all official acts of the chief executive of a
State are executive as distinguished from ministerial and therefore
not subject to judicial review. The case represents the extreme limit
to which courts have gone in that direction and its soundness has
been questioned by most authorities on the subject, but because of
the high reputation of the writer of the decision, Judge Cooley, it is,
nevertheless, entitled to consideration.
The case was a petition for a writ of mandamus to compel the
Governor of Michigan to issue a certificate of the completion of the
construction of the Portage Lake and Lake Superior Ship Canal. The

statutes required the governor to issue the certificate when he

should be satisfied that the work had been done in conformity with
the law. The duty devolving upon the governor was therefore
clearly discretional and this was recognized by the court, but Judge
Cooley preferred to plant the decision on additional and broader
grounds, which may best be stated in the language of the court:
. . . There is no very clear and palpable line of distinction between
those duties of the governor which are political and those which are
to be considered ministerial merely; and if we should undertake to
draw one, and to declare that in all cases falling on one side the
line the governor was subject to judicial process, and in all falling
on the other he was independent of it, we should open the doors to
an endless train of litigation, and the cases would be numerous in
which neither the governor nor the parties would be able to
determine whether his conclusion was, under the law, to be final,
and the courts would be appealed to by every dissatisfied party to
subject a coordinate department of the government to their
jurisdiction. However desirable a power in the judiciary to interfere
in such cases might seem from the standpoint of interested parties,
it is manifest that harmony of action between the executive and
judicial departments would be directly threatened, and that the
exercise of such power could only be justified on most imperative
reasons. Moreover, it is not customary in our republican
government to confer upon the governor duties merely ministerial,
and in the performance of which he is to be left to no discretion
whatever; and the presumption in all cases must be, where a duty
is devolved upon the chief executive of the State rather than upon
an inferior officer, that it is so because this superior judgment,
discretion, and sense of responsibility were confided in for a more
accurate, faithful, and discreet performance than could be relied
upon if the duty were devolved upon an officer chosen for inferior
duties. And if we concede that cases may be pointed out in which it
is manifest that the governor is left to no discretion, the present is
certainly not among them, for here, by law, he is required to judge,
on a personal inspection of the work, and must give his certificate
on his own judgment, and not on that of any other person, officer,
or department.

341
We are not disposed, however, in the present case, to attempt on
any grounds to distinguish it from other cases of executive duty
with a view to lay down a narrow rule which, while disposing of this
motion, may leave the grave question it presents to be presented
again and again in other cases which the ingenuity of counsel may
be able to distinguish in some minor particulars from the one
before us. If a broad general principle underlies all these cases, and
requires the same decision in all, it would scarcely be respectful to
the governor, or consistent with our own sense of duty, that we
should seek to avoid its application and strive to decide each in
succession upon some narrow and perhaps technical point peculiar
to the special case, if such might be discovered.
And that there is such a broad general principle seems to us very
plain. Our government is one whose powers have been carefully
apportioned among three distinct departments, which emanate
alike from the people, have their powers alike limited and defined
by the constitution, are of equal dignity, and within their respective
spheres of action equally independent. One makes the laws,
another applies the laws in contested cases, while the other must
see that the laws are executed. This division is accepted as a
necessity in all free governments, and the very apportionment of
power to one department is understood to be a prohibition of its
exercise by either of the others. The executive is forbidden to
exercise judicial power by the same implication which forbids the
courts to take upon themselves his duties.
It is true that neither of the departments can operate in all respects
independently of the others, and that what are called the checks
and balances of government constitute each a restraint upon the
rest. The legislature prescribes rules of action for the courts, and in
many particulars may increase or diminish their jurisdiction; it also,
in many cases, may prescribe rules for executive action, and
impose duties upon, or take powers from the governor; while in
turn the governor may veto legislative acts, and the courts may
declare them void where they conflict with the constitution,
notwithstanding, after having been passed by the legislature, they
have received the governor's approval. But in each of these cases
the action of the department which controls, modifies, or in any
manner influences that of another, is had strictly within its own

sphere, and for that reason gives no occasion for conflict,

controversy, or jealousy. The legislature in prescribing rules for the
courts, is acting within its proper province in making laws, while the
courts, in declining to enforce an unconstitutional law, are in like
manner acting within their proper province, because they are only
applying that which is law to the controversies in which they are
called upon to give judgment. It is mainly by means of these checks
and balances that the officers of the several departments are kept
within their jurisdiction, and if they are disregarded in any case,
and power is usurped or abused, the remedy is by impeachment,
and not by another department of the government attempting to
correct the wrong by asserting a superior authority over that which
by the constitution is its equal.
It has long been a maxim in this country that the legislature cannot
dictate to the courts what their judgments shall be, or set aside or
alter such judgments after they have been rendered. If it could,
constitutional liberty would cease to exist; and if the legislature
could in like manner override executive action also, the
government would become only a despotism under popular forms.
On the other hand it would be readily conceded that no court can
compel the legislature to make or to refrain from making laws, or to
meet or adjourn at its command, or to take any action whatsoever,
though the duty to take it be made ever so clear by the constitution
or the laws. In these cases the exemption of the one department
from the control of the other is not only implied in the framework of
government, but is indispensably necessary in any useful
apportionment of power is to exist.
In view of the fact that the duty to be performed was discretional
and therefore, by the concensus of judicial opinion, not subject to
judicial review, the extensive discussion of other grounds for the
decision lays it open to the same criticism as that frequently voiced
in regard to Chief Justice Marshall's dissertation in the case of
Murburyvs. Madison (1 Cranch, 137); namely, that it was
unnecessary to the decision of the case and therefore in the nature
of obiter dicta. It may also be noted that the courts of last resort in
the States of Alabama, California, Colorado, Kansas, Maryland,
Montana, Nebraska, Nevada, North Carolina, Ohio and Wyoming
have allowed writs of mandamus to the governors of their States

342
for the performance of ministerial duties, without bringing about
any
of
the
serious
consequences
predicted
in
Sutherland vs. Governor, supra. These States seem to have fared
fully as well as the States of Arkansas, Florida, Georgia, Illinois,
Indiana, Louisiana, Michigan, Minnesotta, Mississippi, Missouri, New
Jersey, New York, Tennessee, and Texas which, together with the
Philippine Islands, have adopted the opposite view.
But taking the decision in Sutherland vs. Governor, supra, at its full
face value, I am unable to see that it is determinative of the
present case. I readily concede that under the decisions of this
court all acts of the chief executive within the limits of his
jurisdiction are executive acts involving a measure of discretion and
may not be reviewed by the courts. It may also be conceded that
no court can compel the legislature as such to make or refrain from
making laws, or to meet or adjourn at its command, or "to take any
action whatsoever though the duty to take it be made ever so clear
by the constitution or the laws." But that does not mean that the
courts may not restrain officers and individual members of the
legislature from carrying into effect an unconstitutional resolution
transcending the limits of the legislative department and
encroaching upon another. If that is beyond the power of the
courts, what will then become of the checks and balances of which
Judge Cooley speaks and which are regarded fully as essential a
feature of our system of government as that of departmental
distribution of powers?
Time forbids a full discussion of other decisions of courts in the
United States which adhere to the doctrine that the judiciary will
not interfere with the acts of the chief executive within the limits of
his jurisdiction. It is sufficient to say that they all relate to acts
within the domain of the executive and that none of them has any
direct application to the present case.
But we are given to understand that by reason of its own previous
decisions this court stands committed to the doctrine that it has no
power to interfere with any act of the other coordinate departments
of the government whether they transcend the limits of their
jurisdiction or not.
A brief analysis of the decisions of this court upon the subject will
show that this is a misapprehension.

The first of these decisions is that in the case of Barcelon vs. Baker
and Thompson (5 Phil., 87), a petition for a writ of habeas corpus.
Section 5 of the Act of Congress of July 1, 1902, conferred on the
Governor-General the power to suspend the writ whenever the
public safety might require it in cases of rebellion, insurrection, or
invasion, and the case involved the question as to whether the
courts may inquire into the legality of an order of the GovernorGeneral suspending the privilege of the writ. The court held that
"whenever a statute gives discretionary power to a person to be
exercised by him upon his own opinion on certain facts, such
statute constitutes him the sole and exclusive judge of the
existence of those facts;" and that when the Governor-General,
"with the approval of the Philippine Commission declares that a
state of rebellion, insurrection, or invasion exists, this declaration or
conclusion is conclusive against the judicial department of the
government." The writ was therefore denied.
The leading case of Severino vs. Governor-General and Provincial
Board of Occidental Negros (16 Phil., 366), was a petition for a writ
of mandamus to compel the Governor-General to call a special
election for the purpose of electing a municipal president of the
town of Silay, Occidental Negros, and to restrain the provincial
board of Occidental Negros from appointing a municipal president
during the pendency of the action. By statute, the duty of calling a
special election devolves upon the Governor-General and the
principal question presented for consideration was whether the
court had power to compel the Governor-General to immediately
perform such duty. The court denied the writ holding that "where a
duty is devolved upon the Governor-General of the Philippine
Islands, rather that upon an inferior officer, it will be presumed to
have been done because his superior judgment, discretion, and
sense of responsibility were confined in for a more accurate,
faithful, and discreet performance than could be relied upon if the
duty were put upon an officer chosen for inferior duties," and that
the court would not undertake to direct or control the exercise of
such duty. Incidentally, the court also stated that "the powers,
duties, and responsibilities of the Governor-General of the
Philippine Islands are far more comprehensive than those of State
governors of the United States;" and laid down the rule that "the

343
courts of the Philippine Islands have no jurisdiction to interfere, by
means of a writ of mandamus or injunction, with the GovernorGeneral as the head of the executive department in the
performance of any of his official acts."
In the case of Forbes vs. Chuoco Tiaco and Crossfield (16 Phil.,
534), the facts may be briefly stated as follows:
The Governor-General deported certain Chinese persons from
Manila to Amoy, China. The deportees subsequently returned to
Manila and brought an action in the Court of First Instance against
the Governor-General and certain police officials for damages,
alleging that the deportation was unlawful. The defendants
thereupon filed a petition in this court for a writ of prohibition
commanding the Judge of the Court of First Instance to refrain from
assuming jurisdiction in the case brought by the deportees, the
petitioners alleging that "the power to deport foreign subjects of
the Chinese Empire is a privative one of the Governor-General and
is not subject to judicial review." This court granted the writ holding
that "the Governor-General, acting in his political and executive
capacity, is invested with plenary power to deport obnoxious aliens
whose continued presence in the territory is found by him to be
injurious to the public interest, and in the absence of express or
prescribed rules as to the method of deporting or expelling them,
he may use such methods as his official judgment and good
conscience may dictate;" that he could not be held liable in
damages for the exercise of such power and that the courts would
not interfere.
Case R. G. No. 20867, Perfecto vs. Wood (not published in the
reports) involved exactly the same principles asSeverino vs.
Governor-General and Provincial Board of Occidental Negros, supra,
except that the special election was to be called for the purpose of
filing a vacancy in the Senate. The majority decision, signed by four
justices, denied the petition on the same grounds as those stated in
the Severino case. Three justices concurred in the result on the
ground that the case had then become a moot case.
The doctrine laid down in Forbes vs. Chuoco Tiaco and
Crossfield, supra, was followed in the case of In reMcCulloch Dick.
The case of Abueva vs. Wood (45 Phil., 612), was a petition for a
writ of mandamus to compel the Governor-General, the President of

the Senate, the Speaker of the House of Representatives, the

Insular Auditor, the Executive Secretary of the Independence
Committee and the Secretary of the same Committee to permit the
petitioners to examine all vouchers and documents in connection
with disbursements and payments made from the fund of the
Independent Commission. The petition was denied, the court
stating:
. . . It may be asserted as a principle founded upon the clearest
legal reasoning that the legislature or legislative officers, in so far
as concerns their purely legislative functions, are beyond the
control of the courts by the writ of mandamus. The legislative
department, being a coordinate and independent branch of the
government, its action within its own sphere cannot be revised or
controlled by mandamus by the judicial department, without a
gross usurpation of power upon the part of the latter. When the
legislative department of the government imposes upon its officers
the performance of certain duties which are notprohibited by the
organic law of the land, the performance, the nonperformance, or
the manner of the performance is under the direct control of the
legislature, and such officers are not subject to the direction of the
courts. . . .
The case of Concepcion vs. Paredes (42 Phil., 599), was a petition
for a writ of prohibition commanding the respondent Secretary of
Justice to desist from carrying into effect the provisions of Act No.
2941 requiring the Judges of the Courts of First Instance to draw
lots every five years for exchange of districts. The court held that
the Act constituted an encroachment by the Legislature upon the
Governor-General's power of appointment and was therefore
unconstitutional. The writ was granted.
What is there in these cases which can serve as authority for the
theory that the courts may not interfere with the execution of acts
beyond the jurisdiction of the department sought to be restrained?
Absolutely nothing. The rather broad dictum in the case of Severino
vs. Governor-General and Provincial Board of Occidental
Negros,supra, that the courts of the Philippine Islands have no
jurisdiction to interfere with the head of the executive department
in the performance of any of his official acts, must be considered in

344
connection with the context and is clearly limited to acts within the
limits of his jurisdiction.
In Abueva vs. Wood, supra, the doctrine of noninterference with the
Legislature is carefully limited to "actions within its own sphere"
and "duties not prohibited by the organic law of the land."
In the present case we are not dealing with an act of political and
nonjusticiable character, nor is there a question of interference with
the exercise of discretionary powers of duties resting in the
Legislature under the Organic Act. We are simply called upon to
prevent the carrying into effect of unconstitutional and therefore, in
a legal sense, nonexistent parts of a resolution of one of the
branches of the Legislature which, if executed, will result in an
encroachment upon the domain of another department and deprive
the petitioner of rights and privileges to which he is by law entitled.
There is no question as to the power of the Senate to punish its
members for disorderly behavior, but it must be insisted that the
penalty shall not constitute a usurpation of the powers of another
department of the government in violation of the Organic Act. It is
agreed that as long as the penalty does not expressly or impliedly
violate that Act, the courts will not interfere.
That the resolution is unconstitutional and void cannot be seriously
questioned and is conceded in the majority opinion, but in order to
bring the issue into clear relief, it may be well to briefly state the
reasons why it must be so held:
The Senate exercises delegated powers, all of which are derived
from the Organic Act. That Act provides for twenty-two senators to
be elected by the people and for two other senators to be
appointed by the Governor-General. In the language of the Act, the
appointive senators "shall hold office until removed by the
Governor-General." The Act further provides that "The Senate and
House of Representatives, respectively, shall be the sole judges of
the elections, returns and qualifications of their elective member."
It will be observed that no power to expel or remove appointive
members is conferred on the houses of the Legislature, nor can
such power be inferred or implied from the statute, in view of the
fact that it is expressly placed in the hands of the GovernorGeneral. The Act does not limit or qualify the term "remove" and it
therefore includes both temporary and permanent removals.

An examination of the Senate resolution in question shows that in

effect it provides for a complete temporary removal of the
petitioner. It does not merely exclude him from the floor of the
Senate Chamber, but he is also "deprived of all his prerogatives,
privileges, and emoluments as such senator," for the period of one
year. As far as he is concerned, his removal from office for that
period could not be made more complete. In attempting to exercise
the power of such removal, the Senate clearly arrogated to itself
powers which it does not possess and which, under the Organic Act,
rest in the Chief Executive. Its resolution to that effect is
consequent unconstitutional and void. As is the case with an
unconstitutional statute, it has, in the eyes of the law, never
existed.
We are therefore confronted with the facts that the petitioner is a
duly appointed senate; that he, as a matter oflaw, is not and never
has been removed or suspended from office; that he, therefore, as
such senate always has been, and still is, entitled to all the
prerogative, privileges, and emoluments of his office; and that,
nevertheless, certain officers and members of the Senate, without
any legal authority whatever, deprive him of such prerogatives,
privileges, and emoluments, including his salary. The Senate has
nothing to do with the appointment of an appointive senator and is
not, as in the case of elective members, the judge of his
qualifications; when duly appointed, the officers of the Senate are
legally bound to recognize him as a senator; they have no
discretion in the matter and their duties in regard thereto are
purely ministerial.
In the circumstances, upon what legal principles is this court
precluded from granting the petitioner the relief he demands? Why
cannot, for instance, members of the Committee on Accounts and
the Paymaster of the Senate be directed to cause to be paid to the
petitioner the salary fixed by law?
Other courts have not hesitated to use the writ of mandamus to
compel performance of similar duties by officers of the legislature.
In Ex parte Pickett (24 Ala., 91), the writ was issued to the Speaker
of the House of Representatives to compel him to certify to the
Comptroller of Public Accounts the amount to which the petitioner
was entitled as a member of the House for mileage and per diem

345
compensation. In State vs. Elder (31 Neb., 169), the writ was issued
to compel the Speaker to open and publish returns of the general
election. In State vs. Moffitt (5 Ohio, 350), mandamus was held to
lie to the Speaker of the House to compel him to certify the election
and appointment of officers. In Wolfe vs. McCaull (76 Va., 87), the
writ was issued to compel the Keeper of the Rolls of the House of
Delegates to print and publish a bill passed by the Legislature and
upon request to furnish a copy thereof properly certified. (See also
Kilbourn vs. Thompson, 103 U. S., 168; State vs. Gilchrist, 64 Fla.,
41; Peoplevs. Marton, 156 N. Y., 136.) As stated as the outset, it is
erroneously asserted in the majority opinion that this action is, in
substance, a suit against the Senate as a body. This might be true if
the act complained of was an act within the jurisdiction of the
Senate, but such is not the case here. A practical illustration may,
perhaps, make the point clear. Let us suppose that a majority of the
members of the Senate should agree to commit a crime against
another member and should pass a senatorial resolution to that
effect. Would that, in anything but form, constitute a senatorial act?
And suppose the same members should proceed to carry the
resolution into effect, would not an action lie against such members
and could that, in substance, be regarded as an action against the
Senate? The questions answer themselves, and though in the
present case the illegal act does not constitute a crime, the analogy
is, nevertheless obvious; the distinction is one without a difference.
As has already been pointed out, the United States Supreme Court
has held that an action may, at the instances of the injured party,
be maintained against the presiding officer, as well as other
officers, of one of the houses of Congress for the execution of an
unconstitutional resolution. In the same case it is also intimated
that the action will lie against all members who take direct part in
the execution of such a resolution. (Kilbourn vs. Thompson, supra.)
It may further be noted that though the prayer in the petition in this
case does not expressly so state, the body of the petition shows
sufficiently that the remedy to be applied may not be the same in
regard to all of the defendants. The allegations seem broad enough
to cover both mandamus and prohibition and the petition is not
demurred to on that ground. It is also possible that if evidence were

permitted some of the defendants might be absolved from the

complaint.
It has been suggested that to entertain an action against a
coordinate department of the government would be an
unwarranted assertion of superiority on our part. I fail to see the
validity of this observation. This is not a question of departmental
superiority or inferiority. This court asserts no superiority for itself;
it only maintains the superiority of the law to which all of us must
yield obedience. The pronouncements of the court are simply the
voice of the law as understood by the court and are not personal
matters. Even if this action were brought against a coordinate
department as a body which it is not the court would still be in
duty bound to apply the law of the land to the case and do its best
to enforce that law irrespective of the rank or importance of the
parties.
In the course of the argument of the case it was intimated that if
the writ prayed for were issued its enforcement might be the cause
of disturbance and strife. The suggestion is almost an insult to the
intelligence and patriotism of the defendants and I feel sure that
the fear thus expressed is entirely without foundation. At least
there has been no trouble of that kind in other jurisdictions where
writs have issued to officers or members of the legislature. If courts
perform their duties with firmless, rectitude and moderation,
regardless of personal or political considerations, their decisions
will be respected and their orders and writs generally obeyed. It is
usually when courts fail in these respects, and thus prove unfaithful
to their trust, that their orders are disregarded and trouble ensues.
The decision of the court in the present case enjoys the distinction
of being without a precedent and of resting on no sound legal
prejudice of which I am aware. The arguments advanced in its
support are excuses and not reasons. If carried to its logical
conclusion, it may have far-reaching and serious consequences. If
one branch of the government may with impunity, and with
freedom from judicial intervention, freely usurp the powers of
another branch, it may eventually lead either to anarchy or to
tyranny. A wrong has been committed for which there is no other
remedy but that there sought by the petitioner, yet the court
refuses to take jurisdiction on the strength of alleged precedents

346
which, as we have seen, in reality have no bearing whatever upon
the issues of the case. It is hardly necessary to say that when men
are deliberately denied redress for wrongs, the temptation is strong
for them to take the law into their own hands and there is perhaps
no more fruitful source of popular unrest and disturbance.
I regret to see the decision find a place in our jurisprudence and
can only hope that it will not be followed by this court in the future.
The demurrer to the petition should be overruled.

347
G.R. No. L-17144
October 28, 1960
SERGIO
OSMEA,
JR., petitioner,
vs.
SALIPADA K. PENDATUN, LEON Z. GUINTO, JR., VICENTE L.
PERALTA, FAUSTINO TOBIA, LORENZO G. TEVES, JOPSE J.
ROY, FAUSTINO DUGENIO, ANTONIO Y. DE PIO, BENJAMIN T.
LIGOT, PEDRO G. TRONO, FELIPE ABRIGO, FELIPE S.
ABELEDA, TECLA SAN ANDRES ZIGA, ANGEL B. FERNADEZ,
and EUGENIO S. BALTAO, in their capacity as members of
the Special Committee created by House Resolution No.
59,respondents.
Antonio
Y.
de
Pio
in
his
own
behalf.
F. S. Abeleda, A. b. Fernandez. E. S. Baltao and Tecla San Andres
Ziga
in
their
own
behalf.
C. T. Villareal and R. D. Bagatsing as amici curiae.
BENGZON, J.:
On July 14, 1960, Congressman Sergio Osmea, Jr., submitted to
this Court a verified petition for "declaratory relief, certiorari and
prohibition with preliminary injunction" against Congressman
Salapida K. Pendatun and fourteen other congressmen in their
capacity as members of the Special Committee created by House
Resolution No. 59. He asked for annulment of such Resolution on
the ground of infringenment of his parliamentary immunity; he also
asked, principally, that said members of the special committee be
enjoined from proceeding in accordance with it, particularly the
portion authorizing them to require him to substantiate his charges
against the President with the admonition that if he failed to do so,
he must show cause why the House should not punish him.
The petition attached a copy of House Resolution No. 59, the
pertinent portions of which reads as follows:
WHEREAS, on the 23rd day of June, 1960 , the Honorable Sergio
Osmea, Jr., Member of the House of Representatives from the
Second District of the province of Cebu, took the floor of this
chamber on the one hour privilege to deliver a speech, entitled 'A
Message to Garcia;
WHEREAS, in the course of said speech, the Congressman from the
Second District of Cebu stated the following:.
xxx
xxx
xxx

The people, Mr. President, have been hearing of ugly reports that
under your unpopular administration the free things they used to
get from the government are now for sale at premium prices. They
say that even pardons are for sale, and that regardless of the
gravity or seriousness of a criminal case, the culprit can always be
bailed out forever from jail as long as he can come across with a
handsome dole. I am afraid, such an anomalous situation would
reflect badly on the kind of justice that your administration is
dispensing. . . . .
WHEREAS, the charges of the gentleman from the Second District
of Cebu, if made maliciously or recklessly and without basis in truth
and in fact, would constitute a serious assault upon the dignity and
prestige of the Office of 37 3 the President, which is the one visible
symbol of the sovereignty of the Filipino people, and would expose
said office to contempt and disrepute; . . . .
Resolved by the House of Representative, that a special committee
of fifteen Members to be appointed by the Speaker be, and the
same hereby is, created to investigate the truth of the charges
against the President of the Philippines made by Honorable Sergio
Osmea, Jr., in his privilege speech of June 223, 1960, and for such
purpose it is authorized to summon Honorable Sergio Osmea, jr.,
to appear before it to substantiate his charges, as well as to
issue subpoena and/or subpoena duces tecum to require the
attendance of witnesses and/or the production of pertinent papers
before it, and if Honorable Sergio Osmea, Jr., fails to do so to
require him to show cause why he should not be punished by the
House. The special committee shall submit to the House a report of
its findings and recommendations before the adjournment of the
present special session of the Congress of the Philippines.
In support of his request, Congressman Osmea alleged; first, the
Resolution violated his constitutional absolute parliamentary
immunity for speeches delivered in the House; second, his words
constituted no actionable conduct; and third, after his allegedly
objectionable speech and words, the House took up other business,
and Rule XVII, sec. 7 of the Rules of House provides that if other
business has intervened after the member had uttered obnoxious
words in debate, he shall not be held to answer therefor nor be
subject to censure by the House.

348
Although some members of the court expressed doubts of
petitioner's cause of action and the Court's jurisdiction, the majority
decided to hear the matter further, and required respondents to
answer, without issuing any preliminary injunction. Evidently aware
of such circumstance with its implications, and pressed for time in
view of the imminent adjournment of the legislative session, the
special committee continued to perform its talk, and after giving
Congressman Osmea a chance to defend himself, submitted its
reports on July 18, 1960, finding said congressman guilty of serious
disorderly behaviour; and acting on such report, the House
approved on the same daybefore closing its sessionHouse
Resolution No. 175, declaring him guilty as recommended, and
suspending him from office for fifteen months.
Thereafter, on July 19, 1960, the respondents (with the exception of
Congressmen De Pio, Abeleda, San Andres Ziga, Fernandez and
Balatao)1 filed their answer, challenged the jurisdiction of this Court
to entertain the petition, defended the power of Congress to
discipline its members with suspension, upheld a House Resolution
No. 175 and then invited attention to the fact that Congress having
ended its session on July 18, 1960, the Committeewhose
members are the sole respondentshad thereby ceased to exist.
There is no question that Congressman Osmea, in a privilege
speech delivered before the House, made the serious imputations
of bribery against the President which are quoted in Resolution No.
59 and that he refused to produce before the House Committee
created for the purpose, evidence to substantiate such imputations.
There is also no question that for having made the imputations and
for failing to produce evidence in support thereof, he was, by
resolution of the House, suspended from office for a period of
fifteen months for serious disorderly behaviour.
Resolution No. 175 states in part:
WHEREAS, the Special Committee created under and by virtue of
Resolution No. 59, adopted on July 8, 1960, found Representative
Sergio Osmea, Jr., guilty of serious disorderly behaviour for making
without basis in truth and in fact, scurrilous, malicious, reckless and
irresponsible charges against the President of the Philippines in his
privilege speech of June 23, 1960; and

WHEREAS, the said charges are so vile in character that they

affronted and degraded the dignity of the House of Representative:
Now, Therefore, be it
RESOLVED by the House of Representatives. That Representative
Sergio Osmea, Jr., be, as he hereby is, declared guilty of serious
disorderly behaviour; and . . .
As previously stated, Osmea contended in his petition that: (1) the
Constitution gave him complete parliamentary immunity, and so,
for words spoken in the House, he ought not to be questioned; (20
that his speech constituted no disorderly behaviour for which he
could be punished; and (3) supposing he could be questioned and
discipline therefor, the House had lost the power to do so because
it had taken up other business before approving House Resolution
No. 59. Now, he takes the additional position (4) that the House has
no power, under the Constitution, to suspend one of its members.
Section 15, Article VI of our Constitution provides that "for any
speech or debate" in Congress, the Senators or Members of the
House of Representative "shall not be questioned in any other
place." This section was taken or is a copy of sec. 6, clause 1 of Art.
1 of the Constitution of the United States. In that country, the
provision has always been understood to mean that although
exempt from prosecution or civil actions for their words uttered in
Congress, the members of Congress may, nevertheless, be
questioned in Congress itself. Observe that "they shall not be
questioned in any other place" than Congress.
Furthermore, the Rules of the House which petitioner himself has
invoked (Rule XVII, sec. 7), recognize the House's power to hold a
member responsible "for words spoken in debate."
Our Constitution enshrines parliamentary immunity which is a
fundamental privilege cherished in every legislative assembly of
the democratic world. As old as the English Parliament, its purpose
"is to enable and encourage a representative of the public to
discharge his public trust with firmness and success" for "it is
indispensably necessary that he should enjoy the fullest liberty of
speech, and that he should be protected from the resentment of
every one, however powerful, to whom exercise of that liberty may
occasion offense."2 Such immunity has come to this country from
the practices of Parliamentary as construed and applied by the

349
Congress of the United States. Its extent and application remain no
longer in doubt in so far as related to the question before us. It
guarantees the legislator complete freedom of expression without
fear of being made responsible in criminal or civil actions before the
courts or any other forum outside of the Congressional Hall. But is
does not protect him from responsibility before the legislative body
itself whenever his words and conduct are considered by the latter
disorderly or unbecoming a member thereof. In the United States
Congress, Congressman Fernando Wood of New York was censured
for using the following language on the floor of the House: "A
monstrosity, a measure the most infamous of the many infamous
acts of the infamous Congress." (Hinds' Precedents, Vol. 2,. pp. 798799). Two other congressmen were censured for employing
insulting words during debate. (2 Hinds' Precedents, 799-801). In
one case, a member of Congress was summoned to testify on a
statement made by him in debate, but invoked his parliamentary
privilege. The Committee rejected his plea. (3 Hinds' Precedents
123-124.)
For unparliamentary conduct, members of Parliament or of
Congress have been, or could be censured, committed to prison 3,
even expelled by the votes of their colleagues. The appendix to this
decision amply attest to the consensus of informed opinion
regarding the practice and the traditional power of legislative
assemblies
to
take
disciplinary
action
against
its
members, including imprisonment, suspension or expulsion. It
mentions one instance of suspension of a legislator in a foreign
country.
And to cite a local illustration, the Philippine Senate, in April 1949,
suspended a senator for one year.
Needless to add, the Rules of Philippine House of Representatives
provide that the parliamentary practices of the Congress of the
United States shall apply in a supplementary manner to its
proceedings.
This brings up the third point of petitioner: the House may no
longer take action against me, he argues, because after my speech,
and before approving Resolution No. 59, it had taken up other
business. Respondents answer that Resolution No. 59 was
unanimously approved by the House, that such approval amounted

to a suspension of the House Rules, which according to standard

parliamentary practice may done by unanimous consent.
Granted, counters the petitioner, that the House may suspended
the operation of its Rules, it may not, however, affect past acts or
renew its rights to take action which had already lapsed.
The situation might thus be compared to laws4 extending the period
of limitation of actions and making them applicable to actions that
had lapsed. The Supreme Court of the United States has upheld
such laws as against the contention that they impaired vested
rights in violation of the Fourteenth Amendment (Campbell vs. Holt,
115 U. S. 620). The states hold divergent views. At any rate, court
are subject to revocation modification or waiver at the pleasure of
the body adopting them."5 And it has been said that "Parliamentary
rules are merely procedural, and with their observancem, the
courts have no concern. They may be waived or disregarded by the
legislative body." Consequently, "mere failure to conform to
parliamentary usage will not invalidate the action (taken by a
deliberative body) when the requisited number of members have
agreed to a particular measure."6
The following is quoted from a reported decision of the Supreme
court of Tennessee:
The rule here invoked is one of parliamentary procedure, and it is
uniformly held that it is within the power of all deliberative bodies
to abolish, modify, or waive their own rules of procedure, adopted
for the orderly con duct of business, and as security against hasty
action. (Bennet vs. New Bedford, 110 Mass, 433; Holtvs. Somerville,
127 Mass. 408, 411; City of Sadalia vs. Scott, 104 Mo. App. 595, 78
S. W. 276; Ex parte Mayor, etc., of Albany, 23 Wend. [N. Y.] 277,
280; Wheelock vs. City of Lowell, 196 Mass. 220, 230. 81 N. e. 977,
124 Am. St. Rep. 543, 12 Ann. Cas. 1109; City of Corinth vs. Sharp,
107 Miss. 696, 65 So. 888; McGraw vs. Whitson, 69 Iowa, 348, 28 N.
W. 632; Tuell vs. Meacham Contracting Co. 145 Ky. 181, 186, 140 S.
W.
Ann.
Cas. 1913B, 802.) [Takenfrom the case of
Rutherford vs. City of Nashville, 78 south Western Reporter, p. 584.]
It may be noted in this connection, that in the case of Congressman
Stanbery of Ohio, who insulted the Speaker, for which Act a
resolution of censure was presented, the House approved the
resolution, despite the argument that other business had

350
intervened after the objectionable remarks. (2 Hinds' Precedents
pp. 799-800.)
On the question whether delivery of speeches attacking the Chief
Executive constitutes disorderly conduct for which Osmea may be
discipline, many arguments pro and con have been advanced. We
believe, however, that the House is the judge of what constitutes
disorderly behaviour, not only because the Constitution has
conferred jurisdiction upon it, but also because the matter depends
mainly on factual circumstances of which the House knows best but
which can not be depicted in black and white for presentation to,
and adjudication by the Courts. For one thing, if this Court assumed
the power to determine whether Osmea conduct constituted
disorderly behaviour, it would thereby have assumed appellate
jurisdiction, which the Constitution never intended to confer upon a
coordinate branch of the Government. The theory of separation of
powers fastidiously observed by this Court, demands in such
situation a prudent refusal to interfere. Each department, it has
been said, had exclusive cognizance of matters within its
jurisdiction
and
is
supreme
within
its
own
sphere.
(Angara vs. Electoral Commission, 63 Phil., 139.)
SEC. 200. Judicial Interference with Legislature. The principle is
well established that the courts will not assume a jurisdiction in any
case amount to an interference by the judicial department with the
legislature since each department is equally independent within the
power conferred upon it by the Constitution. . . . .
The general rule has been applied in other cases to cause the
courts to refuse to intervene in what are exclusively legislative
functions. Thus, where the stated Senate is given the power to
example a member, the court will not review its action or
revise even a most arbitrary or unfair decision. (11 Am. Jur., Const.
Law, sec. p. 902.) [Emphasis Ours.].
The above statement of American law merely abridged the
landmark case of Clifford vs. French.7 In 1905, several senators who
had been expelled by the State Senate of California for having
taken a bribe, filed mandamus proceeding to compel
reinstatement, alleging the Senate had given them no hearing, nor
a chance to make defense, besides falsity of the charges of bribery.

The Supreme Court of California declined to interfere , explaining in

orthodox juristic language:
Under our form of government, the judicial department has no
power to revise even the most arbitrary and unfair action of the
legislative department, or of either house thereof, taking in
pursuance of the power committed exclusively to that department
by the Constitution. It has been held by high authority that, even in
the absence of an express provision conferring the power, every
legislative body in which is vested the general legislative power of
the state has the implied power to expel a member for any cause
which it may deem sufficient. In Hiss. vs. Barlett, 3 Gray 473, 63
Am. Dec. 768, the supreme court of Mass. says, in substance, that
this power is inherent in every legislative body; that it is necessary
to the to enable the body 'to perform its high functions, and is
necessary to the safety of the state;' 'That it is a power of selfprotection, and that the legislative body must necessarily be the
sole judge of the exigency which may justify and require its
exercise. '. . . There is no provision authority courts to control,
direct, supervise, or forbid the exercise by either house of the
power to expel a member. These powers are functions of the
legislative department and therefore, in the exercise of the power
this committed to it, the senate is supreme. An attempt by this
court to direct or control the legislature, or either house thereof, in
the exercise of the power, would be an attempt to exercise
legislative functions, which it is expressly forbidden to do.
We have underscored in the above quotation those lines which in
our opinion emphasize the principles controlling this litigation.
Although referring to expulsion, they may as well be applied to
other disciplinary action. Their gist as applied to the case at bar:
the House has exclusive power; the courts have no jurisdiction to
interfere.
Our refusal to intervene might impress some readers as
subconscious hesitation due to discovery of impermissible course of
action in the legislative chamber. Nothing of that sort: we merely
refuse to disregard the allocation of constitutional functions which it
is our special duty to maintain. Indeed, in the interest of comity, we
feel bound to state that in a conscientious survey of governing
principles and/or episodic illustrations, we found the House of

351
Representatives of the United States taking the position upon at
least two occasions, that personal attacks upon the Chief
Executive constitute unparliamentary conduct or breach of
orders.8 And in several instances, it took action against
offenders, even after other business had been considered.9
Petitioner's principal argument against the House's power to
suspend is the Alejandrino precedent. In 1924, Senator Alejandrino
was, by resolution of Senate, suspended from office for 12 months
because he had assaulted another member of the that Body or
certain phrases the latter had uttered in the course of a debate.
The Senator applied to this Court for reinstatement, challenging the
validity of the resolution. Although this Court held that in view of
the separation of powers, it had no jurisdiction to compel the
Senate to reinstate petitioner, it nevertheless went on to say the
Senate had no power to adopt the resolution because suspension
for 12 months amounted to removal, and the Jones Law (under
which the Senate was then functioning) gave the Senate no power
to remove an appointive member, like Senator Alejandrino. The
Jones Law specifically provided that "each house may punish its
members for disorderly behaviour, and, with the concurrence of
two-thirds votes, expel an electivemember (sec. 18). Note
particularly the word "elective."
The Jones Law, it mist be observed, empowered the Governor
General to appoint "without consent of the Senate and without
restriction as to residence senators . . . who will, in his opinion, best
represent the Twelfth District." Alejandrino was one appointive
Senator.
It is true, the opinion in that case contained an obiter dictum that
"suspension deprives the electoral district of representation without
that district being afforded any means by which to fill that
vacancy." But that remark should be understood to refer
particularly to the appointive senator who was then the affected
party and who was by the same Jones Law charged with the duty to
represent the Twelfth District and maybe the view of the
Government of the United States or of the Governor-General, who
had appointed him.
It must be observed, however, that at that time the Legislature had
only those power which were granted to it by the Jones Law 10;

whereas now the Congress has the full legislative powers and
preprogatives of a sovereign nation, except as restricted by the
Constitution. In other words, in the Alejandrino case, the Court
reached the conclusion that the Jones Law did not give the
Senate the power it then exercisedthe power of suspension for
one year. Whereas now, as we find, the Congress has the inherent
legislative prerogative of suspension11 which the Constitution did
not impair. In fact, as already pointed out, the Philippine Senate
suspended a Senator for 12 months in 1949.
The Legislative power of the Philippine Congress is plenary, subject
only to such limitations are found in the Republic's Constitution. So
that any power deemed to be legislative by usage or tradition, is
necessarily possessed by the Philippine Congress, unless the
Constitution provides otherwise. (Vera vs. Avelino, 77 Phil., 192,
212 .)
In any event, petitioner's argument as to the deprivation of the
district's representation can not be more weightly in the matter of
suspension than in the case of imprisonment of a legislator; yet
deliberative bodies have the power in proper cases, to commit one
of their members to jail.12
Now come questions of procedure and jurisdiction. the petition
intended to prevent the Special Committee from acting tin
pursuance of House Resolution No. 59. Because no preliminary
injunction had been issued, the Committee performed its task,
reported to the House, and the latter approved the suspension
order. The House had closed it session, and the Committee has
ceased to exist as such. It would seem, therefore, the case should
be dismissed for having become moot or academic. 13 Of course,
there is nothing to prevent petitioner from filing new pleadings to
include all members of the House as respondents, ask for
reinstatement and thereby to present a justiciable cause. Most
probable outcome of such reformed suit, however, will be a
pronouncement of lack of jurisdiction, as in Vera vs.
Avelino14 and Alejandrino vs. Qeuaon.15
At any rate, having perceived suitable solutions to the important
questions of political law, the Court thought it proper to express at
this time its conclusions on such issues as were deemed relevant
and decisive.

352
ACCORDINGLY, the petition has to be, and is hereby dismissed. So
ordered.
Paras, C. J., Bautista Angelo, Concepcion, Barrera, Gutierrez David,
Paredes, and Dizon, JJ., concur.
Separate Opinions
REYES, J. B. L., J., dissenting:
I concur with the majority that the petition filed by Congressman
Osmea, Jr. does not make out a case either for declaratory
judgment or certiorari, since this Court has no original jurisdiction
over declaratory judgment proceedings, and certiorari is available
only against bodies exercising judicial or quasi-judicial powers. The
respondent committee, being merely fact finding, was not properly
subject to certiorari.
I submit, however, that Congressman Osmea was entitled to
invoke the Court's jurisdiction on his petition for a writ of prohibition
against the committee, in so far as House Resolution No. 59 (and its
sequel, Resolution No. 175) constituted an unlawful attempt to
divest him of an immunity from censure or punishment, an
immunity vested under the very Rules of the House of
Representatives.
House Rule XVII, on Decorum and Debates, in its section V,
provides as follows:
If it is requested that a Member be called to order for words spoken
in debate, the Member making such request shall indicate the
words excepted to, and they shall be taken down in writing by the
Secretary and read aloud to the House; but the Member who
uttered them shall not be held to answer, nor be subject to the
censure of the House therefor, if further debate or other business
has intervened.
Now, it is not disputed that after Congressman Osmea had
delivered his speech and before the House adopted, fifteen days
later, the resolution (No. 59) creating the respondent Committee
and empowering it to investigate and recommend proper action in
the case, the House had acted on other matters and debated them.
That being the case, the Congressman, even before the resolution
was adopted, had ceased to be answerable for the words uttered
by him in his privilege speech. By the express wording of the Rules,

he was no longer subject to censure or disciplinary action by the

House. Hence, the resolution, in so far as it attempts to divest him
of the immunity so acquired and subject him to discipline and
punishment, when he was previously not so subject, violates the
constitutional inhibition against ex post facto legislation, and
Resolution Nos. 59 and 175 are legally obnoxious and invalid on
that score. The rule is well established that a law which deprives an
accused person of any substantial right or immunity possessed by
him before its passage is ex post facto as to prior offenses (Cor. Jur.
vol. 16-A, section 144, p. 153; People vs. Mc Donnell, 11 Fed. Supp.
1015; People vs. Talklington, 47 Pac. 2d 368; U. S. vs. Garfinkel, 69
F. Supp. 849).
The foregoing also answer the contention that since the immunity
was but an effect of section 7 of House Rule XVII, the House could,
at any time, remove it by amending those Rules, and Resolutions
Nos. 59 and 175 effected such an amendment by implication. the
right of the House to amend its Rules does not carry with it the
right to retroactive divest the petitioner of an immunity he had
already acquired. The Bill of Rights is against it.
It is contended that as the liability for his speech attached when
the Congressman delivered it, the subsequent action of the House
only affected the procedure for dealing with that liability. But
whatever liability Congressman Sergio Osmea, Jr. then incurred
was extinguished when the House thereafter considered other
business; and this extinction is a substantive right that can not be
subsequently torn away to his disadvantage. On an analogous
issue, this Court, in People vs. Parel, 44 Phil., 437 has ruled:
In regards to the point that the subject of prescription of penalties
and of penal actions pertains to remedial and not substantive law,
it is to be observed that in the Spanish legal system, provisions for
limitation or prescription of actions are invariably classified as
substantive and not as remedial law; we thus find the provisions for
the prescription of criminal actions in the Penal Code and not in the
'Ley de Enjuiciamiento Criminal.' This is in reality a more logical
law. In criminal cases prescription is not, strictly speaking, a matter
of procedure; it bars or cuts off the right to punish the crime and
consequently, goes directly to the substance of the action. . . .
(Emphasis supplied.).

353
I see no substantial difference, from the standpoint of the
constitutional prohibition against ex post facto laws, that the
objectionable measures happen to be House Resolutions and not
statutes. In so far as the position of petitioner Osmea is
concerned, the essential point is that he is being subjected to a
punishment to which he was formerly not amenable. And while he
was only meted out a suspension of privileges that suspension is as
much a penalty as imprisonment or a fine, which the House could
have inflicted upon him had it been so minded. Such punitive
action is violative of the spirit, if not of the letter, of the
constitutional provision against ex post factolegislation. Nor is it
material that the punishment was inflicted in the exercise of
disciplinary power. "The ex post facto effect of a law," the Federal
Supreme Court has ruled, "can not be evaded by giving civil form to
that which is essentially criminal" (Burgess vs. Salmon, 97 L. Ed. [U.
S.] 1104, 1106; Cummings vs. MIssouri, 18 L. Ed. 276).
The plain purpose of the immunity provided by the House rules is to
protect the freedom of action of its members and to relieve them
from the fear of disciplinary action taken upon second thought, as a
result of political convenience, vindictiveness, or pressures. it is
unrealistic to overlook that, without the immunity so provided, no
member of Congress can remain free from the haunting fear that
his most innocuous expressions may at any time afterwards place
him in jeopardy of punishment whenever a majority, however
transient, should feel that the shifting sands of political expediency
so demand. A rule designed to assure that members of the House
of the House may freely act as their conscience and sense of duty
should dictate complements the parliamentary immunity from
outside pressure enshrined in our Constitution, and is certainly
deserving of liberal interpretation and application.
The various precedents, cited in the majority opinion, as instances
of disciplinary taken notwithstanding intervening business, are not
truly applicable. Of the five instances cited by Deschkler (in his
edition of Jefferson's Manual), the case of Congressman Watson of
Georgia involved also printed disparaging remarks by the
respondent (III Hinds' Precedents, sec. 2637), so that the debate
immunity rule afforded no defense; that of Congressmen Weaver
and Sparks was one of censure for actual disorderly conduct (II

Hinds, sec. 1657); while the cases of Congressmen Stanbery of

Ohio, Alex Long of Ohio, and of Lovell Rousseau of Kentucky (II
Hinds, sec. 1248, 1252 and 1655) were decided under Rule 62 of
the U. s. House of Representatives as it stood before the 1880
amendments, and was differently worded. Thus, in the Rousseau
case, the ruling of Speaker Colfax was to the following effect (II
Hinds' Precedents, page 1131):
This sixty-second rule is divided in the middle a semicolon, and the
Chair asks the attention of the gentleman from Iowa (Mr. Wilson)
top the language of that rule, as it settles the whole question:
62. If a Member be called to order for words spoken in debate, the
person calling him to be order shall repeat the words excerpted to

That is, the "calling to order" is "excepting" to words spoken in

debate "and they shall be taken done in writing at the Clerk's table;
and no Member shall be held to answer, or be subject to the
censure of the House, for words spoken, or other business has
intervened, after the words spoken, and before exception to them
shall have been taken.
The first part of this rule declares that "calling to order" is
"excepting to words spoken in debate." the second part of the rule
declares that a Member shall not be held subject to censure for
words spoken in debate if other business has intervened after the
words have been spoken and before "exception" to them has been
taken. Exception to the words of the gentleman from Iowa (Mr.
Grinnell) was taken by the gentleman from Illinois (Mr. Harding), the
gentleman from Massachusetts (Mr. Banks), the gentleman from
Kentucky (Mr. Rosseau), and also by the Speaker of the House, as
the records of the Congressional Globe will show. The distinction is
obvious between the two parts of the rule. In the first part it speaks
of a Member excepting to language of another and having the
words taken down. In the last part of the rule it says he shall not be
censured thereafter unless exception to his words were taken; but it
omits to add as an condition that words must also have been taken
down. The substantial point, indeed the only point, required in the
latter part of the rule is, that exception to the objectionable words
must have taken.

354
The difference between the Rules as invoked in these cases and the
Rules of our House of Representatives is easily apparent. As Rule 62
of the United States House of Representatives stood before 1880,
all that was required to preserve the disciplinary power of the Hose
was that exception should have been taken to the remarks on the
floor before further debate or other business intervened. Under the
rules of the Philippines House of Representatives, however, the
immunity becomes absolute if other debate or business has taken
place before the motion for censure is made, whether or not
exceptions or point of order have been made to the remarks
complained of at the time they were uttered.
While it is clear that the parliamentary immunity established in
Article VI, section 15 of our Constitution does not bar the members
being questioned and disciplined by Congress itself fro remarks
made on the floor, that disciplinary power does not, as I have
noted, include the right to retroactively amend the rules so as to
divest a member of an immunity already gained. And if Courts can
shield an ordinary citizen from the effects of ex post
facto legislation, I see no reason why a member of Congress should
be deprived of the same protection. Surely membership in the
Legislature does not mean forfeiture of the liberties enjoyed by the
individual citizen.
The Constitution empowers each house to determine its rules of
proceedings. If may not by its rules ignore constitutional restraint
or violate fundamental rights and there should be a reasonable
relation between the mode or method of proceeding established by
the rule and the result which is sought to be attained. But within
these limitation all matters of method are open to the
determination of the House, and it is no impeachment of the rule to
say that some other way would be better, more accurate or even
more just. (U. S. vs. Ballin, Joseph & Co., 36 Law Ed., 324-325.)
Court will not interfere with the action of the state senate in
reconsideration its vote on a resolution submitting an amendment
to the Constitution, where its action was in compliance with its own
rules, and there was no constitutional provision to the contrary.
(Crawford vs. Gilchrist, 64 Fla. 41, 59 So. 963) (Emphasis supplied.).
Finally, that this Court possesses no power to direct or compel the
Legislature to act in any specified manner, should not deter it from

recognizing and declaring the unconstitutionality and nullify of the

questioned resolutions and of all action that has been disbanded
after the case was filed, the basic issues remain so important as to
require adjudication by this Court.
LABRADOR, J., dissenting:
I fully concur in the above dissent Mr. Justice J. B. L. Reyes, Reyes,
and I venture to add:
Within a constitutional government and in a regime which purports
to be one of law, where law is supreme, even the Congress in the
exercise of the power conferred upon it to discipline its members,
must follow the rules and regulation that it had itself promulgated
for its guidance and for that of its members. The rules in force at
the time Congressman Osmea delivered the speech declared by
the House to constitutes a disorderly conduct provides:
. . . but the Member who uttered them shall not be held to answer,
nor be subject to the censure of the House therefor, if further
debate or other business has intervened. (Rule XVII, Sec. 7, Rules,
House of Representatives.)
Congressman Osmea delivered the speech in question on June 23,
1960. It was only on July 8, or 15 days after June 23, 1060 when the
House created the committee that would investigated him. For fully
15 days the House took up other matters. All that was done, while
the speech was being delivered, was to have certains portions
thereof deleted. I hold that pursuant to its own Rules the House
may no longer punish Congressman Osmea for the delivered
fifteen days before.
The fact that no action was promptly taken to punish Congressman
Osmea immediately after its delivery, except to have some part of
the speech deleted, show that the members of the House did not
consider Osmea's speech a disorderly conduct. The idea to punish
Congressman Osmea, which came 15 days after, was, therefore,
an afterthought. It is, therefore, clear that Congressman Osmea is
being made to answer for an act, after the time during which he
could be punished therefor had lapsed.
The majority opinion holds that the House can amend its rules any
time. We do not dispute this principle, but we hold that the House
may not do so in utter disregard of the fundamental principle of law

355
that an amendment takes place only after its approval, or, as in this
case, to the extent of punishing an offense after the time to
punishing an had elapsed. Since the rule, that a member can be
punished only before other proceedings have intervened, was in
force at the time Congressman Osmea delivered his speech, the
House may not ignore said rule. It is said in the majority opinion
that the rule limiting the period for imposition of a penalty for a
speech to the day it was made, is merely one of procedure. With
due respect to the majority, we do not think that it is merely a rule
of procedure; we believe it actually is a limitation of the time in
which the House may take punitive action against an offending
member; it is alienation (in reference to time) on the liability to
punishment. As Mr. Justice J.B.L., Reyes points out, the rule is
substantive, not merely a procedural principle, and may not be
ignored when invoked.
If this Government of laws and not of men, then the House should
observe its own rule and not violate it by punishing a member after
the period for indictment and punishment had already passed. Not
because the subject of the Philippic is no less than the Chief
Magistrate of the nation should the rule of the House be ignored by
itself. It is true that our Government is based on the principle of
separation of powers between the three branches thereof. I also
agree to the corollary proposition that this Court should not
interfere with the legislature in the manner it performs its
functions; but I also hold that the Court cannot abandon its duty to
pronounce what the law is when any of its (the House) members, or
any humble citizen, invokes the law.
Congressman Osmea had invoked the protection of a rule of the
House. I believe it is our bounden duty to state what the rule being
invoked by him is, to point out the fact that the rule is being
violated in meting out punishment for his speech; we should not
shirk our responsibility to declare his rights under the rule simply
on the board excuse of separation of powers. Even the legislature
may not ignore the rule it has promulgated for the government of
the conduct of its members, and the fact that a coordinate
branches of the Government is involved, should not deter us from
performing our duty. We may not possess the power to enforce our
opinion if the House chooses to disregard the same. In such case

the members thereof stand before the bar of public opinion to

answer for their act in ignoring what they themselves have
approved as their norm of conduct.
Let it be clearly understood that the writer of this dissent personally
believe that vitreous attacks against the Chief Executive, or any
official or citizen for that matter, should be condemned. But where
the Rules, promulgated by the House itself, fix the period during
which punishment may be meted out, said Rules should be
enforced regardless of who may be prejudicated thereby. Only in
that way may the supermacy of the law be maintained.

356
[G.R. No. 128055. April 18, 2001]
MIRIAM
DEFENSOR
SANTIAGO, petitioner,
vs. SANDIGANBAYAN, FRANCIS E. GARCHITORENA,
JOSE S. BALAJADIA AND MINITA V. CHICO-NAZARIO, AS
PRESIDING JUSTICE AND MEMBERS OF THE FIRST
DIVISION, respondents.
DECISION
VITUG, J.:
The Court is called upon to review the act of the
Sandiganbayan, and how far it can go, in ordering the preventive
suspension of petitioner, Mme. Senator Miriam Defensor-Santiago,
in connection with pending criminal cases filed against her for
alleged violation of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act.
The instant case arose from complaints filed by a group of
employees of the Commission of Immigration and Deportation (CID)
against petitioner, then CID Commissioner, for alleged violation of
the Anti-Graft and Corrupt Practices Act. The investigating panel,
that took over the case from Investigator Gualberto dela Llana after
having been constituted by the Deputy Ombudsman for Luzon upon
petitioners request, came up with a resolution which it referred, for
approval, to the Office of the Special Prosecutor (OSP) and the
Ombudsman. In his Memorandum, dated 26 April 1991, the
Ombudsman directed the OSP to file the appropriate informations
against petitioner. On 13 May 1991, OSP submitted to the
Ombudsman the informations for clearance; approved, forthwith,
three informations were filed on even date.
In Criminal Case No. 16698 filed before the Sandiganbayan,
petitioner was indicted thusly:

That on or about October 17, 1988, or sometime prior or

subsequent thereto, in Manila, Philippines and within the
jurisdiction of this Honorable Court, accused MIRIAM DEFENSORSANTIAGO, a public officer, being then the Commissioner of the
Commission on Immigration and Deportation, with evident bad faith
and manifest partiality in the exercise of her official functions, did
then and there willfully, unlawfully and criminally approve the
application for legalization of the stay of the following aliens:
Jhamtani Shalini Narendra, Ting Siok Hun, Ching Suat Liong Ting, Cu
Kui Pein Uy, Cu Kui Pwe Uy, Hong Shao Guan, Hong Xiao Yuan, Xu Li
Xuan, Qui Ming Xia Ong, Wu Sui Xin Quiu, Wu Hong Guan Qui @
Betty Go, Wu Hong Ru Qui @ Mary Go Xu Yin Yin Kua, Hong Shao
Hua Xu, Hong Shao Wei Xu, Lu Shing Qing, Lu Shi Tian, Lu Se
Chong, Shi Qing Yu, Xu Angun @ Xu An Cin, Xu Pinting, Wang Xiu
Jin, Cai Pian Pian, Cai Wen Xu, Cai Min Min, Cai Ping Ping, Choi Kin
Kwok @ Bernardo Suarez, Yen Liang Ju @ Jeslyn Gan, Cai Yan Nan,
Yen Ling Chien @ Chrismayne Gan, So Chen Yueh-O, Cai Ya Rong,
who arrived in the Philippines after January 1, 1984 in violation of
Executive Order no. 324 dated April 13, 1988 which prohibits the
legalization of said disqualified aliens knowing fully well that said
aliens are disqualified, thereby giving unwarranted benefits to said
aliens whose stay in the Philippines was unlawfully legalized by said
accused.[1]
Two other criminal cases, one for violation of the provisions of
Presidential Decree No. 46 and the other for libel, were filed with
the Regional Trial Court of Manila, docketed, respectively, No. 9194555 and no. 91-94897.
Pursuant to the information filed with the Sandiganbayan,
Presiding Justice Francis E. Garchitorena issued an order for the
arrest of petitioner, fixing the bail at Fifteen Thousand (P15,000.00)
Pesos. Petitioner posted a cash bail without need for physical
appearance as she was then recuperating from injuries sustained in
a vehicular accident. The Sandiganbayan granted her provisional
liberty until 05 June 1991 or until her physical condition would
warrant her physical appearance in court. Upon manifestation by

357
the Ombudsman, however, that petitioner was able to come
unaided to his office on 20 May 1991, Sandiganbayan issued an
order setting the arraignment on 27 May 1991.
Meanwhile, petitioner moved for the cancellation of her cash
bond and prayed that she be allowed provisional liberty upon a
recognizance.
On 24 May 1991, petitioner filed, concurrently, a Petition
for Certiorari with Prohibition and Preliminary Injunction before the
Court, docketed G.R. No. 99289-90, seeking to enjoin the
Sandiganbayan from proceeding with Criminal Case No. 16698 and
a motion before the Sandiganbayan to meanwhile defer her
arraignment. The Court taking cognizance of the petition issued a
temporary restraining order.
The Sandiganbayan, thus, informed, issued an order deferring
petitioners arraignment and the consideration of her motion to
cancel the cash bond until further advice from the court.
On 13 January 1992, the Court rendered its decision dismissing
the petition and lifting the temporary restraining order. The
subsequent motion for reconsideration filed by petitioner proved
unavailing.
On 06 July 1992, in the wake of media reports announcing
petitioners intention to accept a fellowship from the John F.
Kennedy School of Government at Harvard University, the
Sandiganbayan issued an order to enjoin petitioner from leaving
the country.
On 15 October 1992, petitioner moved to inhibit
Sandiganbayan Presiding Justice Garchitorena from the case and to
defer her arraignment pending action on her motion to inhibit. On
09 November 1992, her motion was denied by the
Sandiganbayan. The following day, she filed anew a Petition
for Certiorari and Prohibition with urgent Prayer for Preliminary
Injunction with the Court, docketed G.R. No. 99289-90. At the same

time, petitioner filed a motion for bill of particulars with the

Sandiganbayan asseverating that the names of the aliens whose
applications she purportedly approved and thereby supposedly
extended undue advantage were conspicuously omitted in the
complaint.
The Court, in its resolution of 12 November 1992, directed the
Sandiganbayan to reset petitioners arraignment not later than five
days from receipt of notice thereof.
On 07 December 1992, the OSP and the Ombudsman filed with
the Sandiganbayan a motion to admit thirty-two amended
informations. Petitioner moved for the dismissal of the 32
informations. The court, in its 11th March 1993 resolution, denied
her motion to dismiss the said informations and directed her to post
bail on the criminal cases, docketed Criminal Case No. 1837118402, filed against her.
Unrelenting, petitioner, once again came to this Court via a
Petition for Certiorari, docketed G.R. No. 109266, assailing the
03rd March 1993 resolution of the Sandiganbayan which resolved
not to disqualify its Presiding Justice, as well as its 14 th March 1993
resolution admitting the 32 Amended Informations, and seeking the
nullification thereof.
Initially, the Court issued a temporary restraining order
directing Presiding Justice Garchitorena to cease and desist from
sitting in the case, as well as from enforcing the 11 th March 1993
resolution ordering petitioner to post bail bonds for the 32
amended informations, and from proceeding with her arraignment
on 12 April 1993 until the matter of his disqualification would have
been resolved by the Court.
On 02 December 1993, the Court, in its decision in G.R.
109266, directed the OSP and Ombudsman to consolidate the 32
amended informations. Conformably therewith, all the 32
informations were consolidated into one information under Criminal
Case No. 16698.

358
Petitioner, then filed with the Sandiganbayan a Motion to
Redetermine probable Cause and to dismiss or quash said
information. Pending the resolution of this incident, the prosecution
filed on 31 July 1995 with the Sandiganbayan a motion to issue an
order suspending petitioner.
On 03 August 1995, the Sandiganbayan resolved to allow the
testimony of one Rodolfo Pedellaga (Pedellaga). The presentation
was scheduled on 15 September 1995.
In the interim, the Sandiganbayan directed petitioner to file her
opposition to the 31st July 1995 motion for the prosecution within
fifteen (15) days from receipt thereof.
On 18 August 1995, petitioner submitted to the Sandiganbayan
a motion for reconsideration of its 03 rd August 1995 order which
would allow the testimony of Pedellaga. The incident, later denied
by the Sandiganbayan, was elevated to the Court via a Petition for
Review on Certiorari, entitled Miriam Defensor-Santiago vs.
Sandiganbayan, docketed G.R. No. 123792.
On 22 August 1995, petitioner filed her opposition to the
motion of the prosecution to suspend her. On 25 January 1996, the
Sandiganbayan resolved:
WHEREFORE, for all the foregoing, the Court hereby grants the
motion under consideration and hereby suspends the accused
Miriam Defensor-Santiago from her position as Senator of the
Republic of the Philippines and from any other government position
she may be holding at present or hereafter. Her suspension shall be
for ninety (90) days only and shall take effect immediately upon
notice.

Let a copy of this Resolution be furnished to the Hon. Ernesto

Maceda, Senate President, Senate of the Philippines, Executive
House, Taft Ave., Manila, through the Hon. Secretary of the Senate,
for the implementation of the suspension herein ordered. The
Secretary of the Senate shall inform this court of the action taken
thereon within five (5) days from receipt hereof.
The said official shall likewise inform this Court of the actual date of
implementation of the suspension order as well as the expiry of the
ninetieth day thereof so that the same may be lifted at the time. [2]
Hence, the instant recourse. The petition assails the authority
of the Sandiganbayan to decree a ninety-day preventive
suspension of Mme. Miriam Defensor-Santiago, a Senator of the
Republic of the Philippines, from any government position, and
furnishing a copy thereof to the Senate of the Philippines for the
implementation of the suspension order.
The authority of the Sandiganbayan to order the preventive
suspension of an incumbent public official charged with violation of
the provisions of Republic Act No. 3019 has both legal and
jurisprudential support. Section 13 of the statute provides:
SEC. 13. Suspension and loss of benefits. any incumbent public
officer against whom any criminal prosecution under a valid
information under this Act or under Title 7, Book II of the Revised
Penal Code or for any offense involving fraud upon government or
public funds or property whether as a simple or as a complex
offense and in whatever stage of execution and mode of
participation, is pending in court, shall be suspended from
office. Should he be convicted by final judgment, he shall lose all
retirement or gratuity benefits under any law, but if he is acquitted,
he shall be entitled to reinstatement and to the salaries and
benefits which he failed to receive during suspension, unless in the
meantime administrative proceedings have been filed against him.
In the event that such convicted officer, who may have already
been separated from the service, has already received such

359
benefits he shall be liable to restitute the same to
Government. (As amended by BP Blg. 195, March 16, 1982).

the

In the relatively recent case of Segovia vs. Sandiganbayan, [3] the

Court reiterated:
The validity of Section 13, R.A. 3019, as amended --- treating of the
suspension pendente lite of an accused public officer --- may no
longer be put at issue, having been repeatedly upheld by this
Court.
xxx xxx xxx
The provision of suspension pendente lite applies to all persons
indicted upon a valid information under the Act, whether they be
appointive or elective officials; or permanent or temporary
employees, or pertaining to the career or non-career service.[4]
It would appear, indeed, to be a ministerial duty of the court to
issue an order of suspension upon determination of the validity of
the information filed before it.Once the information is found to be
sufficient in form and substance, the court is bound to issue an
order of suspension as a matter of course, and there seems to be
no ifs and buts about it.[5] Explaining the nature of the preventive
suspension,
the
Court
in
the
case
of
Bayot
vs.
Sandiganbayan[6] observed:
x x x It is not a penalty because it is not imposed as a result of
judicial proceedings. In fact, if acquitted, the official concerned shall
be entitled to reinstatement and to the salaries and benefits which
he failed to receive during suspension.[7]
In issuing the preventive suspension of petitioner, the
Sandiganbayan merely adhered to the clear an unequivocal
mandate of the law, as well as the jurisprudence in which the Court
has, more than once, upheld Sandiganbayans authority to decree
the suspension of public officials and employees indicted before it.

Section 13 of Republic Act No. 3019 does not state that the
public officer concerned must be suspended only in the office
where he is alleged to have committed the acts with which he has
been charged. Thus, it has been held that the use of the word
office would indicate that it applies to any office which the
officer charged may be holding, and not only the particular
office under which he stands accused.[8]
En passan, while the imposition of suspension is not automatic
or self-operative as the validity of the information must be
determined in a pre-suspension hearing, there is no hard and fast
rule as to the conduct thereof. It has been said thatx x x No specific rules need be laid down for such pre-suspension
hearing. Suffice it to state that the accused should be given a fair
and adequate opportunity to challenge the VALIDITY OF THE
CRIMINAL PROCEEDINGS against him, e.g. that he has not been
afforded the right of due preliminary investigation; that the acts for
which he stands charged do not constitute a violation of the
provisions of Republic Act 3019 or the bribery provisions of the
revised Penal Code which would warrant his mandatory suspension
from office under section 13 of the Act; or he may present a motion
to quash the information on any of the grounds provided for in Rule
117 of the Rules of Court x x x.
xxx xxx xxx
Likewise, he is accorded the right to challenge the propriety of his
prosecution on the ground that the acts for which he is charged do
not constitute a violation of Rep. Act 3019, or of the provisions on
bribery of the Revised Penal Code, and the right to present a
motion to quash the information on any other grounds provided in
Rule 117 of the Rules of Court.
However, a challenge to the validity of the criminal proceedings on
the ground that the acts for which the accused is charged do not
constitute a violation of the provisions of Rep. Act 3019, or of the
provisions on bribery of the revised Penal Code, should be treated

360
only in the same manner as a challenge to the criminal proceeding
by way of a motion to quash on the ground provided in Paragraph
(a), section 2 of Rule 117 of the Rules of Court, i.e., that the facts
charged do not constitute an offense. In other words, a resolution of
the challenge to the validity of the criminal proceeding, on such
ground, should be limited to an inquiry whether the facts alleged in
the information, if hypothetically admitted, constitute the elements
of an offense punishable under Rep. Act 3019 or the provisions on
bribery of the Revised Penal Code.[9]
The law does not require that the guilt of the accused must be
established in a pre-suspension proceeding before trial on the
merits proceeds. Neither does it contemplate a proceeding to
determine (1) the strength of the evidence of culpability against
him, (2) the gravity of the offense charged, or (3) whether or not
his continuance in office could influence the witnesses or pose a
threat to the safety and integrity of the records an other evidence
before the court could have a valid basis in decreeing preventive
suspension pending the trial of the case. All it secures to the
accused is adequate opportunity to challenge the validity or
regularity of the proceedings against him, such as, that he has not
been afforded the right to due preliminary investigation, that the
acts imputed to him do not constitute a specific crime warranting
his mandatory suspension from office under Section 13 of Republic
Act No. 3019, or that the information is subject to quashal on any of
the grounds set out in Section 3, Rule 117, of the Revised Rules on
Criminal procedure.[10]
The instant petition is not the first time that an incident
relating to petitioners case before the Sandiganbayan has been
brought to this Court. In previous occasions, the Court has been
called upon the resolve several other matters on the subject. Thus:
(1) In Santiago vs. Vasquez,[11] petitioner sought to enjoin the
Sandiganbayan from proceeding with Criminal case No. 16698 for
violation of Republic Act No. 3019; (2) in Santiago vs. Vasquez,
[12]
petitioner sought the nullification of the hold departure order
issued by the Sandiganbayan via a Motion to Restrain the
Sandiganbayan from Enforcing its Hold Departure Order with Prayer

for Issuance of a Temporary Restraining Order and/or Preliminary

Injunction, with Motion to set Pending Incident for Hearing; (3) in
Santiago vs. Garchitorena,[13] petitioner sought the nullification of
the resolution, dated 03 March 1993, in Criminal Case No. 16698 of
the Sandiganbayan (First Division) and to declare Presiding Justice
Garchitorena disqualified from acting in said criminal case, and the
resolution, dated 14 March 1993, which deemed as filed the 32
amended informations against her; and (4) in Miriam Defensor
Santiago vs. Sandiganbayan,[14] petitioner assailed the denial by the
Sandiganbayan of her motion for her reconsideration from its
03rd August 1995 order allowing the testimony of Pedellaga. In one
of these cases,[15] the Court declared:
We note that petitioner had previously filed two petitions before us
involving Criminal Case No. 16698 (G.R. Nos. 99289-99290; G.R.
No. 107598). Petitioner has not explained why she failed to raise
the issue of the delay in the preliminary investigation and the filing
of the information against her in those petitions. A piece-meal
presentation of issues, like the splitting of causes of action, is selfdefeating.
Petitioner next claims that the Amended informations did not
charge any offense punishable under Section 3 (e) of R.A. No. 3019
because the official acts complained of therein were authorized
under Executive Order No. 324 and that the Board of
Commissioners of the Bureau of Investigation adopted the policy of
approving applications for legalization of spouses and unmarried,
minor children of qualified aliens even though they had arrived in
the Philippines after December 31 1983. She concludes that the
Sandiganbayan erred in not granting her motion to quash the
informations (Rollo, pp. 25-31).
In a motion to quash, the accused admits hypothetically the
allegations of fact in the information (People vs. Supnad, 7 SCRA
603 [1963]). Therefore, petitioner admitted hypothetically in her
motion that:
(1) She was a public officer;

361
(2) She approved the application for legalization of the
stay of aliens, who arrived in the Philippines after
January 1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in evident bad faith and manifest partiality in
the execution of her official functions.
The foregoing allegations of fact constitute the elements of the
offense defined in Section 3 (e) of R.A. No. 3019.[16]
The pronouncement, upholding the validity of the information
filed against petitioner, behooved Sandiganbayan to discharge its
mandated duty to forthwith issue the order of preventive
suspension.
The order of suspension prescribed by Republic Act No. 3019 is
distinct from the power of Congress to discipline its own ranks
under the Constitution which provides that eachx x x house may determine the rules of its proceedings, punish
its Members for disorderly behavior, and, with the concurrence
of two-thirds of all its Members, suspend or expel a Member. A
penalty of suspension, when imposed, shall not exceed sixty
days.[17]
The suspension contemplated in the above constitutional
provision is a punitive measure that is imposed upon determination
by the Senate or the house of Representatives, as the case may be,
upon an erring member. Thus, in its resolution in the case of
Ceferino Paredes, Jr., vs. Sandiganbayan, et al., [18] the Court
affirmed the order of suspension of Congressman Paredes by the
Sandiganbayan, despite his protestations on the encroachment by
the court on the prerogatives of congress. The Court ruled:

x x x. Petitioners invocation of Section 16 (3), Article VI of the

Constitution which deals with the power of each House of Congress
inter alia to punish its Members for disorderly behavior, and
suspend or expel a Member by a vote of two-thirds of all its
Members subject to the qualification that the penalty of
suspension, when imposed, should not exceed sixty days is
unavailing, as it appears to be quite distinct from the suspension
spoken of in Section 13 of RA 3019, which is not a penalty but a
preliminary, preventive measure, prescinding from the fact that the
latter is not being imposed on petitioner for misbehavior as a
Member of the House of Representatives.
The doctrine of separation of powers by itself may not be
deemed to have effectively excluded members of Congress from
Republic Act No. 3019 nor from its sanctions. The maxim simply
recognizes each of the three co-equal and independent, albeit
coordinate, branches of the government the Legislative, the
Executive and the Judiciary has exclusive prerogatives and
cognizance within its own sphere of influence and effectively
prevents one branch from unduly intruding into the internal affairs
of either branch.
Parenthetically, it might be well to elaborate a bit. Section 1,
Article VIII, of the 1987 Constitution, empowers the Court to act not
only in the settlement of actual controversies involving rights which
are legally demandable and enforceable, but also in the
determination of 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
provision allowing the Court to look into any possible grave abuse
of discretion committed by any government instrumentality has
evidently been couched in general terms in order to make it
malleable to judicial interpretation in the light of any emerging
milieu. In its normal concept, the term has been said to imply an
arbitrary, despotic, capricious or whimsical exercise of judgment
amounting to lack or excess of jurisdiction. When the question,
however, pertains to an affair internal to either of Congress or the
Executive, the Court subscribes to the view[19] that unless an

362
infringement of any specific Constitutional proscription
thereby inheres the Court should not deign substitute its
own judgment over that of any of the other two branches of
government. It is an impairment or a clear disregard of a
specific constitutional precept or provision that can unbolt
the steel door for judicial intervention. If any part of the
Constitution is not, or ceases to be, responsive to contemporary
needs, it is the people, not the Court, who must promptly react in
the manner prescribed by the Charter itself.
Republic Act No. 3019 does not exclude from its
coverage the members of Congress and that, therefore, the
Sandiganbayan did not err in thus decreeing the assailed
preventive suspension order.
Attention might be called to the fact that Criminal Case No.
16698 has been decided by the First Division of the Sandiganbayan
on 06 December 1999, acquitting herein petitioner. The Court,
nevertheless, deems it appropriate to render this decision for future
guidance on the significant issue raised by petitioner.
WHEREFORE,
the
DISMISSED. No costs.

instant

petition

for certiorari is

SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza,
Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, YnaresSantiago, De Leon, Jr., andSandoval-Gutierrez, JJ., concur.

363
[G.R. No. 130240.February 5, 2002]
DE VENECIA, JR., et al., vs. SANDIGANBAYAN (1st DIV.)
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court
dated FEB 5 2002.
G.R. No. 130240(Jose de Venecia, Jr., in his capacity as Speaker of
the House of Representatives; Roberto P. Nazareno, in his capacity
as Secretary-General of the House of Representatives; Jose Ma.
Antonio B. Tuao, Cashier, House of Representatives; Antonio M.
Chan, Chief, Property Division, House of Representatives,
petitioners, vs. The Honorable Sandiganbayan (First Division),
respondent.)
The principal issue in this petitioner for certiorari [1]cralaw is
whether of not the Sandiganbayan may cite in contempt of court
the Speaker of the House of Representatives for refusing to
implement the preventive suspension order it issued in a criminal
case against a member of the House.
Petitioners seek the annulment of:
(1) the Order dated August 18, 1997 of the Sandiganbayan (First
Division),[2]cralaw directing Speaker Jose de Venecia of the House of
Representatives, to implement the preventive suspension of then
Congressman Ceferino S. Paredes, Jr., in connection with Criminal
Case No. 18857 entitled "People of the Philippines v. Ceferino S.
Paredes, Jr. and Gregorio S. Branzuela"; and
(2) the Resolution dated August 29, 1997, [3]cralaw also of the
Sandiganbayan, declaring Speaker de Venecia in contempt of court
for refusing to implement the preventive suspension order.
The facts are as follows:
On March 12, 1993, an Information (docketed as Criminal Case No.
18857) was filed with the Sandiganbayan (First Division) against
then Congressman Ceferino S. Paredes, Jr., of Agusan del Sur for
violation of Section 3 (e) of Republic Act No. 3019 (The Anti-Graft
and Corrupt Practices Act, as amended).
After the accused pleaded not guilty, the prosecution filed a
"Motion To Suspend The Accused Pendente Lite."
In its Resolution dated June 6, 1997, the Sandiganbayan
granted the motion and ordered the Speaker to suspend the

accused.But the Speaker did not comply.Thus, on August 12, 1997,

the Sandiganbayan issued a Resolution requiring him to appear
before it, on August 18, 1997 at 8:00 o'clock in the morning, to
show cause why he should not be held in contempt of court.
Unrelenting, the Speaker filed, through counsel, a motion for
reconsideration, invoking the rule on separation of powers and
claiming that he can only act as may be dictated by the House as a
body pursuant to House Resolution No. 116 adopted on August 13,
1997.
On August 29, 1997, the Sandiganbayan rendered the now assailed
Resolution[4]cralaw declaring Speaker Jose C. de Venecia, Jr. in
contempt of court and ordering him to pay a fine of P10,000.00
within 10 days from notice.
Hence, the instant recourse.
The issue before us had long been settled by this Court in Ceferino
S. Paredes, Jr. v. Sandiganbayan in G.R. No. 118354 (August 8,
1995).We ruled that the suspension provided for in the Anti-Graft
law ismandatory and is of different nature and purpose.It is
imposed by the court, not as a penalty, but as a precautionary
measure resorted to upon the filing of a valid Information.Its
purpose is to prevent the accused public officer from frustrating his
prosecution by influencing witnesses or tampering with
documentary evidence and from committing further acts of
malfeasance while in office.It is thus an incident to the criminal
proceedings before the court.On the other hand, the suspension or
expulsion contemplated in the Constitution is a House-imposed
sanction
against
its
members.It
is,
therefore,
apenalty for disorderly behavior to enforce discipline,
maintain order in its proceedings, or vindicate its honor and
integrity.
Just recently, in Miriam Defensor Santiago v. Sandiganbayan, et
al., this Court en banc, through Justice Jose C. Vitug, held that the
doctrine of separation of powers does not exclude the members of
Congress from the mandate of R.A. 3019, thus:
"The order of suspension prescribed by Republic Act
No. 3019 is distinct from the power of Congress to
discipline its own ranks under the Constitution. x x x.

364
"The suspension contemplated in the above constitutional
provision is a punitive measure that is imposed upon a
determination by the Senate or the House of
Representatives, as the case may be, upon an erring
member. x x x.
"The doctrine of separation of powers by itself may
not be deemed to have effectively excluded members
of Congress from Republic Act No. 3019 nor from its
sanctions.The maxim simply recognizes that each of the
three co-equal and independent, albeit coordinate,
branches of the government - the Legislative, the
Executive and the Judiciary - has exclusive prerogatives
and cognizance within its own sphere of influence
and effectively prevents one branch from unduly
intruding into the internal affairs of either
branch."(Emphasis ours)
We note that the term of then Congressman Ceferino Paredes, Jr.
expired on June 30, 1988.This rendered moot and academic the
instant case.
WHEREFORE, for being moot, this case is deemed CLOSED and
TERMINATED.(Quisumbing, J., no part.Quisumbing and Carpio, JJ.,
abroad on official business) Very truly yours,
LUZVIMINDA D. PUNOClerk of Court(Sgd.) MA. LUISA D.
VILLARAMAAsst. Clerk of Court

365
G.R. No. L-17931

February 28, 1963

CASCO
PHILIPPINE
CHEMICAL
CO.,
INC., petitioner,
vs.
HON. PEDRO GIMENEZ, in his capacity as Auditor General of
the
Philippines,
and HON. ISMAEL MATHAY, in his capacity as Auditor of the
Central Bank, respondents.
Jalandoni
&
Jamir
for
Officer of the Solicitor General for respondents.

petitioner.

CONCEPCION, J.:
This is a petition for review of a decision of the Auditor General
denying a claim for refund of petitioner Casco Philippine Chemical
Co., Inc.
The main facts are not disputed. Pursuant to the provisions of
Republic Act No. 2609, otherwise known as the Foreign Exchange
Margin Fee Law, the Central Bank of the Philippines issued on July
1, 1959, its Circular No. 95. fixing a uniform margin fee of 25% on
foreign exchange transactions. To supplement the circular, the Bank
later promulgated a memorandum establishing the procedure for
applications for exemption from the payment of said fee, as
provided in said Republic Act No. 2609. Several times in November
and December 1959, petitioner Casco Philippine Chemical Co., Inc.
which is engaged in the manufacture of synthetic resin glues,
used in bonding lumber and veneer by plywood and hardwood
producers bought foreign exchange for the importation of urea
and formaldehyde which are the main raw materials in the
production of said glues and paid therefor the aforementioned
margin fee aggregating P33,765.42. In May, 1960, petitioner made
another purchase of foreign exchange and paid the sum of
P6,345.72 as margin fee therefor.

Prior thereto, petitioner had sought the refund of the first sum of
P33,765.42, relying upon Resolution No. 1529 of the Monetary
Board of said Bank, dated November 3, 1959, declaring that the
separate importation of urea and formaldehyde is exempt from said
fee. Soon after the last importation of these products, petitioner
made a similar request for refund of the sum of P6,345.72 paid as
margin fee therefor. Although the Central Bank issued the
corresponding margin fee vouchers for the refund of said amounts,
the Auditor of the Bank refused to pass in audit and approve said
vouchers, upon the ground that the exemption granted by the
Monetary Board for petitioner's separate importations of urea and
formaldehyde is not in accord with the provisions of section 2,
paragraph XVIII of Republic Act No. 2609. On appeal taken by
petitioner, the Auditor General subsequently affirmed said action of
the Auditor of the Bank. Hence, this petition for review.
The only question for determination in this case is whether or not
"urea" and "formaldehyde" are exempt by law from the payment of
the aforesaid margin fee. The pertinent portion of Section 2 of
Republic Act No. 2609 reads:
The margin established by the Monetary Board pursuant to the
provision of section one hereof shall not be imposed upon the sale
of foreign exchange for the importation of the following:.
xxx

xxx

xxx

XVIII. Urea formaldehyde for the manufacture of plywood and

hardboard when imported by and for the exclusive use of endusers.
Wherefore, the parties respectfully pray that the foregoing
stipulation of facts be admitted and approved by this Honorable
Court, without prejudice to the parties adducing other evidence to
prove their case not covered by this stipulation of
facts. 1wph1.t

366
Petitioner maintains that the term "urea formaldehyde" appearing
in this provision should be construed as "ureaand formaldehyde"
(emphasis supplied) and that respondents herein, the Auditor
General and the Auditor of the Central Bank, have erred in holding
otherwise. In this connection, it should be noted that, whereas
"urea" and "formaldehyde" are the principal raw materials in the
manufacture of synthetic resin glues, the National Institute of
Science and Technology has expressed, through its Commissioner,
the view that:
Urea formaldehyde is not a chemical solution. It is the synthetic
resin formed as a condensation product from definite proportions of
urea and formaldehyde under certain conditions relating to
temperature, acidity, and time of reaction. This produce when
applied in water solution and extended with inexpensive fillers
constitutes a fairly low cost adhesive for use in the manufacture of
plywood.
Hence, "urea formaldehyde" is clearly a finished product, which is
patently distinct and different from urea" and "formaldehyde", as
separate articles used in the manufacture of the synthetic resin
known as "urea formaldehyde". Petitioner contends, however, that
the bill approved in Congress contained the copulative conjunction
"and" between the terms "urea" and "formaldehyde", and that the
members of Congress intended to exempt "urea" and
"formaldehyde" separately as essential elements in the
manufacture of the synthetic resin glue called "urea"
formaldehyde", not the latter as a finished product, citing in
support of this view the statements made on the floor of the
Senate, during the consideration of the bill before said House, by
members thereof. But, said individual statements do not
necessarily reflect the view of the Senate. Much less do they
indicate the intent of the House of Representatives (see Song Kiat
Chocolate Factory vs. Central Bank, 54 Off. Gaz., 615; Mayon
Motors Inc. vs. Acting Commissioner of Internal Revenue, L-15000
[March 29, 1961]; Manila Jockey Club, Inc. vs. Games & Amusement
Board, L-12727 [February 29, 1960]). Furthermore, it is well settled
that the enrolled bill which uses the term "urea formaldehyde"

instead of "urea and formaldehyde" is conclusive upon the courts

as regards the tenor of the measure passed by Congress and
approved by the President (Primicias vs. Paredes, 61 Phil. 118, 120;
Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comm. on Elections,
L-18684, September 14, 1961). If there has been any mistake in the
printing ofthe bill before it was certified by the officers of Congress
and approved by the Executive 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.
WHEREFORE, the decision appealed from is hereby affirmed, with
costs against the petitioner. It is so ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L.,
Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.

367
G.R. No. L-17931

February 28, 1963

CASCO
PHILIPPINE
CHEMICAL
CO.,
INC., petitioner,
vs.
HON. PEDRO GIMENEZ, in his capacity as Auditor General of
the
Philippines,
and HON. ISMAEL MATHAY, in his capacity as Auditor of the
Central Bank, respondents.
Jalandoni
&
Jamir
for
Officer of the Solicitor General for respondents.

petitioner.

CONCEPCION, J.:
This is a petition for review of a decision of the Auditor General
denying a claim for refund of petitioner Casco Philippine Chemical
Co., Inc.
The main facts are not disputed. Pursuant to the provisions of
Republic Act No. 2609, otherwise known as the Foreign Exchange
Margin Fee Law, the Central Bank of the Philippines issued on July
1, 1959, its Circular No. 95. fixing a uniform margin fee of 25% on
foreign exchange transactions. To supplement the circular, the Bank
later promulgated a memorandum establishing the procedure for
applications for exemption from the payment of said fee, as
provided in said Republic Act No. 2609. Several times in November
and December 1959, petitioner Casco Philippine Chemical Co., Inc.
which is engaged in the manufacture of synthetic resin glues,
used in bonding lumber and veneer by plywood and hardwood
producers bought foreign exchange for the importation of urea
and formaldehyde which are the main raw materials in the
production of said glues and paid therefor the aforementioned
margin fee aggregating P33,765.42. In May, 1960, petitioner made
another purchase of foreign exchange and paid the sum of
P6,345.72 as margin fee therefor.

Prior thereto, petitioner had sought the refund of the first sum of
P33,765.42, relying upon Resolution No. 1529 of the Monetary
Board of said Bank, dated November 3, 1959, declaring that the
separate importation of urea and formaldehyde is exempt from said
fee. Soon after the last importation of these products, petitioner
made a similar request for refund of the sum of P6,345.72 paid as
margin fee therefor. Although the Central Bank issued the
corresponding margin fee vouchers for the refund of said amounts,
the Auditor of the Bank refused to pass in audit and approve said
vouchers, upon the ground that the exemption granted by the
Monetary Board for petitioner's separate importations of urea and
formaldehyde is not in accord with the provisions of section 2,
paragraph XVIII of Republic Act No. 2609. On appeal taken by
petitioner, the Auditor General subsequently affirmed said action of
the Auditor of the Bank. Hence, this petition for review.
The only question for determination in this case is whether or not
"urea" and "formaldehyde" are exempt by law from the payment of
the aforesaid margin fee. The pertinent portion of Section 2 of
Republic Act No. 2609 reads:
The margin established by the Monetary Board pursuant to the
provision of section one hereof shall not be imposed upon the sale
of foreign exchange for the importation of the following:.
xxx

xxx

xxx

XVIII. Urea formaldehyde for the manufacture of plywood and

hardboard when imported by and for the exclusive use of endusers.
Wherefore, the parties respectfully pray that the foregoing
stipulation of facts be admitted and approved by this Honorable
Court, without prejudice to the parties adducing other evidence to
prove their case not covered by this stipulation of
facts. 1wph1.t

368
Petitioner maintains that the term "urea formaldehyde" appearing
in this provision should be construed as "ureaand formaldehyde"
(emphasis supplied) and that respondents herein, the Auditor
General and the Auditor of the Central Bank, have erred in holding
otherwise. In this connection, it should be noted that, whereas
"urea" and "formaldehyde" are the principal raw materials in the
manufacture of synthetic resin glues, the National Institute of
Science and Technology has expressed, through its Commissioner,
the view that:
Urea formaldehyde is not a chemical solution. It is the synthetic
resin formed as a condensation product from definite proportions of
urea and formaldehyde under certain conditions relating to
temperature, acidity, and time of reaction. This produce when
applied in water solution and extended with inexpensive fillers
constitutes a fairly low cost adhesive for use in the manufacture of
plywood.
Hence, "urea formaldehyde" is clearly a finished product, which is
patently distinct and different from urea" and "formaldehyde", as
separate articles used in the manufacture of the synthetic resin
known as "urea formaldehyde". Petitioner contends, however, that
the bill approved in Congress contained the copulative conjunction
"and" between the terms "urea" and "formaldehyde", and that the
members of Congress intended to exempt "urea" and
"formaldehyde" separately as essential elements in the
manufacture of the synthetic resin glue called "urea"
formaldehyde", not the latter as a finished product, citing in
support of this view the statements made on the floor of the
Senate, during the consideration of the bill before said House, by
members thereof. But, said individual statements do not
necessarily reflect the view of the Senate. Much less do they
indicate the intent of the House of Representatives (see Song Kiat
Chocolate Factory vs. Central Bank, 54 Off. Gaz., 615; Mayon
Motors Inc. vs. Acting Commissioner of Internal Revenue, L-15000
[March 29, 1961]; Manila Jockey Club, Inc. vs. Games & Amusement
Board, L-12727 [February 29, 1960]). Furthermore, it is well settled
that the enrolled bill which uses the term "urea formaldehyde"

instead of "urea and formaldehyde" is conclusive upon the courts

as regards the tenor of the measure passed by Congress and
approved by the President (Primicias vs. Paredes, 61 Phil. 118, 120;
Mabanag vs. Lopez Vito, 78 Phil. 1; Macias vs. Comm. on Elections,
L-18684, September 14, 1961). If there has been any mistake in the
printing ofthe bill before it was certified by the officers of Congress
and approved by the Executive 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.
WHEREFORE, the decision appealed from is hereby affirmed, with
costs against the petitioner. It is so ordered.
Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L.,
Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.

369
G.R. No. L-23475 April 30, 1974
HERMINIO A. ASTORGA, in his capacity as Vice-Mayor of
Manila, petitioner,
vs.
ANTONIO J. VILLEGAS, in his capacity as Mayor of Manila,
THE HON., THE EXECUTIVE SECRETARY, ABELARDO SUBIDO,
in his capacity as Commissioner of Civil Service, EDUARDO
QUINTOS, in his capacity as Chief of Police of Manila,
MANUEL CUDIAMAT, in his capacity as City Treasurer of
Manila, CITY OF MANILA, JOSE SEMBRANO, FRANCISCO
GATMAITAN, MARTIN ISIDRO, CESAR LUCERO, PADERES
TINOCO, LEONARDO FUGOSO, FRANCIS YUSECO, APOLONIO
GENER, AMBROCIO LORENZO, JR., ALFONSO MENDOZA, JR.,
SERGIO LOYOLA, GERINO TOLENTINO, MARIANO MAGSALIN,
EDUARDO QUINTOS, JR., AVELINO VILLACORTA, PABLO
OCAMPO, FELICISIMO CABIGAO, JOSE BRILLANTES, JOSE
VILLANUEVA and MARINA FRANCISCO, in their capacities as
members of the Municipal Board,respondents.
Artemio V. Panganiban and Renito V. Saguisag and Crispin D.
Baizas and Associates for petitioner.
Paredes Poblador, Cruz and Nazareno and Antonio Barredo for
respondent Mayor of Manila.
Romeo L. Kahayon for respondents City Treasurer of Manila, etc., et
al.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor
General Pacifico P. de Castro, Solicitor Jorge R. Coquia and Solicitor
Ricardo L. Pronove, Jr. for respondents The Executive Secretary and
Commissioner of Civil Service.
Fortunato de Leon and Antonio V. Raquiza as amici curiae.
MAKALINTAL, C.J.:p

The present controversy revolves around the passage of House Bill

No. 9266, which became Republic Act 4065, "An Act Defining the
Powers, Rights and Duties of the Vice-Mayor of the City of Manila,
Further Amending for the Purpose Sections Ten and Eleven of
Republic Act Numbered Four Hundred Nine, as Amended, Otherwise
Known as the Revised Charter of the City of Manila."
The facts as set forth in the pleadings appear undisputed:
On March 30, 1964 House Bill No. 9266, a bill of local application,
was filed in the House of Representatives. It was there passed on
third reading without amendments on April 21, 1964. Forthwith the
bill was sent to the Senate for its concurrence. It was referred to
the Senate Committee on Provinces and Municipal Governments
and Cities headed by Senator Gerardo M. Roxas. The committee
favorably recommended approval with a minor amendment,
suggested by Senator Roxas, that instead of the City Engineer it be
the President Protempore of the Municipal Board who should
succeed the Vice-Mayor in case of the latter's incapacity to act as
Mayor.
When the bill was discussed on the floor of the Senate on second
reading on May 20, 1964, substantial amendments to Section
1 1 were introduced by Senator Arturo Tolentino. Those
amendments were approved in toto by the Senate. The amendment
recommended by Senator Roxas does not appear in the journal of
the Senate proceedings as having been acted upon.
On May 21, 1964 the Secretary of the Senate sent a letter to the
House of Representatives that House Bill No. 9266 had been passed
by the Senate on May 20, 1964 "with amendments." Attached to
the letter was a certification of the amendment, which was the one
recommended by Senator Roxas and not the Tolentino amendments
which were the ones actually approved by the Senate. The House of
Representatives thereafter signified its approval of House Bill No.
9266 as sent back to it, and copies thereof were caused to be
printed. The printed copies were then certified and attested by the

370
Secretary of the House of Representatives, the Speaker of the
House of Representatives, the Secretary of the Senate and the
Senate President. On June 16, 1964 the Secretary of the House
transmitted four printed copies of the bill to the President of the
Philippines, who affixed his signatures thereto by way of approval
on June 18, 1964. The bill thereupon became Republic Act No.
4065.
The furor over the Act which ensued as a result of the public
denunciation mounted by respondent City Mayor drew immediate
reaction from Senator Tolentino, who on July 5, 1964 issued a press
statement that the enrolled copy of House Bill No. 9266 signed into
law by the President of the Philippines was a wrong version of the
bill actually passed by the Senate because it did not embody the
amendments introduced by him and approved on the Senate floor.
As a consequence the Senate President, through the Secretary of
the Senate, addressed a letter dated July 11, 1964 to the President
of the Philippines, explaining that the enrolled copy of House Bill
No. 9266 signed by the secretaries of both Houses as well as by the
presiding officers thereof was not the bill duly approved by
Congress and that he considered his signature on the enrolled bill
as invalid and of no effect. A subsequent letter dated July 21, 1964
made the further clarification that the invalidation by the Senate
President of his signature meant that the bill on which his signature
appeared had never been approved by the Senate and therefore
the fact that he and the Senate Secretary had signed it did not
make the bill a valid enactment.
On July 31, 1964 the President of the Philippines sent a message to
the presiding officers of both Houses of Congress informing them
that in view of the circumstances he was officially withdrawing his
signature on House Bill No. 9266 (which had been returned to the
Senate the previous July 3), adding that "it would be untenable and
against public policy to convert into law what was not actually
approved by the two Houses of Congress."
Upon the foregoing facts the Mayor of Manila, Antonio Villegas,
issued circulars to the department heads and chiefs of offices of the

city government as well as to the owners, operators and/or

managers of business establishments in Manila to disregard the
provisions of Republic Act 4065. He likewise issued an order to the
Chief of Police to recall five members of the city police force who
had been assigned to the Vice-Mayor presumably under authority
of Republic Act 4065.
Reacting to these steps taken by Mayor Villegas, the then ViceMayor, Herminio A. Astorga, filed a petition with this Court on
September 7, 1964 for "Mandamus, Injunction and/or Prohibition
with Preliminary Mandatory and Prohibitory Injunction" to compel
respondents Mayor of Manila, the Executive Secretary, the
Commissioner of Civil Service, the Manila Chief of Police, the Manila
City Treasurer and the members of the municipal board to comply
with the provisions of Republic Act 4065.
Respondents' position is that the so-called Republic Act 4065 never
became law since it was not the bill actually passed by the Senate,
and that the entries in the journal of that body and not the enrolled
bill itself should be decisive in the resolution of the issue.
On April 28, 1965, upon motion of respondent Mayor, who was then
going abroad on an official trip, this Court issued a restraining
order, without bond, "enjoining the petitioner Vice-Mayor Herminio
Astorga from exercising any of the powers of an Acting Mayor
purportedly conferred upon the Vice-Mayor of Manila under the socalled Republic Act 4065 and not otherwise conferred upon said
Vice-Mayor under any other law until further orders from this
Court."
The original petitioner, Herminio A. Astorga, has since been
succeeded by others as Vice-Mayor of Manila. Attorneys Fortunato
de Leon and Antonio Raquiza, with previous leave of this Court,
appeared as amici curiae, and have filed extensive and highly
enlightening memoranda on the issues raised by the parties.
Lengthy arguments, supported by copious citations of authorities,
principally decisions of United States Federal and State Courts,

371
have been submitted on the question of whether the "enrolled bill"
doctrine or the "journal entry" rule should be adhered to in this
jurisdiction. A similar question came up before this Court and
elicited differing opinions in the case of Mabanag, et al. vs. Lopez
Vito, et al. (March 5, 1947), 78 Phil. Reports 1. While the majority of
the Court in that case applied the "enrolled bill" doctrine, it cannot
be truly said that the question has been laid to rest and that the
decision therein constitutes a binding precedent.
The issue in that case was whether or not a resolution of both
Houses of Congress proposing an amendment to the (1935)
Constitution to be appended as an ordinance thereto (the so-called
parity rights provision) had been passed by "a vote of three-fourths
of all the members of the Senate and of the House of
Representatives" pursuant to Article XV of the Constitution.
The main opinion, delivered by Justice Pedro Tuason and concurred
in by Justices Manuel V. Moran, Guillermo F. Pablo and Jose M.
Hontiveros, held that the case involved a political question which
was not within the province of the judiciary in view of the principle
of separation of powers in our government. The "enrolled bill"
theory was relied upon merely to bolster the ruling on the
jurisdictional question, the reasoning being that "if a political
question conclusively binds the judges out of respect to the political
departments, a duly certified law or resolution also binds the judges
under the "enrolled bill rule" born of that respect."
Justice Cesar Bengzon wrote a separate opinion, concurred in by
Justice Sabino Padilla, holding that the Court had jurisdiction to
resolve the question presented, and affirming categorically that
"the enrolled copy of the resolution and the legislative journals are
conclusive upon us," specifically in view of Section 313 of Act 190,
as amended by Act No. 2210. This provision in the Rules of
Evidence in the old Code of Civil Procedure appears indeed to be
the only statutory basis on which the "enrolled bill" theory rests. It
reads:

The proceedings of the Philippine Commission, or of any legislative

body that may be provided for in the Philippine Islands, or of
Congress (may be proved) by the journals of those bodies or of
either house thereof, or by published statutes or resolutions, or by
copies certified by the clerk or secretary, printed by their order;
provided, that in the case of acts of the Philippine Commission or
the Philippine Legislature, when there is in existence a copy signed
by the presiding officers and secretaries of said bodies, it shall
be conclusive proof of the provisions of such acts and of the due
enactment thereof.
Congress devised its own system of authenticating bills duly
approved by both Houses, namely, by the signatures of their
respective presiding officers and secretaries on the printed copy of
the approved bill. 2 It has been held that this procedure is merely a
mode of authentication, 3 to signify to the Chief Executive that the
bill being presented to him has been duly approved by Congress
and is ready for his approval or rejection. 4 The function of an
attestation is therefore not of approval, because a bill is considered
approved after it has passed both Houses. Even where such
attestation is provided for in the Constitution authorities are divided
as to whether or not the signatures are mandatory such that their
absence would render the statute invalid. 5 The affirmative view, it
is pointed out, would be in effect giving the presiding officers the
power of veto, which in itself is a strong argument to the
contrary 6 There is less reason to make the attestation a requisite
for the validity of a bill where the Constitution does not even
provide that the presiding officers should sign the bill before it is
submitted to the President.
In one case in the United States, where the (State)Constitution
required the presiding officers to sign a bill and this provision was
deemed mandatory, the duly authenticated enrolled bill was
considered as conclusive proof of its due enactment. 7 Another case
however, under the same circumstances, held that the enrolled bill
was not conclusive evidence. 8 But in the case of Field vs.
Clark, 9 the U.S. Supreme Court held that the signatures of the
presiding officers on a bill, although not required by the

372
Constitution, is conclusive evidence of its passage. The authorities
in the United States are thus not unanimous on this point.
The rationale of the enrolled bill theory is set forth in the said case
of Field vs. Clark as follows:
The signing by the Speaker of the House of Representatives, and,
by the President of the Senate, in open session, of an enrolled bill,
is an official attestation by the two houses of such bill as one that
has passed Congress. It is a declaration by the two houses, through
their presiding officers, to the President, that a bill, thus attested,
has received, in due form, the sanction of the legislative branch of
the government, and that it is delivered to him in obedience to the
constitutional requirement that all bills which pass Congress shall
be presented to him. And when a bill, thus attested, receives his
approval, and is deposited in the public archives, its authentication
as a bill that has passed Congress should be deemed complete and
unimpeachable. As the President has no authority to approve a bill
not passed by Congress, an enrolled Act in the custody of the
Secretary of State, and having the official attestations of the
Speaker of the House of Representatives, of the President of the
Senate, and of the President of the United States, carries, on its
face, a solemn assurance by the legislative and executive
departments of the government, charged, respectively, with the
duty of enacting and executing the laws, that it was passed by
Congress. The respect due to coequal and independent
departments requires the judicial department to act upon that
assurance, and to accept, as having passed Congress, all bills
authenticated in the manner stated; leaving the courts to
determine, when the question properly arises, whether the Act, so
authenticated, is in conformity with the Constitution.
It may be noted that the enrolled bill theory is based mainly on "the
respect due to coequal and independent departments," which
requires the judicial department "to accept, as having passed
Congress, all billsauthenticated in the manner stated." Thus it has
also been stated in other cases that if the attestation is absent and
the same is not required for the validity of a statute, the courts

may resort to the journals and other records of Congress for proof
of its due enactment. This was the logical conclusion reached in a
number of decisions, 10although they are silent as to whether the
journals may still be resorted to if the attestation of the presiding
officers is present.
The (1935) Constitution is silent as to what shall constitute proof of
due enactment of a bill. It does not require the presiding officers to
certify to the same. But the said Constitution does contain the
following provisions:
Sec. 10 (4). "Each House shall keep a Journal of its proceedings,
and from time to time publish the same, excepting such parts as
may in its judgment require secrecy; and the yeas and nays on any
question shall, at the request of one-fifth of the Members present,
be entered in the Journal."
Sec. 21 (2). "No bill shall be passed by either House unless it shall
have been printed and copies thereof in its final form furnished its
Members at least three calendar days prior to its passage, except
when the President shall have certified to the necessity of its
immediate enactment. Upon the last reading of a bill no
amendment thereof shall be allowed, and the question upon its
passage
shall
be
taken
immediately
thereafter,
and
the yeas and nays entered on the Journal."
Petitioner's argument that the attestation of the presiding officers
of Congress is conclusive proof of a bill's due enactment, required,
it is said, by the respect due to a co-equal department of the
government, 11 is neutralized in this case by the fact that the
Senate President declared his signature on the bill to be invalid and
issued a subsequent clarification that the invalidation of his
signature meant that the bill he had signed had never been
approved by the Senate. Obviously this declaration should be
accorded even greater respect than the attestation it invalidated,
which it did for a reason that is undisputed in fact and indisputable
in logic.

373
As far as Congress itself is concerned, there is nothing sacrosanct in
the certification made by the presiding officers. It is merely a mode
of authentication. The lawmaking process in Congress ends when
the bill is approved by both Houses, and the certification does not
add to the validity of the bill or cure any defect already present
upon its passage. In other words it is the approval by Congress and
not the signatures of the presiding officers that is essential. Thus
the (1935) Constitution says that "[e] very bill passed by the
Congress shall, before it becomes law, be presented to the
President. 12 In Brown vs. Morris, supra, the Supreme Court of
Missouri, interpreting a similar provision in the State Constitution,
said that the same "makes it clear that the indispensable step is
the final passage and it follows that if a bill, otherwise fully enacted
as a law, is not attested by the presiding officer, of the proof that it
has "passed both houses" will satisfy the constitutional
requirement."

circumstances of this case, this Court can do this and resort to the
Senate journal for the purpose. The journal discloses that
substantial and lengthy amendments were introduced on the floor
and approved by the Senate but were not incorporated in the
printed text sent to the President and signed by him. This Court is
not asked to incorporate such amendments into the alleged law,
which admittedly is a risky undertaking, 13 but to declare that the
bill was not duly enacted and therefore did not become law. This
We do, as indeed both the President of the Senate and the Chief
Executive did, when they withdrew their signatures therein. In the
face of the manifest error committed and subsequently rectified by
the President of the Senate and by the Chief Executive, for this
Court to perpetuate that error by disregarding such rectification
and holding that the erroneous bill has become law would be to
sacrifice truth to fiction and bring about mischievous consequences
not intended by the law-making body.

Petitioner agrees that the attestation in the bill is not mandatory

but argues that the disclaimer thereof by the Senate President,
granting it to have been validly made, would only mean that there
was no attestation at all, but would not affect the validity of the
statute. Hence, it is pointed out, Republic Act No. 4065 would
remain valid and binding. This argument begs the issue. It would
limit the court's inquiry to the presence or absence of the
attestation and to the effect of its absence upon the validity of the
statute. The inquiry, however, goes farther. Absent such attestation
as a result of the disclaimer, and consequently there being no
enrolled bill to speak of, what evidence is there to determine
whether or not the bill had been duly enacted? In such a case the
entries in the journal should be consulted.

In view of the foregoing considerations, the petition is denied and

the so-called Republic Act No. 4065 entitled "AN ACT DEFINING THE
POWERS, RIGHTS AND DUTIES OF THE VICE-MAYOR OF THE CITY OF
MANILA, FURTHER AMENDING FOR THE PURPOSE SECTIONS TEN
AND ELEVEN OF REPUBLIC ACT NUMBERED FOUR HUNDRED NINE,
AS AMENDED, OTHERWISE KNOWN AS THE REVISED CHARTER OF
THE CITY OF MANILA" is declared not to have been duly enacted
and therefore did not become law. The temporary restraining order
dated April 28, 1965 is hereby made permanent. No
pronouncement as to costs.

The journal of the proceedings of each House of Congress is no

ordinary record. The Constitution requires it. While it is true that the
journal is not authenticated and is subject to the risks of
misprinting and other errors, the point is irrelevant in this case. This
Court is merely asked to inquire whether the text of House Bill No.
9266 signed by the Chief Executive was the same text passed by
both Houses of Congress. Under the specific facts and

Zaldivar (Chairman), Fernando and Barredo, JJ., took no part.

Makasiar, J., is on leave.

Castro, Teehankee, Antonio, Esguerra, Fernandez, Muoz Palma

and Aquino, JJ., concur.

G.R. No. L-29658

ENRIQUE
vs.

November 29, 1968

V.

MORALES, petitioner,

374
ABELARDO
SUBIDO,
as
Commissioner
of
Civil
Service, respondent.
Vicente
Rodriguez,
for
appellant.
Office of the Solicitor-General Araneta, for appellee.
CASTRO, J.:
The question for resolution in this case is whether a person who has
served as captain in the police department of a city for at least
three years but does not possess a bachelor's degree, is qualified
for appointment as chief of police. The question calls for an
interpretation of the following provisions of section 10 of the Police
Act of 1966 (Republic Act 4864):
Minimum qualification for appointment as Chief of Police Agency.
No person may be appointed chief of a city police agency unless he
holds a bachelor's degree from a recognized institution of learning
and has served either in the Armed Forces of the Philippines or the
National Bureau of Investigation, or has served as chief of police
with exemplary record, or has served in the police department of
any city with the rank of captain or its equivalent therein for at
least three years; or any high school graduate who has served as
officer in the Armed Forces for at least eight years with the rank of
captain and/or higher.
The petitioner Enrique V. Morales is the chief of the detective
bureau of the Manila Police Department and holds the rank of
lieutenant colonel. He began his career in 1934 as patrolman and
gradually rose to his present position. Upon the resignation of Brig.
Gen. Ricardo G. Papa on March 14, 1968, the petitioner was
designated acting chief of police of Manila and, at the same time,
given a provisional appointment to the same position by the mayor
of Manila.
On September 24, 1968 the respondent Commissioner of Civil
Service Abelardo Subido approved the designation of the petitioner
but rejected his appointment for "failure to meet the minimum
educational and civil service eligibility requirements for the said
position." Instead, the respondent certified other persons as
qualified for the post and called the attention of the mayor to
section 4 of the Decentralization Act of 1967 which requires the
filling of a vacancy within 30 days after its coming into existence.
Earlier, on September 5, he announced in the metropolitan

newspapers that the position of chief of police of Manila was vacant

and listed the qualifications which applicants should possess.
The petitioner's reaction to the announcement was a demand that
the respondent include him in a list of eligible and qualified
applicants from which the mayor might appoint one as chief of
police of the city. He contended that his service alone as captain for
more than three years in the Manila Police Department qualified
him for appointment. The demand was contained in a letter which
he wrote to the respondent on October 8, 1968. The mayor
endorsed the letter favorably, but the respondent refused to
reconsider his stand. Hence this petition for mandamus to compel
the respondent to include the petitioner in a list of "five next
ranking eligible and qualified persons."
The petitioner's reading of section 10 of the Police Act of 1966 is,
per his own phrasing, as follows:
NO PERSON may be appointed chief of a city police agency unless
HE
(1) holds a bachelor's degree from a recognized institution of
learning AND has served in the Armed Forces of the Philippines OR
the National Bureau of Investigation, OR
(2) has served as chief of police with exemplary record, OR
(3) has served in the police department of any city with the rank of
captain or its equivalent therein for at least three years; OR
(4) any high school graduate who has served as officer in the
Armed Forces for at least eight years with the rank of captain
and/or higher.
As he has served successively as captain, major and lieutenant
colonel in the MPD since 1954, the petitioner's insistence is that he
falls under the third class of persons qualified for appointment as
chief of a city police department.
In support of this proposition, he adverts to the policy of the Act "to
place the local police service on a professional level," 1 and
contends that a bachelor's degree does not guarantee that one who
possesses it will make a good policeman, but that, on the other
hand, one who, like the petitioner, has risen from patrolman to
lieutenant colonel "meets the test of professionalism."
Even if we concede the correctness of the petitioner's view still we
do not see how the requirement of a college degree as additional

375
qualification can run counter to the avowed policy of the Act. On
the contrary, we should think that the requirement of such
additional qualification will best carry out that policy. The fallacy of
petitioner's argument lies in its assumption that the choice is
between one who has served long and loyally in a city police
agency and another who, not having so served, has only a
bachelor's degree. But that is not the issue in this case. The issue
rather is whether, within the meaning and intendment of the law, in
addition to service qualification, one should have educational
qualification as shown by the possession of a bachelor's degree.
The petitioner invokes the last paragraph of section 9 of the Act
which provides:
Persons who at the time of the approval of this Act have rendered
at least five years of satisfactory service in a provincial, city or
municipal police agency although they have not qualified in an
appropriate civil service examination are considered as civil service
eligibles for the purpose of this Act.
In effect, he contends that if a person who has rendered at least
five years of satisfactory service in a police agency is considered a
civil service eligible, so must a person be considered qualified even
though he does not possess a bachelor's degree.
The petitioner's argument is fallacious in two respects. First, it fails
to distinguish between eligibility and qualification. For the statute
may allow the compensation of service for a person's lack of
eligibility but not necessarily for his lack of educational
qualification. Second, section 9 governs the appointment
of members of apolice agency only. On the other hand, the
appointment of chiefs of police is the precise gravamen of section
10, the last paragraph of which states:
Where no civil service eligible is available, provisional appointment
may be made in accordance with Civil Service Law and rules:
Provided, that the appointee possesses the above educational
qualification: Provided, further, That in no case shall such
appointment extend beyond six months, except for a valid cause,
and with the approval of the Civil Service Commission.
Thus, while the Act gives credit for service and allows it to
compensate for the lack of civil service eligibility in the case of
a member of a police agency, it gives no such credit for lack of civil

service eligibility in the case of a chief of police. On the contrary, by

providing that a person, who is not a civil service eligible, may be
provisionally appointed2 chief of police "[ p]rovided, [t]hat the
appointee possesses the above educational qualification," the Act
makes it unequivocal that the possession of a college degree or a
high school diploma (in addition to service) is an indispensable
requisite.
It is next contended that to read section 10 as requiring a
bachelor's degree, in addition to service either in the Armed Forces
of the Philippines or in the National Bureau of Investigation or as
chief of police with an exemplary record or as a captain in a city
police department for at least three years, would be to create an
"absurd situation" in which a person who has served for only one
month in the AFP or the NBI is in law considered the equal of
another who has been a chief of police or has been a captain in a
city police agency for at least three years. From this it is concluded
that "the only logical equivalence of these two groups (Chief of
Police with exemplary record and Police Captain for at least 3 years
in a City Police Agency) is the bachelor's degree."
Section 10, it must be admitted, does not specify in what capacity
service in the AFP or in the NBI must have been rendered, but an
admission of the existence of the ambiguity in the statute does not
necessarily compel acquiescence in the conclusion that it is only in
cases where the appointee's service has been in the AFP or in the
NBI that he must be required to have a bachelor's degree. The
logical implication of the petitioner's argument that a person who
has served as captain in a city police department for at least three
years need not have a bachelor's degree to qualify, is that such
person need not even be a high school graduate. If such be the
case would there still be need for a person to be at least a high
school graduate provided he has had at least eight years of service
as captain in the AFP?
The truth is that, except for the ambiguity referred to (the meaning
of which is not in issue in this case), section 10 of the Act needs no
interpretation because its meaning is clear. That the purpose is to
require both educational and service qualifications of those seeking
appointment as chief of police is evidence from a reading of the
original provision of House Bill 6951 and the successive revision it

376
underwent. Thus, section 12 of House Bill 6951 (now section 10 of
the Police Act of 1966) read:
Minimum Qualification for Appointment as Chief of a Police Agency.
No chief of a police agency of a province or chartered city shall
be appointed unless he is a member of the Philippine Bar, or a
holder of a bachelor's degree in police administration. Any holder of
a bachelor's degree who served either in the Philippine
Constabulary or the police department of any city from the rank of
captain or inspector, second class, or its equivalent for at least
three years shall be eligible for appointment to the position of chief
of the police agency.
No chief of a municipal police force shall be appointed unless he is
a holder of a four-year college degree course or a holder of a
Bachelor's degree in Police Administration or Criminology.
Where no civil service eligible is available provisional appointment
may be made in accordance with Civil Service Law and rules,
provided the appointee possesses the above educational
qualification but in no case shall such appointment exceed beyond
six months.
It was precisely because the bill was clearly understood as
requiring both educational and service qualifications that the
following exchanges of view were made on the floor of the house of
Representatives:
MR. VELOSO (F.). Section 12, Minimum Qualification for
Appointment of Chief of a Police Agency, provides that the chief of
a police agency of a province or a chartered city should be at least
a member of the Philippine Bar or a holder of a bachelor's degree in
Police Administration; and the chief of police of a municipality
should be at least a holder of a four years' college degree or holder
of a bachelor's degree in Police Administration or Criminology.
At first blush, there is no reason why I should object to these
minimum requirements; but I find such requirement very rigid
because it would not allow a man to rise from the ranks. Take a
policeman who rose from the ranks. He became a corporal, a
sergeant, a police lieutenant. Shouldn't he be allowed to go higher?
If he merited it, he should also be appointed chief of police of a city
or municipality.

MR. AMANTE. During our committee discussions, I objected to this

provision of the bill because it is a very high qualification. However,
somebody insisted that in order to professionalize our police
system and also to attain a high standard of police efficiency, we
must have a chief of police who has a college degree. The point
which the gentleman is now raising was brought up by one Member
in the sense that a policeman who rose from the ranks through
serious hard work, even after serving for fifteen or twenty years in
the police force, cannot become chief of police for lack of a college
degree.
The gentleman's objection is a very good and reasonable one. I
assure him that if he brings it up during the period of amendments,
I will consider it.
MR. VELOSO (F.). I am glad that the Committee will accept my
amendment. My only regret, however, is that because I made a
number of proposed amendments, I will not be ready to submit
them immediately. We should just limit ourselves to the
sponsorship this evening.3
Thus it appears that it was because of the educational requirement
contained in the bill that objections were expressed, but while it
was agreed to delete this requirement during the period of
amendment, no motion was ever presented to effect the change. 4
In the Senate, the Committee on Government Reorganization, to
which House Bill 6951 was referred, reported a substitute
measure.5 It is to this substitute bill that section 10 of the Act owes
its present form and substance.
Parenthetically, the substitute measure gives light on the meaning
of the ambiguous phrase "and who has served either in the Armed
Forces of the Philippines or the National Bureau of Investigation."
The provision of the substitute bill reads:
No person may be appointed chief of a city police agency unless he
holds a bachelor's degree and has served either in the Armed
Forces of the Philippines or the National Bureau of Investigation or
police department of any city and has held the rank of captain or
its equivalent therein for at least three years or any high school
graduate who has served the police department of a city for at
least 8 years with the rank of captain and/or higher.

377
Thus, service in the AFP or the NBI was intended to be in the
capacity of captain for at least three years.
At the behest of Senator Francisco Rodrigo, the phrase "has served
as officer in the Armed Forces" was inserted so as to make the
provision read:
No person may be appointed chief of a city police agency unless he
holds a bachelor's degree and has served either in the Armed
Forces of the Philippines or the National Bureau of Investigation or
police department of any city and has held the rank of captain or
its equivalent therein for at least three years or any high school
graduate who has served the police department of a city or who
has served as officer in the Armed Forces for at least 8 years with
the rank of captain and/or higher.6
It is to be noted that the Rodrigo amendment was in the nature of
an addition to the phrase, "who has served the police department
of a city for at least 8 years with the rank of captain and/or higher,"
under which the petitioner herein, who is at least a high school
graduate (both parties agree that the petitioner finished the second
year of the law course) could possibly qualify. However, somewhere
in the legislative process the phrase was dropped and only the
Rodrigo amendment was retained.
Because of the suggested possibility that the deletion was made by
mistake, the writer of this opinion personally and painstakingly read
and examined the enrolled bill in the possession of the legislative
secretary of the Office of the President and found that the text of
section 10 of the Act is as set forth in the beginning of this opinion.
The text of the Act bears on page 15 thereof the signatures of
President of the Senate Arturo M. Tolentino and Speaker of the
House of Representatives Cornelio T. Villareal, and on page 16
thereof those of Eliseo M. Tenza, Secretary of the Senate, and
Inocencio B. Pareja, Secretary of the House of Representatives, and
of President Ferdinand E. Marcos. Under the enrolled bill theory,
announced in Mabanag v. Lopez Vito8 this text of the Act must be
deemed as importing absolute verity and as binding on the courts.
As the Supreme Court of the United States said in Marshall Field &
Co. v. Clark:9
The signing by the Speaker of the House of Representatives and, by
the President of the Senate, in open session, of an enrolled bill, is

an official attestation by the two houses of such bill as one that has
passed Congress. It is a declaration by the two houses, through
their presiding officers, to the President that a bill, thus attested,
has received in the form, the sanction of the legislative branch of
the government, and that it is delivered to him in obedience to the
constitutional requirement that all bill which pass Congress shall be
presented to him. And when a bill, thus attested, receives his
approval, its authentication as a bill that has passed Congress
should be deemed complete and unimpeachable. As the President
has no authority to approve a bill not passed by Congress, an
enrolled Act in the custody of the Secretary of State, and having
the official attestations of the Speaker of the house of
Representatives, of the President of the Senate, and of the
President of the United States, carries, on its face, a solemn
assurance by the legislative and executive departments of the
government, charged, respectively, with the duty of enacting and
executing the laws, that it was passed by Congress. The respect
due to co-equal and independent department requires the judicial
department to act upon that assurance, and to accept, as having
passed Congress, all bills authenticated in the manner stated;
leaving the courts to determine, when the question properly arises,
whether the Act, so authenticated, is in conformity with the
Constitution.10
To proceed with the history of the statute, it appears that, when the
two chambers of the legislature met in conference committee, the
phrase "has served as chief of police with exemplary record" was
added, thereby accounting for its presence in section 10 of the
Act.11
What, then, is the significance of this? It logically means that
except for that vagrant phrase "who has served the police
department of a city for at least 8 years with the rank of captain
and/or higher" a high school graduate, no matter how long he
has served in a city police department, is not qualified for
appointment as chief of police.
Still it is insisted that "if a high school graduate who has served as
captain in the Armed Forces of the Philippines for eight years
irrespective of the branch of service where he served can be Chief
of Police of Manila, why not one who holds an A.A. degree,

378
completed two years in Law School, and served as Chief of the
Detective Bureau for 14 years, holding the successive ranks of
Captain, Major and Lt. Colonel? Not to mention the fact that he was
awarded three Presidential Awards, and was given the
Congressional Commendation the highest award ever conferred
in the history of the Manila Police Department."
The trouble with such argument is that even if we were to concede
its soundness, still we would be hard put reading it in the law
because it is not there. The inclusion of desirable enlargements in
the statute is addressed to the judgment of Congress and unless
such enlargements are by it accepted courts are without power to
make them. As Mr. Justice Frankfurter put the matter with lucidity:
An omission at the time of enactment, whether careless or
calculated, cannot be judicially supplied however much later
wisdom may recomment the inclusion.
The vital difference between initiating policy, often involving a
decided break with the past, and merely carrying out a formulated
policy, indicates the relatively narrow limits within which choice is
fairly open to courts and the extent to which interpreting law is
inescapably making law.12
In conclusion, we hold that, under the present state of the law, the
petitioner is neither qualified nor eligible for appointment as chief
of police of the city of Manila. Consequently, the respondent has no
corresponding legal duty and therefore may not be compelled
by mandamus to certify the petitioner as qualified and eligible.
ACCORDINGLY, the petition for mandamus is denied. No
pronouncements as to costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Sanchez, Fernando and
Capistrano,
JJ., concur.
Dizon,
J., concurs
in
the
result.
Zaldivar, J., took no part.

Separate Opinions
DIZON, J., concurring:
As stated in the decision penned by Mr. Justice Fred Ruiz Castro,
petitioner Enrique V. Morales began his career in the Manila Police

Department in 1934 as patrolman and gradually rose to his present

position that of Chief of the Detective Bureau thereof and
holds the rank of Lieutenant-Colonel.
In my opinion, a man bearing such credentials can be reasonably
expected to be a good Chief of the Manila Police Department. But
the issue before us is not whether or not his training and
experience justify that expectation, but whether or not, under and
in accordance with the pertinent law, he is qualified for
appointment to such office to the extent that he is entitled to the
relief sought, namely, the issuance of a writ of mandamus
compelling the respondent Commissioner of Civil Service to include
him in a list of eligible and qualified applicants from which the
mayor of the City of Manila might choose the appointee who will fill
the vacant position of Chief of Police of the City of Manila.
Section 10 of Police Act of 1966 (Republic Act 4864) which
controls the issue before us, reads as follows:
Minimum qualification for appointment as Chief of Police Agency.
No person may be appointed chief of a city police agency unless he
holds a bachelor's degree from a recognized institution of learning
and has served either in the Armed Forces of the Philippines or the
National Bureau of Investigation, or has served as chief of police
with exemplary record, or has served in the police department of
any city with the rank of captain or its equivalent therein for at
least three years; or any high school graduate who has served as
officer in the Armed Forces for at least eight years with the rank of
captain and/or higher.
The above legal provision may be construed as providing for two
different kinds of academic qualification, namely, (1) a bachelor's
degree from a recognized institution of learning, and (2) a high
school degree, each of which is coupled with separate and distinct
service qualifications. Any one of the latter, joined with either of the
aforesaid academic requirements, would qualify a person for
appointment as Chief of a city police agency. In other words, an
applicant who is a holder of a bachelor's degree from a recognized
institution of learning and has served either in the Armed Forces of
the Philippines or the National Bureau of Investigation would make
the grade, in the same manner as would another applicant with a

379
similar bachelor's degree who has served as chief of police with
exemplary record, etc.
In the case of an applicant who is a mere high school graduate, the
service qualification is not only different but is higher and more
exacting for obvious reasons.
Petitioner, however, would construe and read the law as follows:
NO PERSON may be appointed chief of a city police agency unless
HE
(1) holds a bachelor's degree from a recognized institution of
learning AND has served in the Armed Forces of the Philippines OR
the National Bureau of Investigation, OR (2) has served as chief of
police with exemplary record, OR (3) has served in the police
department of any city with the rank of captain or its equivalent
therein for at least three years; OR
(4) any high school graduate who has served as officer in the
Armed Forces for at least eight years with the rank of captain
and/or higher.
While, in my view, petitioner's interpretation is not unreasonable, it
falls short of showing that it is the true and correct meaning and
intent of the law aforesaid. This, in my opinion, must lead to the
conclusion that petitioner is not entitled to the issuance of a writ of
mandamus for the purpose stated in his petition because to be
entitled thereto he must show that, in relation to the matter at
issue, he has a clear enforceable right, on the one hand, and that
the respondent has an imperative legal duty to perform, on the
other. Because of this I am constrained to concur in the result.
G.R. No. L-25554
October 4, 1966
PHILIPPINE CONSTITUTION ASSOCIATION, INC., petitioner,
vs.
ISMAEL MATHAY and JOSE VELASCO, respondents.
Roman
Ozaeta
and
Felixberto
Serrano
for
petitioner.
Office of the Solicitor General for respondents.
REYES, J.B.L., J.:
The Philippine Constitution Association, a non-stock, non-profit
association duly incorporated and organized under the laws of the
Philippines, and whose members are Filipino citizens and taxpayers,
has filed in this Court a suit against the former Acting Auditor

General of the Philippines and Jose Velasco, Auditor of the Congress

of the Philippines, duly assigned thereto by the Auditor General as
his representative, seeking to permanently enjoin the aforesaid
officials from authorizing or passing in audit the payment of the
increased salaries authorized by Republic Act No. 4134 (approved
June 10, 1964) to the Speaker and members of the House of
Representatives before December 30, 1969. Subsequently, Ismael
Mathay, present Auditor General, was substituted for Amable M.
Aguiluz, former Acting Auditor General.
Section 1, paragraph 1, of Republic Act No. 4134 provided, inter
alia, that the annual salary of the President of the Senate and of the
Speaker of the House of Representatives shall be P40,000.00 each;
that of the Senators and members of the House of Representatives,
P32,000.00 each (thereby increasing their present compensation of
P16,000.00 and P7,200.00 per annum for the Presiding officers and
members, respectively, as set in the Constitution). The section
expressly provided that "the salary increases herein fixed shall take
effect in accordance with the provisions of the Constitution".
Section 7 of the same Act provides "that the salary increase of the
President of the Senate and of the Speaker of the House of
Representatives shall take effect on the effectivity of the salary
increase of Congressmen and Senators.
The Appropriation Act (Budget) for the Fiscal Year July 1, 1965, to
June 30, 1966 (Republic Act No. 4642) contained the following
items for the House of Representatives:
SPEAKER
1. The Speaker of the House of Representatives at P16,000 from
July
1
to
December
29,
1965
and P40,000 from December 30, 1965 to June 30, 1966 . . .
P29,129.00
MEMBERS
2. One hundred three Members of the House of Representatives at
P7,200
from
July
1
to
December
29,
1965
and P32,000 from December 30, 1965 to June 30, 1966
2,032,866.00
while for the Senate the corresponding appropriation items appear
to be:
1. The President of the Senate . . . . . . . . P 16,000.00

380
2. Twenty-three Senators at P7,200 . . . .
165,600.00.
Thus showing that the 1965-1966 Budget (R.A. No. 4642)
implemented the increase in salary of the Speaker and members of
the House of Representatives set by Republic Act 4134, approved
just the preceding year 1964.
The petitioners contend that such implementation is violative of
Article VI, Section 14, of the Constitution, as amended in 1940, that
provides as follows:
SEC. 14. The Senators and the Members of the House of
Representatives shall, unless otherwise provided by law, receive an
annual compensation of seven thousand two hundred pesos each,
including per diems and other emoluments or allowances, and
exclusive only of traveling expenses to and from their respective
districts in the case of Members of the House of Representatives,
and to and from their places of residence in the case of Senators,
when attending sessions of the Congress. No increase in said
compensation shall take effect until after the expiration of the full
term of all the Members of the Senate and of the House of
Representatives approving such, increase. Until otherwise provided
by law, the President of the Senate and the Speaker of the House of
Representatives shall each receive an annual compensation of
sixteen thousand pesos. (Emphasis supplied)
The reason given being that the term of the eight senators elected
in 1963, and who took part in the approval of Republic Act No.
4134, will expire only on December 30, 1969; while the term of the
members of the House who participated in the approval of said Act
expired on December 30, 1965.
From the record we also glean that upon receipt of a written protest
from petitioners (Petition, Annex "A"), along the lines summarized
above, the then Auditor General requested the Solicitor General to
secure a judicial construction of the law involved (Annex "B"); but
the Solicitor General evaded the issue by suggesting that an
opinion on the matter be sought from the Secretary of Justice
(Annex "C", Petition). Conformably to the suggestion, the former
Acting Auditor General endorsed the PHILCONSA letter to the
Secretary of Justice on November 26, 1965; but on or before
January, 1966, and before the Justice Secretary could act,
respondent Aguiluz, as former Acting Auditor General, directed his

representative in Congress, respondent Velasco, to pass in audit

and approve the payment of the increased salaries within the limits
of the Appropriation Act in force; hence the filing of the present
action.
The answer of respondents pleads first the alleged lack of
personality of petitioners to institute the action, for lack of showing
of injury; and that the Speaker and Members of the House should
be joined parties defendant. On the merits, the answer alleges that
the protested action is in conformity with the Constitutional
provisions, insofar as present members of the Lower House are
concerned, for they were elected in 1965, subsequent to the
passage of Republic Act 4134. Their stand, in short, is that the
expiration of the term of the members of the House of
Representatives who approved the increase suffices to make the
higher compensation effective for them, regardless of the term of
the members of the Senate.
The procedural points raised by respondent, through the Solicitor
General, as their counsel, need not give pause. As taxpayers, the
petitioners may bring an action to restrain officials from wasting
public funds through the enforcement of an invalid or
unconstitutional law (Cf. PHILCONSA vs. Gimenez, L-23326,
December 18, 1965; Tayabas vs. Perez, 56 Phil. 257; Pascual vs.
Secretary of Public Works L-10405, December 29, 1960; Pelaez vs.
Auditor General, L-23825, December 24, 1965; Iloilo Palay & Corn
Planters Association vs. Feliciano, L-24022, March 3, 1965).
Moreover, as stated in 52 Am. Jur., page 5:
The rule that a taxpayer can not, in his individual capacity as such,
sue to enjoin an unlawful expenditure or waste of state funds is the
minority doctrine.
On the alleged non-joinder of the members of the Lower House of
Congress as parties defendants, suffice it to say that since the acts
sought to be enjoined were the respondents' passing in audit and
the approval of the payment of the Representatives' increased
salaries, and not the collection or receipt thereof, only respondent
auditors were indispensable or proper parties defendant to this
action.
These preliminary questions out of the way, we now proceed to the
main issue: Does Section 14, Art. VI, of the Constitution require that

381
not only the term of all the members of the House but also that of
all the Senators who approved the increase must have fully expired
before the increase becomes effective? Or, on the contrary, as
respondents contend, does it allow the payment of the increased
compensation to the members of the House of Representatives who
were elected after the expiration of the term of those House
members who approved the increase, regardless of the nonexpiration of the terms of office of the Senators who, likewise,
participated in the approval of the increase?
It is admitted that the purpose of the provision is to place "a legal
bar to the legislators yielding to the natural temptation to increase
their salaries. Not that the power to provide for higher
compensation is lacking, but with the length of time that has to
elapse before an increase becomes effective, there is a deterrent
factor to any such measure unless the need for it is clearly felt"
(Taada & Fernando, Constitution of the Philippines, Vol. 2, p. 867).
Significantly, in establishing what might be termed a waiting period
before the increased compensation for legislators becomes fully
effective, the constitutional provision refers to "all the members of
the Senate and of the House of Representatives" in the same
sentence, as a single unit, without distinction or separation
between them. This unitary treatment is emphasized by the fact
that the provision speaks of the "expiration of the full term" of the
Senators and Representatives that approved the measure, using
the singular form, and not the plural, despite the difference in the
terms of office (six years for Senators and four for Representatives
thereby rendering more evident the intent to consider both houses
for the purpose as indivisible components of one single Legislature.
The use of the word "term" in the singular, when combined with the
following phrase "all the members of the Senate and of the House",
underscores that in the application of Article VI, Section 14, the
fundamental consideration is that the terms of office
of all members of the Legislature that enacted the measure
(whether Senators or Representatives) must have expired before
the increase in compensation can become operative. Such
disregard of the separate houses, in favor of the whole, accords in
turn with the fact that the enactment of laws rests on the shoulders

of the entire Legislative body; responsibility therefor is not

apportionable between the two chambers.
It is also highly relevant, in the Court's opinion, to note that, as
reported by Aruego (Framing of the Constitution, Vol. 1, p. 296, et.
seq.), the committee on legislative power in the Constitutional
Convention of 1934, before it was decided that the Legislature
should be bicameral in form, initially recommended that the
increase in the compensation of legislators should not take effect
until the expiration of the term of office of all members of the
Legislature that approved the increase. The report of the
committee read as follows:
The Senator and Representatives shall receive for their services an
annual compensation of four thousand pesos including per diems
and other emoluments or allowances and exclusive of travelling
expenses to and from their respective residences when attending
sessions of the National Legislature, unless otherwise fixed by
law: Provided, That no increase in this yearly compensation shall
take effect until after the expiration of the terms of office of all the
Members of the Legislature that approved such increase.(Emphasis
supplied) .
The spirit of this restrictive proviso, modified to suit the final choice
of a unicameral legislature, was carried over and made more rigid
in the first draft of the constitutional provision, which read:
Provided, That any increase in said compensation shall not take
effect until after the expiration of the term of office of the Members
of the National Assembly who may be elected subsequent to the
approval of such increase. (Aruego, 1, p. 297)
As recorded by the Committee on Style, and as finally approved
and enacted, Article VI, section 5, of the Constitution of the
Commonwealth, provided that:
No increase in said compensation shall take effect until after the
expiration of the full term of the Members of the National Assembly
elected subsequent to the approval of such increase.
Finally, with the return to bicameralism in the 1940 amendments to
our fundamental law, the limitation assumed its present form:
No increase in said compensation shall take effect until after the
expiration of the full term of all the Members of the Senate and of
the House of Representatives approving such increase.

382
It is apparent that throughout its changes of phraseology the plain
spirit of the restriction has not been altered. From the first proposal
of the committee on the legislative power of the 1934 Convention
down to the present, the intendment of the clause has been to
require expiration of the full term of all members of the Legislature
that approved the higher compensation, whether the Legislature be
unicameral or bicameral, in order to circumvent, as far as possible,
the influence of self-interest in its adoption.
The Solicitor General argues on behalf of the respondents that if
the framers of the 1940 amendments to the Constitution had
intended to require the expiration of the terms not only of the
Representatives but also of the Senators who approved the
increase, they would have just used the expression "term of all the
members of the Congress" instead of specifying "all the members
of the Senate and of the House". This is a distinction without a
difference, since the Senate and the House together constitute the
Congress or Legislature. We think that the reason for specifying the
component chambers was rather the desire to emphasize the
transition from a unicameral to a bicameral legislature as a result of
the 1940 amendments to the Constitution.
It is also contended that there is significance in the use of the
words "of the" before "House" in the provision being considered,
and in the use of the phrase "of the Senate and of the House" when
it could have employed the shorter expression "of the Senate and
the House". It was grammatically correct to refer to "the members
of the Senate and (the members) of the House", because the
members of the Senate are not members of the House. To speak of
"members of the Senate and the House" would imply that the
members of the Senate also held membership in the House.
The argument that if the intention was to require that the term of
office of the Senators, as well as that of the Representatives, must
all expire the Constitution would have spoken of the "terms" (in the
plural) "of the members of the Senate and of the House", instead of
using "term" in the singular (as the Constitution does in section 14
of Article VI), has been already considered. As previously observed,
the use of the singular form "term" precisely emphasizes that in the
provision in question the Constitution envisaged both legislative
chambers as one single unit, and this conclusion is reinforced by

the expression employed, "until the expiration of the full term of

ALL the members of the Senate and of the House of
Representatives approving such increase".
It is finally urged that to require the expiration of the full term of
the Senators before the effectivity of the increased compensation
would subject the present members of the House of
Representatives to the same restrictions as under the Constitution
prior to its amendment. It may well be wondered whether this was
not, in fact, the design of the framers of the 1940 constitutional
amendments. For under either the original limitation or the present
one, as amended, as maximum delay of six (6) years and a
minimum of four (4) is necessary before an increase of legislators'
compensation can take effect.
If that increase were approved in the session immediately following
an election, two assemblymen's terms, of 3 years each, had to
elapse under the former limitation in order that the increase could
become operative, because the original Constitution required that
the new emolument should operate only after expiration of the
term of assemblymen elected subsequently to those who approved
it (Art. VI, sec. 5), and an assemblyman's term was then 3 years
only. Under the Constitution, as amended, the same interval
obtains, since Senators hold office for six (6) years.
On the other hand, if the increase of compensation were approved
by the legislature on its last session just prior to an election, the
delay is reduced to four (4) years under the original restriction,
because to the last year of the term of the approving assemblymen
the full 3-year term of their successors must be added. Once again
an identical period must elapse under the 1940 amendment:
because one-third of the Senators are elected every two years, so
that just before a given election four of the approving Senators' full
six-year term still remain to run.
To illustrate: if under the original Constitution the assemblymen
elected in, say, 1935 were to approve an increase of pay in the
1936 sessions, the new pay would not be effective until after the
expiration of the term of the succeeding assemblymen elected in
1938; i.e., the increase would not be payable until December 30,
1941, six years after 1935. Under the present Constitution, if the
higher pay were approved in 1964 with the participation of

383
Senators elected in 1963, the same would not be collectible until
December 30, 1969, since the said Senators' term would expire on
the latter date.
But if the assemblymen elected in 1935 (under the original
Constitution) were to approve the increase in compensation, not in
1936 but in 1938 (the last of their 3-year term), the new
compensation would still operate on December 30, 1941, four years
later, since the term of assemblymen elected in November of 1938
(subsequent to the approval of the increase) would end in
December 30,1941.
Again, under the present Constitution, if the increase is approved in
the 1965 sessions immediately preceding the elections in
November of that year, the higher compensation would be
operative only on December 30, 1969, also four years later,
because the most recently elected members of the Senate would
then be Senators chosen by the electors in November of 1963, and
their term would not expire until December 30, 1969.
This coincidence of minimum and maximum delays under the
original and the amended constitution can not be just due to
accident, and is proof that the intent and spirit of the Constitutional
restriction on Congressional salaries has been maintained
unaltered. But whether designed or not, it shows how unfounded is
the argument that by requiring members of the present House to
await the expiration of the term of the Senators, who concurred in
approving the increase in compensation, they are placed in a worse
position than under the Constitution as originally written.
The reason for the minimum interval of four years is plainly to
discourage the approval of increases of compensation just before
an election by legislators who can anticipate their reelection with
more or less accuracy. This salutary precaution should not be
nullified by resorting to technical and involved interpretation of the
constitutional mandate.
In resume, the Court agrees with petitioners that the increased
compensation provided by Republic Act No. 4134 is not operative
until December 30, 1969, when the full term of all members of the
Senate and House that approved it on June 20, 1964 will have
expired.
Consequently,
appropriation
for
such
increased
compensation may not be disbursed until December 30, 1969. In so

far as Republic Act No. 4642 (1965-1966 Appropriation Act)

authorizes the disbursement of the increased compensation prior to
the date aforesaid, it also violates the Constitution and must be
held null and void.
In view of the foregoing, the writ of prohibition prayed for is hereby
granted, and the items of the Appropriation Act for the fiscal year
1965-1966 (Republic Act No. 4642) purporting to authorize the
disbursement of the increased compensation to members of the
Senate and the House of Representatives even prior to December
30, 1969 are declared void, as violative of Article VI, section 14, of
the Constitution of the Republic of the Philippines; and the
respondents, the Auditor General and the Auditor of the Congress
of the Philippines, are prohibited and enjoined from approving and
passing in audit any disbursements of the increased compensation
authorized by Republic Act No. 4134 for Senators and members of
the House of Representatives, before December 30, 1969. No costs.
We concur in the foregoing opinion and in the concurring opinions
of Justices Bengzon, Zaldivar and Castro.
Concepcion, C.J., Barrera, Dizon, Regala, Makalintal and Sanchez,
JJ., concur.
Separate Opinions
BENGZON, J.P., J., concurring:
Fully concurring with the ponencia of Justice J.B.L. Reyes, I should
like only to mention a few thoughts related to some points
contained therein.
As stated in the majority opinion, it is argued by respondents that if
it was intended that the increase should take effect at the same
time, the provision of the Constitution could have been phrased as
follows:
No increase in said compensation shall take effect until after the
expiration of the full term of all the Members of
the Congress approving such increase.
They
maintain
that
in
specifying "the
Senate" and "the
House" instead of just using the words "the Congress" the body
obviously considered that inasmuch as the terms of the
Representatives and Senators under the legislature provided for,
would not necessarily coincide, the effective date of the increased

384
salary of the Representativescould also be different from that of
the Senators.
The fact that "Congress" is not used in the provision in question, in
my opinion, is rather an argument for the petitioner
herein. "Congress" is not used, obviously because after every four
years the Congress is dissolved. On the other hand, the term of a
member of the Senate, being six years, goes beyond the duration
of one Congress and extends to that of the next Congress. In other
words, while the term of the members of the House of
Representatives coincides with the lifetime of the Congress, the
term of a member of the Senate goes beyond the existence of one
Congress.
The Constitution, instead, uses (1) "Senate" and "House of
Representatives" and (2) adds "all" before "the Members", clearly
intending that no increase in the compensation therein provided for
shall take effect until after the expiration of the term of the most
junior among the members of the Senate at the time the increase
was approved. Precisely, therefore, because the Constitution
speaks
of "Senate" and "House
of
Representatives"instead
of "Congress", the prohibition against effectivity continues even
after the end of the Congress which approved the measure and,
which amounts to the same thing, even after the end of the term of
the members of the House of Representatives approving the
increase. In specifying "the expiration of the full term of all the
Members of the Senate and of the House of Representatives
approving such increase", the Constitution leaves no doubt that
until after the condition is met as to the Senate, no increase in the
compensation laid down for Senators and Representatives shall
take effect.
It is also contended by respondents that the Constitution in
using "term" instead of "terms" shows the clear intention to
consider the "term" of the Senators independently from that of the
Representatives. The contention is untenable. The provision clearly
uses "term" in the general sense. For, otherwise, even in referring
to members of the Senate alone, it should have used "terms" since
the Senators had originally different terms of office (two, four and
six years), as provided for in Section 3 of Article VI of the
Constitution, a provision contemporaneous with the one involved

herein. Yet just the same, the Constitution uses the would "term"
(singular) to cover all these different terms of office.
I am of the opinion therefore that no other course is open to the
Supreme Court in this case but to apply the provision of the
Constitution restricting the increase of salaries of Senators and
Representatives by subjecting it to a period of waiting. To forestall
the view that the Supreme Court thereby offends equity, because
the other Constitutional officers including the members of said
Court are already receiving their increased salaries under
Republic Act No. 4134, suffice it to bear in mind that it was within
the hands of the legislators themselves if they had so desired, to
have provided that the salary increases of the aforesaid other
Constitution officers take effect at the same time as their own. In
other words, if they had thought it would be inequitable to grant
salary increases to others before they could receive their own
salary increase an argument which, I am glad to note, has not
been advanced they could have easily provided that the salary
increases therein given be effective December 30, 1969, as in their
case.
I consequently reiterate my concurrence.
ZALDIVAR, J., concurring:
During the third regular session of the Fifth Congress of the
Republic of the Philippines House Bill No. 6190 was approved, and
this bill was signed into law on June 20, 1964 by the President of
the Philippines and became Republic Act No. 4134.
Section 1, paragraph A of Republic Act 4134 provides, among
others, that the annual salary of the President of the Senate and of
the Speaker of the House of Representatives shall be forty
thousand pesos, and that of the Senators and Members of the
House of Representatives shall be thirty-two thousand pesos each.
The paragraph ends with this sentence: "The salary increases
herein fixed shall take effect in accordance with the provisions of
the Constitution."
The pertinent provision of the Constitution as far as the effectivity
of any law increasing the compensation of the Senators and
Members of the House of Representatives is concerned reads as
follows:

385
. . . No increase in said compensation shall take effect until after
the expiration of the full term of all the Members of the Senate and
of the House of Representatives approving such increase. . . .
(Article VI, Section 14 of the Constitution)
Inasmuch as House Bill No. 6190 was passed during the third
regular session of the Fifth Congress of the Philippines, in 1964,
said bill was approved by the House of Representatives whose
members were elected in the elections of November, 1961 and
whose term of office would expire on December 29, 1965; and by
the Senate whose membership was composed of: eight Senators
who were elected in November, 1959 and whose term would expire
on December 29, 1965; eight Senators who were elected in
November, 1961 and whose term would expire on December 29,
1967; and eight Senators who were elected in November, 1963
whose term would expire on December 29, 1969.
Mr. Justice J.B.L. Reyes, writing the opinion of the Court in the case
now before Us, interpreting the effectivity clause in paragraph A,
Section 1 of Republic Act 4134 in relation to the pertinent provision
of Article VI, Section 14, of the Constitution, herein-above quoted,
says that the increased compensation provided by Republic Act
4134 for the Senators and Members of the House of
Representatives will not take effect until December 30, 1969. I
concur with this opinion because it will not be until December 29,
1969 when the full term of all the Members of the Senate and of
the House of Representatives that approved the increase in 1964
would expire. And I also agree with the opinion that in so far as
Republic Act No. 4642 (Appropriation Law for the fiscal year 19651966) authorizes the disbursement of the increased compensation
for the Members of the House of Representatives prior to December
30, 1960 violates the Constitution and must be held null and void..
My opinion in this regard is based upon a personal knowledge of
how the constitutional proviso, Article VI, Section 14 of the
Constitution, which is now in question, became a part of our
present Constitution. It was the Second National Assembly which
amended our original Constitution. I was a humble Member of the
Second National Assembly, representing the province of Antique.
The three important amendments that were incorporated in our
Constitution by the Second National Assembly in 1940 were the

provisions regarding (1) the establishment of a bicameral

legislature composed of a House of Representatives and a Senate,
to take the place of the then existing unicameral legislature known
as the National Assembly; (2) the change in the term of the office
of the President of the Philippines, and the Vice-President, which
formerly was for a period of six years, to that of four years, with the
proviso that no person shall serve as President for more than eight
consecutive years; and (3) the creation of the Commission on
Elections.
It is regrettable that the deliberations of the Second National
Assembly on the 1940 amendments to the Constitution were
mostly done in caucuses behind closed doors, and the discussions
were not recorded. It was during the first special sessions of the
Second National Assembly in September, 1939 when discussions on
proposed amendments to the Constitution were held. It was only
after the propose amendments had been approved in caucuses
when the amendments were embodied in a resolution and
submitted to the National Assembly in open session. The
amendments as approved in caucuses were embodied in Resolution
No. 38 and adopted on September 15, 1939. However, during the
second regular sessions in 1940 Resolution No. 38 was amended by
Resolution No. 73 which was adopted on April 11, 1940. That is how
the amendments came to be known as the 1940 Amendments.
Those amendments were approved in a plebiscite that was held on
June 18, 1940.
I still have vivid recollections of the important points brought up
during the deliberations in caucus over proposed amendments and
of the agreements arrived at. I remember too the influences that
worked, and the pressures that were brought to bear upon the
Assemblymen, in the efforts to bring about agreements on very
controversial matters and thus secure the insertion of the desired
amendments to the Constitution. The discussions on the proposed
amendments affecting the legislative branch of the government
were specially of interest to us then because we were in some way
personally affected, as most of us were interested in running for
reelection.
It is not my purpose here to impose on anyone my recollections of
matters that were brought up during our caucuses then, but I only

386
wish to emphasize the fact that my concurring opinion in the
decision of the case now before Us has for its basis my honest and
best recollections of what had transpired, or what had been
expressed, during the caucuses held by the Members of the Second
National Assembly in the deliberations which later brought about
the 1940 amendments.
I distinctly remember that the proposed amendment to change the
legislature from unicameral to that of bicameral, just as the
proposal to change the term of office of the President from six
years without reelection to that of four years with one reelection, at
first met very strong oppositon by a considerable group of
Assemblymen. But somehow the opposition was finally subdued, so
to say. In the case of the legislature, the basic idea of having two
chambers of the legislature one chamber serving as a check to
the other was accepted. It was then considered as a wise idea to
have the Senate as the upper chamber, to be composed of
members who would be elected at large, and it was expected that
those who would be elected to the Senate would be men of national
prestige; prestigious because of their known integrity, in their
record and experience as a public servant, or in their prominence
as a successful member of his profession. It was even said, then,
that the Senate would be a training ground for future Presidents of
the nation. And so, when it was agreed that a bicameral legislature
would be provided in the Constitution, the next matter that had to
be considered was the tenure of office of the members of each of
the two chambers of the legislature. As far as the terms of the
members of the lower chamber, to be known as the House of
Representatives, there was no disagreement over the idea that
their term be for a period of four years, to coincide with the term of
the President. But as far as the term of office of the members of the
upper chamber, to be known as the Senate, there was at first a
divergence of opinion. There was a group that supported the idea
that the term of the members of the upper chamber be four years,
similar to that of the House of Representatives, so that in the
national elections that would take place every four years there
would be elections for President, Vice-President, and all the
members of the Congress of the Philippines. However, there was a
very strong advocacy on the part of top political leaders at that

time that the Senate should be made a continuing body, such that
the complete membership of that chamber should not be elected
during the national elections that would take place every four
years.
Finally, it was agreed that the members of the Senate, which was
decided to be composed of twenty-four, would have a term of six
years, one-third of which number would be elected every two
years. The idea of having elections of one-third of the membership
of the Senate was adjusted to the situation that in between two
national elections there were the elections for local officials. The
question regarding the term of office of the Members of the first
Senate to be elected under the Constitution as amended was
settled by inserting a proviso that the first senators elected should,
in the manner provided by law, be divided equally into three
groups: the senators of the first group to serve for a term of six
years, those of the second group to serve for a term of four years,
and those of the third group for a term of two years (Article VI,
Section 3). And for the purposes of the first elections under the
amended Constitution Commonwealth Act No. 666 was enacted by
the National Assembly providing, as far as the first Senate was
concerned, that "The Senate shall, within ten days after it shall
have been organized with the election of its President, determine
by lot which of the elected Senators shall belong to the group who
shall serve six years, which to the group who shall serve for four
years, and which to the group which shall serve for two years."
(Section 9, Com. Act No. 666)
When the matter regarding the compensation of the members of
both chambers came up for the deliberation, there were proposals
that the Senators be given more compensation than the Members
of the House of Representatives, and a number of proposals were
presented regarding the amount of compensation that would be
paid to the Senators or to the Representatives, as the case may be.
This matter was the subject of long discussions. It was finally
agreed that the amount of compensation for the Senators and for
the Members of the House of Representatives be the same, and it
was fixed at P7,200.00 per annum each, including per diems and
other emoluments, exclusive only of travelling expenses in going to
and returning from the sessions. There was an increase of

387
P2,200.00 over the P5,000.00 per annum that the Members of the
National Assembly were receiving at the time. It is thus seen that in
the matter of compensation the sense of the Members of the
Second National Assembly who amended the Constitution in 1940
was to provide for an equal compensation for the Members of the
Senate and to the Members of the House of Representatives.
When the matter regarding the increase in the compensation of the
Senators and of the Representatives came up for consideration,
there was unanimity among the Assemblymen in support of the
idea that members of the Congress of the Philippines may approve
a law increasing their compensation, but that no Member of the
House of Representatives or of the Senate that approved the law
increasing the compensation should receive the increased
compensation during their term of office when the increase was
approved. I remember that the question as to when the increase of
compensation as approved by the Members of the Congress of the
Philippines should take effect was the subject of a prolonged and
heated discussion. Many Members of the National Assembly wanted
to continue with the provision of Article VI, Section 5 of the original
Constitution that "No increase in said compensation shall take
effect until after the expiration of the full term of the Members of
the National Assembly elected subsequent to the approval of such
increase." I have taken note that no less than eighteen members of
the Second National Assembly in 1940 were members of the 1934
constitutional convention that drafted the original Constitution, and
it was this group of Assemblymen that were zealous in maintaining
the idea that one full term of a member of the legislature
subsequent to the approval of the increase in compensation should
be made to lapse before the increase shall take effect. But this idea
could not be insisted upon because while that was feasible in the
case of Members of the National Assembly which was a unicameral
body, that idea could not be adopted in a bicameral body where the
term of office of the members of one chamber was not the same as
that of the members of the other chamber. I recall that it was finally
agreed to simply adopt the constitutional precept that no Senator
or Member of the House of Representatives may receive any
increase in compensation, as approved by the House and the
Senate of a particular Congress, before the expiration of the term of

all the members of the House of Representatives and of the Senate

that approved the increase. Inasmuch as the term of the Members
of the House of Representatives is shorter than that of the
Senators, it was understood that the expiration of the term of the
Members of the Senate that approved the increase should be
awaited before the increase in compensation would take effect. As
finally worded by the Committee on Style of the Assembly, and that
Committee on Style was headed by the illustrious and indefatigable
Assemblyman Gregorio Perfecto, who later became a worthy
member of this Court, that constitutional precept which became
part of Section 14, Article VI of the amended Constitution was
worded as follows:
No increase in said compensation shall take effect until after the
expiration of the full term of all the Members of the Senate and of
the House of Representatives approving such increase.
It should be noted that the above-quoted portion of Section 14,
Article VI of the Constitution talks of the "expiration of the full term
of all the Members" then followed by the words "of the Senate and
of the House of Representatives approving such increase." This
proviso contemplates not the Representatives or the Senators who
voted in favor of the increase, but the Senate and the House of
Representatives as a body that approved the increase. And so,
because the understanding of the amending Assemblymen was
that the effectiveness of the increase should take place after the
expiration of the term of the Senators with the longest term among
the Members of the Senate that approved the increase the
constitutional proviso was so worded "shall take effect until after
the full term of all the members of the Senate and of the House of
Representatives approving such increase." It will be noted that this
Section 14 starts with using the words "Senators and Members of
the House of Representatives" in referring to the compensation to
be received by each. They are considered individually. But in the
matter of determining the time when the increase is to take effect
they are considered as collective by the use of the phrase "all the
Members of the Senate and of the House of Representatives
approving such increase." The use of the word all includes every
Member of the Senate and of the House of Representatives,
regardless of whether or not he or she voted affirmatively for the

388
increase. It is the House and the Senate that approved the
increase. And so because the effectiveness of the increase depends
on the expiration of the term of all the members of both chambers
it stands to reason that all the members of the two chambers were
taken into consideration, and because when the increase was
approved by the Senate and the House of Representatives there
were members of the Senate whose term of office was longer than
that of some other Members of the Senate and of the Members of
the House of Representatives it is the term of the Senators which
was the longest that should first expire before the increase should
take effect. That is how I understood then that portion of Section
14, Article VI of the Constitution, and I sincerely believe that that
was also how most if not all of my colleagues understood it.
The question precisely was raised whether under that constitutional
proviso, as above-quoted, the Members of the House of
Representatives who are elected during the elections subsequent to
the approval of the increase by the Congress of the Philippines
could receive the increased compensation inasmuch as the term of
those Members of the House that had approved the increase had
already expired. I remember that it was the understanding of the
Members of the National Assembly that those members of the
House of Representatives who would be elected subsequent to the
approval of such increase could not immediately receive the
increased compensation as approved during the preceding
Congress; and neither could the eight Senators who would be
elected along with those Representatives in the same elections. To
allow those newly elected Representatives and Senators to receive
the increased compensation would give rise to a situation whereby
the Members of the House of Representatives and eight Senators
would be receiving a compensation higher than that received by at
least sixteen Members of the Senate, including the President of the
Senate, as the case might happen. That would be inconsistent with
the basic idea adopted by the Members of the National Assembly
that the compensation of the Members of the House of
Representatives and those of the Senate should be the same; and it
is only logical that when we say that the compensation of the
Members of the House and of the Members of the Senate is the

same, that compensation should be the same not only in amount

but also at the same time within their respective terms of office.
It was envisaged by the Members of the National Assembly that the
salary increase, under the constitutional proviso now in question,
would become effective after the lapse of two years, or four years,
as the case may be, after the commencement of the term of office
of those Members of the House of Representatives that are elected
in the elections subsequent to the approval of the increase. In the
case of the lapse of four years, which we have just stated, it would
mean that it would be the Members of the House of
Representatives who would be elected in the second elections
subsequent to the approval of the increase who would receive the
increased compensation.
As I have stated, it was the sense of the Members of the Second
National Assembly that approved the constitutional amendment in
1940 that the increase in the compensation for Members of the
House of Representatives and of the Senate would take effect only
until after the expiration of the full term of the senators who were
Members of the Senate that approved the increase. It is my
recollection that the main idea of the Members of the National
Assembly in adopting the proviso in question was to maintain the
equality of the compensation of the Members of the House of
Representatives and of the Senate at all times.
Three situations were anticipated to happen by the amending
Assemblymen under the constitutional proviso in question:
1. This is the first situation. Let us take the case of the First
Congress of the Philippines which was elected in November, 1941
already under the Constitution as amended in 1940. This Congress
was composed of a House of Representatives whose members were
elected for a term of 4 years, to expire on December 29, 1945; and
of a Senate composed of eight Senators with a term of 6 years to
expire on December 29, 1947; eight senators with a term of 4 years
to expire on December 29, 1945, and eight senators with a term of
2 years to expire on December 29, 1943.
If a law increasing the compensation of Members of Congress was
passed during the sessions of 1942, supposing that there was no
war, the increase would take effect on December 30, 1947, after
the expiration of the term of the eight senators who were elected in

389
the elections in November, 1941 who served for a term of six years.
The term of the eight senators who were elected in 1941 and who
would have served for only two years would have expired on
December 29, 1943; and the term of the eight senators who would
have served for four years would have expired on December 29,
1945. The term (4 years) of the Representatives who were elected
in November, 1941 would also have expired on December 29,
1945. But in November, 1943 elections for eight senators who
would serve for a regular term of 6 years would have taken place;
and likewise elections for a full House of Representatives and for
another set of senators to serve for a full term of six years would
have taken place in November, 1945. If the war did not upset the
national affairs a new Congress would have convened in January,
1946, already composed of a House of Representatives and a
Senate whose members would all have been elected for a term of
six years each.
So, on December 30, 1947 when the increase in the compensation
would
take
effect,
the
increased
compensation
would
be uniformly enjoyed by all members of Congress (Senators and
Representatives alike) those Senators who were elected in the
1943, 1945 and 1947 elections, and by the Members of the House
of Representatives who were elected in the 1945 elections. Under
that situation, the Members of the House of Representatives who
were elected in 1945 would have waited for two years before they
could receive the increased compensation that was approved in the
1942 sessions of Congress. And this is so, because it is on
December 29, 1947, when the six-year term of the eight Senators
who were Members of the Senate that approved the increased
compensation in 1942 (along with the then existing House of
Representatives) had expired.
2. Now let us take the second situation. Let us take the case of a
Congress that is normally constituted. When I say "normally
constituted" I mean a Congress composed of a House of
Representatives whose members had been elected for a term of
four years, and a Senate that is composed of Members who had
each been elected for a term of six years, although at different
elections, as provided in the Constitution.

We make the Third Congress of the Republic of the Philippines as an

example. This Congress covered the period of four years from
January, 1954 to December, 1957, inclusive. During the first two
years (or two regular sessions) this Congress was composed of the
House of Representatives whose members were elected in the
elections of November, 1953 and whose term would expire on
December 29, 1957; and twenty-four senators: eight who were
elected in November, 1953 whose term would expire on December
29, 1959; eight who were elected in November, 1951 and whose
term would expire on December 29, 1957; and eight who were
elected in November, 1949 and whose term would expire on
December 29, 1955.
If a law increasing the salary is passed, say in the first regular
session of the Third Congress in May, 1954, then the increase
provided for in this law would take effect on December 30, 1959.
Why? Because that law was approved by the House of
Representatives (the term of whose members ended on December
29, 1957) and by a Senate at least eight of whose members were
elected in November, 1953 and whose term of office would expire
on December 29, 1959. That means that the members of the House
of Representatives who were elected in the elections of November,
1957 (many of whom may be members of the Third Congress who
voted for the law in May, 1954) would have to wait for two years
before they could receive the increased compensation. In other
words, beginning December 30, 1959, the Members of the House of
Representatives and all the Members of the Senate (those elected
in
the
1955,
1957
and
1959
elections)
would
all
be uniformly getting the increased salary.
3. Let us take the third situation. We still use the Third Congress of
the Republic of the Philippines as an example. Let us suppose that
the law increasing the compensation was passed in the third
regular session of the Third Congress in May, 1956. This time the
Third Congress is composed of the same members of the House of
Representatives who were elected in November, 1953, but the
Senate has a different composition. The Senate would already be
composed of eight new Senators who were elected during the
elections of November, 1955 and whose term of office would expire
on December 29, 1961, the remaining eight Senators elected in

390
1953 and eight Senators who were elected in 1951. If the law
increasing the compensation is passed during the regular session of
1956 this law would be approved by the House of Representatives
and by the Senate that had eight new members whose term would
expire on December 29, 1961. Since the term of these new eight
Senators would expire on December 29, 1961, then the increased
compensation would take effect on December 30, 1961.
In November, 1957 there were elections and a new House of
Representatives was then elected, and the term of office of the
members of the new House would expire on December 29, 1961.
Likewise, a new set of eight Senators were elected whose term
would expire on December 29, 1963. Those Members of the House
of Representatives who were elected in November, 1957, among
whom perhaps were Representatives who voted for the increase
during the 1956 sessions, would not enjoy the increased
compensation because their term would expire on December 29,
1961 the very same date of the termination of the term of the
eight Senators who were elected in 1955 and who were Members of
the Senate that approved the increase during the session of 1956.
In this case the increased compensation would be received by the
Members of the House of Representatives who were elected in the
elections of November, 1961, along with the Senators who were
elected in November, 1961 and the remaining Senators who were
elected in 1959 and 1957. They would all be receiving the same
compensation and at the same time while they are in office during
the term for which they were elected.
As far as the House of Representatives is concerned, the situation
as portrayed in this third case is the same situation as that which
was contemplated by the framers of the original Constitution of
1935 when it was provided in the Constitution as adopted that the
increase in salary should not take effect "until after the expiration
of the full term of the Members of the National Assembly elected
subsequent to the approval of such increase." In the example we
have given, the increase in salaries of the Members of the House of
Representatives which was approved by the Members of the House
in the third regular session of the Third Congress did not take effect
until after the expiration of the full term of the Members of the

House who were elected subsequent to the approval of such

increase.
The case now before Us is similar to Case No. 3 that we have
portrayed above. Republic Act 4134 was approved during the
regular session of the Fifth Congress of the Republic of the
Philippines in May, 1964 and signed into law by the President on
June 20, 1964. As I have stated earlier, the increase provided in this
law was approved by the House of Representatives whose
members were elected in November, 1961, and whose term of
office expired on December 29, 1965; and by the Senate composed
of eight Senators who were elected in November, 1963 whose term
would expire on December 29, 1969, eight Senators who were
elected in November, 1961 whose term would expire on December
29, 1967, and eight Senators who were elected in November, 1959
whose term had expired on December 29, 1965. Inasmuch as the
increase would take effect at the expiration of the term of the
Senators who were elected in November, 1963 which is on
December 29, 1969 the Members of the present House of
Representatives cannot receive this increased compensation during
their present term of office. It will be the Members of the House of
Representatives who will be elected in November, 1969, along with
the Senators elected in 1965, 1967 and 1969, who will receive this
increased compensation. They will then all be receiving the same
compensation during the time that they are in office.
I have endeavored to make a discourse of facts as I know them,
because I sincerely believe that the interpretation embodied in the
opinion penned by my esteemed colleague, Mr. Justice J.B.L. Reyes,
of the pertinent provision of Article VI, Section 14 of our
Constitution is in consonance with the facts and circumstances as I
remember them, and as I know them. As I have stated at the early
part of this concurring opinion, it is not my purpose to impose on
anyone my recollection of what transpired, or of what had been
discussed about, or of what had been agreed upon, by the
Members of the Second National Assembly during the deliberations
which brought about the 1940 amendments to our Constitution. My
perception and my memory are as frail as those of any other
human being, and I may have incurred myself in error. It just
happened that the facts and the circumstances that I have herein

391
narrated, as I remember them, have engendered in my mind an
opinion, nay a conviction, which dovetails with the opinion of my
illustrious colleague that has penned the opinion for the majority of
the Court in this case.
CASTRO J., concurring:
Republic Act 4134, increasing the salary of all the members of
Congress, was approved on June 20, 1964. In the light of the
constitutional prohibition or station embodied in section 14 of
article VI of the Constitution, when does such increase in salary
take effect? Shall effectivity be this year 1966 for the members of
the House of Representatives, considering that the full term of the
members thereof who participated in the approval of the salary
increase has expired? Even if the full terms of all the members of
the Senate, as composed in 1964, have not expired? Or shall
effectivity be only on December 30, 1969, after the expiration of
the full term of the senators elected in 1963? .
I fully adhere to and support the position taken by my esteemed
brethren, Justices J.B.L. Reyes, Jose P. Bengzon and Calixto Zaldivar.
Their thorough going treatment of the issue effectively exploits
logical, historical and empirical considerations leading quite
inevitably to the firm conclusion that the salary increase provided
for by Congress in 1964 can take effect, for any and all members of
Congress, only after the expiration of the full term of the senators
elected in 1963, that is to say, only after December 29, 1969.
There is, however, a vital aspect of the problem that, in my view,
requires not only projection but emphasis as well. This is the
language of the pertinent constitutional prohibition or limitation
which by itself forcefully compels the very conclusion arrived at by
the majority of the Court.
We cannot overemphasize the essential role of language. It is one
of the distinctive qualities of man, especially of modern thinking
man. Man does feel and analyze his intellectual and material
experiences; but more than this he has the ability to articulate, and
through articulation he manages synthesis and brings forth the
creation and evolution of culture, literature, science and law. In the
process, the unceasing effort is to say what is meant and to mean
what is said.

How, then, is the constitutional prohibition or limitation on

congressional salary increases stated? "No increase in said
compensation shall take effect until after the expiration of the full
term of all the members of the Senate and of the House of
Representatives approving such increase." This statement has a
literal message of striking clarity. The phrase "No increase in said
compensation shall take effect" establishes the character of the
provision as a prohibition or limitation, as can be seen from the
unqualified words "no increase". The words "until after the
expiration of the full term" impart the period of time during which
the prohibition or limitation operates, after which period the
increase in compensation can take effect. Whose full term must
first expire before the increase can take effect? It is the full term "of
the members of the Senate and of the House of Representatives
approving such increase." The immediate as well as lasting impact
of these words is that what must first expire is the full term of the
members of both houses of Congress approving the increase. It
cannot be the full term of the members ofeither house, nor yet the
full term of the members of the Senate or that of the members of
the House of Representatives.
The key word is the particle "and". "And" is a conjunction
pertinently defined as meaning "together with," "joined with" (Funk
and Wagnalls New Standard Dictionary of the English Language, p.
105); "along or together with," "added to or linked to," used to
conjoin word with word, phrase with phrase, clause with clause
(Webster's New International Dictionary, p. 98). The word "and"
does not mean "or"; it is a conjunction used to denote a joinder or
union, "binding together relating the one to the other" (See 3 Words
and Phrases, 569-571.).
As understood from the common and usual meaning of the
conjunction "and," the expiration of the full term of all the members
of the Senate is inseparable from the expiration of the full term of
all the members of the House of Representatives. From the
perspective of semantics, it is undeniably perceived that those who
framed the constitutional provision, when they utilized the word
"and," stated what they meant and meant what they stated.
There is, to be sure, a specific rule of interpretation that would
allow "or" to be interchanged with "and," in which event a negation

392
of the concept of joinder would ensue. But this is the exception
rather than the general rule. The exception is resorted to only when
a literal interpretation would pervert the plain intention of the
writer or draftsman as gleaned from the overall context of the
writing and/or from external factors. This does not obtain in the
provision under discussion. Indeed, a departure from the general
rule and a resort to the exception would pervert section 14 of
article VI. Note the parity of compensation of the senators and the
members of the House of Representatives. If the expiration of the
full term of the members of the Senate would be considered as
separable from the expiration of the full term of the members of
the House of Representatives, despite the conjunction "and," then
the result would be to allow members of the House of
Representatives to enjoy the increase in compensation ahead of
the senators, thereby producing a disparity of compensation.
Furthermore, if the framers of the provision were concerned with
the realities of the term of office of the senators and that of the
representatives, more than with the reality of the parity of
compensation, then they should have staggered the effectivity of
entitlement to the increased salary and allowed the first group of
senators elected after the approval of the increase to enjoy such
increase.
The prohibition or limitation may be stated elsewise: "The full terms
of all the members of the Senate and of the House of
Representatives approving such increase must first expire before
an increase in compensation can take effect." Would the literal
meaning of the provision still be in doubt?
The framers of the constitutional provision under discussion
certainly were not wanting of competent legal stylists. With such
more reason, then, must they be regarded as having achieved a
unity of intention, statement and meaning. These experienced
stylists could have so easily phrased the provision differently to
conform to a different intention. For example, it could have been: ".
. . until after the expiration of the full term of all the members of
the Senate or of the House of Representatives approving such
increase, as the case may be." But this was not done, and we
cannot deviate from what able stylists have plainly stated in plain
language.

Concepcion, C.J., Barrera, Dizon, Regala, Makalintal and Sanchez,

JJ., concur.

393
G.R. No. L-34676 April 30, 1974
BENJAMIN
T.
LIGOT, petitioner,
vs.
ISMAEL MATHAY, Auditor General and JOSE V. VELASCO,
Auditor, Congress of the Philippines,respondents.
Maximo A. Savellano, Jr. for petitioner.
Office of the Solicitor General, for respondent.

TEEHANKEE, J.:p
The Court dismisses the petition for review and thereby affirms the
Auditor-General's decision that petitioner as a Congressman whose
term of office expired on December 30, 1969 and qualified for
retirement benefits by virtue of a minimum of twenty years of
government service is entitled to a retirement gratuity based on
the salary actually received by him as a member of Congress of
P7,200.00 per annum. To grant petitioner's contention that the
retirement gratuity of members of Congress; such as himself whose
terms expired on December 30, 1969 should be computed on the
basis of an increased salary of P32,000.00 per annum under
Republic Act 4134 which could only by operative with incoming
members of Congress whose terms of office would commence on
December 30, 1969, by virtue of the Constitutional mandate that
such salary increases could take effect only upon the expiration of
the full term of all members of Congress that approved on June 20,
1964 such increased salary, (since petitioner and other outgoing
members of Congress were constitutionally prohibited from
receiving such salary increase during their term of office) would be
a subtle way of going around the constitutional prohibition and
increasing in effect their compensation during their term of office
and of doing indirectly what could not be done directly.

Petitioner served as a member of the House of Representatives of

the Congress of the Philippines for three consecutive four-year
terms covering a twelve-year span from December 30, 1957 to
December 30, 1969.
During his second term in office (1961-1965), Republic Act No. 4134
"fixing the salaries of constitutional officials and certain other
officials of the national government" was enacted into law and
under section 7 thereof took effect on July 1, 1964. The salaries of
members of Congress (senators and congressman) were increased
under said Act from P7,200.00 to P32,000.00 per annum, but the
Act expressly provided that said increases "shall take effect in
accordance with the provisions of the Constitution." (section 1)
Petitioner was re-elected to a third term (December 30, 1965 to
December 30, 1969) but was held not entitled to the salary
increase of P32,000.00 during such third term by virtue of this
Court's unanimous decision in Philconsa vs. Mathay 1 "that the
increased compensation provided by Republic Act No. 4134 is not
operative until December 30, 1969when the full term of all
members of the Senate and House that approved it on June 20,
1964 will have expired" by virtue of the constitutional mandate in
Section 14, Article VI of the 1935 Constitution which provides that
"No increase in said compensation shall take effect until after the
expiration of the full term of all the members of the Senate and of
the House of Representatives approving such increase."
Petitioner lost his bid for a consecutive fourth term in the 1969
elections and his term having expired on December 30, 1969, filed
a claim for retirement under Commonwealth Act 186, section 12 (c)
as amended by Republic Act 4968 which provided for retirement
gratuity of any official or employee, appointive or elective, with a
total of at least twenty years of service, the last three years of
which are continuous on the basis therein provided "in case of
employees based on the highest rate received and in case of
elected officials on the rates of pay as provided by law." 2

394
On May 8, 1970, the House of Representatives issued a treasury
warrant in the sum of P122,429.86 in petitioner's favor as his
retirement gratuity, using the increased salary of P32,000.00 per
annum of members of Congress which he never received during his
incumbency and which under this Court's above-quoted decision
inPhilconsa vs. Mathay could become operative only on December
30, 1969 with the expiration of the full terms of all members of
Congress that approved on June 20, 1964 such increased salary.

1969, while the Court held in Philconsa vs. Mathay that such
increases would become operative only for members of Congress
elected to serve therein commencing December 30, 1969) should
not have been disallowed, because at the time of his retirement,
the increased salary for members of Congress "as provided by law"
(under Republic Act 4134) was already P32,000.00 per annum.

Respondent Velasco as Congress Auditor did not sign the warrant,

however, pending resolution by the Auditor General of a similar
claim filed by former Representative Melanio T. Singson, whose
term as Congressman likewise expired on December 30, 1969.

1. Since the salary increase to P32,000.00 per annum for members

of Congress under Republic Act 4134 could be operative
only from December 30, 1969 for incoming members of Congress
when the full term of all members of Congress (House and Senate)
that approved the increase (such as petitioner) will have expired,
by virtue of the constitutional mandate of Article VI, section 14 of
the 1935 Constitution, it is self-evident that the "rate of pay as
provided by law" for members of Congress retiring on December
30, 1969 such as petitioner must necessarily be P7,200.00 per
annum, the compensation they received "as provided by law" and
the Constitution during their term of office.

On July 22, 1970, respondent auditor Velasco formally requested

petitioner to return the warrant and its supporting papers for a
recomputation of his retirement claim, enclosing therewith copy of
the Auditor General's adverse decision on ex-Congressman
Singson's claim for retirement gratuity as computed on the basis of
the salary increase of P32,000.00 per annum for members of
Congress under Republic Act No. 4134.

Petitioner's contention is untenable for the following reasons:

Hence the present petition for review by way of appeal from the
adverse decision of the Auditor General.

2. To grant retirement gratuity to members of Congress whose

terms expired on December 30, 1969 computed on the basis of an
increased salary of P32,000.00 per annum (which they were
prohibited by the Constitution from receiving during their term of
office) would be to pay them prohibited emoluments which in effect
increase the salary beyond that which they were permitted by the
Constitution to receive during their incumbency. As stressed by the
Auditor General in his decision in the similar case of petitioner's
colleague, ex-Congressman Singson, "(S)uch a scheme would
contravene the Constitution for it would lead to the same prohibited
result by enabling administrative authorities to do indirectly what
can not be done directly." 3

The thrust of petitioner's appeal is that his claim for retirement

gratuity computed on the basis of the increased salary of
P32,000.00 per annum for members of Congress (which was not
applied to him during his incumbency which ended December 30,

The Auditor-General further aptly observed that "(I)t should not

escape notice that during his entire tenure as Congressman (Dec.
30, 1965 to December 30, 1969) comprising the last four years of
his government service, the herein claimant-retiree was unable to

Petitioner's request for reconsideration was denied in due course on

January 20, 1972, by the Auditor General through respondent
Auditor who further advised petitioner and furnished him with copy
of the 2nd indorsement of June 29, 1971, of the Office of the
President, dismissing the appeal of Congressman Singson from the
Auditor General's adverse decision disallowing the claim for
retirement gratuity, computed on a salary basis of P32,000.00 per
annum.

395
receive the increased salary of P32,000.00 per annum for Members
of Congress precisely because of the ,constitutional ban. To allow
him now to collect such amount in the guise of retirement gratuity
defies logic. Nor does it stand to reason that while he could not
legally receive such rate as salary while still in the service, he
would now be allowed to enjoy it thereafter by virtue of his
retirement." 4
3. Petitioner's contention that since the increased salary of
P32,000.00 per annum was already operative when his retirement
took effect on December 30, 1969, his retirement gratuity should
be based on such increased salary cannot be sustained as far as he
and other members of Congress similarly situated whose term of
office ended on December 30, 1969 are concerned for the simple
reason that a retirement gratuity or benefit is a form of
compensation within the purview of the Constitutional provision
limiting their compensation and "other emoluments" to their salary
as provided by law.
This was the clear teaching of Philconsa vs. Jimenez. 5 In striking
down Republic Act No. 3836 as null and void insofar as it referred to
the retirement of members of Congress and the elected officials
thereof for being violative of the Constitution, this Court held that
"it is evident that retirement benefit is a form or another species of
emolument, because it is a part of compensation for services of one
possessing any office" and that "Republic Act No. 3836 provides for
anincrease in the emoluments of Senators and Members of the
House of Representatives, to take effect upon the approval of said
Act, which was on June 22, 1963. Retirement benefits were
immediately available thereunder, without awaiting the expiration
of the full term of all the Members of the Senate and the House of
Representatives approving such increase. Such provision clearly
runs counter to the prohibition in Article VI, section 14 of the
Constitution." 6
It is thus correctly submitted by the Solicitor General that "(T)o
allow petitioner a retirement gratuity computed on the basis of
P32,000.00 per annum would be a subtle way of increasing his

compensation during his term of office and of achieving indirectly

what he could not obtain directly."
4. The other ancillary contentions of petitioner in pressing his claim
were amply refuted by the Office of the President in dismissing the
appeal in the similar case of ex-Congressman Singson and
therefore likewise serve to show the untenability of petitioner's
stand in this appeal, mutatis mutandis, as follows:
It is evident, therefore, that the increased compensation of P32,000
is the rate of pay prescribed by Republic Act No. 4134 for Mr.
Singson's successor in office, while Mr. Singson and his colleagues
of the same term are limited to the annual compensation of P7,200
fixed in the Constitution. To compute his retirement gratuity at the
rate of P32,000 per annum after the expiration of his term of office
would effectively give him the benefits of increased compensation
to which he was not entitled during his term, thereby violating the
constitutional prohibition against increased compensation of
legislators during their term of office (Sec. 14, Art. VI, Const.) which
was presumably in the mind of Congress when it stated in Republic
Act No. 4134 that "the salary increases herein fixed shall be in
accordance with the provisions of the Constitution.
xxx xxx xxx
Neither an argument of logic nor a judicial pronouncement supports
the proposition that, as Mr. Singson's retirement legally started
simultaneously with the beginning of the term of his successor and
the effective rate of pay of his successor and all incoming members
of Congress was already the new rate of P32,000 per annum, it is
this new rate of pay that should be made the basis in computing his
retirement gratuity. Suffice it to say that P7,200 per annum is Mr.
Singson's authorized compensation during his term of office and,
therefore, the rate of pay prescribed by law for him on his
retirement, while P32,000 per annum is the allowable
compensation of incoming members of Congress during their term
and, hence, the rate of pay prescribed by law for them on their
retirement. There is, then, no basis for equating a constitutionally

396
prohibited compensation for Mr. Singson with a statutory prescribed
rate of pay for his successor in computing his retirement gratuity.
It is likewise contended by Mr. Singson that the new rate of pay
(P32,000) authorized him Republic Act No. 4134 would be used in
the instant case, not to compensate him for services during the
constitutionally prohibited period, but would simply serve as basis
for computing his retirement gratuity for services rendered by him
not only as a member of Congress but in other branches of the
government as well. The foregoing contention carries its own
refutation. Retirement benefit is compensation for services
rendered (PHILCONSA VS. GIMENEZ, supra). Since Mr. Singson
applied for retirement as an "elected official," it is evident that he
seeks compensation not only for services rendered in other
branches of the Government but also for his services as member of
Congress using P32,000, an amount prohibited for him but allowed
for his successor, in the computation of his retirement gratuity." 7
ACCORDINGLY, the petition is hereby dismissed. No costs.
Makalintal, C.J., Castro, Esguerra and Muoz Palma, JJ., concur.
Makasiar, J., is on leave.

397
[G.R. Nos. 132875-76. February 3, 2000]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO
G. JALOSJOS, accused-appellant.
RESOLUTION

2. To deprive the electorate of their elected representative amounts

to taxation without representation.
3. To bar accused-appellant from performing his duties amounts to
his suspension/removal and mocks the renewed mandate entrusted
to him by the people.
4. The electorate of the First District of Zamboanga del Norte wants
their voice to be heard.

YNARES-SANTIAGO, J.:
The accused-appellant, Romeo G. Jalosjos is a full-fledged member
of Congress who is now confined at the national penitentiary while
his conviction for statutory rape on two counts and acts of
lasciviousness on six counts[1] is pending appeal. The accusedappellant filed this motion asking that he be allowed to fully
discharge the duties of a Congressman, including attendance at
legislative sessions and committee meetings despite his having
been convicted in the first instance of a non-bailable offense.
The issue raised is one of first impression.
Does membership in Congress exempt an accused from statutes
and rules which apply to validly incarcerated persons in general? In
answering the query, we are called upon to balance relevant and
conflicting factors in the judicial interpretation of legislative
privilege in the context of penal law.
The accused-appellants "Motion To Be Allowed To Discharge
Mandate As Member of House of Representatives" was filed on the
grounds that
1. Accused-appellants reelection being an expression of popular will
cannot be rendered inutile by any ruling, giving priority to any right
or interest not even the police power of the State.

5. A precedent-setting U.S. ruling allowed a detained lawmaker to

attend sessions of the U.S. Congress.
6. The House treats accused-appellant as a bona fide member
thereof and urges a co-equal branch of government to respect its
mandate.
7. The concept of temporary detention does not necessarily curtail
the duty of accused-appellant to discharge his mandate.
8.
Accused-appellant
has
always
complied
conditions/restrictions when allowed to leave jail.

with

the

The primary argument of the movant is the "mandate of sovereign

will." He states that the sovereign electorate of the First District of
Zamboanga del Norte chose him as their representative in
Congress. Having been re-elected by his constituents, he has the
duty to perform the functions of a Congressman. He calls this a
covenant with his constituents made possible by the intervention of
the State. He adds that it cannot be defeated by insuperable
procedural restraints arising from pending criminal cases.
True, election is the expression of the sovereign power of the
people. In the exercise of suffrage, a free people expects to achieve
the continuity of government and the perpetuation of its benefits.
However, inspite of its importance, the privileges and rights arising

398
from having been elected may be enlarged or restricted by law. Our
first task is to ascertain the applicable law.

The 1973 Constitution broadened the privilege of immunity as

follows:

We start with the incontestable proposition that all top officials of

Government-executive, legislative, and judicial are subject to the
majesty of law. There is an unfortunate misimpression in the public
mind that election or appointment to high government office, by
itself, frees the official from the common restraints of general law.
Privilege has to be granted by law, not inferred from the duties of a
position. In fact, the higher the rank, the greater is the requirement
of obedience rather than exemption.

Article VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all

offenses punishable by not more than six years imprisonment, be
privileged from arrest during his attendance at its sessions and in
going to and returning from the same.

The immunity from arrest or detention of Senators and members of

the House of Representatives, the latter customarily addressed as
Congressmen, arises from a provision of the Constitution. The
history of the provision shows that the privilege has always been
granted in a restrictive sense. The provision granting an exemption
as a special privilege cannot be extended beyond the ordinary
meaning of its terms. It may not be extended by intendment,
implication or equitable considerations.
The 1935 Constitution provided in its Article VI on the Legislative
Department:
Sec. 15. The Senators and Members of the House of
Representatives shall in all cases except treason, felony, and
breach of the peace be privileged from arrest during their
attendance at the sessions of Congress, and in going to and
returning from the same; xxx.
Because of the broad coverage of felony and breach of the peace,
the exemption applied only to civil arrests. A congressman like the
accused-appellant, convicted under Title Eleven of the Revised
Penal Code could not claim parliamentary immunity from arrest. He
was subject to the same general laws governing all persons still to
be tried or whose convictions were pending appeal.

For offenses punishable by more than six years imprisonment,

there was no immunity from arrest. The restrictive interpretation of
immunity and the intent to confine it within carefully defined
parameters is illustrated by the concluding portion of the provision,
to wit:
xxx but the Batasang Pambansa shall surrender the member
involved to the custody of the law within twenty four hours after its
adjournment for a recess or for its next session, otherwise such
privilege shall cease upon its failure to do so.
The present Constitution adheres to the same restrictive rule minus
the obligation of Congress to surrender the subject Congressman to
the custody of the law. The requirement that he should be
attending sessions or committee meetings has also been removed.
For relatively minor offenses, it is enough that Congress is in
session.
The accused-appellant argues that a member of Congress function
to attend sessions is underscored by Section 16 (2), Article VI of the
Constitution which states that
(2) A majority of each House shall constitute a quorum to do
business, but a smaller number may adjourn from day to day and
may compel the attendance of absent Members in such manner,
and under such penalties, as such House may provide.
However, the accused-appellant has not given any reason why he
should be exempted from the operation of Section 11, Article VI of
the Constitution. The members of Congress cannot compel absent

399
members to attend sessions if the reason for the absence is a
legitimate one. The confinement of a Congressman charged with a
crime punishable by imprisonment of more than six months is not
merely authorized by law, it has constitutional foundations.

The accused-appellant states that the plea of the electorate which

voted him into office cannot be supplanted by unfounded fears that
he might escape eventual punishment if permitted to perform
congressional duties outside his regular place of confinement.

Accused-appellants reliance on the ruling in Aguinaldo v. Santos[2],

which states, inter alia, that

It will be recalled that when a warrant for accused-appellants arrest

was issued, he fled and evaded capture despite a call from his
colleagues in the House of Representatives for him to attend the
sessions and to surrender voluntarily to the authorities. Ironically, it
is now the same body whose call he initially spurned which
accused-appellant is invoking to justify his present motion. This can
not be countenanced because, to reiterate, aside from its being
contrary to well-defined Constitutional restrains, it would be a
mockery of the aims of the States penal system.

The Court should never remove a public officer for acts done prior
to his present term of office. To do otherwise would be to deprive
the people of their right to elect their officers. When a people have
elected a man to office, it must be assumed that they did this with
the knowledge of his life and character, and that they disregarded
or forgave his fault or misconduct, if he had been guilty of any. It is
not for the Court, by reason of such fault or misconduct, to
practically overrule the will of the people.
will not extricate him from his predicament. It can be readily seen
in the above-quoted ruling that the Aguinaldo case involves the
administrative removal of a public officer for acts done prior to his
present term of office. It does not apply to imprisonment arising
from the enforcement of criminal law. Moreover, in the same way
that preventive suspension is not removal, confinement pending
appeal is not removal. He remains a congressman unless expelled
by Congress or, otherwise, disqualified.
One rationale behind confinement, whether pending appeal or after
final conviction, is public self-defense. Society must protect itself. It
also serves as an example and warning to others.
A person charged with crime is taken into custody for purposes of
the administration of justice. As stated in United States v. Gustilo,
[3]
it is the injury to the public which State action in criminal law
seeks to redress. It is not the injury to the complainant. After
conviction in the Regional Trial Court, the accused may be denied
bail and thus subjected to incarceration if there is risk of his
absconding.[4]

Accused-appellant argues that on several occasions, the Regional

Trial Court of Makati granted several motions to temporarily leave
his cell at the Makati City Jail, for official or medical reasons, to wit:
a) to attend hearings of the House Committee on Ethics held at the
Batasan Complex, Quezon City, on the issue of whether to
expel/suspend him from the House of Representatives;
b) to undergo dental examination and treatment at the clinic of his
dentist in Makati City;
c) to undergo a thorough medical check-up at the Makati Medical
Center, Makati City;
d) to register as a voter at his hometown in Dapitan City. In this
case, accused-appellant commuted by chartered plane and private
vehicle.
He also calls attention to various instances, after his transfer at the
New Bilibid Prison in Muntinlupa City, when he was likewise
allowed/permitted to leave the prison premises, to wit:

400
a) to join "living-out" prisoners on "work-volunteer program" for the
purpose of 1) establishing a mahogany seedling bank and 2)
planting mahogany trees, at the NBP reservation. For this purpose,
he was assigned one guard and allowed to use his own vehicle and
driver in going to and from the project area and his place of
confinement.
b) to continue with his dental treatment at the clinic of his dentist
in Makati City.
c) to be confined at the Makati Medical Center in Makati City for his
heart condition.
There is no showing that the above privileges are peculiar to him or
to a member of Congress. Emergency or compelling temporary
leaves from imprisonment are allowed to all prisoners, at the
discretion of the authorities or upon court orders.
What the accused-appellant seeks is not of an emergency nature.
Allowing accused-appellant to attend congressional sessions and
committee meetings for five (5) days or more in a week will
virtually make him a free man with all the privileges appurtenant to
his position. Such an aberrant situation not only elevates accusedappellants status to that of a special class, it also would be a
mockery of the purposes of the correction system. Of particular
relevance in this regard are the following observations of the Court
in Martinez v. Morfe:[5]

criminal offense, they would be considered immune during their

attendance in Congress and in going to and returning from the
same. There is likely to be no dissent from the proposition that a
legislator or a delegate can perform his functions efficiently and
well, without the need for any transgression of the criminal law.
Should such an unfortunate event come to pass, he is to be treated
like any other citizen considering that there is a strong public
interest in seeing to it that crime should not go unpunished. To the
fear that may be expressed that the prosecuting arm of the
government might unjustly go after legislators belonging to the
minority, it suffices to answer that precisely all the safeguards
thrown around an accused by the Constitution, solicitous of the
rights of an individual, would constitute an obstacle to such an
attempt at abuse of power. The presumption of course is that the
judiciary would remain independent. It is trite to say that in each
and every manifestation of judicial endeavor, such a virtue is of the
essence.
The accused-appellant avers that his constituents in the First
District of Zamboanga del Norte want their voices to be heard and
that since he is treated as bona fide member of the House of
Representatives, the latter urges a co-equal branch of government
to respect his mandate. He also claims that the concept of
temporary detention does not necessarily curtail his duty to
discharge his mandate and that he has always complied with the
conditions/restrictions when he is allowed to leave jail.
We remain unpersuaded.

The above conclusion reached by this Court is bolstered and

fortified by policy considerations. There is, to be sure, a full
recognition of the necessity to have members of Congress, and
likewise delegates to the Constitutional Convention, entitled to the
utmost freedom to enable them to discharge their vital
responsibilities, bowing to no other force except the dictates of
their conscience. Necessarily the utmost latitude in free speech
should be accorded them. When it comes to freedom from arrest,
however, it would amount to the creation of a privileged class,
without justification in reason, if notwithstanding their liability for a

No less than accused-appellant himself admits that like any other

member of the House of Representatives "[h]e is provided with a
congressional office situated at Room N-214, North Wing Building,
House of Representatives Complex, Batasan Hills, Quezon City,
manned by a full complement of staff paid for by Congress.
Through [an] inter-department coordination, he is also provided
with an office at the Administration Building, New Bilibid Prison,
Muntinlupa City, where he attends to his constituents." Accusedappellant further admits that while under detention, he has filed

401
several bills and resolutions. It also appears that he has been
receiving his salaries and other monetary benefits. Succinctly
stated, accused-appellant has been discharging his mandate as a
member of the House of Representative consistent with the
restraints upon one who is presently under detention. Being a
detainee, accused-appellant should not even have been allowed by
the prison authorities at the National Pentientiary to perform these
acts.
When the voters of his district elected the accused-appellant to
Congress, they did so with full awareness of the limitations on his
freedom of action. They did so with the knowledge that he could
achieve only such legislative results which he could accomplish
within the confines of prison. To give a more drastic illustration, if
voters elect a person with full knowledge that he is suffering from a
terminal illness, they do so knowing that at any time, he may no
longer serve his full term in office.
In the ultimate analysis, the issue before us boils down to a
question of constitutional equal protection.
The Constitution guarantees: "x x x nor shall any person be denied
the equal protection of laws."[6] This simply means that all persons
similarly situated shall be treated alike both in rights enjoyed and
responsibilities imposed.[7] The organs of government may not show
any undue favoritism or hostility to any person. Neither partiality
nor prejudice shall be displayed.
Does being an elective official result in a substantial distinction that
allows different treatment? Is being a Congressman a substantial
differentiation which removes the accused-appellant as a prisoner
from the same class as all persons validly confined under law?
The performance of legitimate and even essential duties by public
officers has never been an excuse to free a person validly in prison.
The duties imposed by the "mandate of the people" are
multifarious. The accused-appellant asserts that the duty to
legislate ranks highest in the hierarchy of government. The

accused-appellant is only one of 250 members of the House of

Representatives, not to mention the 24 members of the Senate,
charged with the duties of legislation. Congress continues to
function well in the physical absence of one or a few of its
members. Depending on the exigency of Government that has to
be addressed, the President or the Supreme Court can also be
deemed the highest for that particular duty. The importance of a
function depends on the need for its exercise. The duty of a mother
to nurse her infant is most compelling under the law of nature. A
doctor with unique skills has the duty to save the lives of those with
a particular affliction. An elective governor has to serve provincial
constituents. A police officer must maintain peace and order. Never
has the call of a particular duty lifted a prisoner into a different
classification from those others who are validly restrained by law.
A strict scrutiny of classifications is essential lest wittingly or
otherwise, insidious discriminations are made in favor of or against
groups or types of individuals.[8]
The Court cannot validate badges of inequality. The necessities
imposed by public welfare may justify exercise of government
authority to regulate even if thereby certain groups may plausibly
assert that their interests are disregarded. [9]
We, therefore, find that election to the position of Congressman is
not a reasonable classification in criminal law enforcement. The
functions and duties of the office are not substantial distinctions
which lift him from the class of prisoners interrupted in their
freedom and restricted in liberty of movement. Lawful arrest and
confinement are germane to the purposes of the law and apply to
all those belonging to the same class.[10]
Imprisonment is the restraint of a mans personal liberty; coercion
exercised upon a person to prevent the free exercise of his power of
locomotion.[11]
More explicitly, "imprisonment" in its general sense, is the restraint
of ones liberty. As a punishment, it is restraint by judgment of a

402
court or lawful tribunal, and is personal to the accused. [12] The term
refers to the restraint on the personal liberty of another; any
prevention of his movements from place to place, or of his free
action according to his own pleasure and will. [13] Imprisonment is
the detention of another against his will depriving him of his power
of locomotion[14] and it "[is] something more than mere loss of
freedom. It includes the notion of restraint within limits defined by
wall or any exterior barrier."[15]
It can be seen from the foregoing that incarceration, by its nature,
changes an individuals status in society. [16] Prison officials have the
difficult and often thankless job of preserving the security in a
potentially explosive setting, as well as of attempting to provide
rehabilitation that prepares inmates for re-entry into the social
mainstream. Necessarily, both these demands require the
curtailment and elimination of certain rights.[17]
Premises considered, we are constrained to rule against the
accused-appellants claim that re-election to public office gives
priority to any other right or interest, including the police power of
the State.
WHEREFORE, the instant motion is hereby DENIED.
SO ORDERED.
Kapunan, Panganiban, Quisumbing, Purisima, Pardo, Buena, and De
Leon, Jr., JJ., concur.
Gonzaga-Reyes, J., see separate concurring opinion.
Davide, Jr., C.J., Bellosillo, Melo, Puno,
JJ., concurs in the main and separate opinion.

Vitug, and Mendoza,

403
G.R. No. L-15905

August 3, 1966

NICANOR T. JIMENEZ, ET AL., plaintiffs and appellants,

vs.
BARTOLOME CABANGBANG, defendant and appellee.
Liwag and Vivo and S. Artiaga, Jr. for plaintiffs and appellants.
Jose S. Zafra and Associates and V. M. Fortich Zerda for defendant
and appellee.

CONCEPCION, C.J.:
This is an ordinary civil action, originally instituted in the Court of
First Instance of Rizal, for the recovery, by plaintiffs Nicanor T.
Jimenez, Carlos J. Albert and Jose L. Lukban, of several sums of
money, by way of damages for the publication of an allegedly
libelous letter of defendant Bartolome Cabangbang. Upon being
summoned, the latter moved to dismiss the complaint upon the
ground that the letter in question is not libelous, and that, even if
were, said letter is a privileged communication. This motion having
been granted by the lower court, plaintiffs interposed the present
appeal from the corresponding order of dismissal.
The issues before us are: (1) whether the publication in question is
a privileged communication; and, if not, (2) whether it is libelous or
not.
The first issue stems from the fact that, at the time of said
publication, defendant was a member of the House of
Representatives and Chairman of its Committee on National
Defense, and that pursuant to the Constitution:
The Senators and Members of the House of Representatives shall in
all cases except treason, felony, and breach of the peace, be
privileged from arrest during their attendance at the sessions of the

Congress, and in going to and returning from the same; and for any
speech or debate therein, they shall not be questioned in any other
place. (Article VI, Section 15.)
The determination of the first issue depends on whether or not the
aforementioned publication falls within the purview of the phrase
"speech or debate therein" that is to say, in Congress used in
this provision.
Said expression refers to utterances made by Congressmen in the
performance of their official functions, such as speeches delivered,
statements made, or votes cast in the halls of Congress, while the
same is in session, as well as bills introduced in Congress, whether
the same is in session or not, and other acts performed by
Congressmen, either in Congress or outside the premises housing
its offices, in the official discharge of their duties as members of
Congress and of Congressional Committees duly authorized to
perform its functions as such, at the time of the performance of the
acts in question.1
The publication involved in this case does not belong to this
category. According to the complaint herein, it was an open letter
to the President of the Philippines, dated November 14, 1958, when
Congress presumably was not in session, and defendant caused
said letter to be published in several newspapers of general
circulation in the Philippines, on or about said date. It is obvious
that, in thus causing the communication to be so published, he was
not performing his official duty, either as a member of Congress or
as officer or any Committee thereof. Hence, contrary to the finding
made by His Honor, the trial Judge, said communication is not
absolutely privileged.
Was it libelous, insofar as the plaintiffs herein are concerned?
Addressed to the President, the communication began with the
following paragraph:

404
In the light of the recent developments which however unfortunate
had nevertheless involved the Armed Forces of the Philippines and
the unfair attacks against the duly elected members of Congress of
engaging in intriguing and rumor-mongering, allow me, Your
Excellency, to address this open letter to focus public attention to
certain vital information which, under the present circumstances, I
feel it my solemn duty to our people to expose.1wph1.t
It has come to my attention that there have been allegedly three
operational plans under serious study by some ambitious AFP
officers, with the aid of some civilian political strategists.
Then, it describes the "allegedly three (3) operational plans"
referred to in the second paragraph. The first plan is said to be "an
insidious plan or a massive political build-up" of then Secretary of
National Defense, Jesus Vargas, by propagandizing and glamorizing
him in such a way as to "be prepared to become a candidate for
President in 1961". To this end, the "planners" are said to "have
adopted the sales-talk that Secretary Vargas is 'Communists' Public
Enemy No. 1 in the Philippines." Moreover, the P4,000,000.00
"intelligence and psychological warfare funds" of the Department of
National Defense, and the "Peace and Amelioration Fund" the
letter says are "available to adequately finance a political
campaign". It further adds:
It is reported that the "Planners" have under their control the
following: (1) Col. Nicanor Jimenez of NICA,(2) Lt. Col. Jose Lukban
of NBI, (3) Capt. Carlos Albert (PN) of G-2 AFP, (4) Col. Fidel Llamas
of MIS (5) Lt. Col. Jose Regala of the Psychological Warfare Office,
DND, and (6) Major Jose Reyna of the Public information Office,
DND. To insure this control, the "Planners" purportedly sent Lt. Col.
Job Mayo, Chief of MIS to Europe to study and while Mayo was in
Europe, he was relieved by Col. Fidel Llamas. They also sent Lt. Col.
Deogracias Caballero, Chief of Psychological Warfare Office, DND,
to USA to study and while Caballero was in USA, he was relieved by
Lt. Col. Jose Regala. The "Planners" wanted to relieve Lt. Col.
Ramon Galvezon, Chief of CIS (PC) but failed. Hence, Galvezon is
considered a missing link in the intelligence network. It is, of

course, possible that the offices mentioned above are unwitting

tools of the plan of which they may have absolutely no knowledge.
(Emphasis ours.)
Among the means said to be used to carry out the plan the letter
lists, under the heading "other operational technique the following:
(a) Continuous speaking engagements all over the Philippines for
Secretary Vargas to talk on "Communism" and Apologetics on
civilian supremacy over the military;
(b) Articles in magazines, news releases, and hundreds of letters
"typed in two (2) typewriters only" to Editors of magazines and
newspapers, extolling Secretary Vargas as the "hero of democracy
in 1951, 1953, 1955 and 1957 elections";
(c) Radio announcements extolling Vargas and criticizing the
administration;
(d) Virtual assumption by Vargas of the functions of the Chief of
Staff and an attempt to pack key positions in several branches of
the Armed Forces with men belonging to his clique;
(e) Insidious propaganda and rumors spread in such a way as to
give the impression that they reflect the feeling of the people or the
opposition parties, to undermine the administration.
Plan No. II is said to be a "coup d'etat", in connection with which
the "planners" had gone no further than the planning stage,
although the plan "seems to be held in abeyance and subject to
future developments".
Plan No. III is characterized as a modification of Plan No. I, by trying
to assuage the President and the public with a loyalty parade, in
connection with which Gen. Arellano delivered a speech challenging
the authority and integrity of Congress, in an effort to rally the
officers and men of the AFP behind him, and gain popular and
civilian support.

405
The letter in question recommended.: (1) that Secretary Vargas be
asked to resign; (2) that the Armed Forces be divorced absolutely
from politics; (3) that the Secretary of National Defense be a
civilian, not a professional military man; (4) that no Congressman
be appointed to said office; (5) that Gen. Arellano be asked to
resign or retire; (6) that the present chiefs of the various
intelligence agencies in the Armed Forces including the chiefs of
the NICA, NBI, and other intelligence agencies mentioned
elsewhere in the letter, be reassigned, considering that "they were
handpicked by Secretary Vargas and Gen. Arellano", and that,
"most probably, they belong to the Vargas-Arellano clique"; (7) that
all military personnel now serving civilian offices be returned to the
AFP, except those holding positions by provision of law; (8) that the
Regular Division of the AFP stationed in Laur, Nueva Ecija, be
dispersed by batallion strength to the various stand-by or training
divisions throughout the country; and (9) that Vargas and Arellano
should disqualify themselves from holding or undertaking an
investigation of the planned coup d'etat".
We are satisfied that the letter in question is not sufficient to
support plaintiffs' action for damages. Although the letter says that
plaintiffs are under the control of the unnamed persons therein
alluded to as "planners", and that, having been handpicked by
Secretary Vargas and Gen. Arellano, plaintiffs "probably belong to
the Vargas-Arellano clique", it should be noted that defendant,
likewise, added that "it is of course possible" that plaintiffs "are
unwitting tools of the plan of which they may have absolutely no
knowledge". In other words, the very document upon which
plaintiffs' action is based explicitly indicates that they might
be absolutely unaware of the alleged operational plans, and that
they may be merely unwitting tools of the planners. We do not
think that this statement is derogatory to the plaintiffs, to the point
of entitling them to recover damages, considering that they are
officers of our Armed Forces, that as such they are by law, under
the control of the Secretary of National Defense and the Chief of
Staff, and that the letter in question seems to suggest that the
group therein described as "planners" include these two (2) high
ranking officers.

It is true that the complaint alleges that the open letter in question
was written by the defendant, knowing that it is false and with the
intent to impeach plaintiffs' reputation, to expose them to public
hatred, contempt, dishonor and ridicule, and to alienate them from
their associates, but these allegations are mere conclusions which
are inconsistent with the contents of said letter and can not prevail
over the same, it being the very basis of the complaint. Then too,
when plaintiffs allege in their complaint that said communication is
false, they could not have possibly meant that they were aware of
the alleged plan to stage a coup d'etat or that they were knowingly
tools of the "planners". Again, the aforementioned passage in the
defendant's letter clearly implies that plaintiffs were not among the
"planners" of said coup d'etat, for, otherwise, they could not be
"tools", much less, unwittingly on their part, of said "planners".
Wherefore, the order appealed from is hereby affirmed. It is so
ordered.
Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P.,
Zaldivar, Sanchez and Castro, JJ., concur.

406
G.R. No. L-68159 March 18, 1985
HOMOBONO
vs.
FERNANDO PACANA, JR., respondent

ADAZA, petitioner,

Petitioner took his oath of office as Mambabatas Pambansa on July

19, 1984 1 and since then he has discharged the functions of said
office.

ESCOLIN, J.:

On July 23, 1984, respondent took his oath of office as governor of

Misamis Oriental before President Ferdinand E. Marcos, 2 and
started to perform the duties of governor on July 25, 1984.

The issues posed for determination in this petition for prohibition

with prayer for a writ of preliminary injunction and/or restraining
order are: [1] whether or not a provincial governor who was elected
and had qualified as a Mambabatas Pambansa [MP] can exercise
and discharge the functions of both offices simultaneously; and [2]
whether or not a vice-governor who ran for the position of
Mambabatas Pambansa, but lost, can continue serving as vicegovernor and subsequently succeed to the office of governor if the
said office is vacated.

Claiming to be the lawful occupant of the governor's office,

petitioner has brought this petition to exclude respondent
therefrom. He argues that he was elected to said office for a term
of six years, that he remains to be the governor of the province
until his term expires on March 3, 1986 as provided by law, and
that within the context of the parliamentary system, as in France,
Great Britain and New Zealand, a local elective official can hold the
position to which he had been elected and simultaneously be an
elected member of Parliament.

The factual background of the present controversy is as follows:

Petitioner further contends that respondent Pacana should be

considered to have abandoned or resigned from the position of
vice-governor when he filed his certificate of candidacy for the
1984 Batas Pambansa elections; and since respondent had
reverted to the status of a mere private citizen after he lost in the
Batas Pambansa elections, he could no longer continue to serve as
vice-governor, much less assume the office of governor.

Petitioner Homobono A. Adaza was elected governor of the province

of Misamis Oriental in the January 30, 1980 elections. He took his
oath of office and started discharging his duties as provincial
governor on March 3, 1980. Elected vice-governor for said province
in the same elections was respondent Fernando Pacana, Jr., who
likewise qualified for and assumed said office on March 3, 1980.
Under the law, their respective terms of office would expire on
March 3, 1986.
On March 27, 1984, respondent Pacana filed his certificate of
candidacy for the May 14, 1984 Batasan Pambansa elections;
petitioner Adaza followed suit on April 27, 1984. In the ensuing
elections, petitioner won by placing first among the candidates,
while respondent lost.

1. The constitutional prohibition against a member of the Batasan

Pambansa from holding any other office or employment in the
government during his tenure is clear and unambiguous. Section
10, Article VIII of the 1973 Constitution provides as follows:
Section 10 A member of the National Assembly [now Batasan
Pambansa shall not hold any other office or employment in the
government or any subdivision, agency or instrumentality thereof,
including government owned or controlled corporations, during his
tenure, except that of prime minister or member of the cabinet. ...

407
The language used in the above-cited section is plain, certain and
free from ambiguity. The only exceptions mentioned therein are the
offices of prime minister and cabinet member. The wisdom or
expediency of the said provision is a matter which is not within the
province of the Court to determine.
A public office is a public trust. 3 It is created for the interest and
the benefit of the people. As such, a holder thereof "is subject to
such regulations and conditions as the law may impose" and "he
cannot complain of any restrictions which public policy may dictate
on his holding of more than one office." 4 It is therefore of no avail
to petitioner that the system of government in other states allows a
local elective official to act as an elected member of the parliament
at the same time. The dictate of the people in whom legal
sovereignty lies is explicit. It provides no exceptions save the two
offices specifically cited in the above-quoted constitutional
provision. Thus, while it may be said that within the purely
parliamentary system of government no incompatibility exists in
the nature of the two offices under consideration, as incompatibility
is understood in common law, the incompatibility herein present is
one created by no less than the constitution itself. In the case at
bar, there is no question that petitioner has taken his oath of office
as an elected Mambabatas Pambansa and has been discharging his
duties as such. In the light of the oft-mentioned constitutional
provision, this fact operated to vacate his former post and he
cannot now continue to occupy the same, nor attempt to discharge
its functions.
2. The second proposition advanced by petitioner is that
respondent Pacana, as a mere private citizen, had no right to
assume the governorship left vacant by petitioner's election to the
Batasan Pambansa. He maintains that respondent should be
considered as having abandoned or resigned from the vicegovernorship when he filed his certificate of candidacy for the
Batas Pambansa elections. The point pressed runs afoul of Batas
Pambansa Blg. 697, the law governing the election of members of
the Batasan Pambansa on May 14, 1984, Section 13[2] of which
specifically provides that "governors, mayors, members of the

various sangguniang or barangay officials shall, upon filing a

certificate of candidacy, be considered on forced leave of absence
from office." Indubitably, respondent falls within the coverage of
this provision, considering that at the time he filed his certificate of
candidacy for the 1984 Batasan Pambansa election he was a
member of the Sangguniang Panlalawigan as provided in Sections
204 and 205 of Batas Pambansa Blg. 337, 5 otherwise known as the
Local Government Code. The reason the position of vice-governor
was not included in Section 13[2] of BP Blg. 697 is explained by the
following interchange between Assemblymen San Juan and Davide
during the deliberations on said legislation:
MR. DAVIDE. If I was able to get correctly the proposed amendment
it would cover only governors and members of the different
sanggunians? Mayor, governors?
MR. SAN JUAN. Governors, mayors, members of the various
sanggunian or barangay officials. A vice-governor is a member of
the Sanggunian Panlalawigan.
MR. DAVIDE. All. Why don't we instead use the word, "Local
officials?
MR. SAN JUAN. Well, Mr. Speaker, your humble representation ...
MR. DAVIDE. And, secondly, why don't we include the vicegovernor, the vice-mayors?
MR. SAN JUAN. Because they are members of the Sanggunians, Mr.
Speaker. They are covered by the provision on members of
sanggunian. [Record of Proceedings, February 20, 1984, p. 92,
Rollo]
Thus, when respondent reassumed the position of vice-governor
after the Batas Pambansa elections, he was acting within the law.
His succession to the governorship was equally legal and valid, the
same being in accordance with Section 204[2] [a] of the same Local
Government Code, which reads as follows:

408
SECTION 204. Powers, Duties and Privileges:
1] x x x
2] He shall:
a] Assume the office of the governor for the unexpired term of the
latter in the cases provided for in Section 48, paragraph 1 6 of this
Code;
WHEREFORE, the instant petition is hereby dismissed. No costs.
SO ORDERED.

409
G.R. No. L-51122 March 25, 1982
EUGENIO J. PUYAT, ERWIN L. CHIONGBIAN, EDGARDO P.
REYES, ANTONIO G. PUYAT, JAIME R. BLANCO, RAFAEL R.
RECTO
and
REYNALDO
L.
LARDIZABAL, petitioners,
vs.
HON. SIXTO T. J. DE GUZMAN, JR., as Associate
Commissioner of the Securities & Exchange Commission,
EUSTAQUIO T. C. ACERO, R. G. VILDZIUS, ENRIQUE M. BELO,
MANUEL G. ABELLO, SERVILLANO DOLINA, JUANITO
MERCADO and ESTANISLAO A. FERNANDEZ, respondents.

MELENCIO-HERRERA, J.:
This suit for certiorari and Prohibition with Preliminary Injunction is
poised against the Order of respondent Associate Commissioner of
the Securities and Exchange Commission (SEC) granting
Assemblyman Estanislao A. Fernandez leave to intervene in SEC
Case No. 1747.

Those named on the left list may be called the Puyat Group; those
on the right, the Acero Group. Thus, the Puyat Group would be in
control of the Board and of the management of IPI.
b) May 25, 1979. The Acero Group instituted at the Securities and
Exchange Commission (SEC) quo warrantoproceedings, docketed as
Case No. 1747 (the SEC Case), questioning the election of May 14,
1979. The Acero Group claimed that the stockholders' votes were
not properly counted.
c) May 25-31, 1979. The Puyat Group claims that at conferences of
the parties with respondent SEC Commissioner de Guzman, Justice
Estanislao A. Fernandez, then a member of the Interim Batasang
Pambansa, orally entered his appearance as counsel for respondent
Acero to which the Puyat Group objected on Constitutional grounds.
Section 11, Article VIII, of the 1973 Constitution, then in force,
provided that no Assemblyman could "appear as counsel before ...
any administrative body", and SEC was an administrative body.
Incidentally, the same prohibition was maintained by the April 7,
1981 plebiscite. The cited Constitutional prohibition being clear,
Assemblyman Fernandez did not continue his appearance for
respondent Acero.

A question of novel import is in issue. For its resolution, the

following dates and allegations are being given and made:

d) May 31, 1979. When the SEC Case was called, it turned out that:

a) May 14,1979. An election for the eleven Directors of the

International Pipe Industries Corporation (IPI) a private corporation,
was held. Those in charge ruled that the following were elected as
Directors:

(i) On May 15, 1979, Assemblyman Estanislao A. Fernandez had

purchased from Augusto A. Morales ten (10) shares of stock of IPI
for P200.00 upon request of respondent Acero to qualify him to run
for election as a Director.

Eugenio
J.
Erwin
L.
Edgardo
P.
Antonio
G.
Jaime
R.
Rafael R. Recto

(ii) The deed of sale, however, was notarized only on May 30, 1979
and was sought to be registered on said date.

Puyat
Eustaquio
T.C.
Chiongbian
R.
G.
Reyes
Enrique
M.
Puyat
Servillano
Blanco
Juanito

Acero
Vildzius
Belo
Dolina
Mercado

(iii) On May 31, 1979, the day following the notarization of

Assemblyman Fernandez' purchase, the latter had filed an Urgent
Motion for Intervention in the SEC Case as the owner of ten (10) IPI
shares alleging legal interest in the matter in litigation.

410
e) July 17, 1979. The SEC granted leave to intervene on the basis of
Atty. Fernandez' ownership of the said ten shares. 1 It is this Order
allowing intervention that precipitated the instant petition for
certiorari and Prohibition with Preliminary Injunction.

or in any criminal case wherein any officer or employee of the

Government is accused of an offense committed in relation to his
office,
or before any administrative body.

f) July 3, 1979. Edgardo P. Reyes instituted a case before the Court

of First Instance of Rizal (Pasig), Branch XXI, against N.V. Verenigde
Bueinzenfabrieken Excelsior De Maas and respondent Eustaquio
T. C. Acero and others, to annul the sale of Excelsior's shares in the
IPI to respondent Acero (CC No. 33739). In that case, Assemblyman
Fernandez appeared as counsel for defendant Excelsior In L-51928,
we ruled that Assemblyman Fernandez could not appear as counsel
in a case originally filed with a Court of First Instance as in such
situation the Court would be one "without appellate jurisdiction."
On September 4, 1979, the Court en banc issued a temporary
Restraining
Order
enjoining
respondent
SEC
Associate
Commissioner from allowing the participation as an intervenor, of
respondent Assemblyman Estanislao Fernandez at the proceedings
in the SEC Case.
The Solicitor General, in his Comment for respondent
Commissioner, supports the stand of the latter in allowing
intervention. The Court en banc, on November 6, 1979, resolved to
consider the Comment as an Answer to the Petition.
The issue which will be resolved is whether or not Assemblyman
Fernandez, as a then stockholder of IPI may intervene in the SEC
Case without violating Section 11, Article VIII of the Constitution,
which, as amended, now reads:
SEC. 11.
No Member of the Batasang Pambansa shall appear as counsel
before any court without appellate jurisdiction.
before any court in any civil case wherein the Government, or any
subdivision, agency, or instrumentality thereof is the adverse party,

Neither shall he, directly or indirectly be interested financially in

any contract with, or in any franchise or special privilege granted
by the Government, or any subdivision, agency or instrumentality
thereof, including any government-owned or controlled corporation,
during his term of office.
He shall not accept employment to intervene in any cause or
matter where he may be called to act on account of his office.
(Emphasis supplied)
What really has to be resolved is whether or not, in intervening in
the SEC Case, Assemblyman Fernandez is, in effect, appearing as
counsel, albeit indirectly, before an administrative body in
contravention of the Constitutional provision.
Ordinarily, by virtue of the Motion for Intervention, Assemblyman
Fernandez cannot be said to be appearing as counsel. Ostensibly,
he is not appearing on behalf of another, although he is joining the
cause of the private respondents. His appearance could
theoretically be for the protection of his ownership of ten (10)
shares of IPI in respect of the matter in litigation and not for the
protection of the petitioners nor respondents who have their
respective capable and respected counsel.
However, certain salient circumstances militate against the
intervention of Assemblyman Fernandez in the SEC Case. He had
acquired a mere P200.00 worth of stock in IPI, representing ten
shares out of 262,843 outstanding shares. He acquired them "after
the fact" that is, on May 30, 1979, after the contested election of
Directors on May 14, 1979, after the quo warranto suit had been
filed on May 25, 1979 before SEC and one day before the scheduled
hearing of the case before the SEC on May 31, 1979. And what is

411
more, before he moved to intervene, he had signified his intention
to appear as counsel for respondent Eustaquio T. C. Acero, 2 but
which was objected to by petitioners. Realizing, perhaps, the
validity of the objection, he decided, instead, to "intervene" on the
ground of legal interest in the matter under litigation. And it maybe
noted that in the case filed before the Rizal Court of First Instance
(L-51928), he appeared as counsel for defendant Excelsior, codefendant of respondent Acero therein.

WHEREFORE, respondent Commissioner's Order granting Atty.

Estanislao A. Fernandez leave to intervene in SEC Case No. 1747 is
hereby reversed and set aside. The temporary Restraining Order
heretofore issued is hereby made permanent.

Under those facts and circumstances, we are constrained to find

that there has been an indirect "appearance as counsel before ...
an administrative body" and, in our opinion, that is a circumvention
of the Constitutional prohibition. The "intervention" was an
afterthought to enable him to appear actively in the proceedings in
some other capacity. To believe the avowed purpose, that is, to
enable him eventually to vote and to be elected as Director in the
event of an unfavorable outcome of the SEC Case would be pure
naivete. He would still appear as counsel indirectly.

Fernando, C.J., Teehankee, Makasiar, Concepcion, Jr., Fernandez,

Guerrero, Abad Santos, De Castro, Ericta, Plana and Escolin, JJ.,
concur.

A ruling upholding the "intervention" would make the constitutional

provision ineffective. All an Assemblyman need do, if he wants to
influence an administrative body is to acquire a minimal
participation in the "interest" of the client and then "intervene" in
the proceedings. That which the Constitution directly prohibits may
not be done by indirection or by a general legislative act which is
intended to accomplish the objects specifically or impliedly
prohibited. 3
In brief, we hold that the intervention of Assemblyman Fernandez in
SEC. No. 1747 falls within the ambit of the prohibition contained in
Section 11, Article VIII of the Constitution.
Our resolution of this case should not be construed as, absent the
question of the constitutional prohibition against members of the
Batasan, allowing any stockholder, or any number of stockholders,
in a corporation to intervene in any controversy before the SEC
relating to intra-corporate matters. A resolution of that question is
not necessary in this case.

No costs.
SO ORDERED.

Aquino, J., took no part.

Barredo, J., I reserve my vote.

412
DANTE V. LIBAN,
REYNALDO
M.
BERNARDO and
SALVADOR
M.
VIARI,
Petitioners,
- versus RICHARD
J.
GORDON,
Respondent.
PHILIPPINE
NATIONAL RED
CROSS,
Intervenor.

Present:
CORONA, C.J.,
CARPIO,
CARPIO
MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE
CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
Promulgated:
January
2011

18,

RESOLUTION
LEONARDO-DE CASTRO, J.:
This resolves the Motion for Clarification and/or for
Reconsideration[1] filed
on
August
10,
2009
by
respondent Richard
J.
Gordon(respondent)
of
the Decision promulgated by this Court on July 15, 2009 (the
Decision), the Motion for Partial Reconsideration[2] filed
onAugust 27, 2009 by movant-intervenor Philippine National
Red Cross (PNRC), and the latters Manifestation and Motion
to Admit Attached Position Paper[3] filed on December 23,
2009.

In the Decision,[4] the Court held that respondent did not

forfeit his seat in the Senate when he accepted the chairmanship of
the PNRC Board of Governors, as the office of the PNRC Chairman is
not a government office or an office in a government-owned or
controlled corporation for purposes of the prohibition in Section 13,
Article VI of the 1987 Constitution. [5] The Decision, however, further
declared void the PNRC Charter insofar as it creates the PNRC as a
private corporation and consequently ruled that the PNRC should
incorporate under the Corporation Code and register with the
Securities and Exchange Commission if it wants to be a private
corporation.[6] The dispositive portion of the Decision reads as
follows:
WHEREFORE, we declare that the office of the Chairman of
the Philippine National Red Cross is not a government office
or an office in a government-owned or controlled
corporation for purposes of the prohibition in Section 13,
Article VI of the 1987 Constitution. We also declare that
Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the
Charter of the Philippine National Red Cross, or Republic Act
No. 95, as amended by Presidential Decree Nos. 1264 and
1643, are VOID because they create the PNRC as a private
corporation or grant it corporate powers.[7]
In his Motion for Clarification and/or for Reconsideration,
respondent raises the following grounds: (1) as the issue of
constitutionality of Republic Act (R.A.) No. 95 was not raised by the
parties, the Court went beyond the case in deciding such issue; and
(2) as the Court decided that Petitioners did not have standing to
file the instant Petition, the pronouncement of the Court on the
validity of R.A. No. 95 should be considered obiter.[8]
Respondent argues that the validity of R.A. No. 95 was a
non-issue; therefore, it was unnecessary for the Court to decide on
that question. Respondent cites Laurel v. Garcia,[9] wherein the
Court said that it will not pass upon a constitutional question
although properly presented by the record if the case can be
disposed of on some other ground and goes on to claim that since

413
this Court, in the Decision, disposed of the petition on some other
ground, i.e., lack of standing of petitioners, there was no need for it
to delve into the validity of R.A. No. 95, and the rest of the
judgment should be deemed obiter.

Philippines a proposed bill entitled An Act Recognizing the PNRC as

an Independent, Autonomous, Non-Governmental Organization
Auxiliary to the Authorities of the Republic of the Philippines in the
Humanitarian Field, to be Known as The Philippine Red Cross. [11]

In its Motion for Partial Reconsideration, PNRC prays

that the Court sustain the constitutionality of its Charter on the
following grounds:

After a thorough study of the arguments and points raised by the

respondent as well as those of movant-intervenor in their
respective motions, we have reconsidered our pronouncements in
our Decision dated July 15, 2009 with regard to the nature of the
PNRC and the constitutionality of some provisions of the PNRC
Charter, R.A. No. 95, as amended.

A.
THE
ASSAILED
DECISION
DECLARING
UNCONSTITUTIONAL REPUBLIC ACT NO. 95 AS AMENDED
DEPRIVED INTERVENOR PNRC OF ITS CONSTITUTIONAL
RIGHT TO DUE PROCESS.
1.
INTERVENOR PNRC WAS NEVER A PARTY TO THE
INSTANT CONTROVERSY.
2.
THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS
AMENDED WAS NEVER AN ISSUE IN THIS CASE.
B.
THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL
DECREE NO. 1264 AND NOT REPUBLIC ACT NO. 95.
PRESIDENTIAL DECREE NO. 1264 WAS NOT A CREATION OF
CONGRESS.
C.
PNRCS STRUCTURE IS SUI GENERIS; IT IS A CLASS OF
ITS OWN. WHILE IT IS PERFORMING HUMANITARIAN
FUNCTIONS AS AN AUXILIARY TO GOVERNMENT, IT IS A
NEUTRAL ENTITY SEPARATE AND INDEPENDENT OF
GOVERNMENT CONTROL, YET IT DOES NOT QUALIFY AS
STRICTLY PRIVATE IN CHARACTER.

In his Comment and Manifestation[10] filed on November

9, 2009, respondent manifests: (1) that he agrees with the position
taken by the PNRC in its Motion for Partial Reconsideration dated
August 27, 2009; and (2) as of the writing of said Comment and
Manifestation, there was pending before the Congress of the

As correctly pointed out in respondents Motion, the issue of

constitutionality of R.A. No. 95 was not raised by the parties, and
was not among the issues defined in the body of the Decision; thus,
it was not the very lis mota of the case. We have reiterated the rule
as to when the Court will consider the issue of constitutionality
in Alvarez v. PICOP Resources, Inc.,[12] thus:
This
Court
will
not
touch
the
issue
of
unconstitutionality unless it is the very lis mota. It is
a well-established rule that a court should not pass
upon a constitutional question and decide a law to be
unconstitutional or invalid, unless such question is
raised by the parties and that when it is raised, if the
record also presents some other ground upon which the
court may [rest] its judgment, that course will be adopted
and the constitutional question will be left for consideration
until such question will be unavoidable.[13]

Under the rule quoted above, therefore, this Court should

not have declared void certain sections of R.A. No. 95, as amended
by Presidential Decree (P.D.) Nos. 1264 and 1643, the PNRC
Charter. Instead, the Court should have exercised judicial restraint
on this matter, especially since there was some other ground upon
which the Court could have based its judgment. Furthermore, the
PNRC, the entity most adversely affected by this declaration of

414
unconstitutionality, which was not even originally a party to this
case, was being compelled, as a consequence of the Decision, to
suddenly reorganize and incorporate under the Corporation
Code, after more than sixty (60) years of existence in this
country.
Its existence as a chartered corporation remained unchallenged on
ground of unconstitutionality notwithstanding that R.A. No. 95 was
enacted on March 22, 1947 during the effectivity of the 1935
Constitution, which provided for a proscription against the creation
of private corporations by special law, to wit:
SEC. 7. The Congress shall not, except by general law,
provide for the formation, organization, or regulation of
private corporations, unless such corporations are owned
and controlled by the Government or any subdivision or
instrumentality thereof. (Art. XIV, 1935 Constitution.)
Similar provisions are found in Article XIV, Section 4 of the 1973
Constitution and Article XII, Section 16 of the 1987
Constitution. The latter reads:
SECTION 16. The Congress shall not, except by general law,
provide for the formation, organization, or regulation of
private corporations. Government-owned or controlled
corporations may be created or established by special
charters in the interest of the common good and subject to
the test of economic viability.

Since its enactment, the PNRC Charter was amended several times,
particularly on June 11, 1953, August 16, 1971, December 15,
1977, and October 1, 1979, by virtue of R.A. No. 855, R.A. No. 6373,
P.D. No. 1264, and P.D. No. 1643, respectively. The passage of
several laws relating to the PNRCs corporate existence
notwithstanding the effectivity of the constitutional proscription on
the creation of private corporations by law, is a recognition that the

PNRC is not strictly in the nature of a private corporation

contemplated by the aforesaid constitutional ban.
A closer look at the nature of the PNRC would show that
there is none like it not just in terms of structure, but also in terms
of history, public service and official status accorded to it by the
State and the international community. There is merit in PNRCs
contention that its structure is sui generis.
The PNRC succeeded the chapter of the American Red Cross
which was in existence in the Philippines since 1917. It was created
by an Act of Congress after the Republic of the Philippines became
an independent nation on July 6, 1946 and proclaimed on February
14, 1947 its adherence to the Convention of Geneva of July 29,
1929 for the Amelioration of the Condition of the Wounded and Sick
of Armies in the Field (the Geneva Red Cross Convention). By that
action the Philippines indicated its desire to participate with the
nations of the world in mitigating the suffering caused by war and
to establish in the Philippines a voluntary organization for that
purpose and like other volunteer organizations established in other
countries which have ratified the Geneva Conventions, to promote
the health and welfare of the people in peace and in war. [14]
The provisions of R.A. No. 95, as amended by R.A. Nos. 855
and 6373, and further amended by P.D. Nos. 1264 and 1643, show
the historical background and legal basis of the creation of the
PNRC by legislative fiat, as a voluntary organization impressed with
public interest. Pertinently R.A. No. 95, as amended by P.D.
1264, provides:
WHEREAS, during the meeting in Geneva, Switzerland, on
22 August 1894, the nations of the world unanimously
agreed to diminish within their power the evils inherent in
war;
WHEREAS, more than one hundred forty nations of the world
have ratified or adhered to the Geneva Conventions of
August 12, 1949 for the Amelioration of the Condition of the

415
Wounded and Sick of Armed Forces in the Field and at Sea,
The Prisoners of War, and The Civilian Population in Time of
War referred to in this Charter as the Geneva Conventions;
WHEREAS, the Republic of the Philippines became an
independent nation on July 4, 1946, and proclaimed
on February 14, 1947 its adherence to the Geneva
Conventions of 1929, and by the action, indicated its
desire to participate with the nations of the world in
mitigating the suffering caused by war and to
establish in the Philippines a voluntary organization
for that purpose as contemplated by the Geneva
Conventions;
WHEREAS, there existed in the Philippines since 1917 a
chapter of the American National Red Cross which was
terminated in view of the independence of the Philippines;
and
WHEREAS, the volunteer organizations established in other
countries which have ratified or adhered to the Geneva
Conventions assist in promoting the health and
welfare of their people in peace and in war, and
through their mutual assistance and cooperation directly
and through their international organizations promote better
understanding and sympathy among the people of the
world;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of
the Philippines, by virtue of the powers vested in me by the
Constitution as Commander-in-Chief of all the Armed Forces
of the Philippines and pursuant to Proclamation No. 1081
dated September 21, 1972, and General Order No. 1 dated
September 22, 1972, do hereby decree and order that
Republic Act No. 95, Charter of the Philippine National Red
Cross (PNRC) as amended by Republic Acts No. 855 and
6373, be further amended as follows:

Section 1. There is hereby created in the Republic of

the Philippines a body corporate and politic to be the
voluntary organization officially designated to assist
the Republic of the Philippines in discharging the
obligations set forth in the Geneva Conventions and
to perform such other duties as are inherent upon a
national
Red
Cross
Society.
The
national
headquarters of this Corporation shall be located in
Metropolitan Manila. (Emphasis supplied.)

The significant public service rendered by the PNRC can be

gleaned from Section 3 of its Charter, which provides:
Section 3. That the purposes of this Corporation shall be as
follows:
(a) To provide volunteer aid to the sick and wounded of
armed forces in time of war, in accordance with the spirit of
and under the conditions prescribed by the Geneva
Conventions to which the Republic of the Philippines
proclaimed its adherence;
(b) For the purposes mentioned in the preceding subsection, to perform all duties devolving upon the
Corporation as a result of the adherence of the Republic of
the Philippines to the said Convention;
(c) To act in matters of voluntary relief and in accordance
with the authorities of the armed forces as a medium of
communication between people of the Republic of the
Philippines and their Armed Forces, in time of peace and in
time of war, and to act in such matters between similar
national societies of other governments and the
Governments and people and the Armed Forces of the
Republic of the Philippines;
(d) To establish and maintain a system of national and
international relief in time of peace and in time of war and
apply the same in meeting and emergency needs caused by

416
typhoons, flood, fires, earthquakes, and other natural
disasters and to devise and carry on measures for
minimizing the suffering caused by such disasters;

3.
Visiting detainees; and
4.
Promoting awareness of international humanitarian law in the
public and private sectors.[16]

(e) To devise and promote such other services in time of

peace and in time of war as may be found desirable in
improving the health, safety and welfare of the Filipino
people;

National Societies such as the PNRC act as auxiliaries to

the public authorities of their own countries in the humanitarian
field and provide a range of services including disaster relief and
health and social programmes.

(f) To devise such means as to make every citizen and/or

resident of the Philippines a member of the Red Cross.

The International Federation of Red Cross (IFRC) and Red

Crescent Societies (RCS) Position Paper,[17] submitted by the PNRC,
is instructive with regard to the elements of the specific nature of
the National Societies such as the PNRC, to wit:

The PNRC is one of the National Red Cross and Red Crescent
Societies, which, together with the International Committee of the
Red Cross (ICRC) and the IFRC and RCS, make up the International
Red Cross and Red Crescent Movement (the Movement). They
constitute a worldwide humanitarian movement, whose mission is:
[T]o prevent and alleviate human suffering wherever it may
be found, to protect life and health and ensure respect for
the human being, in particular in times of armed conflict and
other emergencies, to work for the prevention of disease
and for the promotion of health and social welfare, to
encourage voluntary service and a constant readiness to
give help by the members of the Movement, and a universal
sense of solidarity towards all those in need of its protection
and assistance.[15]

The PNRC works closely with the ICRC and has been involved in
humanitarian activities in the Philippines since 1982. Among others,
these activities in the country include:
1.
Giving protection and assistance to civilians displaced or
otherwise affected by armed clashes between the government and
armed opposition groups, primarily in Mindanao;
2.
Working to minimize the effects of armed hostilities and
violence on the population;

National Societies, such as the Philippine National Red Cross

and its sister Red Cross and Red Crescent Societies, have
certain specificities deriving from the 1949 Geneva
Convention and the Statutes of the International Red Cross
and Red Crescent Movement (the Movement). They are also
guided by the seven Fundamental Principles of the Red
Cross
and
Red
Crescent
Movement: Humanity,
Impartiality, Neutrality, Independence, Voluntary
Service, Unity and Universality.
A
National
Society
partakes
of
a sui
generis character. It is a protected component of the Red
Cross movement under Articles 24 and 26 of the First
Geneva Convention, especially in times of armed
conflict. These provisions require that the staff of a National
Society shall be respected and protected in all
circumstances. Such protection is not ordinarily afforded by
an international treaty to ordinary private entities or even
non-governmental
organisations
(NGOs). This sui
generis character is also emphasized by the Fourth Geneva
Convention which holds that an Occupying Power cannot
require any change in the personnel or structure of
a National Society. National societies are therefore
organizations
that
are
directly
regulated
by

417
international humanitarian law, in contrast to other
ordinary private entities, including NGOs.
xxxx
In addition, National Societies are not only officially
recognized by their public authorities as voluntary aid
societies, auxiliary to the public authorities in the
humanitarian field, but also benefit from recognition at the
International level. This is considered to be an element
distinguishing National Societies from other organisations
(mainly NGOs) and other forms of humanitarian response.
x x x. No other organisation belongs to a world-wide
Movement in which all Societies have equal status and share
equal responsibilities and duties in helping each other. This
is considered to be the essence of the Fundamental Principle
of Universality.
Furthermore, the National Societies are considered to
be auxiliaries to the public authorities in the humanitarian
field. x x x.
The auxiliary status of [a] Red Cross Society means that it
is at one and the same time a private institution and
a public service organization because the very nature
of its work implies cooperation with the authorities, a
link with the State. In carrying out their major functions,
Red Cross Societies give their humanitarian support to
official bodies, in general having larger resources than the
Societies, working towards comparable ends in a given
sector.
x x x No other organization has a duty to be its
governments humanitarian partner while remaining
independent.[18] (Emphases ours.)
It is in recognition of this sui generis character of the PNRC
that R.A. No. 95 has remained valid and effective from the time of
its enactment in March 22, 1947 under the 1935 Constitution and

during the effectivity of the 1973 Constitution and the 1987

Constitution.
The PNRC Charter and its amendatory laws have not been
questioned or challenged on constitutional grounds, not even in
this case before the Court now.
In the Decision, the Court, citing Feliciano v. Commission on Audit,
[19]
explained that the purpose of the constitutional provision
prohibiting Congress from creating private corporations was to
prevent the granting of special privileges to certain individuals,
families, or groups, which were denied to other groups. Based on
the above discussion, it can be seen that the PNRC Charter does
not come within the spirit of this constitutional provision, as it does
not grant special privileges to a particular individual, family, or
group, but creates an entity that strives to serve the common good.
Furthermore, a strict and mechanical interpretation of Article XII,
Section 16 of the 1987 Constitution will hinder the State in adopting
measures that will serve the public good or national interest. It
should be noted that a special law, R.A. No. 9520, the Philippine
Cooperative Code of 2008, and not the general corporation code,
vests corporate power and capacities upon cooperatives which are
private corporations, in order to implement the States avowed
policy.
In the Decision of July 15, 2009, the Court recognized the public
service rendered by the PNRC as the governments partner in the
observance of its international commitments, to wit:
The PNRC is a non-profit, donor-funded, voluntary, humanitarian
organization, whose mission is to bring timely, effective, and
compassionate humanitarian assistance for the most vulnerable
without consideration of nationality, race, religion, gender, social
status, or political affiliation. The PNRC provides six major services:
Blood Services, Disaster Management, Safety Services, Community
Health and Nursing, Social Services and Voluntary Service.
The Republic of the Philippines, adhering to the Geneva
Conventions, established the PNRC as a voluntary

418
organization for the purpose contemplated in the Geneva
Convention of 27 July 1929. x x x.[20] (Citations omitted.)
So must this Court recognize too the countrys
adherence to the Geneva Convention and respect the
unique status of the PNRC in consonance with its
treaty obligations. The Geneva Convention has the force
and effect of law.[21] Under the Constitution, the Philippines
adopts the generally accepted principles of international law
as part of the law of the land.[22] This constitutional provision
must be reconciled and harmonized with Article XII, Section
16 of the Constitution, instead of using the latter to negate
the former.
By requiring the PNRC to organize under the Corporation Code just
like any other private corporation, the Decision of July 15, 2009 lost
sight of the PNRCs special status under international humanitarian
law and as an auxiliary of the State, designated to assist it in
discharging its obligations under the Geneva Conventions. Although
the PNRC is called to be independent under its Fundamental
Principles, it interprets such independence as inclusive of its duty to
be the governments humanitarian partner. To be recognized in the
International Committee, the PNRC must have an autonomous
status, and carry out its humanitarian mission in a neutral and
impartial manner.
However, in accordance with the Fundamental Principle of
Voluntary Service of National Societies of the Movement, the PNRC
must be distinguished from private and profit-making entities. It is
the main characteristic of National Societies that they are not
inspired by the desire for financial gain but by individual
commitment and devotion to a humanitarian purpose freely chosen
or accepted as part of the service that National Societies through
its volunteers and/or members render to the Community.[23]
The PNRC, as a National Society of the International Red Cross and
Red Crescent Movement, can neither be classified as an
instrumentality of the State, so as not to lose its character of

neutrality as well as its independence, nor strictly as a private

corporation since it is regulated by international humanitarian law
and is treated as an auxiliary of the State.[24]
Based on the above, the sui generis status of the PNRC is now
sufficiently established. Although it is neither a subdivision, agency,
or instrumentality of the government, nor a government-owned or
-controlled corporation or a subsidiary thereof, as succinctly
explained in the Decision of July 15, 2009, so much so that
respondent, under the Decision, was correctly allowed to hold his
position as Chairman thereof concurrently while he served as a
Senator, such a conclusion does not ipso facto imply that the PNRC
is a private corporation within the contemplation of the provision of
the Constitution, that must be organized under the Corporation
Code. As correctly mentioned by Justice Roberto A. Abad, the sui
generis character of PNRC requires us to approach controversies
involving the PNRC on a case-to-case basis.
In sum, the PNRC enjoys a special status as an important ally and
auxiliary of the government in the humanitarian field in accordance
with its commitments under international law. This Court cannot all
of a sudden refuse to recognize its existence, especially since the
issue of the constitutionality of the PNRC Charter was never raised
by the parties. It bears emphasizing that the PNRC has responded
to almost all national disasters since 1947, and is widely known to
provide
a
substantial
portion
of
the
countrys
blood
requirements. Its humanitarian work is unparalleled. The Court
should not shake its existence to the core in an untimely and
drastic manner that would not only have negative consequences to
those who depend on it in times of disaster and armed hostilities
but also have adverse effects on the image of the Philippines in the
international community. The sections of the PNRC Charter
that were declared void must therefore stay.
WHEREFORE, premises considered, respondent Richard J.
Gordons Motion
for
Clarification
and/or
for
Reconsideration and movant-intervenor PNRCs Motion for
Partial
Reconsideration of the Decision in G.R.
No.

419
175352 dated July 15, 2009 are GRANTED.The constitutionality
of R.A. No. 95, as amended, the charter of the Philippine National
Red Cross, was not raised by the parties as an issue and should not
have been passed upon by this Court. The structure of the PNRC
is sui generis being neither strictly private nor public in
nature. R.A. No. 95 remains valid and constitutional in its
entirety. The dispositive portion of the Decision should therefore
be MODIFIEDby deleting the second sentence, to now read as
follows:

WHEREFORE, we declare that the office of the Chairman of

the Philippine National Red Cross is not a government office
or an office in a government-owned or controlled
corporation for purposes of the prohibition in Section 13,
Article VI of the 1987 Constitution.
SO ORDERED.