Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-45081 July 15, 1936

JOSE A. ANGARA, petitioner,

vs.

THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL CASTILLO, and DIONISIO C. MAYOR,
respondents.

Godofredo Reyes for petitioner.

Office of the Solicitor General Hilado for respondent Electoral Commission.

Pedro Ynsua in his own behalf.

No appearance for other respondents.

LAUREL, J.:

This is an original action instituted in this court by the petitioner, Jose A. Angara, for the issuance of a
writ of prohibition to restrain and prohibit the Electoral Commission, one of the respondents, from
taking further cognizance of the protest filed by Pedro Ynsua, another respondent, against the election
of said petitioner as member of the National Assembly for the first assembly district of the Province of
Tayabas.

The facts of this case as they appear in the petition and as admitted by the respondents are as follows:

(1) That in the elections of September 17, 1935, the petitioner, Jose A. Angara, and the respondents,
Pedro Ynsua, Miguel Castillo and Dionisio Mayor, were candidates voted for the position of member of
the National Assembly for the first district of the Province of Tayabas;
 (2) That on October 7, 1935, the provincial board of canvassers, proclaimed the petitioner as member-
elect of the National Assembly for the said district, for having received the most number of votes;

(3) That on November 15, 1935, the petitioner took his oath of office;

(4) That on December 3, 1935, the National Assembly in session assembled, passed the following
resolution:

[No. 8]

RESOLUCION CONFIRMANDO LAS ACTAS DE AQUELLOS DIPUTADOS CONTRA QUIENES NO SE HA

PRESENTADO PROTESTA.

Se resuelve: Que las actas de eleccion de los Diputados contra quienes no se hubiere presentado
debidamente una protesta antes de la adopcion de la presente resolucion sean, como por la presente,
son aprobadas y confirmadas.

Adoptada, 3 de diciembre, 1935.

(5) That on December 8, 1935, the herein respondent Pedro Ynsua filed before the Electoral
Commission a "Motion of Protest" against the election of the herein petitioner, Jose A. Angara, being
the only protest filed after the passage of Resolutions No. 8 aforequoted, and praying, among other-
things, that said respondent be declared elected member of the National Assembly for the first district
of Tayabas, or that the election of said position be nullified;

(6) That on December 9, 1935, the Electoral Commission adopted a resolution, paragraph 6 of which
provides:

6. La Comision no considerara ninguna protesta que no se haya presentado en o antes de este dia.
 (7) That on December 20, 1935, the herein petitioner, Jose A. Angara, one of the respondents in the
aforesaid protest, filed before the Electoral Commission a "Motion to Dismiss the Protest", alleging (a)
that Resolution No. 8 of Dismiss the Protest", alleging (a) that Resolution No. 8 of the National Assembly
was adopted in the legitimate exercise of its constitutional prerogative to prescribe the period during
which protests against the election of its members should be presented; (b) that the aforesaid
resolution has for its object, and is the accepted formula for, the limitation of said period; and (c) that
the protest in question was filed out of the prescribed period;

(8) That on December 27, 1935, the herein respondent, Pedro Ynsua, filed an "Answer to the Motion
of Dismissal" alleging that there is no legal or constitutional provision barring the presentation of a
protest against the election of a member of the National Assembly after confirmation;

(9) That on December 31, 1935, the herein petitioner, Jose A. Angara, filed a "Reply" to the aforesaid
"Answer to the Motion of Dismissal";

(10) That the case being submitted for decision, the Electoral Commission promulgated a resolution
on January 23, 1936, denying herein petitioner's "Motion to Dismiss the Protest."

The application of the petitioner sets forth the following grounds for the issuance of the writ prayed
for:

(a) That the Constitution confers exclusive jurisdiction upon the electoral Commission solely as
regards the merits of contested elections to the National Assembly;

(b) That the Constitution excludes from said jurisdiction the power to regulate the proceedings of said
election contests, which power has been reserved to the Legislative Department of the Government or
the National Assembly;

(c) That like the Supreme Court and other courts created in pursuance of the Constitution, whose
exclusive jurisdiction relates solely to deciding the merits of controversies submitted to them for
decision and to matters involving their internal organization, the Electoral Commission can regulate its
proceedings only if the National Assembly has not availed of its primary power to so regulate such
proceedings;

(d) That Resolution No. 8 of the National Assembly is, therefore, valid and should be respected and
obeyed;

(e) That under paragraph 13 of section 1 of the ordinance appended to the Constitution and
paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the United States)
as well as under section 1 and 3 (should be sections 1 and 2) of article VIII of the Constitution, this
Supreme Court has jurisdiction to pass upon the fundamental question herein raised because it involves
an interpretation of the Constitution of the Philippines.

On February 25, 1936, the Solicitor-General appeared and filed an answer in behalf of the respondent
Electoral Commission interposing the following special defenses:

(a) That the Electoral Commission has been created by the Constitution as an instrumentality of the
Legislative Department invested with the jurisdiction to decide "all contests relating to the election,
returns, and qualifications of the members of the National Assembly"; that in adopting its resolution of
December 9, 1935, fixing this date as the last day for the presentation of protests against the election of
any member of the National Assembly, it acted within its jurisdiction and in the legitimate exercise of
the implied powers granted it by the Constitution to adopt the rules and regulations essential to carry
out the power and functions conferred upon the same by the fundamental law; that in adopting its
resolution of January 23, 1936, overruling the motion of the petitioner to dismiss the election protest in
question, and declaring itself with jurisdiction to take cognizance of said protest, it acted in the
legitimate exercise of its quasi-judicial functions a an instrumentality of the Legislative Department of
the Commonwealth Government, and hence said act is beyond the judicial cognizance or control of the
Supreme Court;

(b) That the resolution of the National Assembly of December 3, 1935, confirming the election of the
members of the National Assembly against whom no protest had thus far been filed, could not and did
not deprive the electoral Commission of its jurisdiction to take cognizance of election protests filed
within the time that might be set by its own rules:
 (c) That the Electoral Commission is a body invested with quasi-judicial functions, created by the
Constitution as an instrumentality of the Legislative Department, and is not an "inferior tribunal, or
corporation, or board, or person" within the purview of section 226 and 516 of the Code of Civil
Procedure, against which prohibition would lie.

The respondent Pedro Ynsua, in his turn, appeared and filed an answer in his own behalf on March 2,
1936, setting forth the following as his special defense:

(a) That at the time of the approval of the rules of the Electoral Commission on December 9, 1935,
there was no existing law fixing the period within which protests against the election of members of the
National Assembly should be filed; that in fixing December 9, 1935, as the last day for the filing of
protests against the election of members of the National Assembly, the Electoral Commission was
exercising a power impliedly conferred upon it by the Constitution, by reason of its quasi-judicial
attributes;

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

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

(d) That neither the law nor the Constitution requires confirmation by the National Assembly of the
election of its members, and that such confirmation does not operate to limit the period within which
protests should be filed as to deprive the Electoral Commission of jurisdiction over protest filed
subsequent thereto;

(e) That the Electoral Commission is an independent entity created by the Constitution, endowed with
quasi-judicial functions, whose decision are final and unappealable;

( f ) That the electoral Commission, as a constitutional creation, is not an inferior tribunal, corporation,
board or person, within the terms of sections 226 and 516 of the Code of Civil Procedure; and that
neither under the provisions of sections 1 and 2 of article II (should be article VIII) of the Constitution
and paragraph 13 of section 1 of the Ordinance appended thereto could it be subject in the exercise of
its quasi-judicial functions to a writ of prohibition from the Supreme Court;

(g) That paragraph 6 of article 7 of the Tydings-McDuffie Law (No. 127 of the 73rd Congress of the
united States) has no application to the case at bar.

The case was argued before us on March 13, 1936. Before it was submitted for decision, the petitioner
prayed for the issuance of a preliminary writ of injunction against the respondent Electoral Commission
which petition was denied "without passing upon the merits of the case" by resolution of this court of
March 21, 1936.

There was no appearance for the other respondents.

The issues to be decided in the case at bar may be reduced to the following two principal
propositions:

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

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

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

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of
power to the executive, the legislative and the judicial departments of the government. The overlapping
and interlacing of functions and duties between the several departments, however, sometimes makes it
hard to say just where the one leaves off and the other begins. In times of social disquietude or political
excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be
called upon to determine the proper allocation of powers between the several departments and among
the integral or constituent units thereof.

As any human production, our Constitution is of course lacking perfection and perfectibility, but as
much as it was within the power of our people, acting through their delegates to so provide, that
instrument which is the expression of their sovereignty however limited, has established a republican
government intended to operate and function as a harmonious whole, under a system of checks and
balances, and subject to specific limitations and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the restrictions and limitations upon governmental
powers and agencies. If these restrictions and limitations are transcended it would be inconceivable if
the Constitution had not provided for a mechanism by which to direct the course of government along
constitutional channels, for then the distribution of powers would be mere verbiage, the bill of rights
mere expressions of sentiment, and the principles of good government mere political apothegms.
Certainly, the limitation and restrictions embodied in our Constitution are real as they should be in any
living constitution. In the United States where no express constitutional grant is found in their
constitution, the possession of this moderating power of the courts, not to speak of its historical origin
and development there, has been set at rest by popular acquiescence for a period of more than one and
a half centuries. In our case, this moderating power is granted, if not expressly, by clear implication from
section 2 of article VIII of our constitution.

The Constitution is a definition of the powers of government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself has provided for the instrumentality of the judiciary
as the rational way. And when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for the parties in an
actual controversy the rights which that instrument secures and guarantees to them. This is in truth all
that is involved in what is termed "judicial supremacy" which properly is the power of judicial review
under the Constitution. Even then, this power of judicial review is limited to actual cases and
controversies to be exercised after full opportunity of argument by the parties, and limited further to
the constitutional question raised or the very lis mota presented. Any attempt at abstraction could only
lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not pass upon questions of wisdom, justice
or expediency of legislation. More than that, courts accord the presumption of constitutionality to
legislative enactments, not only because the legislature is presumed to abide by the Constitution but
also because the judiciary in the determination of actual cases and controversies must reflect the
wisdom and justice of the people as expressed through their representatives in the executive and
legislative departments of the governments of the government.

But much as we might postulate on the internal checks of power provided in our Constitution, it ought
not the less to be remembered that, in the language of James Madison, the system itself is not "the chief
palladium of constitutional liberty . . . the people who are authors of this blessing must also be its
guardians . . . their eyes must be ever ready to mark, their voice to pronounce . . . aggression on the
authority of their constitution." In the Last and ultimate analysis, then, must the success of our
government in the unfolding years to come be tested in the crucible of Filipino minds and hearts than in
consultation rooms and court chambers.

In the case at bar, the national Assembly has by resolution (No. 8) of December 3, 1935, confirmed the
election of the herein petitioner to the said body. On the other hand, the Electoral Commission has by
resolution adopted on December 9, 1935, fixed said date as the last day for the filing of protests against
the election, returns and qualifications of members of the National Assembly, notwithstanding the
previous confirmation made by the National Assembly as aforesaid. If, as contended by the petitioner,
the resolution of the National Assembly has the effect of cutting off the power of the Electoral
Commission to entertain protests against the election, returns and qualifications of members of the
National Assembly, submitted after December 3, 1935, then the resolution of the Electoral Commission
of December 9, 1935, is mere surplusage and had no effect. But, if, as contended by the respondents,
the Electoral Commission has the sole power of regulating its proceedings to the exclusion of the
National Assembly, then the resolution of December 9, 1935, by which the Electoral Commission fixed
said date as the last day for filing protests against the election, returns and qualifications of members of
the National Assembly, should be upheld.

Here is then presented an actual controversy involving as it does a conflict of a grave constitutional
nature between the National Assembly on the one hand, and the Electoral Commission on the other.
From the very nature of the republican government established in our country in the light of American
experience and of our own, upon the judicial department is thrown the solemn and inescapable
obligation of interpreting the Constitution and defining constitutional boundaries. The Electoral
Commission, as we shall have occasion to refer hereafter, is a constitutional organ, created for a specific
purpose, namely to determine all contests relating to the election, returns and qualifications of the
members of the National Assembly. Although the Electoral Commission may not be interfered with,
when and while acting within the limits of its authority, it does not follow that it is beyond the reach of
the constitutional mechanism adopted by the people and that it is not subject to constitutional
restrictions. The Electoral Commission is not a separate department of the government, and even if it
were, conflicting claims of authority under the fundamental law between department powers and
agencies of the government are necessarily determined by the judiciary in justifiable and appropriate
cases. Discarding the English type and other European types of constitutional government, the framers
of our constitution adopted the American type where the written constitution is interpreted and given
effect by the judicial department. In some countries which have declined to follow the American
example, provisions have been inserted in their constitutions prohibiting the courts from exercising the
power to interpret the fundamental law. This is taken as a recognition of what otherwise would be the
rule that in the absence of direct prohibition courts are bound to assume what is logically their function.
For instance, the Constitution of Poland of 1921, expressly provides that courts shall have no power to
examine the validity of statutes (art. 81, chap. IV). The former Austrian Constitution contained a similar
declaration. In countries whose constitutions are silent in this respect, courts have assumed this power.
This is true in Norway, Greece, Australia and South Africa. Whereas, in Czechoslovakia (arts. 2 and 3,
Preliminary Law to constitutional Charter of the Czechoslovak Republic, February 29, 1920) and Spain
(arts. 121-123, Title IX, Constitutional of the Republic of 1931) especial constitutional courts are
established to pass upon the validity of ordinary laws. In our case, the nature of the present controversy
shows the necessity of a final constitutional arbiter to determine the conflict of authority between two
agencies created by the Constitution. Were we to decline to take cognizance of the controversy, who
will determine the conflict? And if the conflict were left undecided and undetermined, would not a void
be thus created in our constitutional system which may be in the long run prove destructive of the
entire framework? To ask these questions is to answer them. Natura vacuum abhorret, so must we
avoid exhaustion in our constitutional system. Upon principle, reason and authority, we are clearly of
the opinion that upon the admitted facts of the present case, this court has jurisdiction over the
Electoral Commission and the subject mater of the present controversy for the purpose of determining
the character, scope and extent of the constitutional grant to the Electoral Commission as "the sole
judge of all contests relating to the election, returns and qualifications of the members of the National
Assembly."

Having disposed of the question of jurisdiction, we shall now proceed to pass upon the second
proposition and determine whether the Electoral Commission has acted without or in excess of its
jurisdiction in adopting its resolution of December 9, 1935, and in assuming to take cognizance of the
protest filed against the election of the herein petitioner notwithstanding the previous confirmation
thereof by the National Assembly on December 3, 1935. As able counsel for the petitioner has pointed
out, the issue hinges on the interpretation of section 4 of Article VI of the Constitution which provides:

"SEC. 4. There shall be an Electoral Commission composed of three Justice of the Supreme Court
designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom
shall be nominated by the party having the largest number of votes, and three by the party having the
second largest number of votes therein. The senior Justice in the Commission shall be its Chairman. The
Electoral Commission shall be the sole judge of all contests relating to the election, returns and
qualifications of the members of the National Assembly." It is imperative, therefore, that we delve into
the origin and history of this constitutional provision and inquire into the intention of its framers and the
people who adopted it so that we may properly appreciate its full meaning, import and significance.

The original provision regarding this subject in the Act of Congress of July 1, 1902 (sec. 7, par. 5) laying
down the rule that "the assembly shall be the judge of the elections, returns, and qualifications of its
members", was taken from clause 1 of section 5, Article I of the Constitution of the United States
providing that "Each House shall be the Judge of the Elections, Returns, and Qualifications of its own
Members, . . . ." The Act of Congress of August 29, 1916 (sec. 18, par. 1) modified this provision by the
insertion of the word "sole" as follows: "That the Senate and House of Representatives, respectively,
shall be the sole judges of the elections, returns, and qualifications of their elective members . . ."
apparently in order to emphasize the exclusive the Legislative over the particular case s therein
specified. This court has had occasion to characterize this grant of power to the Philippine Senate and
House of Representatives, respectively, as "full, clear and complete" (Veloso vs. Boards of Canvassers of
Leyte and Samar [1919], 39 Phil., 886, 888.)
 The first step towards the creation of an independent tribunal for the purpose of deciding contested
elections to the legislature was taken by the sub-committee of five appointed by the Committee on
Constitutional Guarantees of the Constitutional Convention, which sub-committee submitted a report
on August 30, 1934, recommending the creation of a Tribunal of Constitutional Security empowered to
hear legislature but also against the election of executive officers for whose election the vote of the
whole nation is required, as well as to initiate impeachment proceedings against specified executive and
judicial officer. For the purpose of hearing legislative protests, the tribunal was to be composed of three
justices designated by the Supreme Court and six members of the house of the legislature to which the
contest corresponds, three members to be designed by the majority party and three by the minority, to
be presided over by the Senior Justice unless the Chief Justice is also a member in which case the latter
shall preside. The foregoing proposal was submitted by the Committee on Constitutional Guarantees to
the Convention on September 15, 1934, with slight modifications consisting in the reduction of the
legislative representation to four members, that is, two senators to be designated one each from the
two major parties in the Senate and two representatives to be designated one each from the two major
parties in the House of Representatives, and in awarding representation to the executive department in
the persons of two representatives to be designated by the President.

Meanwhile, the Committee on Legislative Power was also preparing its report. As submitted to the
Convention on September 24, 1934 subsection 5, section 5, of the proposed Article on the Legislative
Department, reads as follows:

The elections, returns and qualifications of the members of either house and all cases contesting the
election of any of their members shall be judged by an Electoral Commission, constituted, as to each
House, by three members elected by the members of the party having the largest number of votes
therein, three elected by the members of the party having the second largest number of votes, and as to
its Chairman, one Justice of the Supreme Court designated by the Chief Justice.

The idea of creating a Tribunal of Constitutional Security with comprehensive jurisdiction as proposed
by the Committee on Constitutional Guarantees which was probably inspired by the Spanish plan (art.
121, Constitution of the Spanish Republic of 1931), was soon abandoned in favor of the proposition of
the Committee on Legislative Power to create a similar body with reduced powers and with specific and
limited jurisdiction, to be designated as a Electoral Commission. The Sponsorship Committee modified
the proposal of the Committee on Legislative Power with respect to the composition of the Electoral
Commission and made further changes in phraseology to suit the project of adopting a unicameral
instead of a bicameral legislature. The draft as finally submitted to the Convention on October 26, 1934,
reads as follows:
 (6) The elections, returns and qualifications of the Members of the National Assembly and all cases
contesting the election of any of its Members shall be judged by an Electoral Commission, composed of
three members elected by the party having the largest number of votes in the National Assembly, three
elected by the members of the party having the second largest number of votes, and three justices of
the Supreme Court designated by the Chief Justice, the Commission to be presided over by one of said
justices.

During the discussion of the amendment introduced by Delegates Labrador, Abordo, and others,
proposing to strike out the whole subsection of the foregoing draft and inserting in lieu thereof the
following: "The National Assembly shall be the soled and exclusive judge of the elections, returns, and
qualifications of the Members", the following illuminating remarks were made on the floor of the
Convention in its session of December 4, 1934, as to the scope of the said draft:

xxx xxx xxx

Mr. VENTURA. Mr. President, we have a doubt here as to the scope of the meaning of the first four
lines, paragraph 6, page 11 of the draft, reading: "The elections, returns and qualifications of the
Members of the National Assembly and all cases contesting the election of any of its Members shall be
judged by an Electoral Commission, . . ." I should like to ask from the gentleman from Capiz whether the
election and qualification of the member whose elections is not contested shall also be judged by the
Electoral Commission.

Mr. ROXAS. If there is no question about the election of the members, there is nothing to be judged;
that is why the word "judge" is used to indicate a controversy. If there is no question about the election
of a member, there is nothing to be submitted to the Electoral Commission and there is nothing to be
determined.

Mr. VENTURA. But does that carry the idea also that the Electoral Commission shall confirm also the
election of those whose election is not contested?

Mr. ROXAS. There is no need of confirmation. As the gentleman knows, the action of the House of
Representatives confirming the election of its members is just a matter of the rules of the assembly. It is
not constitutional. It is not necessary. After a man files his credentials that he has been elected, that is
sufficient, unless his election is contested.
 Mr. VENTURA. But I do not believe that that is sufficient, as we have observed that for purposes of the
auditor, in the matter of election of a member to a legislative body, because he will not authorize his
pay.

Mr. ROXAS. Well, what is the case with regards to the municipal president who is elected? What
happens with regards to the councilors of a municipality? Does anybody confirm their election? The
municipal council does this: it makes a canvass and proclaims in this case the municipal council
proclaims who has been elected, and it ends there, unless there is a contest. It is the same case; there is
no need on the part of the Electoral Commission unless there is a contest. The first clause refers to the
case referred to by the gentleman from Cavite where one person tries to be elected in place of another
who was declared elected. From example, in a case when the residence of the man who has been
elected is in question, or in case the citizenship of the man who has been elected is in question.

However, if the assembly desires to annul the power of the commission, it may do so by certain
maneuvers upon its first meeting when the returns are submitted to the assembly. The purpose is to
give to the Electoral Commission all the powers exercised by the assembly referring to the elections,
returns and qualifications of the members. When there is no contest, there is nothing to be judged.

Mr. VENTURA. Then it should be eliminated.

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

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

Mr. ROXAS. That is merely for the sake of clarity. In fact the cases of contested elections are already
included in the phrase "the elections, returns and qualifications." This phrase "and contested elections"
was inserted merely for the sake of clarity.
 Mr. CINCO. Under this paragraph, may not the Electoral Commission, at its own instance, refuse to
confirm the elections of the members."

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

Mr. LABRADOR. Mr. President, will the gentleman yield?

THE PRESIDENT. The gentleman may yield, if he so desires.

Mr. ROXAS. Willingly.

Mr. LABRADOR. Does not the gentleman from Capiz believe that unless this power is granted to the
assembly, the assembly on its own motion does not have the right to contest the election and
qualification of its members?

Mr. ROXAS. I have no doubt but that the gentleman is right. If this draft is retained as it is, even if two-
thirds of the assembly believe that a member has not the qualifications provided by law, they cannot
remove him for that reason.

Mr. LABRADOR. So that the right to remove shall only be retained by the Electoral Commission.

Mr. ROXAS. By the assembly for misconduct.

Mr. LABRADOR. I mean with respect to the qualifications of the members.

Mr. ROXAS. Yes, by the Electoral Commission.

 Mr. LABRADOR. So that under this draft, no member of the assembly has the right to question the
eligibility of its members?

Mr. ROXAS. Before a member can question the eligibility, he must go to the Electoral Commission and
make the question before the Electoral Commission.

Mr. LABRADOR. So that the Electoral Commission shall decide whether the election is contested or
not contested.

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

Mr. PELAYO. Mr. President, I would like to be informed if the Electoral Commission has power and
authority to pass upon the qualifications of the members of the National Assembly even though that
question has not been raised.

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

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

xxx xxx xxx

Sr. ROXAS. La diferencia, seor Presidente, consiste solamente en obviar la objecion apuntada por
varios Delegados al efecto de que la primera clausula del draft que dice: "The elections, returns and
qualifications of the members of the National Assembly" parece que da a la Comision Electoral la
facultad de determinar tambien la eleccion de los miembros que no ha sido protestados y para obviar
esa dificultad, creemos que la enmienda tien razon en ese sentido, si enmendamos el draft, de tal modo
que se lea como sigue: "All cases contesting the election", de modo que los jueces de la Comision
Electoral se limitaran solamente a los casos en que haya habido protesta contra las actas." Before the
amendment of Delegate Labrador was voted upon the following interpellation also took place:

El Sr. CONEJERO. Antes de votarse la enmienda, quisiera

El Sr. PRESIDENTE.Que dice el Comite?

El Sr. ROXAS. Con mucho gusto.

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

El Sr. ROXAS.Si y no. Creemos que si el tribunal o la Commission esta constituido en esa forma, tanto los
miembros de la mayoria como los de la minoria asi como los miembros de la Corte Suprema
consideraran la cuestion sobre la base de sus meritos, sabiendo que el partidismo no es suficiente para
dar el triunfo.

El Sr. CONEJERO. Cree Su Seoria que en un caso como ese, podriamos hacer que tanto los de la
mayoria como los de la minoria prescindieran del partidismo?

El Sr. ROXAS.Creo que si, porque el partidismo no les daria el triunfo.

xxx xxx xxx

The amendment introduced by Delegates Labrador, Abordo and others seeking to restore the power
to decide contests relating to the election, returns and qualifications of members of the National
Assembly to the National Assembly itself, was defeated by a vote of ninety-eight (98) against fifty-six
(56).
 In the same session of December 4, 1934, Delegate Cruz (C.) sought to amend the draft by reducing
the representation of the minority party and the Supreme Court in the Electoral Commission to two
members each, so as to accord more representation to the majority party. The Convention rejected this
amendment by a vote of seventy-six (76) against forty-six (46), thus maintaining the non-partisan
character of the commission.

As approved on January 31, 1935, the draft was made to read as follows:

(6) All cases contesting the elections, returns and qualifications of the Members of the National
Assembly shall be judged by an Electoral Commission, composed of three members elected by the party
having the largest number of votes in the National Assembly, three elected by the members of the party
having the second largest number of votes, and three justices of the Supreme Court designated by the
Chief Justice, the Commission to be presided over by one of said justices.

The Style Committee to which the draft was submitted revised it as follows:

SEC. 4. There shall be an Electoral Commission composed of three Justices of the Supreme Court
designated by the Chief Justice, and of six Members chosen by the National Assembly, three of whom
shall be nominated by the party having the largest number of votes, and three by the party having the
second largest number of votes therein. The senior Justice in the Commission shall be its chairman. The
Electoral Commission shall be the sole judge of the election, returns, and qualifications of the Members
of the National Assembly.

When the foregoing draft was submitted for approval on February 8, 1935, the Style Committee,
through President Recto, to effectuate the original intention of the Convention, agreed to insert the
phrase "All contests relating to" between the phrase "judge of" and the words "the elections", which
was accordingly accepted by the Convention.

The transfer of the power of determining the election, returns and qualifications of the members of
the legislature long lodged in the legislative body, to an independent, impartial and non-partisan
tribunal, is by no means a mere experiment in the science of government.
 Cushing, in his Law and Practice of Legislative Assemblies (ninth edition, chapter VI, pages 57, 58),
gives a vivid account of the "scandalously notorious" canvassing of votes by political parties in the
disposition of contests by the House of Commons in the following passages which are partly quoted by
the petitioner in his printed memorandum of March 14, 1936:

153. From the time when the commons established their right to be the exclusive judges of the
elections, returns, and qualifications of their members, until the year 1770, two modes of proceeding
prevailed, in the determination of controverted elections, and rights of membership. One of the
standing committees appointed at the commencement of each session, was denominated the
committee of privileges and elections, whose functions was to hear and investigate all questions of this
description which might be referred to them, and to report their proceedings, with their opinion
thereupon, to the house, from time to time. When an election petition was referred to this committee
they heard the parties and their witnesses and other evidence, and made a report of all the evidence,
together with their opinion thereupon, in the form of resolutions, which were considered and agreed or
disagreed to by the house. The other mode of proceeding was by a hearing at the bar of the house itself.
When this court was adopted, the case was heard and decided by the house, in substantially the same
manner as by a committee. The committee of privileges and elections although a select committee. The
committee of privileges and elections although a select committee was usually what is called an open
one; that is to say, in order to constitute the committee, a quorum of the members named was required
to be present, but all the members of the house were at liberty to attend the committee and vote if they
pleased.

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

155. It was to put an end to the practices thus described, that Mr. Grenville brought in a bill which
met with the approbation of both houses, and received the royal assent on the 12th of April, 1770. This
was the celebrated law since known by the name of the Grenville Act; of which Mr. Hatsell declares, that
it "was one of the nobles works, for the honor of the house of commons, and the security of the
constitution, that was ever devised by any minister or statesman." It is probable, that the magnitude of
the evil, or the apparent success of the remedy, may have led many of the contemporaries of the
measure to the information of a judgement, which was not acquiesced in by some of the leading
statesmen of the day, and has not been entirely confirmed by subsequent experience. The bill was
objected to by Lord North, Mr. De Grey, afterwards chief justice of the common pleas, Mr. Ellis, Mr.
Dyson, who had been clerk of the house, and Mr. Charles James Fox, chiefly on the ground, that the
introduction of the new system was an essential alteration of the constitution of parliament, and a total
abrogation of one of the most important rights and jurisdictions of the house of commons.

As early as 1868, the House of Commons in England solved the problem of insuring the non-partisan
settlement of the controverted elections of its members by abdicating its prerogative to two judges of
the King's Bench of the High Court of Justice selected from a rota in accordance with rules of court made
for the purpose. Having proved successful, the practice has become imbedded in English jurisprudence
(Parliamentary Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by Parliamentary Elections and
Corrupt Practices Act. 1879 [42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act, 1883
[46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c. 22]; Laws of England,
vol. XII, p. 408, vol. XXI, p. 787). In the Dominion of Canada, election contests which were originally
heard by the Committee of the House of Commons, are since 1922 tried in the courts. Likewise, in the
Commonwealth of Australia, election contests which were originally determined by each house, are
since 1922 tried in the High Court. In Hungary, the organic law provides that all protests against the
election of members of the Upper House of the Diet are to be resolved by the Supreme Administrative
Court (Law 22 of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland of March 17, 1921 (art. 19)
and the Constitution of the Free City of Danzig of May 13, 1922 (art. 10) vest the authority to decide
contested elections to the Diet or National Assembly in the Supreme Court. For the purpose of deciding
legislative contests, the Constitution of the German Reich of July 1, 1919 (art. 31), the Constitution of
the Czechoslovak Republic of February 29, 1920 (art. 19) and the Constitution of the Grecian Republic of
June 2, 1927 (art. 43), all provide for an Electoral Commission.
 The creation of an Electoral Commission whose membership is recruited both from the legislature and
the judiciary is by no means unknown in the United States. In the presidential elections of 1876 there
was a dispute as to the number of electoral votes received by each of the two opposing candidates. As
the Constitution made no adequate provision for such a contingency, Congress passed a law on January
29, 1877 (United States Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a special Electoral
Commission composed of five members elected by the Senate, five members elected by the House of
Representatives, and five justices of the Supreme Court, the fifth justice to be selected by the four
designated in the Act. The decision of the commission was to be binding unless rejected by the two
houses voting separately. Although there is not much of a moral lesson to be derived from the
experience of America in this regard, judging from the observations of Justice Field, who was a member
of that body on the part of the Supreme Court (Countryman, the Supreme Court of the United States
and its Appellate Power under the Constitution [Albany, 1913] Relentless Partisanship of Electoral
Commission, p. 25 et seq.), the experiment has at least abiding historical interest.

The members of the Constitutional Convention who framed our fundamental law were in their
majority men mature in years and experience. To be sure, many of them were familiar with the history
and political development of other countries of the world. When , therefore, they deemed it wise to
create an Electoral Commission as a constitutional organ and invested it with the exclusive function of
passing upon and determining the election, returns and qualifications of the members of the National
Assembly, they must have done so not only in the light of their own experience but also having in view
the experience of other enlightened peoples of the world. The creation of the Electoral Commission was
designed to remedy certain evils of which the framers of our Constitution were cognizant.
Notwithstanding the vigorous opposition of some members of the Convention to its creation, the plan,
as hereinabove stated, was approved by that body by a vote of 98 against 58. All that can be said now is
that, upon the approval of the constitutional the creation of the Electoral Commission is the expression
of the wisdom and "ultimate justice of the people". (Abraham Lincoln, First Inaugural Address, March 4,
1861.)

From the deliberations of our Constitutional Convention it is evident that the purpose was to transfer
in its totality all the powers previously exercised by the legislature in matters pertaining to contested
elections of its members, to an independent and impartial tribunal. It was not so much the knowledge
and appreciation of contemporary constitutional precedents, however, as the long-felt need of
determining legislative contests devoid of partisan considerations which prompted the people, acting
through their delegates to the Convention, to provide for this body known as the Electoral Commission.
With this end in view, a composite body in which both the majority and minority parties are equally
represented to off-set partisan influence in its deliberations was created, and further endowed with
judicial temper by including in its membership three justices of the Supreme Court.
 The Electoral Commission is a constitutional creation, invested with the necessary authority in the
performance and execution of the limited and specific function assigned to it by the Constitution.
Although it is not a power in our tripartite scheme of government, it is, to all intents and purposes, when
acting within the limits of its authority, an independent organ. It is, to be sure, closer to the legislative
department than to any other. The location of the provision (section 4) creating the Electoral
Commission under Article VI entitled "Legislative Department" of our Constitution is very indicative. Its
compositions is also significant in that it is constituted by a majority of members of the legislature. But it
is a body separate from and independent of the legislature.

The grant of power to the Electoral Commission to judge all contests relating to the election, returns
and qualifications of members of the National Assembly, is intended to be as complete and unimpaired
as if it had remained originally in the legislature. The express lodging of that power in the Electoral
Commission is an implied denial of the exercise of that power by the National Assembly. And this is as
effective a restriction upon the legislative power as an express prohibition in the Constitution (Ex parte
Lewis, 45 Tex. Crim. Rep., 1; State vs. Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we concede the power
claimed in behalf of the National Assembly that said body may regulate the proceedings of the Electoral
Commission and cut off the power of the commission to lay down the period within which protests
should be filed, the grant of power to the commission would be ineffective. The Electoral Commission in
such case would be invested with the power to determine contested cases involving the election,
returns and qualifications of the members of the National Assembly but subject at all times to the
regulative power of the National Assembly. Not only would the purpose of the framers of our
Constitution of totally transferring this authority from the legislative body be frustrated, but a dual
authority would be created with the resultant inevitable clash of powers from time to time. A sad
spectacle would then be presented of the Electoral Commission retaining the bare authority of taking
cognizance of cases referred to, but in reality without the necessary means to render that authority
effective whenever and whenever the National Assembly has chosen to act, a situation worse than that
intended to be remedied by the framers of our Constitution. The power to regulate on the part of the
National Assembly in procedural matters will inevitably lead to the ultimate control by the Assembly of
the entire proceedings of the Electoral Commission, and, by indirection, to the entire abrogation of the
constitutional grant. It is obvious that this result should not be permitted.

We are not insensible to the impassioned argument or the learned counsel for the petitioner
regarding the importance and necessity of respecting the dignity and independence of the national
Assembly as a coordinate department of the government and of according validity to its acts, to avoid
what he characterized would be practically an unlimited power of the commission in the admission of
protests against members of the National Assembly. But as we have pointed out hereinabove, the
creation of the Electoral Commission carried with it ex necesitate rei the power regulative in character
to limit the time with which protests intrusted to its cognizance should be filed. It is a settled rule of
construction that where a general power is conferred or duty enjoined, every particular power
necessary for the exercise of the one or the performance of the other is also conferred (Cooley,
Constitutional Limitations, eight ed., vol. I, pp. 138, 139). In the absence of any further constitutional
provision relating to the procedure to be followed in filing protests before the Electoral Commission,
therefore, the incidental power to promulgate such rules necessary for the proper exercise of its
exclusive power to judge all contests relating to the election, returns and qualifications of members of
the National Assembly, must be deemed by necessary implication to have been lodged also in the
Electoral Commission.

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

But independently of the legal and constitutional aspects of the present case, there are considerations
of equitable character that should not be overlooked in the appreciation of the intrinsic merits of the
controversy. The Commonwealth Government was inaugurated on November 15, 1935, on which date
the Constitution, except as to the provisions mentioned in section 6 of Article XV thereof, went into
effect. The new National Assembly convened on November 25th of that year, and the resolution
confirming the election of the petitioner, Jose A. Angara was approved by that body on December 3,
1935. The protest by the herein respondent Pedro Ynsua against the election of the petitioner was filed
on December 9 of the same year. The pleadings do not show when the Electoral Commission was
formally organized but it does appear that on December 9, 1935, the Electoral Commission met for the
first time and approved a resolution fixing said date as the last day for the filing of election protest.
When, therefore, the National Assembly passed its resolution of December 3, 1935, confirming the
election of the petitioner to the National Assembly, the Electoral Commission had not yet met; neither
does it appear that said body had actually been organized. As a mater of fact, according to certified
copies of official records on file in the archives division of the National Assembly attached to the record
of this case upon the petition of the petitioner, the three justices of the Supreme Court the six members
of the National Assembly constituting the Electoral Commission were respectively designated only on
December 4 and 6, 1935. If Resolution No. 8 of the National Assembly confirming non-protested
elections of members of the National Assembly had the effect of limiting or tolling the time for the
presentation of protests, the result would be that the National Assembly on the hypothesis that it still
retained the incidental power of regulation in such cases had already barred the presentation of
protests before the Electoral Commission had had time to organize itself and deliberate on the mode
and method to be followed in a matter entrusted to its exclusive jurisdiction by the Constitution. This
result was not and could not have been contemplated, and should be avoided.

From another angle, Resolution No. 8 of the National Assembly confirming the election of members
against whom no protests had been filed at the time of its passage on December 3, 1935, can not be
construed as a limitation upon the time for the initiation of election contests. While there might have
been good reason for the legislative practice of confirmation of the election of members of the
legislature at the time when the power to decide election contests was still lodged in the legislature,
confirmation alone by the legislature cannot be construed as depriving the Electoral Commission of the
authority incidental to its constitutional power to be "the sole judge of all contest relating to the
election, returns, and qualifications of the members of the National Assembly", to fix the time for the
filing of said election protests. Confirmation by the National Assembly of the returns of its members
against whose election no protests have been filed is, to all legal purposes, unnecessary. As contended
by the Electoral Commission in its resolution of January 23, 1936, overruling the motion of the herein
petitioner to dismiss the protest filed by the respondent Pedro Ynsua, confirmation of the election of
any member is not required by the Constitution before he can discharge his duties as such member. As a
matter of fact, certification by the proper provincial board of canvassers is sufficient to entitle a
member-elect to a seat in the national Assembly and to render him eligible to any office in said body
(No. 1, par. 1, Rules of the National Assembly, adopted December 6, 1935).

Under the practice prevailing both in the English House of Commons and in the Congress of the
United States, confirmation is neither necessary in order to entitle a member-elect to take his seat. The
return of the proper election officers is sufficient, and the member-elect presenting such return begins
to enjoy the privileges of a member from the time that he takes his oath of office (Laws of England, vol.
12, pp. 331. 332; vol. 21, pp. 694, 695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order only
in cases of contested elections where the decision is adverse to the claims of the protestant. In England,
the judges' decision or report in controverted elections is certified to the Speaker of the House of
Commons, and the House, upon being informed of such certificate or report by the Speaker, is required
to enter the same upon the Journals, and to give such directions for confirming or altering the return, or
for the issue of a writ for a new election, or for carrying into execution the determination as
circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the United States, it is believed, the order
or decision of the particular house itself is generally regarded as sufficient, without any actual
alternation or amendment of the return (Cushing, Law and Practice of Legislative Assemblies, 9th ed.,
sec. 166).

Under the practice prevailing when the Jones Law was still in force, each house of the Philippine
Legislature fixed the time when protests against the election of any of its members should be filed. This
was expressly authorized by section 18 of the Jones Law making each house the sole judge of the
election, return and qualifications of its members, as well as by a law (sec. 478, Act No. 3387)
empowering each house to respectively prescribe by resolution the time and manner of filing contest in
the election of member of said bodies. As a matter of formality, after the time fixed by its rules for the
filing of protests had already expired, each house passed a resolution confirming or approving the
returns of such members against whose election no protests had been filed within the prescribed time.
This was interpreted as cutting off the filing of further protests against the election of those members
not theretofore contested (Amistad vs. Claravall [Isabela], Second Philippine Legislature, Record First
Period, p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine Legislature; Fetalvero vs. Festin
[Romblon], Sixth Philippine Legislature, Record First Period, pp. 637-640; Kintanar vs. Aldanese
[Fourth District, Cebu], Sixth Philippine Legislature, Record First Period, pp. 1121, 1122; Aguilar vs.
Corpus [Masbate], Eighth Philippine Legislature, Record First Period, vol. III, No. 56, pp. 892, 893). The
Constitution has repealed section 18 of the Jones Law. Act No. 3387, section 478, must be deemed to
have been impliedly abrogated also, for the reason that with the power to determine all contest relating
to the election, returns and qualifications of members of the National Assembly, is inseparably linked
the authority to prescribe regulations for the exercise of that power. There was thus no law nor
constitutional provisions which authorized the National Assembly to fix, as it is alleged to have fixed on
December 3, 1935, the time for the filing of contests against the election of its members. And what the
National Assembly could not do directly, it could not do by indirection through the medium of
confirmation.

Summarizing, we conclude:

(a) That the government established by the Constitution follows fundamentally the theory of
separation of power into the legislative, the executive and the judicial.

(b) That the system of checks and balances and the overlapping of functions and duties often makes
difficult the delimitation of the powers granted.
 (c) That in cases of conflict between the several departments and among the agencies thereof, the
judiciary, with the Supreme Court as the final arbiter, is the only constitutional mechanism devised
finally to resolve the conflict and allocate constitutional boundaries.

(d) That judicial supremacy is but the power of judicial review in actual and appropriate cases and
controversies, and is the power and duty to see that no one branch or agency of the government
transcends the Constitution, which is the source of all authority.

(e) That the Electoral Commission is an independent constitutional creation with specific powers and
functions to execute and perform, closer for purposes of classification to the legislative than to any of
the other two departments of the governments.

(f ) That the Electoral Commission is the sole judge of all contests relating to the election, returns and
qualifications of members of the National Assembly.

(g) That under the organic law prevailing before the present Constitution went into effect, each house
of the legislature was respectively the sole judge of the elections, returns, and qualifications of their
elective members.

(h) That the present Constitution has transferred all the powers previously exercised by the legislature
with respect to contests relating to the elections, returns and qualifications of its members, to the
Electoral Commission.

(i) That such transfer of power from the legislature to the Electoral Commission was full, clear and
complete, and carried with it ex necesitate rei the implied power inter alia to prescribe the rules and
regulations as to the time and manner of filing protests.

( j) That the avowed purpose in creating the Electoral Commission was to have an independent
constitutional organ pass upon all contests relating to the election, returns and qualifications of
members of the National Assembly, devoid of partisan influence or consideration, which object would
be frustrated if the National Assembly were to retain the power to prescribe rules and regulations
regarding the manner of conducting said contests.

(k) That section 4 of article VI of the Constitution repealed not only section 18 of the Jones Law
making each house of the Philippine Legislature respectively the sole judge of the elections, returns and
qualifications of its elective members, but also section 478 of Act No. 3387 empowering each house to
prescribe by resolution the time and manner of filing contests against the election of its members, the
time and manner of notifying the adverse party, and bond or bonds, to be required, if any, and to fix the
costs and expenses of contest.

(l) That confirmation by the National Assembly of the election is contested or not, is not essential
before such member-elect may discharge the duties and enjoy the privileges of a member of the
National Assembly.

(m) That confirmation by the National Assembly of the election of any member against whom no
protest had been filed prior to said confirmation, does not and cannot deprive the Electoral Commission
of its incidental power to prescribe the time within which protests against the election of any member
of the National Assembly should be filed.

We hold, therefore, that the Electoral Commission was acting within the legitimate exercise of its
constitutional prerogative in assuming to take cognizance of the protest filed by the respondent Pedro
Ynsua against the election of the herein petitioner Jose A. Angara, and that the resolution of the
National Assembly of December 3, 1935 can not in any manner toll the time for filing protests against
the elections, returns and qualifications of members of the National Assembly, nor prevent the filing of a
protest within such time as the rules of the Electoral Commission might prescribe.

In view of the conclusion reached by us relative to the character of the Electoral Commission as a
constitutional creation and as to the scope and extent of its authority under the facts of the present
controversy, we deem it unnecessary to determine whether the Electoral Commission is an inferior
tribunal, corporation, board or person within the purview of sections 226 and 516 of the Code of Civil
Procedure.

The petition for a writ of prohibition against the Electoral Commission is hereby denied, with costs
against the petitioner. So ordered.
 Avancea, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.

Separate Opinions

ABAD SANTOS, J., concurring:

I concur in the result and in most of the views so ably expressed in the preceding opinion. I am,
however, constrained to withhold my assent to certain conclusions therein advanced.

The power vested in the Electoral Commission by the Constitution of judging of all contests relating to
the election, returns, and qualifications of the members of the National Assembly, is judicial in nature.
(Thomas vs. Loney, 134 U.S., 372; 33 Law. ed., 949, 951.) On the other hand, the power to regulate the
time in which notice of a contested election may be given, is legislative in character. (M'Elmoyle vs.
Cohen, 13 Pet., 312; 10 Law. ed., 177; Missouri vs. Illinois, 200 U. S. 496; 50 Law. ed., 572.)

It has been correctly stated that the government established by the Constitution follows
fundamentally the theory of the separation of powers into legislative, executive, and judicial. Legislative
power is vested in the National Assembly. (Article VI, sec. 1.) In the absence of any clear constitutional
provision to the contrary, the power to regulate the time in which notice of a contested election may be
given, must be deemed to be included in the grant of legislative power to the National Assembly.

The Constitution of the United States contains a provision similar to the that found in Article VI,
section 4, of the Constitution of the Philippines. Article I, section 5, of the Constitution of the United
States provides that each house of the Congress shall be the judge of the elections, returns, and
qualifications of its own members. Notwithstanding this provision, the Congress has assumed the power
to regulate the time in which notice of a contested election may be given. Thus section 201, Title 2, of
the United States Code Annotated prescribes:

Whenever any person intends to contest an election of any Member of the House of Representatives
of the United States, he shall, within thirty days after the result of such election shall have been
determined by the officer or board of canvassers authorized by law to determine the same, give notice,
in writing, to the Member whose seat he designs to contest, of his intention to contest the same, and, in
such notice, shall specify particularly the grounds upon which he relies in the contest. (R. S., par. 105.)

The Philippine Autonomy Act, otherwise known as the Jones Law, also contained a provision to the
effect that the Senate and House of Representatives, respectively, shall be the sole judges of the
elections, returns, and qualifications of their elective members. Notwithstanding this provision, the
Philippine Legislature passed the Election Law, section 478 of which reads as follows:

The Senate and the House of Representatives shall by resolution respectively prescribe the time and
manner of filing contest in the election of members of said bodies, the time and manner of notifying the
adverse party, and bond or bonds, to be required, if any, and shall fix the costs and expenses of contest
which may be paid from their respective funds.

The purpose sought to be attained by the creation of the Electoral Commission was not to erect a
body that would be above the law, but to raise legislative elections contests from the category of
political to that of justiciable questions. The purpose was not to place the commission beyond the reach
of the law, but to insure the determination of such contests with the due process of law.

Section 478 of the Election Law was in force at the time of the adoption of the Constitution, Article
XV, section 2, of which provides that

All laws of the Philippine Islands shall continue in force until the inauguration of the Commonwealth
of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this
Constitution, until amended, altered, modified, or repealed by the National Assembly, and all references
in such laws to the Government or officials of the Philippine Islands shall be construed, in so far as
applicable, to refer to the Government and corresponding officials under this Constitution.

The manifest purpose of this constitutional provision was to insure the orderly processes of
government, and to prevent any hiatus in its operations after the inauguration of the Commonwealth of
the Philippines. It was thus provided that all laws of the Philippine Islands shall remain operative even
after the inauguration of the Commonwealth of the Philippines, unless inconsistent with the
Constitution, and that all references in such laws to the government or officials of the Philippine Islands
shall be construed, in so far as applicable, to refer to the government and corresponding officials under
the Constitution. It would seem to be consistent not only with the spirit but the letter of the
Constitution to hold that section 478 of the Election Law remains operative and should now be
construed to refer to the Electoral Commission, which, in so far as the power to judge election contests
is concerned, corresponds to either the Senate or the House of Representative under the former regime.
It is important to observe in this connection that said section 478 of the Election Law vested the power
to regulate the time and manner in which notice of a contested election may be given, not in the
Philippine Legislature but in the Senate and House of Representatives singly. In other words, the
authority to prescribe the time and manner of filing contests in the elections of members of the
Philippine Legislature was by statute lodged separately in the bodies clothed with power to decide such
contests. Construing section 478 of the Election Law to refer to the National Assembly, as required by
Article XV, section 2, of the Constitution, it seems reasonable to conclude that the authority to prescribe
the time and manner of filing contests in the election of members of the National Assembly is vested in
the Electoral Commission, which is now the body clothed with power to decide such contests.

In the light of what has been said, the resolution of the National Assembly of December 3, 1935, could
not have the effect of barring the right of the respondent Pedro Ynsua to contest the election of the
petitioner. By the same token, the Electoral Commission was authorized by law to adopt its resolution of
December 9, 1935, which fixed the time with in which written contests must be filed with the
commission.

Having been filed within the time fixed by its resolutions, the Electoral Commission has jurisdiction to
hear and determine the contest filed by the respondent Pedro Ynsua against the petitioner Jose A.
Angara.
 RA 9372 ANTI-TERRORISM LAW

EN BANC

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN)
for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR.,

Petitioners,

- versus -

ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF
FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF
STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE,

Respondents.

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

KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V.
Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN RIGHTS,
represented by its Executive Director Daisy Arago,

Petitioners,

- versus -

HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity as
Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice,
HON. RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN.
HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR
CALDERON, in his capacity as PNP Chief of Staff,

Respondents.
x ------------------------------------ x

BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS,
INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS
(KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG
DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS
(LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE
OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD), AGHAM,
TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN
MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.),
CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS,
EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE,

Petitioners,

- versus -

GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE

SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT
OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING
SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY
RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF
OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and
investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON,

Respondents.

x ------------------------------------ x
KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLES RIGHTS, represented herein by Dr.
Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline
Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also
on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA
(SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR
JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF
CHURCH PEOPLES RESPONSE, represented by Fr. Gilbert Sabado, OCARM,

Petitioners,

- versus -

GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE

SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT
OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING
SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY
RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF
OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and
investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON,

Respondents.

x------------------------------------ x
THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS
FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER
SENATORS SERGIO OSMEA III and WIGBERTO E. TAADA,

Petitioners,

- versus -

EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL (ATC),

Respondents.

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

BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG

MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE-ST), PAGKAKAISAT UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN
NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN
MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT
LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA
MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSOS RURAL
POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIO LAJARA, TEODORO REYES,
FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY P.
ASTRERA, ARNEL SEGUNE BELTRAN,

Petitioners,

- versus -

GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE

SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT
OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING
SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY
RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF
OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and
investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON,

-Respondents.

*************************************************************************************

G.R. No. 178552

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:

October 5, 2010

G.R. No. 178554

G.R. No. 178581

G.R. No. 178890

G.R. No. 179157

G.R. No. 179461

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

DECISION

CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA
9372), An Act to Secure the State and Protect our People from Terrorism, otherwise known as the
Human Security Act of 2007,[1] signed into law on March 6, 2007.

Following the effectivity of RA 9372 on July 15, 2007,[2] petitioner Southern Hemisphere
Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned
citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16, 2007 docketed as
G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor
Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights (CTUHR),
represented by their respective officers[3] who are also bringing the action in their capacity as citizens,
filed a petition for certiorari and prohibition docketed as G.R. No. 178554.
 The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General
Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang
Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL),
Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE),
Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino
Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of
Concerned Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented
by their respective officers,[4] and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr.
Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz,
Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-
Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a
petition for certiorari and prohibition docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos,
Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical
Movement for Justice and Peace (EMJP), and Promotion of Church Peoples Response (PCPR), which
were represented by their respective officers[5] who are also bringing action on their own behalf, filed a
petition for certiorari and prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty
(CODAL),[6] Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a
petition for certiorari and prohibition docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and

organizations mostly based in the Southern Tagalog Region,[7] and individuals[8] followed suit by filing
on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that
replicates the allegations raised in the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism Council[9] composed of,
at the time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice
Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting
Defense Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government
Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except
that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes
Esperon and Philippine National Police (PNP) Chief Gen. Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-
Arroyo and the support agencies for the Anti-Terrorism Council like the National Intelligence
Coordinating Agency, National Bureau of Investigation, Bureau of Immigration, Office of Civil Defense,
Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine Center on Transnational
Crime, and the PNP intelligence and investigative elements.

The petitions fail.

PROCEDURAL

Petitioners resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-
judicial functions. Section 1, Rule 65 of the Rules of Court is clear:

Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and
adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.

Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted
without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack
or excess of jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.
CONSTITUTIONAL LAW:

In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz:
(a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case.[10]

In the present case, the dismal absence of the first two requisites, which are the most essential,
renders the discussion of the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional questions.[11]

Anak Mindanao Party-List Group v. The Executive Secretary[12] summarized the rule on locus standi,
thus:

Locus standi or legal standing has been defined as a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury as a result of the governmental act that is
being challenged. The gist of the question on standing is whether a party alleges such personal stake in
the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court depends for illumination of difficult constitutional questions.

[A] party who assails the constitutionality of a statute must have a direct and personal interest. It
must show not only that the law or any governmental act is invalid, but also that it sustained or is in
immediate danger of sustaining some direct injury as a result of its enforcement, and not merely that it
suffers thereby in some indefinite way. It must show that it has been or is about to be denied some right
or privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or
penalties by reason of the statute or act complained of.

For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has
personally suffered some actual or threatened injury as a result 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.

Petitioner-organizations assert locus standi on the basis of being suspected communist fronts by
the government, especially the military; whereas individual petitioners invariably invoke the
transcendental importance doctrine and their status as citizens and taxpayers.
 While Chavez v. PCGG[13] holds that transcendental public importance dispenses with the
requirement that petitioner has experienced or is in actual danger of suffering direct and personal
injury, cases involving the constitutionality of penal legislation belong to an altogether different genus of
constitutional litigation. Compelling State and societal interests in the proscription of harmful conduct,
as will later be elucidated, necessitate a closer judicial scrutiny of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None of
them faces any charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege
that they have been subjected to close security surveillance by state security forces, their members
followed by suspicious persons and vehicles with dark windshields, and their offices monitored by
men with military build. They likewise claim that they have been branded as enemies of the
[S]tate.[14]

Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly
points out that petitioners have yet to show any connection between the purported surveillance and
the implementation of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT,
Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take
judicial notice of respondents alleged action of tagging them as militant organizations fronting for the
Communist Party of the Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The
tagging, according to petitioners, is tantamount to the effects of proscription without following the
procedure under the law.[15] The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same
allegations.

The Court cannot take judicial notice of the alleged tagging of petitioners.

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must
be one of common and general knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court.
The principal guide in determining what facts may be assumed to be judicially known is that of
notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records and
facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a reasonable
dispute in that it is either: (1) generally known within the territorial jurisdiction of the trial court; or (2)
capable of accurate and ready determination by resorting to sources whose accuracy cannot reasonably
be questionable.
 Things of common knowledge, of which courts take judicial matters coming to the knowledge
of men generally in the course of the ordinary experiences of life, or they may be matters which are
generally accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus,
facts which are universally known, and which may be found in encyclopedias, dictionaries or other
publications, are judicially noticed, provided, they are of such universal notoriety and so generally
understood that they may be regarded as forming part of the common knowledge of every person. As
the common knowledge of man ranges far and wide, a wide variety of particular facts have been
judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any
fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no
constructive knowledge.[16] (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial notice. Petitioners
apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA
9372 has been filed against them, three years after its effectivity, belies any claim of imminence of their
perceived threat emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as
well on their supposed link to the CPP and NPA. They fail to particularize how the implementation of
specific provisions of RA 9372 would result in direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist organization, the United States
of America[17] (US) and the European Union[18] (EU) have both classified the CPP, NPA and Abu Sayyaf
Group as foreign terrorist organizations. The Court takes note of the joint statement of Executive
Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would
adopt the US and EU classification of the CPP and NPA as terrorist organizations.[19] Such statement
notwithstanding, there is yet to be filed before the courts an application to declare the CPP and NPA
organizations as domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been
in effect for three years now. From July 2007 up to the present, petitioner-organizations have
conducted their activities fully and freely without any threat of, much less an actual, prosecution or
proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives

Saturnino Ocampo, Teodoro Casio, Rafael Mariano and Luzviminda Ilagan,[20] urged the government
to resume peace negotiations with the NDF by removing the impediments thereto, one of which is the
adoption of designation of the CPP and NPA by the US and EU as foreign terrorist organizations.
Considering the policy statement of the Aquino Administration[21] of resuming peace talks with the
NDF, the government is not imminently disposed to ask for the judicial proscription of the CPP-NPA
consortium and its allied organizations.

More important, there are other parties not before the Court with direct and specific interests in
the questions being raised.[22] Of recent development is the filing of the first case for proscription
under Section 17[23] of RA 9372 by the Department of Justice before the Basilan Regional Trial Court
against the Abu Sayyaf Group.[24] Petitioner-organizations do not in the least allege any link to the Abu
Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372
by alluding to past rebellion charges against them.

In Ladlad v. Velasco,[25] the Court ordered the dismissal of rebellion charges filed in 2006 against
then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of
GABRIELA, and Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also named in the
dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato
Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for
the Communist movement were petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP,
KADAMAY, LFS and COURAGE.[26]

The dismissed rebellion charges, however, do not save the day for petitioners. For one, those
charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another,
rebellion is defined and punished under the Revised Penal Code. Prosecution for rebellion is not made
more imminent by the enactment of RA 9372, nor does the enactment thereof make it easier to charge
a person with rebellion, its elements not having been altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to prospective
charges under RA 9372. It cannot be overemphasized that three years after the enactment of RA 9372,
none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty
to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance
to those arrested or detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe
the IBP or any of its members with standing.[27] The IBP failed to sufficiently demonstrate how its
mandate under the assailed statute revolts against its constitutional rights and duties. Moreover, both
the IBP and CODAL have not pointed to even a single arrest or detention effected under RA 9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of political
surveillance, also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of
political surveillance, the Court finds that she has not shown even the slightest threat of being charged
under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Taada and Senator Sergio
Osmea III, who cite their being respectively a human rights advocate and an oppositor to the passage
of RA 9372. Outside these gratuitous statements, no concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No.
178552 also conveniently state that the issues they raise are of transcendental importance, which must
be settled early and are of far-reaching implications, without mention of any specific provision of RA
9372 under which they have been charged, or may be charged. Mere invocation of human rights
advocacy has nowhere been held sufficient to clothe litigants with locus standi. Petitioners must show
an actual, or immediate danger of sustaining, direct injury as a result of the laws enforcement. To rule
otherwise would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest
shared by the general public.

Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A
taxpayer suit is proper only when there is an exercise of the spending or taxing power of Congress,[28]
whereas citizen standing must rest on direct and personal interest in the proceeding.[29]

RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its
implementation, while none of the individual petitioner-citizens has alleged any direct and personal
interest in the implementation of the law.

It bears to stress that generalized interests, albeit accompanied by the assertion of a public right,
do not establish locus standi. Evidence of a direct and personal interest is key.

Petitioners fail to present an actual case or controversy

By constitutional fiat, judicial power operates only when there is an actual case or controversy.

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.[30] (emphasis and underscoring supplied.)
 As early as Angara v. Electoral Commission,[31] the Court ruled that the power of judicial review is
limited to actual cases or controversies to be exercised after full opportunity of argument by the parties.
Any attempt at abstraction could only lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an
advisory opinion.[32]

Information Technology Foundation of the Philippines v. COMELEC[33] cannot be more emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. The controversy must be justiciabledefinite and concrete,
touching on the legal relations of parties having adverse legal interests. In other words, the
pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a
denial thereof on the other hand; that is, it must concern a real and not merely a theoretical
question or issue. There ought to be an actual and substantial controversy admitting of specific
relief through a decree conclusive in nature, as distinguished from an opinion advising what the
law would be upon a hypothetical state of facts. (Emphasis and underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly
Urbanized City was held to be premature as it was tacked on uncertain, contingent events.[34] Similarly,
a petition that fails to allege that an application for a license to operate a radio or television station has
been denied or granted by the authorities does not present a justiciable controversy, and merely
wheedles the Court to rule on a hypothetical problem.[35]

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections[36] for
failure to cite any specific affirmative action of the Commission on Elections to implement the assailed
resolution. It refused, in Abbas v. Commission on Elections,[37] to rule on the religious freedom claim of
the therein petitioners based merely on a perceived potential conflict between the provisions of the
Muslim Code and those of the national law, there being no actual controversy between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad
infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to
any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This,
however, is qualified by the requirement that there must be sufficient facts to enable the Court to
intelligently adjudicate the issues.

Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,[39] allowed the pre-
enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a
credible threat of prosecution and should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief.[40] The plaintiffs therein filed an action before a
federal court to assail the constitutionality of the material support statute, 18 U.S.C. 2339B (a) (1),[41]
proscribing the provision of material support to organizations declared by the Secretary of State as
foreign terrorist organizations. They claimed that they intended to provide support for the
humanitarian and political activities of two such organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory

petition clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner
seeks to do, as there would then be a justiciable controversy.[42]

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged
provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No
demonstrable threat has been established, much less a real and existing one.

Petitioners obscure allegations of sporadic surveillance and supposedly being tagged as

communist fronts in no way approximate a credible threat of prosecution. From these allegations, the
Court is being lured to render an advisory opinion, which is not its function.[43]

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over
which the Court has no original jurisdiction. Then again, declaratory actions characterized by double
contingency, where both the activity the petitioners intend to undertake and the anticipated reaction
to it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.[44]

The possibility of abuse in the implementation of RA 9372 does not avail to take the present
petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372
since the exercise of any power granted by law may be abused.[45] Allegations of abuse must be
anchored on real events before courts may step in to settle actual controversies involving rights which
are legally demandable and enforceable.

A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of
constitutional litigation are rightly excepted.

Petitioners assail for being intrinsically vague and impermis`sibly broad the definition of the crime
of terrorism[46] under RA 9372 in that terms like widespread and extraordinary fear and panic among
the populace and coerce the government to give in to an unlawful demand are nebulous, leaving law
enforcement agencies with no standard to measure the prohibited acts.

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth
find no application in the present case since these doctrines apply only to free speech cases; and that RA
9372 regulates conduct, not speech.
 For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the
schools of thought on whether the void-for-vagueness and overbreadth doctrines are equally applicable
grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application
of the two doctrines to free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan[47]
and Estrada v. Sandiganbayan.[48]

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word intervene in Section 5[49] of the
Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated
that the overbreadth and the vagueness doctrines have special application only to free-speech cases,
and are not appropriate for testing the validity of penal statutes.[50] It added that, at any rate, the
challenged provision, under which the therein petitioner was charged, is not vague.[51]

While in the subsequent case of Romualdez v. Commission on Elections,[52] the Court stated that
a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a
vagueness analysis, and concluded that the therein subject election offense[53] under the Voters
Registration Act of 1996, with which the therein petitioners were charged, is couched in precise
language.[54]

The two Romualdez cases rely heavily on the Separate Opinion[55] of Justice Vicente V. Mendoza
in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free
from ambiguity respecting the definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a
facial invalidation as opposed to an as-applied challenge. He basically postulated that allegations
that a penal statute is vague and overbroad do not justify a facial review of its validity. The pertinent
portion of the Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada
decision, reads:

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the
statutes in a single prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be regulated by a statute drawn
with narrow specificity." The possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of others may be deterred and
perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may
well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the
law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They
are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by
Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context
of the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth
have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken
words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it
has been held that "a facial challenge to a legislative act is the most difficult challenge to mount
successfully, since the challenger must establish that no set of circumstances exists under which the Act
would be valid." As for the vagueness doctrine, it is said that a litigant may challenge a statute on its
face only if it is vague in all its possible applications. "A plaintiff who engages in some conduct that is
clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken
as applying to other persons or other situations in which its application might be unconstitutional." As
has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes found vague as a matter of due process
typically are invalidated [only] 'as applied' to a particular defendant." Consequently, there is no basis for
petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that
they might be applied to parties not before the Court whose activities are constitutionally protected. It
constitutes a departure from the case and controversy requirement of the Constitution and permits
decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S.
Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary.
The combination of the relative remoteness of the controversy, the impact on the legislative process of
the relief sought, and above all the speculative and amorphous nature of the required line-by-line
analysis of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is charged.[56]
(Underscoring supplied.)

The confusion apparently stems from the interlocking relation of the overbreadth and vagueness
doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of
violation of due process of law) or a speech regulation (under a claim of abridgement of the freedom of
speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same
plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle.[57] The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or
prevent activities constitutionally subject to state regulations may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms.[58]

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals
will understand what a statute prohibits and will accordingly refrain from that behavior, even though
some of it is protected.[59]

A facial challenge is likewise different from an as-applied challenge.

Distinguished from an as-applied challenge which considers only extant facts affecting real
litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not
only on the basis of its actual operation to the parties, but also on the assumption or prediction that its
very existence may cause others not before the court to refrain from constitutionally protected speech
or activities.[60]

Justice Mendoza accurately phrased the subtitle[61] in his concurring opinion that the vagueness
and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant
cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or
overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the chilling
effect on protected speech, the exercise of which should not at all times be abridged.[62] As reflected
earlier, this rationale is inapplicable to plain penal statutes that generally bear an in terrorem effect in
deterring socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly
considered innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of
constitutionally protected rights.[63]

The Court reiterated that there are critical limitations by which a criminal statute may be
challenged and underscored that an on-its-face invalidation of penal statutes x x x may not be
allowed.[64]

[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and
other fundamental rights may be facially challenged. Under no case may ordinary penal statutes be
subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is
permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A strong
criticism against employing a facial challenge in the case of penal statutes, if the same is allowed, would
effectively go against the grain of the doctrinal requirement of an existing and concrete controversy
before judicial power may be appropriately exercised. A facial challenge against a penal statute is, at
best, amorphous and speculative. It would, essentially, force the court to consider third parties who are
not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal
statutes, such a test will impair the States ability to deal with crime. If warranted, there would be
nothing that can hinder an accused from defeating the States power to prosecute on a mere showing
that, as applied to third parties, the penal statute is vague or overbroad, notwithstanding that the law is
clear as applied to him.[65] (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a
facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free
speech cases

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in
order to plot areas of protected speech, inevitably almost always under situations not before the court,
that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute
cannot be properly analyzed for being substantially overbroad if the court confines itself only to facts as
applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to some
of the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert
their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied
for" so that the overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the
concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad laws "very existence may cause others not
before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling
is designed to remove that deterrent effect on the speech of those third parties.[66] (Emphasis in the
original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases,[67]
observed that the US Supreme Court has not recognized an overbreadth doctrine outside the limited
context of the First Amendment,[68] and that claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to regulate only spoken words.[69] In Virginia v.
Hicks,[70] it was held that rarely, if ever, will an overbreadth challenge succeed against a law or
regulation that is not specifically addressed to speech or speech-related conduct. Attacks on overly
broad statutes are justified by the transcendent value to all society of constitutionally protected
expression.[71]

Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness
analysis of the definition of terrorism in RA 9372 is legally impermissible absent an actual or imminent
charge against them

While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the
vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there
was no basis to review the law on its face and in its entirety.[72] It stressed that statutes found
vague as a matter of due process typically are invalidated only 'as applied' to a particular
defendant.[73]

American jurisprudence[74] instructs that vagueness challenges that do not involve the First
Amendment must be examined in light of the specific facts of the case at hand and not with regard to
the statute's facial validity.

For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal
statutes are unconstitutionally vague, developing a doctrine hailed as among the most important
guarantees of liberty under law.[75]

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has
been utilized in examining the constitutionality of criminal statutes. In at least three cases,[76] the
Court brought the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal
tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and
the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in
these three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with
the therein assailed penal statute, unlike in the present case.

There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its
validity.

From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following
elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of
the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of the
predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the
populace; and (3) the offender is actuated by the desire to coerce the government to give in to an
unlawful demand.

In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners
contend that the element of unlawful demand in the definition of terrorism[77] must necessarily be
transmitted through some form of expression protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime
actually committed to trigger the operation of the key qualifying phrases in the other elements of the
crime, including the coercion of the government to accede to an unlawful demand. Given the
presence of the first element, any attempt at singling out or highlighting the communicative component
of the prohibition cannot recategorize the unprotected conduct into a protected speech.

Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on

just one particle of an element of the crime. Almost every commission of a crime entails some mincing
of words on the part of the offender like in declaring to launch overt criminal acts against a victim, in
haggling on the amount of ransom or conditions, or in negotiating a deceitful transaction. An analogy in
one U.S. case[78] illustrated that the fact that the prohibition on discrimination in hiring on the basis of
race will require an employer to take down a sign reading White Applicants Only hardly means that
the law should be analyzed as one regulating speech rather than conduct.

Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter
neither the intent of the law to punish socially harmful conduct nor the essence of the whole act as
conduct and not speech. This holds true a fortiori in the present case where the expression figures only
as an inevitable incident of making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances brought
about through speaking or writing. But it has never been deemed an abridgement of freedom of speech
or press to make a course of conduct illegal merely because the conduct was, in part, initiated,
evidenced, or carried out by means of language, either spoken, written, or printed. Such an expansive
interpretation of the constitutional guaranties of speech and press would make it practically impossible
ever to enforce laws against agreements in restraint of trade as well as many other agreements and
conspiracies deemed injurious to society.[79] (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because they merely evidence
a prohibited conduct.[80] Since speech is not involved here, the Court cannot heed the call for a facial
analysis.

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein
subject penal statute as applied to the therein petitioners inasmuch as they were actually charged with
the pertinent crimes challenged on vagueness grounds. The Court in said cases, however, found no
basis to review the assailed penal statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a
criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a credible threat of
prosecution and should not be required to await and undergo a criminal prosecution as the sole

As earlier reflected, petitioners have established neither an actual charge nor a credible threat of
prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of terrorism is
thus legally impermissible. The Court reminds litigants that judicial power neither contemplates
speculative counseling on a statutes future effect on hypothetical scenarios nor allows the courts to be
used as an extension of a failed legislative lobbying in Congress.

WHEREFORE, the petitions are DISMISSED.

SO ORDERED.

CONCHITA CARPIO MORALES

Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice
ANTONIO T. CARPIO

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice
ANTONIO EDUARDO B. NACHURA

Associate Justice

ARTURO D. BRION

Associate Justice
TERESITA J. LEONARDO-DE CASTRO

Associate Justice
DIOSDADO M. PERALTA

Associate Justice

LUCAS P. BERSAMIN

Associate Justice
ROBERTO A. ABAD

Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice
MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice
MARIA LOURDES P. A. SERENO

Associate Justice
CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

RENATO C. CORONA

Chief Justice
[1] A consolidation of House Bill No. 4839 and Senate Bill No. 2137.

[2] REPUBLIC ACT No. 9372, Sec. 62.

[3] KMU Chairperson Elmer Labog, NAFLU-KMU National President Joselito V. Ustarez and NAFLU-KMU
Secretary General Antonio C. Pascual, and CTUHR Executive Director Daisy Arago.

[4] BAYAN Chairperson Dr. Carolina Pagaduan-Araullo, GABRIELA Secretary General Emerenciana de
Jesus, KMP Secretary General Danilo Ramos, MCCCL Convenor Amado G. Inciong, COURAGE National
President Ferdinand Gaite, KADAMAY Vice Chairperson Gloria G. Arellano, SCW Chairperson Merly
Grafe, LFS National Chairperson Vencer Crisostomo, Anakbayan Secretary General Eleanor de Guzman,
PAMALAKAYA Chairperson Fernando Hicap, ACT Chairperson Antonio Tinio, Migrante Chairperson
Concepcion Bragas-Regalado, HEAD Deputy Secretary General Dr. Geneve Rivera, and Agham
Chairperson Dr. Giovanni Tapang. Grafe and Tapang, however, failed to verify the petition.

[5] Dr. Edelina P. De La Paz for Karapatan, Evangeline Hernandez for Hustisya, Mary Guy Portajada for
Desaparecidos, Donato Continente for SELDA, Bishop Elmer M. Bolocon for EMJP and Fr. Gilbert Sabado
for PCPR.

[6] IBP is represented by Atty. Feliciano M. Bautista, national president, while CODAL is represented by
Atty. Noel Neri, convenor/member.

[7] BAYAN-ST is represented by Secretary General Arman Albarillo; Katipunan ng mga Magsasaka sa
Timog Katagulagan (KASAMA-TK) by Secretary General Orly Marcellana; Pagkakaisa ng mga
Manggagawa sa Timog Katagalugan (PAMANTIK-KMU) by Regional Secretary General Luz Baculo;
GABRIELA-Southern Tagalog by Secretary General Helen Asdolo; Organized Labor Association in Line
Industries and Agriculture (OLALIA) by Chairperson Romeo Legaspi; Southern Tagalog Region Transport
Organization (STARTER) by Regional Chairperson Rolando Mingo; Bayan Muna Partylist-ST by Regional
Coordinator Bayani Cambronero; Anakbayan-ST by Regional Chairperson Pedro Santos, Jr.; LFS-ST by
Spokesperson Mark Velasco; PAMALAKAYA-ST by Vice Chairperson Peter Gonzales, Bigkis at Lakas ng
mga Katutubo sa Timog Katagalugan (BALATIK) by Regional Auditor Aynong Abnay; Kongreso ng mga
Magbubukid para sa Repormang Agraryo (Kompra) represented by member Leng Jucutan; Martir ng
Bayan with no representation; Pagkakaisa at Ugnayan ng nmga Magbubukid sa Laguna (PUMALAG)
represented by Provincial Secretary General Darwin Liwag; and Los Baos Rural Poor Organization for
Progress and Equality represented by Teodoro Reyes.

[8] Francesca Tolentino, Jannette Barrientos, Arnel Segune Beltran, Edgardo Bitara Yap, Oscar Lapida,
Delfin de Claro, Sally Astera, Christian Nio Lajara, Mario Anicete, and Emmanuel Capulong.

[9] REPUBLIC ACT No. 9372, Sec. 53.

[10] Francisco v. House of Representatives, G.R. No. 160261, November 10, 2003, 415 SCRA 44, 133
(2003).

[11] Integrated Bar of the Philippines v. Zamora, 392 Phil. 618, 633 (2000), citing Baker v. Carr, 369 U.S.
186 (1962).

[12] G.R. No. 166052, August 29, 2007, 531 SCRA 583, 591-592.

[13] 360 Phil. 133 (1998).

[14] Rollo (G.R. No. 178890), pp. 11-12.

[15] Rollo (G.R. No. 178581), p. 17.

[16] Vide Genesis Transport Service, Inc. v. Unyon ng Malayang Manggagawa ng Genesis Transport,
G.R. No. 182114, April 5, 2010.

[17] <http://www.state.gov/s/ct/rls/other/des/123085.htm> (last visited August 13, 2010).

[18] <http://eur-ex.europa.eu/LexUriServ/site/en/oj/2005/l_314/l_31420051130en00410045.pdf>
and its recent update <http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:023:0037:01:EN:HTM> on the Council Common
Position (last visited August 13, 2010).

[19]Philippine Daily Inquirer, July 11, 2007, Page A-1. Visit also
<http://newsinfo.inquirer.net/breakingnews/nation/view/20070711-
75951/Reds_target_of_terror_law> (last visited August 16, 2010).

[20] House Resolution No. 641.

[21] In his State of the Nation Address, President Benigno Aquino III said: x x x x. Tungkol naman po sa
CPP-NPA-NDF: handa na ba kayong maglaan ng kongkretong mungkahi, sa halip na pawang batikos
lamang?

Kung kapayapaan din ang hangad ninyo, handa po kami sa malawakang tigil-putukan. Mag-usap tayo.

Mahirap magsimula ang usapan habang mayroon pang amoy ng pulbura sa hangin. Nananawagan ako:
huwag po natin hayaang masayang ang napakagandang pagkakataong ito upang magtipon sa ilalim ng
iisang adhikain.

Kapayapaan at katahimikan po ang pundasyon ng kaunlaran. Habang nagpapatuloy ang barilan, patuloy
din ang pagkakagapos natin sa kahirapan. x x x x. See: <http://www.gov.ph/2010/07/26/state-of-the-
nation-address-2010> (last visited August 25, 2010).

[22] In Francisco v. House of Representatives, 460 Phil. 830, 899 (2003), the Court followed the
determinants cited by Mr, Justice Florentino Feliciano in Kilosbayan v. Guingona for using the
transcendental importance doctrine, to wit: (a) the character of the funds or other assets involved in the
case; (b) the presence of a clear case of disregard of a constitutional or statutory prohibition by the
public respondent agency or instrumentality of the government; and (c) the lack of any other party with
a more direct and specific interest in the questions being raised.
[23] SEC. 17. Proscription of Terrorist Organization, Association, or Group of Persons. Any organization,
association, or group of persons organized for the purpose of engaging in terrorism, or which, although
not organized for that purpose, actually uses acts to terrorize mentioned in this Act or to sow and create
a condition of widespread fear and panic among the populace in order to coerce the government to give
in to an unlawful demand shall, upon application of the Department of Justice before a competent
Regional Trial Court, with due notice and opportunity to be heard given to the organization, association,
or group of persons concerned, be declared as a terrorist and outlawed organization, association, or
group of persons by the said Regional Trial Court.

[24] <http://www.philstar.com/Article.aspx?articleId=607149&publicationSubCategoryId=63> (last

visited: September 1, 2010).

[25] G.R. Nos. 172070-72, June 1, 2007, 523 SCRA 318.

[26] Rollo (G.R. No. 178581), pp. 111-125.

[27] Supra note 22 at 896.

[28] Gonzales v. Hon. Narvasa, 392 Phil. 518, 525 (2000), citing Flast v. Cohen, 392 US 83, 20 L Ed 2d
947, 88 S Ct 1942.

[29] Telecommunications and Broadcast Attorneys of the Philippines, Inc. v. Comelec, G.R. No. 132922,
April 21, 1998, 289 SCRA 337.

[30] Constitution, Article VIII, Section 1.

[31] 63 Phil. 139, 158 (1936).

[32] Republic Telecommunications Holding, Inc. v. Santiago, G.R. No. 140338, August 7, 2007, 529
SCRA 232, 243.

[33] 499 Phil. 281, 304-305 (2005).

[34] Mariano, Jr. v. Commission on Elections, 312 Phil. 259 (1995).

[35] Allied Broadcasting Center v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.

[36] 314 Phil. 131 (1995).

[37] G.R. No. 89651, November 10, 1989, 179 SCRA 287.

[38] De Castro v. Judicial and Bar Council, G.R. No. 191002, March 17, 2010, citing Buckley v. Valeo,
424 U.S. 1, 113-118 (1976) and Regional Rail Reoganization Act Cases, 419 U.S. 102, 138-148 (1974).

[39] 561 U.S. [unpaginated] (2010). Volume 561 is still pending completion.

[40] Id. citing Babbitt v. Farm Workers, supra.

[41] 2339B. Providing material support or resources to designated foreign terrorist organizations.

(a) Prohibited Activities.

(1) Unlawful conduct. Whoever knowingly provides material support or resources to a foreign terrorist
organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more
than 15 years, or both, and, if the death of any person results, shall be imprisoned for any term of years
or for life. To violate this paragraph, a person must have knowledge that the organization is a designated
terrorist organization (as defined in subsection (g)(6)), that the organization has engaged or engages in
terrorist activity (as defined in section 212(a)(3)(B) of the Immigration and Nationality Act), or that the
organization has engaged or engages in terrorism (as defined in section 140(d)(2) of the Foreign
Relations Authorization Act, Fiscal Years 1988 and 1989).

[42] Doe v. Bolton, 410 U.S. 179, 188-189 (1973).

[43] Automotive Industry Workers Alliance v. Romulo, G.R. No. 157509, January 18, 2005, 449 SCRA 1,
10, citing Allied Broadcasting Center, Inc. v. Republic, G.R. No. 91500, October 18, 1990, 190 SCRA 782.

[44] Lawrence H. Tribe, American Constitutional Law Vol. I, p.332 (3rd ed. 2000), citing Steffel v.
Thompson, 415 U.S. 452 (1974) and Ellis v. Dyson, 421 U.S. 426 (1975).

[45] Vide Garcia v. Commission on Elections, G.R. No. 111511, October 5, 1993, 227 SCRA 100, 117,
stating that all powers are susceptible of abuse. The mere possibility of abuse cannot, however, infirm
per se the grant of power[.]

[46] RA 9372 defines the crime of terrorism as follows:

SEC. 3.Terrorism. Any person who commits an act punishable under any of the following provisions of
the Revised Penal Code:

a. Article 222 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);

b. Article 134 (Rebellion or Insurrection);

 c. Article 134-a (Coup detat), including acts committed by private persons;

d. Article 248 (Murder);

e. Article 267 (Kidnapping and Serious Illegal Detention);

f. Article 324 (Crimes Involving Destruction); or under

1. Presidential Decree No. 1613 (The Law on Arson);

2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207 (Atomic Energy Regulatory and Liability Act of 1968);

4. Republic Act No. 6235 (Anti-Hijacking Law);

5. Presidential Decree No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974); and,

6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful
Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

thereby sowing and creating a condition of widespread and extraordinary fear and panic among the
populace, in order to coerce the government to give in to an unlawful demand shall be guilty of the
crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit
of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as
amended.

[47] 479 Phil. 265 (2004).

[48] 421 Phil. 290 (2001).

[49] Republic Act No. 3019, Sec. 5. Prohibition on certain relatives. It shall be unlawful for the spouse or
for any relative, by consanguinity or affinity, within the third civil degree, of the President of the
Philippines, the Vice-President of the Philippines, the President of the Senate, or the Speaker of the
House of Representatives, to intervene, directly or indirectly, in any business, transaction, contract or
application with the Government x x x. (Underscoring supplied)

[50] Romualdez v. Hon. Sandiganbayan, supra at 281.

[51] Id. at 288.

[52] G.R. No. 167011, April 30, 2008, 553 SCRA 370.

[53] Punishable under Section 45(j) in relation to Section 10(g) or (j) of Republic Act No. 8189.

[54] Romualdez v. Commission on Elections, supra at 284.

[55] Estrada v. Sandiganbayan, supra at 421-450.

[56] Id. at 353-356.

[57] People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186, 195.

[58] Blo Umpar Adiong v. Commission on Elections, G.R. No. 103956, March 31, 1992, 207 SCRA 712,
719-720.
[59] Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J.
Crim. L. 279 (2003), note 39, citing Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46
Stan. L. Rev. 235, 261-262 (1994).

[60] Vide David v. Macapagal-Arroyo, G.R. No. 171396, May 3, 2006, 489 SCRA 160, 239; Romualdez v.
Commission on Elections, supra at 418, note 35.

[61] Estrada v. Sandiganbayan, supra at 429.

[62] Constitution, Art. III, Sec. 4.

[63] The power to define crimes and prescribe their corresponding penalties is legislative in nature and
inherent in the sovereign power of the state to maintain social order as an aspect of police power. The
legislature may even forbid and penalize acts formerly considered innocent and lawful provided that no
constitutional rights have been abridged. (People v. Siton, G.R. No. 169364, September 18, 2009, 600
SCRA 476, 485).

[64] Romualdez v. Commission on Elections, supra at 643.

[65] Id. at 645-646.

[66] David v. Macapagal-Arroyo, supra at 238.

[67] Estrada v. Sandiganbayan, supra; David v. Macapagal-Arroyo, supra.

[68] Estrada v. Sandiganbayan, supra at 354.

[69] Id.
[70] 539 U.S. 113, 156 L. Ed. 2d 148 (2003).

[71] Gooding v. Wilson, 405 U.S. 518, 31 L. Ed 2d 408 (1972).

[72] Estrada v. Sandiganbayan, supra at 355.

[73] Id.

[74] United States v. Waymer, 55 F.3d 564 (11th Circ. 1995) cert. denied, 517 U.S. 1119, 134 L. Ed. 2d
519 (1996); Chapman v. United States, 500 U.S. 453, 114 L. Ed 2d 524 (1991); United States v. Powell,
423 U.S. 87, 46 L. Ed. 2d 228 (1975); United States v. Mazurie, 419 U.S. 544, 42 L. Ed 2d 706 (1975).

[75] Andrew E. Goldsmith, The Void-for-Vagueness Doctrine in the Supreme Court, Revisited, 30 Am. J.
Crim. L. 279 (2003).

[76] People v. Nazario, No. L-44143, August 31, 1988, 165 SCRA 186; People v. Dela Piedra, G.R. No.
121777, January 24, 2001, 350 SCRA 163; People v. Siton, G.R. No. 169364, September 18, 2009, 600
SCRA 476.

[77] Republic Act No. 9372, Sec. 3, supra.

[78] Rumsfield v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, 164 L.Ed 2d 156 (2006).

[79] Giboney v. Empire Storage and Ice Co., 336 U.S. 490, 93 L. Ed. 834, 843-844 (1949); Cf Brown v.
Hartlage, 456 U.S. 45, 71 L. Ed 2d 732, 742 (1982) that acknowledges: x x x The fact that such an
agreement [to engage in illegal conduct] necessarily takes the form of words does not confer upon it, or
upon the underlying conduct, the constitutional immunities that the First Amendment extends to
speech. Finally, while a solicitation to enter into an agreement arguably crosses the sometimes hazy line
distinguishing conduct from pure speech, such a solicitation, even though it may have an impact in the
political arena, remains in essence an invitation to engage in an illegal exchange for private profit, and
may properly be prohibited.

[80] Vide Eugene Volokh, Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct,
"Situation-Altering Utterances," and the Uncharted Zones, 90 Cornell L. Rev. 1277, 1315 (2005).
 Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 92024 November 9, 1990

CONGRESSMAN ENRIQUE T. GARCIA (Second District of Bataan), petitioner,

vs.

THE BOARD OF INVESTMENTS, THE DEPARTMENT OF TRADE AND INDUSTRY, LUZON PETROCHEMICAL
CORPORATION, and PILIPINAS SHELL CORPORATION, respondents.

Abraham C. La Vina for petitioner

Sycip, Salazar, Hernandez & Gatmaitan for Luzon Petrochemical Corporation.

Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for Pilipinas Shell Petroleum Corporation.

GUTIERREZ, JR., J.:

This is a petition to annul and set aside the decision of the Board of Investments (BOI)/Department of
Trade and Industry (DTI) approving the transfer of the site of the proposed petrochemical plant from
Bataan to Batangas and the shift of feedstock for that plant from naphtha only to naphtha and/or
liquefied petroleum gas (LPG).

This petition is a sequel to the petition in G.R. No. 88637 entitled "Congressman Enrique T. Garcia v.
the Board of Investments", September 7, 1989, where this Court issued a decision, ordering the BOI as
follows:
 WHEREFORE, the petition for certiorari is granted. The Board of Investments is ordered: (1) to publish
the amended application for registration of the Bataan Petrochemical Corporation, (2) to allow the
petitioner to have access to its records on the original and amended applications for registration, as a
petrochemical manufacturer, of the respondent Bataan Petrochemical Corporation, excluding, however,
privileged papers containing its trade secrets and other business and financial information, and (3) to set
for hearing the petitioner's opposition to the amended application in order that he may present at such
hearing all the evidence in his possession in support of his opposition to the transfer of the site of the
BPC petrochemical plant to Batangas province. The hearing shall not exceed a period of ten (10) days
from the date fixed by the BOI, notice of which should be served by personal service to the petitioner
through counsel, at least three (3) days in advance. The hearings may be held from day to day for a
period of ten (10) days without postponements. The petition for a writ of prohibition or preliminary
injunction is denied. No costs. (Rollo, pages 450-451)

However, acting on the petitioner's motion for partial reconsideration asking that we rule on the
import of P.D. Nos. 949 and 1803 and on the foreign investor's claim of right of final choice of plant site,
in the light of the provisions of the Constitution and the Omnibus Investments Code of 1987, this Court
on October 24, 1989, made the observation that P.D. Nos. 949 and 1803 "do not provide that the Limay
site should be the only petrochemical zone in the country, nor prohibit the establishment of a
petrochemical plant elsewhere in the country, that the establishment of a petrochemical plant in
Batangas does not violate P.D. No. 949 and P.D. No. 1803.

Our resolution skirted the issue of whether the investor given the initial inducements and other
circumstances surrounding its first choice of plant site may change it simply because it has the final
choice on the matter. The Court merely ruled that the petitioner appears to have lost interest in the
case by his failure to appear at the hearing that was set by the BOI after receipt of the decision, so he
may be deemed to have waived the fruit of the judgment. On this ground, the motion for partial
reconsideration was denied.

A motion for reconsideration of said resolution was filed by the petitioner asking that we resolve the
basic issue of whether or not the foreign investor has the right of final choice of plant site; that the
non-attendance of the petitioner at the hearing was because the decision was not yet final and
executory; and that the petitioner had not therefor waived the right to a hearing before the BOI.

In the Court's resolution dated January 17, 1990, we stated:

Does the investor have a "right of final choice" of plant site? Neither under the 1987 Constitution nor
in the Omnibus Investments Code is there such a 'right of final choice.' In the first place, the investor's
choice is subject to processing and approval or disapproval by the BOI (Art. 7, Chapter II, Omnibus
Investments Code). By submitting its application and amended application to the BOI for approval, the
investor recognizes the sovereign prerogative of our Government, through the BOI, to approve or
disapprove the same after determining whether its proposed project will be feasible, desirable and
beneficial to our country. By asking that his opposition to the LPC's amended application be heard by the
BOI, the petitioner likewise acknowledges that the BOI, not the investor, has the last word or the "final
choice" on the matter.

Secondly, as this case has shown, even a choice that had been approved by the BOI may not be 'final',
for supervening circumstances and changes in the conditions of a place may dictate a corresponding
change in the choice of plant site in order that the project will not fail. After all, our country will benefit
only when a project succeeds, not when it fails. (Rollo, pp. 538-539)

Nevertheless, the motion for reconsideration of the petitioner was denied.

A minority composed of Justices Melencio-Herrera, Gancayco, Sarmiento and this ponente voted to
grant the motion for reconsideration stating that the hearing set by the BOI was premature as the
decision of the Court was not yet final and executory; that as contended by the petitioner the Court
must first rule on whether or not the investor has the right of final choice of plant site for if the ruling is
in the affirmative, the hearing would be a useless exercise; that in the October 19, 1989 resolution, the
Court while upholding validity of the transfer of the plant site did not rule on the issue of who has the
final choice; that they agree with the observation of the majority that "the investor has no final choice
either under the 1987 Constitution or in the Omnibus Investments Code and that it is the BOI who
decides for the government" and that the plea of the petitioner should be granted to give him the
chance to show the justness of his claim and to enable the BOI to give a second hard look at the matter.

Thus, the herein petition which relies on the ruling of the Court in the resolution of January 17, 1990
in G.R. No. 88637 that the investor has no right of final choice under the 1987 Constitution and the
Omnibus Investments Code.

Under P.D. No. 1803 dated January 16, 1981, 576 hectares of the public domain located in Lamao,
Limay, Bataan were reserved for the Petrochemical Industrial Zone under the administration,
management, and ownership of the Philippine National Oil Company (PNOC).

The Bataan Refining Corporation (BRC) is a wholly government owned corporation, located at Bataan.
It produces 60% of the national output of naphtha.

Taiwanese investors in a petrochemical project formed the Bataan Petrochemical Corporation (BPC)
and applied with BOI for registration as a new domestic producer of petrochemicals. Its application
specified Bataan as the plant site. One of the terms and conditions for registration of the project was the
use of "naphtha cracker" and "naphtha" as feedstock or fuel for its petrochemical plant. The
petrochemical plant was to be a joint venture with PNOC. BPC was issued a certificate of registration on
February 24, 1988 by BOI.
 BPC was given pioneer status and accorded fiscal and other incentives by BOI, like: (1) exemption from
taxes on raw materials, (2) repatriation of the entire proceeds of liquidation investments in currency
originally made and at the exchange rate obtaining at the time of repatriation; and (3) remittance of
earnings on investments. As additional incentive, the House of Representatives approved a bill
introduced by the petitioner eliminating the 48% ad valorem tax on naphtha if and when it is used as
raw materials in the petrochemical plant. (G.R. No. 88637, September 7, 1989, pp. 2-3. Rollo, pp. 441-
442)

However, in February, 1989, A.T. Chong, chairman of USI Far East Corporation, the major investor in
BPC, personally delivered to Trade Secretary Jose Concepcion a letter dated January 25, 1989 advising
him of BPC's desire to amend the original registration certification of its project by changing the job site
from Limay, Bataan, to Batangas. The reason adduced for the transfer was the insurgency and unstable
labor situation, and the presence in Batangas of a huge liquefied petroleum gas (LPG) depot owned by
the Philippine Shell Corporation.

The petitioner vigorously opposed the proposal and no less than President Aquino expressed her
preference that the plant be established in Bataan in a conference with the Taiwanese investors, the
Secretary of National Defense and The Chief of Staff of the Armed Forces.

Despite speeches in the Senate and House opposing the Transfer of the project to Batangas, BPC filed
on April 11, 1989 its request for approval of the amendments. Its application is as follows: "(l) increasing
the investment amount from US $220 million to US $320 million; (2) increasing the production capacity
of its naphtha cracker, polythylene plant and polypropylene plant; (3) changing the feedstock from
naphtha only to "naphtha and/or liquefied petroleum gas;" and (4) transferring the job site from Limay,
Bataan, to Batangas. (Annex B to Petition; Rollo, p. 25)

Notwithstanding opposition from any quarters and the request of the petitioner addressed to
Secretary Concepcion to be furnished a copy of the proposed amendment with its attachments which
was denied by the BOI on May 25, 1989, BOI approved the revision of the registration of BPC's
petrochemical project. (Petition, Annex F; Rollo, p. 32; See pp. 4 to 6, Decision in G.R. No. 88637; supra.)

BOI Vice-Chairman Tomas I. Alcantara testifying before the Committee on Ways and Means of the
Senate asserted that:

The BOI has taken a public position preferring Bataan over Batangas as the site of the petrochemical
complex, as this would provide a better distribution of industries around the Metro Manila area. ... In
advocating the choice of Bataan as the project site for the petrochemical complex, the BOI, however,
made it clear, and I would like to repeat this that the BOI made it clear in its view that the BOI or the
government for that matter could only recomend as to where the project should be located. The BOI
recognizes and respect the principle that the final chouce is still with the proponent who would in the
final analysis provide the funding or risk capital for the project. (Petition, P. 13; Annex D to the petition)
 This position has not been denied by BOI in its pleadings in G.R. No. 88637 and in the present petition.

Section 1, Article VIII of the 1987 Constitution provides:

SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

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

There is before us an actual controversy whether the petrochemical plant should remain in Bataan or
should be transferred to Batangas, and whether its feedstock originally of naphtha only should be
changed to naphtha and/or liquefied petroleum gas as the approved amended application of the BPC,
now Luzon Petrochemical Corporation (LPC), shows. And in the light of the categorical admission of the
BOI that it is the investor who has the final choice of the site and the decision on the feedstock, whether
or not it constitutes a grave abuse of discretion for the BOI to yield to the wishes of the investor,
national interest notwithstanding.

We rule that the Court has a constitutional duty to step into this controversy and determine the
paramount issue. We grant the petition.

First, Bataan was the original choice as the plant site of the BOI to which the BPC agreed. That is why
it organized itself into a corporation bearing the name Bataan. There is available 576 hectares of public
land precisely reserved as the petrochemical zone in Limay, Bataan under P.D. No. 1803. There is no
need to buy expensive real estate for the site unlike in the proposed transfer to Batangas. The site is the
result of careful study long before any covetous interests intruded into the choice. The site is ideal. It is
not unduly constricted and allows for expansion. The respondents have not shown nor reiterated that
the alleged peace and order situation in Bataan or unstable labor situation warrant a transfer of the
plant site to Batangas. Certainly, these were taken into account when the firm named itself Bataan
Petrochemical Corporation. Moreover, the evidence proves the contrary.
 Second, the BRC, a government owned Filipino corporation, located in Bataan produces 60% of the
national output of naphtha which can be used as feedstock for the plant in Bataan. It can provide the
feedstock requirement of the plant. On the other hand, the country is short of LPG and there is need to
import the same for use of the plant in Batangas. The local production thereof by Shell can hardly supply
the needs of the consumers for cooking purposes. Scarce dollars will be diverted, unnecessarily, from
vitally essential projects in order to feed the furnaces of the transferred petrochemical plant.

Third, naphtha as feedstock has been exempted by law from the ad valorem tax by the approval of
Republic Act No. 6767 by President Aquino but excluding LPG from exemption from ad valorem tax. The
law was enacted specifically for the petrochemical industry. The policy determination by both Congress
and the President is clear. Neither BOI nor a foreign investor should disregard or contravene expressed
policy by shifting the feedstock from naphtha to LPG.

Fourth, under Section 10, Article XII of the 1987 Constitution, it is the duty of the State to "regulate
and exercise authority over foreign investments within its national jurisdiction and in accordance with
its national goals and priorities." The development of a self-reliant and independent national economy
effectively controlled by Filipinos is mandated in Section 19, Article II of the Constitution.

In Article 2 of the Omnibus Investments Code of 1987 "the sound development of the national
economy in consonance with the principles and objectives of economic nationalism" is the set goal of
government.

Fifth, with the admitted fact that the investor is raising the greater portion of the capital for the
project from local sources by way of loan which led to the so-called "petroscam scandal", the capital
requirements would be greatly minimized if LPC does not have to buy the land for the project and its
feedstock shall be limited to naphtha which is certainly more economical, more readily available than
LPG, and does not have to be imported.

Sixth, if the plant site is maintained in Bataan, the PNOC shall be a partner in the venture to the great
benefit and advantage of the government which shall have a participation in the management of the
project instead of a firm which is a huge multinational corporation.
 In the light of all the clear advantages manifest in the plant's remaining in Bataan, practically nothing
is shown to justify the transfer to Batangas except a near-absolute discretion given by BOI to investors
not only to freely choose the site but to transfer it from their own first choice for reasons which remain
murky to say the least.

And this brings us to a prime consideration which the Court cannot rightly ignore.

Section 1, Article XII of the Constitution provides that:

xxx xxx xxx

The State shall promote industrialization and full employment based on sound agricultural
development and agrarian reform, through industries that make full and efficient use of human and
natural resources, and which are competitive in both domestic and foreign markets. However, the State
shall protect Filipino enterprises against unfair foreign competition and trade practices.

xxx xxx xxx

Every provision of the Constitution on the national economy and patrimony is infused with the spirit
of national interest. The non-alienation of natural resources, the State's full control over the
development and utilization of our scarce resources, agreements with foreigners being based on real
contributions to the economic growth and general welfare of the country and the regulation of foreign
investments in accordance with national goals and priorities are too explicit not to be noticed and
understood.

A petrochemical industry is not an ordinary investment opportunity. It should not be treated like a
garment or embroidery firm, a shoe-making venture, or even an assembler of cars or manufacturer of
computer chips, where the BOI reasoning may be accorded fuller faith and credit. The petrochemical
industry is essential to the national interest. In other ASEAN countries like Indonesia and Malaysia, the
government superintends the industry by controlling the upstream or cracker facility.
 In this particular BPC venture, not only has the Government given unprecedented favors, among
them:

(1) For an initial authorized capital of only P20 million, the Central Bank gave an eligible relending
credit or relending facility worth US $50 million and a debt to swap arrangement for US $30 million or a
total accommodation of US $80 million which at current exchange rates is around P2080 million.

(2) A major part of the company's capitalization shall not come from foreign sources but from loans,
initially a Pl Billion syndicated loan, to be given by both government banks and a consortium of
Philippine private banks or in common parlance, a case of 'guiniguisa sa sariling manteca.'

(3) Tax exemptions and privileges were given as part of its 'preferred pioneer status.'

(4) Loan applications of other Philippine firms will be crowded out of the Asian Development Bank
portfolio because of the petrochemical firm's massive loan request. (Taken from the proceedings before
the Senate Blue Ribbon Committee).

But through its regulatory agency, the BOI, it surrenders even the power to make a company abide by
its initial choice, a choice free from any suspicion of unscrupulous machinations and a choice which is
undoubtedly in the best interests of the Filipino people.

The Court, therefore, holds and finds that the BOI committed a grave abuse of discretion in approving
the transfer of the petrochemical plant from Bataan to Batangas and authorizing the change of
feedstock from naphtha only to naphtha and/or LPG for the main reason that the final say is in the
investor all other circumstances to the contrary notwithstanding. No cogent advantage to the
government has been shown by this transfer. This is a repudiation of the independent policy of the
government expressed in numerous laws and the Constitution to run its own affairs the way it deems
best for the national interest.

One can but remember the words of a great Filipino leader who in part said he would not mind having
a government run like hell by Filipinos than one subservient to foreign dictation. In this case, it is not
even a foreign government but an ordinary investor whom the BOI allows to dictate what we shall do
with our heritage.
 WHEREFORE, the petition is hereby granted. The decision of the respondent Board of Investments
approving the amendment of the certificate of registration of the Luzon Petrochemical Corporation on
May 23, 1989 under its Resolution No. 193, Series of 1989, (Annex F to the Petition) is SET ASIDE as NULL
and VOID. The original certificate of registration of BPC' (now LPC) of February 24, 1988 with Bataan as
the plant site and naphtha as the feedstock is, therefore, ordered maintained.

SO ORDERED.

Cruz, Gancayco, Padilla, Bidin, Sarmiento and Medialdea, JJ., concur.

Fernan, C.J., Paras, JJ., took no part.

Feliciano, J., is on leave.

Separate Opinions

GRIO-AQUINO, J., dissenting Opinion:

This is the petitioner's second petition for certiorari and prohibition with application for a temporary
restraining order or preliminary injunction against the respondents Board of Investments (BOI),
Department of Trade and Industry (DTI), the Luzon Petrochemical Corporation (LPC), formerly Bataan
Petrochemical Corporation, and Pilipinas Shell Corporation (SHELL) on the transfer of the LPC
petrochemical plant site from Bataan to Batangas. The first case was docketed in this Court as G.R. No.
88637 and was decided on September 7, 1989. Consistent with my opinion in the first case, I vote once
more to deny the petition.

The petitioner filed this second petition supposedly "upon the authority and strength" of this Court's
statement in its Resolution of January 9, 1990 in G.R. No. 88637 that the foreign investor (LPC) does not
have a right of final choice of plant site because its choice is subject to approval or disapproval by the
BOI (p. 3, Rollo). Ergo, the BOI has the "final choice."

Petitioner contends that since the BOI had earlier approved Bataan as the plant site of the LPG
petrochemical complex, and of "naphtha only" as the feedstock, that approval was "final" and may not
be changed. Hence, the BOI allegedly abused its discretion: (1) in approving the transfer of the LPC's
plant site from Bataan to Batangas (in spite of the BOI's initial preference for Bataan) "upon the false
and unlawful thesis that the foreign investor has the right of final choice by plant site" (p. 13, Rollo), and
(2) in allowing the LPC to shift feedstock from naphtha only, to naphtha and/or LPG, despite the
disadvantages of using LPG. Petitioner prays the Court to annul the BOI's action and prohibit LPC from
transferring its plant site to Batangas and shifting feedstock to naphtha and/ or LPG (p. 22, Rollo).

The petition is not well-taken. There is no provision in the 1987 Investments Code prohibiting the
amendment of the investor's application for registration of its project, such as, in this case, its plant site,
the feedstock to be used, and the capitalization of the project.

Neither does the law prohibit the BOI from approving the amended application.

Since the investor may amend its application and the BOI may approve or disapprove the
amendments, when may the BOI be deemed to have made a "final choice" regarding those aspects of
the project which have been changed?

Only the BOI or the Chief Executive is competent to answer that question, for the matter of choosing
an appropriate site for the investor's project is a political and economic decision which, under our
system of separation of powers, only the executive branch, as implementor of policy formulated by the
legislature (in this case, the policy of encouraging and inviting foreign investments into our country), is
empowered to make. It is not for this Court to determine what is, or should be, the BOI's "final choice"
of plant site and feedstock, for, as we said in our decision in G.R. No. 88637:
 This Court ... does not possess the necessary technology and scientific expertise to detail e whether
the transfer of the proposed BPC (now LPC) petrochemical complex from Bataan to Batangas and the
change of fuel from 'naphtha only to naphtha and/or LPG' will be best for the project and for our
country. This Court is not about to delve into the economics and politics of this case. It is concerned
simply with the alleged violation of due process and the alleged extra limitation of power and discretion
on the part of the public respondents in approving the transfer of the project to Batangas without giving
due notice and an opportunity to be heard to the vocal opponents of that move." (pp. 445-446, Rollo of
G.R. No. 88637.)

Although we did say in our decision in G.R. No. 88637 that the BOI, not the foreign investor, has the
right of "final choice" of plant site for the LPC project, the Court would be overstepping the bounds of its
jurisdiction were it to usurp the prerogative of the BOI to make that choice or change it.

The petitioner's contention that the BOI abused its discretion in approving the transfer of the LPC
plant site to Batangas because the BOI, in effect, yielded to the investor's choice, is not well taken. The
record shows that the BOI approved the transfer because "the BOI recognizes the justification given by
the proponent of the project (p. 30, Rollo). The fact that the petitioner disagrees with the BOI's decision
does not make it wrong. The petitioner's recourse against the BOI's action is by an appeal to the
President (Sec. 36, 1987 Investments Code), not to this Court.

This Court, in the exercise of its judicial power, may review and annul executive as well as legislative
actions when they clash with the Constitution or with existing laws, or when any branch or
instrumentality of the Government has acted with grave abuse of discretion amounting to lack or excess
of jurisdiction (Sec. 1, Art. VIII, 1987 Constitution) but the Court may not do more than that. It may not
make the decisions that the executive should have made nor pass the laws that the legislature should
have passed. Not even the much publicized "petroscam" involving the financial arrangements (not the
issue in this case) for the LPC project would justify the intervention of this court in a matter that pertains
to the exclusive domain of the executive department. The court does not have a panacea for all the ills
that afflict our country nor a solution for every problem that besets it.

Did the BOI gravely abuse its discretion in approving the LPC's amended application for registration of
its petrochemical project to warrant the intervention of this Court? Grave abuse of discretion implies
such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction (Abad Santos
vs. Prov. of Tarlac, 67 Phil. 480; Alafriz vs. Nable, 70 Phil. 278).
 In light of the LPC's justifications for the transfer of its project site and the shift from one kind of
feedstock to two, we are not prepared to hold that the BOI's decision to approve the changes was the
product of a capricious and arbitrary exercise of judgment on its part, despite the seemingly impressive
arguments of the petitioner showing the advantages of establishing the petrochemical plant in Bataan
and of using naphtha only as feedstock. We are not prepared to substitute the judgment of the BOI on
this matter with one crafted by this Court.

With regard to the scandalously liberal financial accommodations that local banks have allegedly
agreed to grant to the LPC (the so-called "petroscam") to enable it to raise a major part of its capital
requirements from local sources (hence, a betrayal of the people's expectation that foreign investors
will bring in foreign exchange to finance their projects in this country) it is significant that the petitioner
has not led an outcry for the disapproval and cancellation of the project on this score. Apparently, the
petitioner is not seriously disturbed by the moral implications of the "scam" provided the petrochemical
plant is set up in Bataan.

The decision of the BOI to allow the transfer of the LPC petrochemical project to Batangas and shift
feedstock from naphtha only to naphtha and/or LPG, may appear to the petitioner to be extremely
unwise and inadvisable, but the Court may not, for that reason annul the BOI's action or prohibit it from
acting on a matter that lies within its particular sphere of competence, for the Court is not a judge of the
wisdom and soundness of the actions of the two other co-equal branches of the Government, but only
of their legality and constitutionality.

WHEREFORE, I vote to deny the petition for certiorari and prohibition for lack of merit.

Melencio-Herrera, Narvasa and Regalado, JJ., concur.

MELENCIO-HERRERA, J., dissenting:

Consistent with my dissent in G.R. No. 88637, the first petition, I concur in the dissent herein of Mme.
Justice Aquino and merely wish to add that in its Decision, the majority has actually imposed its own
views on matters falling within the competence of a policy-making body of the Government. It decided
upon the wisdom of the transfer of the site of the proposed project (pp. 8-9); the reasonableness of the
feedstock to be used (pp. 8-9); the undesirability of the capitalization aspect of the project (p. 10), and
injected its own concept of the national interest as regards the establishment of a basic industry of
strategic importance to the country (p. 13).

It is true that the judicial power embodied in Article VIII of the 1987 Constitution speaks of the duty of
Courts of justice to determine whether or not there has been grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. By no
means, however, does it vest in the Courts the power to enter the realm of policy considerations under
the guise of the commission of grave abuse of discretion.

But this is exactly what the majority Decision has resulted in. It has made a sweeping policy
determination and has unwittingly transformed itself into what might be termed a "government by the
Judiciary," something never intended by the framers of the Constitution when they provided for
separation of powers among the three co-equal branches of government and excluded the Judiciary
from policy-making.